Standard terms and conditions of supply and payment of Falko Didam Holding B.V. and Falko B.V., both hereafter referred to as “Falko”, having their registered office at the Bosslagstraat 6, (6941 SM) Didam, municipality of Montferland, filed at the District Court Zutphen, the Netherlands, on 27 October 2008 uer number 39/2008.
Article 1 General
1.1 These standard terms and conditions of supply and payment are applicable to all agreements with, and offers from, Falko.
1.2 The standard terms and conditions of supply and payment or the standard purchase conditions of (future) contractual parties or third parties
never apply to agreements with, or offers from, Falko except where Falko has, via a duly authorised member of staff, accepted in writing that such terms and conditions apply wholly or in part.
1.3 If (part of) the Articles of these standard terms and conditions of supply and payment are avoided or are null and void, the other (parts of) the Articles remain fully in effect.
Article 2 Agreement and offer
2.1 Any offer or advice from Falko is without prejudice and subject to contract, unless Falko has stated in writing in the offer or advice that they are binding. All communications on Falko’s website(s) in relation to goods to be sold (in the future) are an invitation to treat only and do not bind Falko.
2.2 Agreements with Falko are only formed after:
a. the signing of a written agreement, as drafted by Falko, by the contracting party and Falko; or
b. a written acceptance by a contracting party of an offer from Falko; or
c. a written recording by Falko of the agreements made with a contracting party.
2.3 Product descriptions, availability information, measurements, specifications, drawings, technical information, calculations, colours and examples which are part of an offer, an advice or an agreement are not binding on Falko and are only approximate indicators.
2.4 Falko is entitled to deliver 10% more or less than agreed. Insofar more is delivered than has been agreed, Falko’s contracting party is obliged to pay for the surplus.
2.5 Oral promises by employees of Falko are not binding on Falko unless and insofar these communications are confirmed in writing by a duly authorised representative of Falko.
2.6 If Falko sells products for a price which is lower than the normal price by way of a special offer, the (future) contracting party accepts that the price of the special offer only applies as long as the stock, to which the special offer of Falko relates, lasts.
Article 3 Prices
3.1 All prices stated by Falko in an offer or agreement are exclusive of VAT, insurance or packaging costs, packaging development costs, packaging design costs and are, in addition, exclusive of import and export duties or other levies.
3.2 If, after the formation of an agreement, one or more price determining factors undergo an increase Falko is, irrespective of whether this was foreseeable by Falko at the time of the offer, entitled to increase the offered or agreed price,. A price increase can, in the circumstances referred to above, never amount to more than 10% of the offered or agreed price.
3.3 Falko is entitled to charge a (future) contracting party for samples made available.
Article 4 Payment
4.1 The contracting party obliges itself towards Falko to pay the invoice as sent by Falko within 30 days of the invoice date.
4.2 Falko is at all times entitled to demand that the (future) contracting party pays before Falko is obliged to deliver. In addition, Falko is entitled to demand from a (future) contracting party that it provides security in a manner as determined by Falko, before Falko is obliged to deliver.
4.3 The contracting party obliges itself towards Falko to never off-set claims of Falko on the contracting party with claims of the contracting party on Falko.
4.4 In the event the contracting party does not pay an invoice within the set payment term, the contracting party must pay Falko an interest of 1% per month, where a part of a month will count as a whole month.
4.5 Judicial and extra-judicial collection costs are fully for the account of the contracting party where the extra-judicial collection costs will be at least 10% of the outstanding amounts with a minimum of € 400, exclusive of VAT, per invoice.
4.6 Insofar Falko, pursuant to an agreement with a contracting party, produces goods or have such produced which are subject to an intellectual property right of the contracting party, including a trademark or design, Falko is entitled, in the event the contracting party omits to pay and Falko invokes its retention of title or when Falko still has possession of the goods whilst the contracting party does not pay on time, to sell these goods independently. In the circumstances as referred to in this Article, the contracting party obliges itself towards Falko to unconditionally relinquish any opposition, in the widest sense of the word, against the selling by Falko of goods which are subject to any intellectual property right of the contracting party.
Article 5 Transfer of risk and deliveries
5.1 Any delivery times agreed with, or set by, Falko apply between parties as a delivery time by approximation. The delivery time shall be suspended until such time at which all technical and other queries of Falko to the contracting party in respect of the deliveries to be made have been answered by the contracting party in writing. The delivery time of Falko shall, in addition, not commence any earlier than when any obligations on the part of the contracting party pursuant to the current agreement or agreements entered into previously have been fully performed. The delivery time of Falko shall be extended by the duration of the delay caused by the non-performance of third parties of the delivery of goods to Falko.
