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General terms and conditions
Article 1 Scope and Validity
1.1 These General Terms and Conditions shall govern all transactions concluded with F&F. Any deviating provisions and/or understandings, or the terms and conditions applied by the other party, shall not be binding upon F&F unless they are expressly confirmed in writing by F&F.
1.2 Situations not provided for by these General Terms and Conditions shall be governed by the provisions set out in the United Nations Convention on the International Sale of Goods (Vienna, 11 April 1980).
Article 2 Offers, Agreements and Prices
2.1 Unless expressly agreed otherwise, all quotations and/or offers issued by F&F shall be free of obligation. Information provided shall be non-binding upon F&F.
2.2 An agreement shall be deemed to have been concluded once F&F has confirmed in writing its acceptance of the order placed by the other party. Verbal agreements shall only bind F&F once they have been confirmed in writing.
2.3 F&F shall charge the other party the prices stated in the order confirmation. Subject to any express written agreement to the contrary, prices shall be based on delivery “ex works” or delivery “ex warehouse/cold storage facility” and shall be exclusive of value-added tax, etc. Unless otherwise agreed in writing, the goods shall be invoiced on the basis of their net weight.
2.4 If production costs and/or the costs of raw materials and half-finished products increase sharply as a result of external factors, F&F shall be entitled to charge on these price increases pro rata.
2.5 On breach of the agreement for reasons for which the counterparty is responsible, or in the event of termination by the counterparty, it shall be obliged to reimburse all costs incurred by F&F as well as to reimburse F&F for all financial consequences resulting from non-fulfilment of the agreement. Such reimbursement shall be at least 25% of the agreed price, without prejudice to the right to demand full reimbursement of losses.
Article 3 Delivery Times, Delivery and Passage of Risk
3.1 The stated times of delivery shall not be of the essence, unless the parties expressly agree otherwise. Subject to any written agreement to the contrary, a failure by F&F to meet the stated times of delivery shall not confer any right upon the other party to claim damages and/or dissolve the agreement.
3.2 F&F shall be entitled to make partial deliveries. Unless the parties have otherwise agreed in writing, the packaging materials for the goods shall be selected by F&F.
3.3 Any weight differences of up to a maximum of 5% shall entitle neither of the parties to claim any setoff. In this context, a weight difference shall be understood to mean the difference between the weight of the goods actually
delivered and their weight specified in the order confirmation.
3.4 The risk of loss, damage, deterioration and/or destruction of the goods to be delivered shall pass to the other party once the goods have left F&F’s factory or the warehouses and/or cold storage facilities used by F&F. Unless the parties agree otherwise in writing, deliveries shall be made “ex works”. F&F shall not be liable for goods delivered “ex works” during their transportation, even if F&F has arranged for the transport at the other party’s request.
3.5 F&F shall be entitled to postpone deliveries if the other party fails to comply with its payment obligations or complies late or only partially, or if the other party improperly performs any of its other obligations towards F&F.
Article 4 Dissolution, Force Majeure
4.1 Without prejudice to the other rights vested in F&F, if F&F is prevented from performing the agreement by an event of force majeure, F&F shall be entitled to postpone deliveries until the relevant event has ended, or fully or partially dissolve the as yet unperformed part of the agreement without court order and without F&F incurring any liability for damages or warranty obligations.
4.2 An event of force majeure shall be understood to mean every situation in which F&F is unable to perform any of its obligations temporarily or permanently as a result of circumstances for which it cannot be held at fault and which can neither be attributed to it pursuant to the law or a guarantee on F&F’s part or generally prevailing opinion. Force majeure shall include war, Acts of God, blockades, riots, strikes, governmental restrictions, transport impediments, fire and other business interruptions, delays in deliveries by suppliers and other causes beyond F&Fs control.
4.3 If F&F chooses not to perform its obligations in the event of force majeure, it may dissolve the agreement by giving the other party written notice to that effect, and shall not incur any liability to compensate the other party for any ensuing damage.
