GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF THE PRIVATE COMPANY WITH LIMITED LIABILITY FLM B.V. OF SLEESTRAAT 26, 6014 CA ITTERVOORT, THE NETHERLANDS
1. GENERAL
1.1 These terms and conditions will apply to all offers, quotations, accepted orders, assignments, arrangements and/or other agreements, as well as to all negotiations entered into by FLM B.V., hereinafter to be referred to as “FLM”, either directly or through the intermediary services of an attorney-in-fact, with a third party, hereinafter to be referred to as the “customer”, to the exclusion of any other terms and conditions, unless FLM has expressly declared in writing that such other terms and conditions will apply. In such event, the applicability of any such other terms and conditions will apply only to the relevant agreement. Stipulations varying from these terms and conditions may only be agreed on in writing. Once a customer has purchased products from FLM subject to the applicability of these terms and conditions, it will be deemed to have tacitly accepted their applicability to its placement of any subsequent orders or negotiations that it enters into, irrespective of whether such order has been confirmed in writing.
2. OFFERS AND AGREEMENTS
2.1 All offers of FLM, with all the particulars and quotations contained therein, in any form whatsoever, are without any obligation whatsoever and will not be binding on FLM, unless expressly agreed otherwise in writing. Without an order confirmation from FLM or its written signature on the agreement, the customer’s order can never be deemed to have been accepted by FLM. Any orders placed by the customer by telephone will also not be concluded until confirmed in writing by FLM.
2.2 The agreement between FLM and the customer will not be formed until FLM has confirmed the assignment issued to it in writing. FLM’s order confirmation will be deemed to be a correct and complete representation of the agreement, unless the customer expressly notifies FLM otherwise in writing within three days of receipt of such order confirmation. In any event, the agreement will also be deemed to have been formed if FLM starts to perform the assignment in view of its urgency. In such event, the invoice to be sent to the customer by FLM will be deemed to constitute the order confirmation and the customer cannot object to such order confirmation.
2.3 Commitments, offers and arrangements entered into or made by the customer with third parties engaged by FLM, expressly including staff members of FLM, will only be binding on FLM if expressly confirmed in writing by FLM itself.
2.4 Any changes and additions to concluded agreements will be effective only if expressly agreed in writing between FLM and the customer. Any changes communicated by the customer in writing, clearly worded and/or described, after acceptance of the assignment will not be implemented by FLM until confirmed by FLM in writing. If FLM, for reasons of its own, decides not to implement the changes communicated, the customer will never be entitled to terminate all or part of the agreement and will remain fully liable for payment of the costs already incurred by FLM, as well as the amount of FLM’s lost profit. Any change by the customer to an assignment already accepted by FLM may result in a change to the originally agreed delivery period. FLM will be authorised to charge the customer for any additional work as a result of changes or additions to the services carried out on the customer’s instructions or carried out because they were deemed necessary by FLM.
2.5 FLM will not be liable in any way nor under any obligation whatsoever should the supplied items differ, in whatever respect, from the pictures or samples, either shown in brochures, printed matter or on the website of FLM or otherwise.
2.6 FLM reserves the right to make changes to the items shown in its catalogue, brochures, other printed matter and on its website, as well as to remove any items shown therein and/or thereon from its product range.
2.7 The customer hereby grants FLM its consent in advance to make partial deliveries and invoice each partial delivery to the customer separately. Each partial delivery will be deemed to constitute a separate delivery for purposes of these terms and conditions.
2.8 Agreements formed as a result of the intermediary services of representatives or attorneys-in-fact of FLM will not be binding on FLM until it has confirmed such agreements in writing or proceeded to deliver.
2.9 The customer must ensure that all information which FLM requires, at its discretion, for the proper performance of the assignment is received by FLM in the desired form and in due time. The customer warrants the correctness, completeness, and reliability of the data and information provided by or on its behalf to FLM, and FLM will not be under any obligation to execute or continue executing the order until the customer has provided all such required data and information. In the event of failure to provide such data to FLM, or failure to do so punctually or in accordance with the agreements made, FLM will be authorised to charge the customer for any resultant costs at its usual rates.
3. PRICES
3.1 Unless expressly agreed otherwise in writing, all prices are in euros, delivery ex warehouse or ex works, include packaging and exclude VAT, import and export duties, excise duties, other taxes or levies, transport costs and transport insurance.
