Terms & Conditions
In these General Terms and Conditions the following terms have the following meanings:
1. Fitec: Private Company Fitec Supply B.V., with its registered office in Breda (The Netherlands) and its principal place of business in The Netherlands in (4902 XJ) Oosterhout at address Tempelierstraat 18;
2. Agreement: The agreement between Fitec and Other Party, of which these General Terms and Conditions form part;
3. Other Party: The other party to Fitec in the legal relationships as described in article 2;
4. Working days: Calendar days, except for Saturday, Sunday and generally acknowledged Public Holidays as referred to in the (Dutch) General Extension of Time Limits Act (Algemene Termijnenwet).
5. Matters: All that which is offered by Fitec, bought by the Other Party and is delivered and/or made available to the Other Party;
6. Agreement of Assignment: The Agreement comprising of the assignment provided to Fitec, including also agency contracts, as described in the confirmation of the assignment.
3. