GENERAL CONDITIONS FAV MACHINES WITH REGISTERED OFFICE IN WEESP
Article 1 – GENERAL
1.1 In these general terms is meant by:
- FAV Machines: with registered office in Weesp;
- Client: the other party of FAV Machines;
- direct and/or consequential damage: damage to Client
and/or third parties, consisting of but not limited to:
trading/consequential damage, damage to movable or
immovable property or to persons.
1.2 These General Conditions are applicable to all offers and agreements relating to delivery of goods and/or performance of services by FAV Machines unless expressly agreed otherwise in writing.
1.3 Application of general (purchase) conditions of Clients shall only apply insofar as they do not vary from these General Conditions.
1.4 These General Conditions are also applicable on all agreements with FAV Machines in which third parties will be involved in the performance of these agreements. Other or additional General Conditions may be applicable on the products and/or services delivered by third parties. The General Conditions are further applicable on all offers or agreements in which FAV Machines will perform as a purchaser of products or services.
Article 2 – OFFERS
2.1 All offers made by FAV Machines shall be without engagement and shall be based on delivery/execution in normal circumstances during normal working hours.
2.2 Data mentioned in software and/or other programs, catalogues, pictures, drawings, measurements, weights and other (technical) information of FAV Machines or third parties, shall not be binding.
Article 3 – INDUSTRIAL AND INTELLECTUAL PROPERTY
3.1 The Client shall not be allowed to publish, copy or imitate data mentioned in article 2.2 nor to inform third parties thereof, nor to sell (the right of use of) the software and/or the other programs, to let, alienate or transfer them as security, transfer them to a third party or modify the same.
3.2 The source code of the programs shall not be made available to the Client.
3.3 The ownership of all rights of industrial and intellectual property with respect to the software and/or other programs shall remain in the hands of FAV Machines. The Client shall not remove designations of intellectual property right.
3.4 The Client is aware of the fact that the software and or other programs contain(s) confidential information and industrial secrets of FAV Machines.
3.5 FAV Machines shall be allowed to take technical measures in order to protect the software and/or other programs.
Article 4 – PRICES
4.1 The quoted prices by FAV Machines shall be without engagement and exclusive of value added tax and all other taxes, import duties, etc., which are due either in the Netherlands or abroad and which shall be for the account of the Client, unless expressly agreed otherwise.
4.2 The quoted prices by FAV Machines apply to delivery ex works/warehouse and are exclusive of costs of assembly and putting into operation.
4.3 Changes of prices and/or rates, for example rates changes exchanges or manufacture prices et cetera, which will appear after the date of the offers done by FAV Machines are on the account of the Client.
Article 5 – PAYMENT
5.1 Services and spare parts will be invoiced by FAV Machines to client after delivery and entire payment shall be made within 30 days after the invoice date.
5.2 After order placement by client, FAV Machines is allowed to invoice 50% of the ordered goods to client and entire payment shall be made within 14 days after the invoice date.. The other 50% will be invoiced to client after goods delivery and entire payment shall be made within 7 days after the invoice date.
5.3 Payment shall be deemed to be made once the entire outstanding amount is remitted and paid into the bank or giro account designated by FAV Machines, without deduction or setoff in case of payment made after the agreed term of payment.
5.4 The Client shall be deemed to be in default by law and shall pay interest on the outstanding amount without notice of defaults as from the due date of the claim, the interest rate amounting 1% per month or, if higher, a percentage equalling legal interest as well as all costs incurred as a consequence of non-payment or untimely payment by the Client, including both judicial and extra-judicial collection costs. The extra-judicial collection costs shall amount to 15% of the amount to be claimed with a minimum of € 250,00. FAV Machines shall at any time be entitled to demand security.
5.5 FAV Machines is at all times entitled to require security to be given by Client.
5.6 FAV Machines is entitled to suspend the performance of an obligation in case Client neglects to provide the demand reliable security.
Article 6 – DELIVERY
6.1 Delivery periods mentioned by FAV Machines shall always be approximately.
6.2 Delivery shall take place ex works/warehouse.
6.3 A delivery period shall not start before the moment FAV Machines will have received all necessary documents and information, such as, but not limited to, measurements, etc., such according to the judgement of the FAV Machines.
6.4 Late delivery shall never give rise to damages nor shall it cause the Client to be entitled to non-performance of any obligations towards FAV Machines.
6.5 During the period of deliverance FAV Machines is entitled to offer to the Client a temporary alternative e.g. by means of rent, for the account of the Client..
6.6 The Carriage of goods shall take place for the account and at the risk of the Client.
6.7 FAV Machines shall be free to choose the means and manner of carriage.
6.8 FAV Machines shall be entitled to make partial deliveries and to send invoices for partial deliveries.
6.9 Client owes FAV Machines a reasonable reimbursement (including VAT) as determined by FAV Machines for the freight charges and handling fee.
Article 7 – CLAIMS
7.1 With respect to visible defects and shortage, a written claim must be presented within a period of 14 days. With respect to hidden defects a written claim must be presented within 14 days after discovery of such a defect or within 14 days after such a defect could reasonably have been discovered. In any case within the period of warranty provided in Article 8, in default as a consequence whereof deliveries/activities shall be considered to be accepted by the Client and cannot be contested anymore.
7.2 If a claim is presented, the Client shall immediately return the goods to Geo-METIUS for the account and risk of the Client, on penalty of losing the right to claim.
7.3 FAV Machines liability in case of a visible or hidden defect other shall never lead to another obligation on the side of FAV Machines than (i) refunding of the purchase price or (ii) repairs, or (iii) (re)-delivery of sound goods, such at FAV Machines option.