3.2 FLM will be free to select appropriate packaging. Any packaging of the products intended for reuse — sustainable packaging materials such as pallets and other deposit packaging materials — will remain the property of FLM, and the customer will keep such packaging available for FLM and have it returned to FLM. FLM will be authorised to charge the customer a fee for the use of such sustainable packaging materials, which costs will be refunded to the customer once FLM receives the returned packaging materials in undamaged condition. The customer will be liable for damage or loss.
3.3 If one or more price determinants, such as the purchase price of goods, prices of materials and components, wage costs, taxes, currency costs, social insurance contributions, government levies, costs of packing, insurance premiums, etc., increase after the order confirmation is sent or the agreement is formed, but before delivery, FLM may adjust the sales prices accordingly. FLM will notify the customer of the price adjustment as soon as possible. In the event of a price increase of more than 20% of the original price, the customer may, for a period of seven days after notification, terminate the agreement by written notice to FLM, unless this would be manifestly unreasonable under the specific circumstances. Termination pursuant to this article will not entitle the customer to compensation of any nature whatsoever. In the event of termination as referred to in the foregoing sentence, FLM will be entitled to compensation if the agreement has already partially been performed.
3.4 Any labelling of the ordered products with a trademark other than the FLM trademark will be fully payable by the customer.
3.5 The customer will not be authorised to use or trade any packaging originating from or supplied by FLM other than with the original packaging contents supplied by FLM.
3.6 Unless expressly agreed otherwise in writing, the products will be charged based on the net weight.
4. DELIVERY
4.1 Any delivery periods stated by FLM will not take effect until after FLM’s confirmation of the order. The specified delivery periods will be entirely without obligation. FLM cannot be held liable if a delivery does not take place within the specified period. In no event will late delivery entitle the customer to fully or partially default in the performance of any obligation undertaken towards FLM, which expressly includes payment obligations, or to claim any compensation whatsoever, save in the event of gross negligence or intent on the part of FLM, which expressly excludes errors on the part of its non-executive employees.
4.2 Delivery periods may be postponed at the customer’s request only with FLM’s express written consent, on the condition that the customer pays the amount due to FLM for the originally agreed date, as well as on the condition that the costs and losses connected with such postponement are fully paid by the customer, for which purpose FLM’s cost specification to be provided to the customer will be binding on the customer.
4.3 Delivery will be carriage forward and ex works/ex warehouse, unless expressly agreed otherwise in writing. As from the time of delivery in the manner as stated above, the products to be supplied will be at the customer’s expense and risk, irrespective of whether FLM arranges or assists in the agreed transport, either at the customer’s request or otherwise. All costs of transport as well as the costs of transport insurance, if any, taken out at the customer’s request, will be payable by the customer.
4.4 If the customer fails to take delivery of the items supplied upon first presentation by FLM, FLM may store the items as it sees fit at the customer’s expense and risk and the customer will be given the opportunity, for a period of thirteen weeks from the date of notification of such storage, to still take delivery of the items stored and collect such items at a time agreed in advance, provided that in such event the customer pays all costs of storage and handling in cash, plus the interest due and a penalty due by operation of law equal to 15% of the agreed consideration, all without prejudice to FLM’s right to claim compensation and/or termination of the agreement. FLM may suspend its obligation to surrender the items until the customer has performed its obligation to compensate the damage suffered by FLM and to pay the storage costs, interest and penalty.
4.5 Should the agreement provide for delivery free domicile to the customer, delivery will be effected at the address designated by the customer, on the ground floor, expressly excluding any necessary vertical transport, connections and any construction work, as well as delivery to any other addresses, which exclusions will be fully at the customer’s expense and risk and all associated costs will be fully payable by the customer.
4.6 Should the agreement provide for delivery free domicile to the customer, loading and unloading, as well as packing and repacking, will be at the customer’s expense and risk, even if FLM assists the customer. FLM will determine the method of transport of the products and the carrier, unless expressly agreed otherwise in writing. The customer will arrange sufficient loading and unloading facilities and quick unloading.
