General Terms and Conditions of Purchase and Delivery of Flame Spray Technologies BV
Article 1 – Applicability
1.1. Unless otherwise agreed in writing by Flame Spray Technologies B.V. (hereinafter: “FST”), these terms and conditions shall apply exclusively to all quotations, sales, deliveries, payments and services provided by FST to its customers (hereinafter: “Clients”).
1.2 Product refers to the services and products and all related documentation and materials provided by FST to the Client.
1.3 In so far as not otherwise expressly agreed in writing, the general terms and conditions of another party do not apply, not even in conjunction with these general terms and conditions of FST.
Article 2 – Conclusion of the Agreement
2.1 Prices, delivery periods, stocks and similar information quoted in general offers, such as in catalogues, price lists and other printed material or verbal offers, and not specifically directed to the Client are not binding on FST and may not be invoked by the Client.
2.2 The following terms apply if FST issues a written quotation. Unless otherwise expressly stated in a quotation, the quotations of FST are entirely free of obligation.
2.3 FST shall only be bound by an order for delivery when that order has been confirmed in writing by FST or when FST has commenced execution of the order.
Article 3 – Prices
3.1 Unless otherwise agreed, all prices are exclusive of VAT and other government levies and exclusive of the costs of transport, insurance, installation, commissioning and training.
Article 4 – Payment; security; costs
4.1 Unless otherwise agreed and without prejudice to the right to advance payment, payment on delivery or to demand security if FST deems it necessary, payment shall be made within fourteen days after the date of the invoice in a manner and currency to be stipulated by FST.
4.2 FST is entitled to make partial deliveries and to invoice them individually.
4.3 FST is authorised to suspend compliance with its obligations pending payment or receipt of advance payments or provision of security.
4.4. The Client is not entitled to suspend payment or to apply a discount to such payment on the grounds that FST has failed to comply with any of its obligations. The Client may set off a payment with a counterclaim with a maximum value of the amount of the invoice only in so far as the counterclaim has been expressly recognised by FST or has been irrevocably established at law.
4.5 In the event of late payment and without the necessity of a reminder, the Client is in default and owes interest, payable immediately, on the outstanding amount of 1% per month or the statutory interest rate, whichever is higher. In this context, a part of a month is regarded as a full month. If, after a reminder, payment has still not been made within a designated period FST is authorised to cancel the agreement, wholly or partially at its discretion, without prejudice to its right to compensation for damages.
4.6 All costs, both judicial and extra-judicial (including the costs of legal assistance), incurred by FST in connection with the maintenance of its rights vis-à-vis the Client shall be borne by the Client.
4.7 Everything that the Client owes to FST by virtue of the agreement shall be immediately payable in full in the event of:
(a) the declaration of a moratorium by or the bankruptcy of the Client or an application for bankruptcy the Client;
(b) a decision by the client to cease its business or transfer the business to another company;
(c) dissolution of the Client’s company;
(d) late payment by the Client more than twice.
In said cases, FST is authorised to cancel all agreements with the Client with immediate effect, without prejudice to the other rights of FST.
4.8 FST is entitled to charge administrative fees and bank costs to client.
Article 5 – Delivery period
5.1 If the Client owes an advance payment, is obliged to provide security or make available the information and materials necessary for the performance of the agreement, the delivery period does not commence until the entire payment has been received or the security has been provided or the information and/or materials have been made entirely available.
5.2 Delivery periods are never to be regarded as a deadline.
5.3 An agreement may not be cancelled by the Client on the grounds that a period has been exceeded and the Client may in this case make no claim to damages, unless FST is offered an additional period after the initial delivery period, which must be reasonable, and has failed to perform the obligations of the agreement within this period. Cancellation is then allowed only in so far as the Client cannot reasonably be required to preserve the agreement.
Article 6 – Delivery; transport and transfer of liability
6.1 If for whatever reason the Client does not accept, or accept on time, Products which are offered for delivery in accordance with the agreement, then all costs incurred in vain by FST in connection with the offer or delivery and any additional costs of transport, custody and storage shall be borne by the Client.