Article 8 – Obligations client
8.1 Client shall provide all facilities which are usual and required for execution of the agreement. To prevent damage to instrument, systems, other items or persons, the client shall take appropriate measures. Client shall fully inform representative of FAV Machines at the location about safety regulations and about other precautionary measures and about dangerous areas.
8.2 Damage caused by not or not in time meeting to article 7.1 is at the expense of the client.
8.3 In case FAV Machines can’t start or continue activities on an by both parties agreed time because of anything caused by the client, waiting time and other costs incurred by this event can be charged to the client.
Article 9 – THIRD PARTIES
9.1 FAV Machines is entitled to call in third parties for the delivery of products and/or the performance of services or other obligations.
Article 10 – WARRANTY
10.1 The warranty period of delivered goods and/or services by FAV Machines is 12 months.
10.2 If the warranty period of the factory warranty for the delivered goods deviates from the period mentioned above, the warranty period provided by the factory shall prevail.
10.3 The warranty period shall start on the day of delivery.
10.4 In consideration of the warranty FAV Machines is only liable for defects of which he was informed within the warranty period and which the Client proves to have occurred within that period as a direct consequence of the unsound manufacturing method and/or use of unsound materials. Otherwise FAV Machines shall not be liable.
10.5 The obligations of the FAV Machines in consideration of this warranty shall not exceed replacement or repair free of charge of the defective products, at FAV Machines’s option.
10.6 The costs (such as inter ail costs of carriage) incurred for repairs/replacement on site shall at any time be for the account of the Client except for the labour costs of the repairs/replacement in question under the warranty.
10.7 The Client shall at any time require the express written approval of FAV Machines for repairs/replacement and/or maintenance by third parties, on penalty of cancellation of
10.8 The warranty will never cover, defects that are the consequence of normal wear and tear, improper treatment or improper or incorrect maintenance or repairs/replacements and/or maintenance, et cetera., by third parties.
Article 11 – LIABILITY
11.1 The liability of FAV Machines shall be limited to performance of his obligations under the warranty mentioned in article 9. Any further liability either for direct or for indirect damage, costs and interests, caused by employees of FAV Machines or third parties called in by FAV Machines, is, except in cases of gross wrongful acts and/or an intentionally acts of omission, expressly excluded.
11.2 The Client shall hold FAV Machines harmless against any possible liability towards third parties arising from or relating to services and/or deliveries rendered and/or made by FAV Machines on behalf of the Client.
Article 12 – RESERVATION OF TITLE
12.1The ownership of delivered goods shall remain at FAV Machines until all claims of FAV Machines against the Client are fully paid.
12.2 In case of non-performance of any obligations of the Client towards FAV Machines, the latter shall be entitled to take back the goods without prior notice of default.
Article 13 – RIGHT OF PLEDGE AND RIGHT OF RETENTION
13.1 On all goods held or to be held by FAV Machines for whatever reason a right of pledge shall be established on behalf of FAV Machines and he shall be entitled to a right of retention ex article 3:290 of the Dutch Civil Code as security for all claims that FAV Machines has and/or will have against the Client.
Article 14 – COMPLAINTS
14.1 Complaints considering the execution of activities need to be assigned in written within 30 days after execution to FAV Machines.
14.2 Complaints do not discharge the client from obligations arising for him from the agreement.
14.3 If client timely and correctly complains about the implementation of the agreement FAV Machines has the choice to repair the defect free of charge or to offer a discount on the agreed compensation for activities. By delivery of this performance FAV Machines are not liable to the client for any further compensation.
Article 15 – SERVICES
15.1 Especially in those cases where FAV Machines is contractually obliged to render any services, FAV Machines will only perform as best as reasonable possible without warrantying the results as necessary to fulfil Client’s wishes.
Article 16 – FORCE MAJEURE
16.1 FAV Machines shall not be liable for damage to be sustained by the Client if FAV Machines is prevented from performing any obligation if performance is impeded or delayed or if an obligation cannot be executed anymore on an economically sound basis as a consequence of circumstances beyond FAV Machines control, either foreseeable or unforeseeable.
16.2 In case of temporary force majeure, FAV Machines shall be entitled at his option to modify the delivery period or to cancel the agreement without any damages being due with regard thereto.
Article 17 – LEGALITY
17.1 If one or more articles in these general conditions are not legal, for whatever reason,, this will not affect the other articles.
Article 18 – APPLICABLE LAW
18.1 Dutch law shall govern all agreements, to which the present General Conditions are wholly or partly applicable.
18.2 All disputes arising from offers made by FAV Machines and/or the Client shall exclusively be submitted to the judgement of the district court in Amsterdam.
Article 19 – TRANSLATIONS
19.1 In case of contradiction between the Dutch and the English version of the present Conditions, the Dutch version shall prevail
Article 20 – Default dissolution
20.1 In the event of default by the client, which include all mentioned in article 20.2, all claims of FAV against client for whatever reason are immediately and fully claimable. And FAV Machines is authorized to suspend the execution of each agreement and to fully and partially dissolve any agreement. The foregoing does not affect other rights of FAV Machines under the law or the agreement.
20.2 Client is deemed to be in default by operation of law if: - Client does not fully or timely fulfill any obligation from an agreement; - Client or the person who has given guarantees or provided collateral for clients, is declared bankrupt, goes into liquidation, ceases business activities or takes a decision to liquidate or apply for bankruptcy or suspension of payment; - A change occurs in the shareholders of the client, insofar as this circumstance, in the opinion of FAV Machines, entails a substantial increase in its risks; - An attachment is levied at the expense of the client