4.7 FLM may at all times deliver up to 5% more or less of the agreed quantities and adjust its invoices accordingly. A 5% discrepancy means the difference between the net weight of the products actually delivered on the one hand, and the net weight of the products as specified in the order confirmation on the other.
5. GUARANTEE
5.1 FLM guarantees the sound quality of the products delivered by it in accordance with what the customer can reasonably expect under the agreement. FLM gives a guarantee on its products to the customer for the period agreed in the agreement, to be calculated from the date of production as shown by the production date stated on the products.
5.2 In the event of defects in delivered items that manifest themselves within the period referred to in paragraph 1 of this article, FLM will, at its option, remedy, or cause third parties to remedy, such defects, replace all or part of the relevant products, or grant a reasonable price reduction.
5.3 The guarantee referred to in the foregoing paragraphs will not in any case include any defects occurring in, or as a complete or partial result of the customer’s processing of the products, or transport, treatment, use, processing or storage of products by the customer or
its employees in any manner that is improper or contrary to instructions given by or on behalf of FLM, or defects as a result of changes made to the item by the customer or third parties.
5.4 If the customer does not pay the amounts invoiced by FLM within the applicable term of payment, FLM’s guarantee obligations will lapse immediately after the term of payment expires and the customer will no longer be able to claim under this guarantee.
5.5 Any claims under the guarantee are to be reported to FLM in writing within five days of occurrence of a defect, failing which any claim under the guarantee against FLM will lapse.
6. SERVICE
6.1 The customer must carefully inspect, or cause third parties to carefully inspect, the products delivered promptly upon receipt by or on behalf of the customer, failing which any rights to complain and/or guarantees will be forfeited. This duty to inspect the products will include counting, measuring, weighing, and checking for defects — including packaging — before the customer can store, use or sell the products. Any complaints with respect to the quantity of products delivered are to be noted immediately upon receipt on the consignment note or the delivery note, failing which the quantities stated in the consignment note or the delivery note will constitute conclusive evidence against the customer.
6.2 Any complaints regarding the quality, conformity, composition, dimensions, weight or type of the items delivered or defects will be accepted by FLM only if and to the extent that such complaints have been lodged with FLM in writing by the customer within five days of receipt of the items, stating the time of delivery, the type of product and a further description of the complaint, and FLM is granted the opportunity to verify, or have its designated expert verify the merits of the complaint, failing which any right to complain will lapse. The decision of the said expert will be binding on both parties. The costs of the survey will be fully payable by the customer should all or part of the complaint lodged by the customer prove unjustified. Minor discrepancies cannot constitute ground for complaints. Complaints will not be accepted if the nature and/or composition of the items has been changed after delivery by or in connection with acts or omissions on the part of the customer and any third parties engaged by it, or in the event that all or part of these items are damaged, or show a defect resulting from abnormal use or an intentional act, recklessness or failure to observe certain instructions and/or the manual and/or the regulations of FLM, or resulting from abnormal working conditions or incompetent use. Should the complaints prove
justified, FLM will have the option to replace the relevant items at its expense, carry out repairs or refund the relevant amount paid to the customer, without any further obligation arising on FLM’s part.
6.3 FLM will not be under any obligation to accept a complaint as long as the customer fails to pay any invoice for items delivered. A complaint does not discharge the customer from the agreed payment obligations.
6.4 Complaints with regard to invoices can be accepted only if submitted to FLM in writing within five days of the invoice date. If this period is not observed, the customer will be bound by the invoice amount. If complaints prove justified, FLM may adjust the invoice amount. FLM will not be under any obligation to accept a complaint as long as the customer fails to pay any invoice for items delivered. A complaint does not discharge the customer from the agreed payment obligations.
6.5 Items delivered may not be returned to FLM bythe customer without FLM’s express written consent. No such returns will be
accepted by FLM. Any items thus wrongfully returned to FLM by the customer will be returned at the expense of the customer, in which respect FLM’s specification of the costs will be binding on the customer, save evidence to the contrary.
6.6 Even if and to the extent that FLM has agreed to returns being sent in accordance with the method of shipment approved by FLM
in writing, the items will at all times be at the customer’s expense and risk.
6.7 In no event will any defects in part of the products delivered entitle the customer to reject or refuse to take delivery of the entire shipment of products delivered.
6.7 After a defect in a product is discovered, the customer will be obliged towards FLM to do everything to prevent or mitigate damage, expressly including immediate discontinuation of use, processing and/or trading.
71. LIABILITY
7.1 In the event of a manifest attributable failure or tort on the part of FLM, FLM will be obliged only to pay compensation up to the invoice value of the products delivered as a result of which, or in connection with which the damage occurred. FLM will not be liable to compensate any damage if, at the time that the event referred to above occurs, the customer is in default of performance of any obligation towards FLM. The provisions of the foregoing sentence will not apply in the event of an intentional act or willful recklessness on the part of FLM itself in the performance of the agreement, not including its non-executive employees. FLM will not be liable for any indirect loss, expressly including trading losses, lost profits, demurrage, consequential loss (including that sustained by third parties) and other forms of financial loss, including any third-party claims, in the broadest sense, including but not limited to end users and consumers, as well as the customer’s employees, nor will FLM be liable for personal injury, damage to movable or immovable property, the loss of added value due to recklessness on FLM’s part, not including its non-executive employees. Liability for damage in the broadest sense of the word, arising from an intentional act or gross negligence or otherwise on the part of non-executive employees and third parties engaged by FLM in the execution of its orders, is fully excluded. The customer is furthermore obliged to expressly indemnify FLM against any claims from third parties, expressly including but not limited to the customer’s own employees, end users and consumers, in respect of alleged loss and/or damage, also pursuant to product liability, of whatever nature, in the broadest sense, caused by or in connection with the items delivered, unless the damage is due to an intentional act or gross negligence on the part of FLM itself in the execution of the agreement, not including its non-executive employees.
7.2 The indemnity set forth in the foregoing paragraph also entails that the customer must compensate FLM for all costs of legal and other assistance that FLM incurs in order to defend itself against a claim for compensation from such a third party. Unless expressly agreed otherwise, the customer undertakes towards FLM to take out insurance in respect of the indemnity referred to in the foregoing paragraph.
7.3 The customer will be responsible for compliance with local government regulations and for obtaining the necessary permits, all in the broadest sense, and will further be responsible for all local contextual factors.
7.4 The customer will indemnify FLM against any claims from third parties, including FLM employees, relating to the use of information provided by or on behalf of the customer, as well as unsafe situations in the latter’s business or organisation. FLM will not be responsible for the information provided by the customer to FLM, and FLM may rely on the correctness thereof in the performance of the assignment issued to FLM.
7.5 The customer must ensure that the products ordered or to be ordered by it and the associated packaging, labelling and other information are in compliance with all government regulations applicable in the country of their destination. The use of the products and the conformity thereof with the government provisions are at the customer’s risk.
7.6 All recommendations, quotations and communications issued by FLM with respect to qualities, properties, possible purposes, and use of products to be delivered by FLM are entirely without obligation. In no event can FLM be held liable for any damage, in the broadest sense, as a result of such recommendations or information provided, and the customer will be obliged to indemnify FLM against any third-party claims in that respect, save in the event of an intentional act or gross negligence on the part of FLM.
7.7 If, based on facts and/or circumstances known to it at the time, FLM decides to exercise its right of suspension or termination and it is subsequently and irrevocably established that this right was wrongfully exercised, FLM will not be liable or under any obligation to pay compensation, in the broadest sense, save in the event of an intentional act or gross negligence on its part.
8. FORCE MAJEURE
8.1 In the event of force majeure, however arising, which in any case expressly includes illness of employees of FLM and of third parties engaged by it, acts of war, “technical” operational breakdown, depreciation of money, fire, war risk, flooding, strikes, lack of raw materials, government measures, blockades, import and export prohibitions, transport problems, defects in materials, failure on the part of third parties to deliver, or punctually to deliver, to FLM the items or raw materials to be supplied on to the customer, energy crises and attachment of stock/equipment, including at third parties, stagnation or restriction or discontinuation of public utility supplies, acts of trade unions, selective strike or work-to-rule actions, unforeseen problems in production or transport, as well as any other circumstance not exclusively dependent on FLM’s will, FLM will be entitled, at its discretion, either to exceed the delivery period or to terminate the agreement entered into with the customer, without any liability arising on FLM’s part to pay any compensation with regard thereto. Should the force majeure event continue for more than three months, either party may terminate the agreement by notice to that effect, in which event no liability will arise on FLM’s part to pay compensation. If at the time of termination pursuant to this article, FLM has already performed part of the agreement, the customer will be obliged to pay the delivered part, with due observance of the agreed purchase price, plus any costs already incurred by FLM.8
9. TERMINATION AND CANCELLATION
9.1 The customer cannot cancel an agreement entered into with FLM, unless FLM expressly agrees to its full or partial cancellation, in which event the customer must compensate FLM for any reasonable costs incurred with a view to the performance of the assignment, work performed by FLM, and FLM’s lost profits, plus VAT. If the parties expressly agree in writing that a shipment delivered and accepted will be taken back by FLM, FLM will, provided that the best-before date has not been exceeded, refund no more than 80% of the sales price, less costs and lost profits, without the customer being entitled to derive any rights from this provision, as the decision to do so is at FLM’s sole discretion.
9.2 In the event of late purchase and/or improper performance of the customer’s obligations, either pursuant to the agreement entered into or otherwise, as well as in the event that the customer files for a moratorium on payment of its debts, is declared insolvent either at its own request or pursuant to a third-party application to that effect, is granted statutory debt adjustment under the Dutch Debt Management (Private Individuals) Act, if its movable or immovable property or other goods are in any way whatsoever attached, in the event of discontinuation or imminent discontinuation of the customer’s business, if the customer approaches its creditors in view of a debt rescheduling or repayment arrangement, if the distribution agreement entered into between the parties has been terminated for any reason, or if FLM can reasonably assume that any of the foregoing situations will occur in the near future and so notifies the customer in writing, FLM will be entitled to suspend any further delivery of items and any payments, to terminate all or part of any agreement entered into with the customer and to terminate any ongoing negotiations, by mere written notice to the customer, all without prejudice to FLM’s rights, including the right to claim full compensation and/or repossession of goods, without any obligation arising on FLM’’s part to pay compensation or uphold any guarantee. FLM’s claim will become immediately due and payable.
10. CONFIDENTIALITY
10.1 The customer will at all times be obliged to treat as confidential, to keep secret, not to disclose, and not to make available to third parties any contents of recommendations or information provided by FLM to the customer, save with FLM’s prior written consent.
10.2 The customer may not repack the items delivered by FLM without removing the labels and identification marks applied by FLM.
11. PAYMENT
11.1 Unless expressly agreed otherwise, payment will be made within 30 days of the date of the invoice by transfer to FLM’s bank account. The customer must pay the amounts owing to FLM without any discount or compensation of whatever nature, unless expressly agreed otherwise in writing. The customer may not invoke any right to suspend or set off its payment obligations towards FLM under any circumstances.
11.2 If the customer fails to pay the amounts owing to FLM within the stipulated period, the customer will be in default by operation of law, without any communication, warning or notice of default by FLM being required. If payment is not made by the customer within the period stipulated in the foregoing paragraph, the customer will pay interest to FLM equal to 1.5% per month on the outstanding invoice amount, for which purpose part of a month will be regarded as a full month. Actual collection of the percentage owing in addition to the invoice amount will be at the sole discretion of FLM.
11.3 FLM may immediately hand over its claim with respect to an outstanding part of an invoice to a third party for collection. All judicial and extrajudicial costs of collection of FLM’’s claim will expressly be payable in full by the customer, such extrajudicial costs being set at no less than 15% of the amount due, subject to a minimum of EUR 500.
11.4 FLM may refuse orders from the customer and suspend deliveries (as well as the production or modification of the items destined for such purpose) under any agreements entered into until such time as the customer has arranged payment of all amounts due to FLM.
11.5 Failure to pay an amount due on the due date will render all FLM’s claims against the customer immediately due and payable, such claims expressly including its claims that would not yet be due and payable at such time, without the need for any communication, warning or notice of default.
11.6 FLM will at all times be entitled, prior to delivery of items, at its discretion, to demand that the customer either pay the agreed consideration in advance or provide security that is regarded as generally acceptable in the banking industry, such as an irrevocable bank guarantee, for payment of all amounts due to it, now or in the future, by the customer under the agreement or on any other ground whatsoever. If the customer fails to comply with a request to provide security or to perform any other obligation imposed on it by law, the agreement or these general terms and conditions, the customer will be in default by operation of law, without the need for any communication, warning or notice of default.