6.2 The liability for loss and/ or destruction of and/or damage to Products to be delivered passes on to the Client as soon as the transport of the Product commences, and remains with the Client. The passing of such liability also takes place at the moment that FST offers Products for delivery in accordance with the agreement but the Client does not accept them for any reason whatsoever.
6.3 Unless otherwise agreed, the delivery shall be ex works from FST. The Client has an obligation to purchase.
6.4 The Client remains liable for loss and /or destruction of and/or damage to Products which he provides FST with for the purpose of processing.
Article 7 – Purchase on Approval
7.1 Purchase on approval arises when FST and buyers have agreed that the Product or Products are delivered to the Client subject to the condition that the Client will agree on the purchase of this Product or these Products within such period after the delivery which is agreed upon by the parties (‘the period of approval’). The Client is obliged to insure the Product or Products delivered on approval at his own expense against the risks of damage, loss and destruction throughout the period of approval.
7.2 If the Client does not agree on the purchase of the Product or Products which are delivered on approval, the Client shall notify FST forthwith and shall return the Product or Products on its own expense. During the time of transport and delivery, the Client remains liable for any loss and /or destruction of and/or damage to the Product or Products,
7.3 If the Client does not return the Product or Products delivered on approval or does not notify FST as he is required under 7.2 before the end of the period of approval, he shall be deemed to have purchased the Product or Products with effect from the date of the Products or Product’s delivery.
Article 8 – Retention of Ownership
8.1 The delivered Product or Products remain property of FST until the Client has paid all amounts due to FST by virtue of or in connection with the delivery. The Client is not authorised to process the Product or Products , dispose of them, to lease them or in any other way allow them to be used unless this occurs in the normal course of his business. The Client is not authorised to pledge the Products.
8.2 If in the normal course of business the delivered Product of Products are dissolved into other products or are taken into production by which they cannot be separated anymore from other products, these other products will become property of FST and remains so, until the Client has performed his obligations as is stated under 8.1.
8.3 FST is entitled to reclaim on its own authority the Products of which he has retained his right of ownership regardless of where they are located.
Article 9 – Safety; components and materials
9.1 The Client must comply with the instructions for use or safety regulations that FST has provided him with. The Client must inform its employees and third parties who use the Products about these instructions.
9.2 If the Client forwards Products delivered by FST he must agree with his customer that the customer shall comply with the obligations set forth in paragraph 1 of this article and the Client shall ensure that the instructions for use and the safety regulations provided by FST are handed over to this buyer.
Article 10 – Shortcomings; guarantee
10.1 The Client must notify FST in writing of complaints about shortcomings within eight calendar days after their delivery. By failing to notify the shortcoming within this period, he renounces any rights with regards to this shortcoming, including the right to close inspection, reparation and/or compensation.
10.2 Shortcomings established during close inspection upon the notification of article 10.1, and further only those shortcomings in the Product or Products delivered that could not reasonably have been observed during that inspection but are discovered within one year after delivery of the Product or Products and which are thereupon reported in writing within eight calendar days of discovery, in so far as they are demonstrably attributable to FST, shall be remedied by FST free of charge. This remedy of the shortcoming shall be done by means of repair and/or replacement, or other, at the choice of FST. All additional costs, such as labour and postage costs, travel expenses and lodging, shall be borne by the Client.
10.3 The finding of shortcomings in the Product or Products shall not constitute as a ground for cancellation of the agreement between parties, unless they are shortcomings as referred to in paragraph 2 and FST is not successful, after repeated attempts, in remedying the shortcoming(s) to an acceptable degree. In that case, the Client is authorised to cancel the agreement if he cannot reasonably be required to remain to be bound by the agreement.
10.4 If the Client alters, modifies of adapts the Product or Products in any way without the prior consent of FST, the Client renounces any rights with regards to this Product or these Products, including the right to close inspection, reparation and/or compensation.
10.5 If FST fails to comply with its obligation towards the Client, this failure cannot be attributed to FST if it is made impossible or made difficult for FST to perform this obligation due to a circumstance, whether or not it could not have been foreseen, that was beyond the control of FST, including but not restricted to: failure in performance - specifically including late or non-delivery - by suppliers and/or transporters, war, acts of terrorism or similar situations, riots, sabotage, boycott, labour strike, occupation, shortage of raw materials, damage to machines, theft from the warehouses of FST, damage or loss due to or during transport, sickness on the part of the staff of FST, shortcomings by subcontractors and/or carriers, fire.