4.4 If the other party fails to perform any of its contractual obligations towards F&F or fails to perform such obligations in a proper or timely fashion, or if the other party is adjudged bankrupt, granted a suspension of payments or liquidated, it shall be deemed to be in default by operation of law and F&F shall be entitled, without prior notice or court order, to postpone the performance of all agreements concluded with that other party or to dissolve them in full or in part without incurring any liability for damages.
Article 5 Complaints, Warranties and Liability
5.1 The other party shall check the quantity and quality of the goods delivered upon taking receipt of the goods.
5.2 Complaints about defects in the goods shall be made in writing no later than five working days after the time of delivery. Any claims which the other party may have with regard to such defects shall lapse upon expiration of this five-day term. The complainant shall permit F&F or any expert or independent inspection service which F&F may commission to verify the complaint, in the absence of which F&F shall not be under an obligation to honour any claims which the complainant may file.
5.3 Without prejudice to the provisions in Section 3.4, any liability of F&F for direct or indirect damages – including all material or immaterial damages, operating and/or interruption losses - is precluded except in the case of malicious intent or deliberate recklessness. In the event that F&F is obliged to pay damages arising from liability, the maximum amount equals the invoice value of the items delivered, upon which the liability is based in law and/or by way of cause.
Article 6 Payment
6.1 Unless the parties agree otherwise in writing, payment of the goods delivered by F&F shall be made without applying any discount and/or setoff within thirty days of the invoice date
6.2 Regardless of the agreed payment instalments and/or payment conditions, F&F shall be entitled to demand security for the performance of the payment obligations prior to making delivery and to refrain from carrying out the order if such security cannot be provided or payment arrears have arisen.
6.3 If F&F allows a credit term beyond the aforesaid term of thirty days or the other party pays late, the other party shall owe interest for the delay at a rate of 1.5% per month (or any part thereof) on the invoiced amount with effect from the due date.
6.4 If the other party fails to make payment within the agreed term, it shall be in default by operation of law, without any prior notice being required, and be obliged to compensate F&F for all the judicial and extrajudicial costs which F&F must incur to recover its claims from the other party. The extrajudicial collection costs to be reimbursed by the other party shall be at least 15% of the principal plus interest, subject to a minimum of 5250. If F&F can prove that it reasonably incurred higher costs, these costs shall also qualify for reimbursement.
Article 7 Retention of Title
7.1 F&F shall remain the owner of the goods delivered, whether processed or unprocessed, until the other party has fully paid F&F for such goods and has also complied with all of its other obligations arising from the agreement(s)
concluded with F&F. Any and all claims which the other party may have against third parties on the grounds of it having resold the goods delivered by F&F to them shall be deemed to have been assigned to F&F in advance. The other party shall be obliged at F&F’s first request
to do everything which may be necessary to lawfully assign the relevant claims to F&F.
7.2 F&F shall be entitled to enforce the rights arising from its retention of title and repossess the goods delivered as soon as the other party defaults on any of its obligations under the agreement concluded with F&F. If F&F exercises its rights in this respect, the other party shall grant F&F unrestricted access to the goods, and F&F shall be entitled to retrieve the goods from the place where they are located without requiring the other party’s or the court’s permission.
Article 8 Disputes and Applicable Law
8.1 All disputes arising from or related to the agreements concluded with F&F shall be exclusively to the competent Dutch court in whose jurisdiction F&F’s place of establishment is situated, unless F&F prefers to submit the dispute to another court with territorial jurisdiction. The rights of the other party to assert any legal claim or to bring any dispute with respect to or arising from the agreement lapse one year after occurrence of the cause of such dispute.
8.2 All agreements concluded pursuant to these General Terms and Conditions shall be governed by the laws of the Netherlands.
Article 9 Foreign-language Version of these General Terms and Conditions
In the event that these General Terms and Conditions are drawn up in a language other than Dutch and any difference of opinion arises over the interpretation of a provision in the foreign-language version, or any provision in the foreign language version deviates from the text of the Dutch General Terms and Conditions, the Dutch text shall be binding. The Dutch-language version shall be furnished upon request.
Kerkrade, the Netherlands, April 2005
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