11.7 FLM will not grant any discounts or commissions, unless expressly agreed otherwise with the customer. Any discounts or commissions granted by FLM to the customer in writing will fully lapse if the customer fails to accept the items presented upon delivery or if the customer fails to punctually pay the amount due to FLM pursuant to any invoice.
11.8 The samples requested by the customer from FLM will be charged by FLM to the customer upon delivery, unless expressly agreed otherwise in writing.
11.9 FLM will at all times be authorised to set off any amounts due by it to the customer against any amounts due by the customer to FLM, whether or not due and payable, or subject to conditions or time limits.
12. RETENTION OF TITLE
12.1 Title to the items delivered by FLM will not pass to the customer until the customer has performed all its obligations towards FLM, relating to payment of the agreed consideration/the purchase price for items delivered or to be delivered and the payment of claims on account of failure to perform the agreements. If the customer fails to perform its obligations, FLM will, without the need for any notice of default, be authorised to exercise its retention of title, and the customer will, on FLM’s demand, be obliged to surrender the items to FLM at the customer’s expense, without the need for any judicial intervention. To that end, FLM will be authorised to access the customer’s premises, to take possession of the items delivered subject to a retention of title, and to sell these items in a private sale or at an auction on the best possible conditions. The customer will further be obliged to keep the relevant items separate and identify them as originating from FLM. In no event may the items falling within the scope of FLM’s retention of title be pledged or otherwise transferred as security to any third parties, including hire-purchase and/or instalment sale, nor may they, other than for purposes of normal business operations, in any way whatsoever, be sold, processed or disposed of, or moved to any location other than the agreed location. All costs of exercising the retention of title will be expressly and exclusively at the expense and risk of the customer. The customer will be obliged to ensure that the items falling within the scope of FLM’s retention of title are insured against commonly insured risks (expressly including fire, theft, water and storm damage) or risks that are deemed advisable by FLM.
12.2 The customer will not have any retention right against FLM to the items delivered by FLM, and the customer hereby expressly waives any such retention right in advance.
12.3 The customer will be obliged to immediately notify FLM of any attachment or other threat, prejudice, limitation or restriction with respect to FLM’s retention rights by any third parties, and the customer will do anything in its power to protect FLM’s rights.
13. DISPUTES AND APPLICABLE LAW
13.1 Dutch law relating to the Kingdom of the Netherlands in Europe will apply exclusively to agreements governed by these terms and conditions and any agreements resulting from or connected with such agreements and also applies in full to all negotiations conducted, offers, quotations, accepted orders, assignments and arrangements, etc.
13.2 Any disputes, expressly including disputes that are considered as such by only one of the parties, that may arise in respect of, in connection with, or as a result of the performance or interpretation of the agreements, offers, guotations, accepted orders, assignments, arrangements, negotiations conducted, etc., governed by these terms and conditions, will be resolved exclusively by the Roermond District Court in the Netherlands, unless the subject of the dispute falls within the scope of the subject-matter jurisdiction of the District Court, Subdistrict Sector and/or, the dispute is subject to resolution by the District Court, Subdistrict Sector pursuant to provisions of mandatory law, in which event the dispute will be submitted for resolution to the competent District Court, Subdistrict Sector.
13.3 These general terms and conditions were drawn up by FLM in several languages. In the event of a difference in interpretation between the various language versions, the interpretation of the Dutch version will be deemed to be the only correct version, which Dutch version will in any event be issued to the customer.
13.4 In the event that any of the provisions of these general terms and conditions are contrary to an agreement entered into between FLM and the customer and a reconciling interpretation is impossible, the express written agreements made in the agreement, notwithstanding the provisions of these general terms and conditions, will prevail, but only for that single situation.
13.5 The nullity or voidability of any provision of these terms and conditions, or of any agreements to which these terms and conditions are applicable, will not affect the validity of the other provisions. FLM and the customer will be obliged to replace any null or voided provisions by valid provisions with the same purport as the null or voided provision to the extent possible.
13.6 These terms and conditions have been filed by FLM with the Chamber of Commerce and Industries in Venlo, the Netherlands.