5.2 Falko only delivers ex factory or ex warehouse. Between the parties the goods are considered to have been delivered when they are ready for shipping.
5.3 From the moment of delivery, the risk in respect of the delivered goods transfers to the contracting party. The contracting party accepts that from the moment of delivery, Falko is never liable for any damage to delivered goods or damage caused by delivered goods irrespective whether the contracting party had taken receipt of these goods at that time. The contracting party accepts that Falko is never liable for any damage to delivered goods or injury to persons caused by, or as a result of, the shipping or transport, or by the loading and unloading of the goods or for damage caused at the place where the goods have been delivered by or on behalf of Falko.
5.4 To the extent Falko exceeds the delivery time, the contracting party is not entitled to compensation. If the contracting party does not cooperate, does not cooperate fully or in time, with the delivery by Falko, irrespective of where the goods become available to the contracting party, the contracting party is liable for the loss of Falko caused by such.
5.5 Falko is entitled to perform the agreement by way of partial deliveries and to send the contracting party an invoice for each partial delivery.
Article 6 Force majeure
6.1 The parties include under force majeure any strike at Falko or its suppliers, operational failures at Falko or its suppliers, failures in hardware or software or the internet, build-up of traffic irrespective of the cause, obstructions in postal traffic, governmental measures, failures in communication tools, import or export barriers, obstructions in respect of transport irrespective of the cause, theft, fire, water damage and power supply failures.
6.2 During a force majeure situation Falko is entitled to suspend the performance of its obligations towards the contracting party.
6.3 Insofar at the end of the force majeure, within the meaning of the law or within the meaning of 6.1, the performance puts an unreasonable burden on Falko, as determined by Falko, Falko is entitled to terminate the agreement wholly or in part without the contracting party being able to claim compensation.
Article 7 Retention of title
7.1 Falko retains the title to the goods to be delivered and delivered, as well as to any goods given in loan as long as the contracting party has not paid the price in full. The retention of title extends to the principal sum as well as to any claim for compensation, including interest.
7.2 As long as the ownership rights of the goods sold by Falko have not been transferred, the contracting party is obliged to keep those goods separately and safeguard them with due care.
7.3 When invoking its right of retention of title, Falko is entitled to collect the goods from where they are located. The contracting party is liable for all Falko’s costs in respect of the exercise of the retention of title, including but not limited to, transport costs, storage charges and destruction costs.
7.4 The contracting party authorises Falko to enter any building or premise belonging to, leased by, or used by the contracting party in order to exercise the rights in respect to the retention of title.
7.5 The contracting party obliges itself towards Falko to inform Falko immediately of any seizure of moveable property. The contracting party is obliged to inform the seizor by return of post of the situation if a right of retention is vested on the seized goods.
Article 8 Complaints and inspection
8.1 Falko’s contracting party is obliged to inspect the goods on, for example, quality and quantity the moment the goods are delivered.
8.2 If the contracting party wishes to make a complaint, he is obliged to inform Falko of these complaints in writing within 14 days of delivery. After expiry of this term, the right of the contracting party to rely on any defect or incorrectness in the goods delivered expires unless it relates to a complaint in respect of a guarantee in the meaning of Article 9.
8.3 The contracting party is prohibited from returning the goods to which the complaint relates to Falko without Falko’s prior written consent. Insofar Falko grants permission to return the delivered goods this does not imply any acknowledgement by Falko of the validity of the complaint. Irrespective of whether Falko has granted permission to return the delivered goods, such is done for the account and at the expense and risk of the contracting party. At the risk of forfeiting the right to complain, Falko must be provided the opportunity to inspect the goods to which the complaint relates at a time and in a manner to be determined by Falko.
8.4 The contracting party is not entitled to suspend its (payment) obligations towards Falko when a complaint is being dealt with.
Article 9 Guarantee
9.1 Falko guarantees the soundness of the goods when in normal use. This means that delivered goods which contains defects shall be repaired by Falko free of charge if the contracting party demonstrates that these defects have arisen within six months after delivery and that these defects are the direct result of the incorrectness or defectiveness of the materials used.