10.6 The Client acknowledges that for the performance of FST, FST is dependent on the services of different FST suppliers. FST gives no assurance of a continuous or correct transfer of data or positioning capability or of the marketability or suitability for a particular purpose. FST shall take every reasonable action within its capability to remedy any defect or failure in its performance.
10.7 If a situation as referred to in paragraph 5 or 6 arises, then FST has the right to suspend its performance or, entirely at it own discretion, to cancel the agreement entirely or in part by means of a written declaration to that effect, without being liable for any compensation for damage as a result.
Article 11 – Restriction of liability
The following applies to damage arising from or in connection with defects in deliveries and/or services by or on account of FST to or on account of the Client -in the broadest sense of the term- for which the FST can in law be held liable, in so far as mandatory provisions do not stipulate otherwise.
1. Only such damage shall be the subject of compensation where the Client has incontestably demonstrated that this is a result of a condition or event for which FST can legally be held liable.
2a. FST shall not be liable for damage, whether in contract or in tort, for loss of revenue or profit or for (other) incidental, indirect or consequential damages.
2b. Damage other than such referred to under 2.a shall be reimbursed up to 100% of the net invoice value -(this being the gross invoice value minus VAT and any other government levies on the price)- for the delivery of Products or Services to which the damage is connected, subject to the maximum amount of o 25.000.
3. The reimbursement referred to under 2.b applies to all cases of damage arising from a defect in delivery of Products or Service, to which the damage is connected.
4. Without prejudice to the provisions of article 9 and paragraphs 1 and 2 in the previous paragraphs of this article, only such damage can be compensated which has been incurred due to a defect which has become apparent within twelve months after delivery of the Product or Products in question or performance of the Service or Services in question and which has been reported within a period of eight calendar days after the discovery of the defect.
5. FST shall be given all necessary cooperation in its investigation into the cause, nature and scale of the defect leading to the damage for which compensation is being claimed, on the risk of the loss of any rights to compensation. Settlement against claims for compensation not acknowledged by FST or not irrevocably established in law shall not be permitted.
6. The Client indemnifies FST against any claims on whatever grounds from third parties which claim to have suffered damage from a good and/or service that FST has supplied or provided on the Client’s behalf, except where the Client demonstrates that FST, by virtue of the agreement and the General Conditions, is liable for this damage in respect of the Client and must take recompense for this to the Client.
7. (Legal) persons who are part of FST’s company or in the employment of or working for FST or are used by FST in implementing the agreement and against whom claims for compensation are brought by the Client, may also invoke these provisions. Compensation can never be claimed from these (legal) persons and the Client together that would exceed the amount that FST alone would have to recompense.
Article 12 – Termination
At the termination of the contract the Client will return all parts of the Product that are not owned by the Client to FST.
Article 13 – Intellectual Property rights
FST retains all intellectual property rights of the Product. No part of the Product may be copied, altered, taken apart, modified or adapted.
Article 14 – Severability
14.1 In the event that one or more provisions contained in agreements and any other legal relationships between FST and the Client may prove to be illegal or unenforceable, the remaining provisions of these terms and conditions shall continue in full force and effect.
14.2 Parties shall mutually decide on amendments to replace the sections that are illegal or unenforceable with new provisions with the same purpose as the provisions they replace.
Article 15 – Assignment
The Client may not assign his rights or obligations ensuing from the agreement and any other legal relationships between FST and the Client in whole or in part without the prior written approval of FST. The agreements and terms and conditions shall be binding on the Client’s successors and permitted assignees.
Article 16 – Waiver
No delay or omission by FST to exercise any right or power under these terms or conditions shall impair any such right or power or be construed as a waiver.
Article 17 – Governing law and jurisdiction
17.1 Agreements and any other legal relationships between FST and the Client are governed by Dutch law, this to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG).
17.2 In the first instance disputes shall be subject solely to the jurisdiction of the District Court of The Hague, without prejudice to the authority of FST to summon the Client before another competent court. If a dispute should be settled by the Subdistrict Court, the legal rules of jurisdiction apply.
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