9.2 If during the guarantee period the contracting party carries out repairs, makes amendments to the goods delivered or have such done or processes or treats the delivered goods, Falko is never liable to observe any guarantee obligations towards the contracting party.
9.3 Only the contracting party can claim under the guarantee provided and this exclusively to the extent the delivered goods have remained in his ownership.
9.4 Falko’s guarantee obligations never extend beyond the guarantee obligations the supplier grants Falko.
Article 10 Liability
10.1 Falko is never liable for loss suffered or to be suffered by the contracting party unless the loss suffered is the direct result of gross negligence or an intentional act by Falko or any third party engaged by it. Falko is never liable towards any third party who might have a legal relationship with the contracting party.
10.2 In further limitation of liability and the obligation to pay compensation, Falko stipulates that its liability never extends beyond that to which it committed itself on the basis of the guarantee provisions.
10.3 In further limitation of liability and the obligation to pay compensation, the contracting party accepts that Falko’s obligation to pay compensation never extends beyond the loss for which Falko is insured and to the extent the losses will be paid for by Falko’s insurance company.
10.4 To the extent Falko’s insurance company does not pay out, Falko is never liable to pay compensation to a higher amount than for which the goods, on which the liability is based, are delivered.
10.5 Consequential loss, trading loss, personal injury, environmental damage, loss due to operational failures, loss caused by third parties engaged by Falko, loss arising during or related to transport irrespective of the cause, loss of income and loss arising from a different use of the goods than for which they were intended are never eligible for compensation.
10.6 Falko stipulates towards the contracting party that the limitations in liability as referred to in these standard terms and conditions can also be invoked against the contracting party by employees of, or any third party engaged by, Falko.
10.7 Falko is never liable for mistakes in any drawings, calculations, product descriptions, availability information, measurements, appendices, specifications and technical information it has provided.
Article 11 Communication when contracting via the internet or e-mail
11.1 Any communication between Falko and the contracting party can take place electronically, except insofar as not provided otherwise in these standard terms and conditions, in agreements or by law.
11.2 The version of the communication with the (future) contracting party as stored by Falko is evidence of such, subject to proof to the contrary by the contracting party.
11.3 Any electronic communication from Falko is deemed to have been received at the time of sending, unless the contrary has been proved by the (future) contracting party. If a communication from Falko has not been received due to a delivery and/or access problem in respect of the e-mail box of the (future) contracting party for example, such is at the expense of the (future) contracting party, even if the e-mail box is located at a third party.
Article 12 Information obligations Falko when contracting via the internet
12.1 The (future) contracting party itself is responsible for any required storing and printing of the standard terms and conditions of Falko, as well as for the accessibility of the copy.
12.2 Falko is not obliged to keep any possible archived agreements or to keep the standard terms and conditions accessible to the contracting party.
12.3 Via its website Falko provides information on, amongst other things, Falko itself and the goods to be delivered as regards content and weight..
Article 13 Privacy when contracting via e-mail or the internet
13.1 The contracting party is deemed to have taken note of Falko’s privacy statement and to agree to the processing of personal details as set out in such.
13.2 The contracting party is aware that Falko processes the personal details of the contracting party including information on the activities of the contracting party on the website, such as pages visited, the time spent on the various parts of the website, the internet address of the website from which the contracting party originates and products the contracting party has ordered. Falko retrieves this information from a database which is used in the performance of the agreement in order to improve the service provision to the contracting party and to provide information or offers to the contracting party.
13.3 If so desired the contracting party is entitled to inspect the information held on him/her by Falko and to correct these.
13.4 The contracting party is entitled to request Falko to remove or protect the relevant information. Falko shall decide on this request within four weeks after balancing the relevant interests of Falko and the privacy interests of the contracting party. In case of a decision to protect or remove, Falko shall inform the contracting party to what extent this could restrict or prevent the use the contracting party makes of these matters.
Article 14 Applicable law and competent court
14.1 Dutch law applies to any agreement entered into with Falko and any dispute arsing from these to the exclusion of the law of other states and to the exclusion of the Vienna Sales Convention.
14.2 Any dispute with Falko shall be brought before the competent court in district Zutphen. If a dispute belongs to the jurisdiction of the District Court, Sub-district Section then, in deviation of that stated in 14.2 first sentence, the court in the Netherlands is competent such in accordance with the stipulations of the Dutch Code of Civil Procedure.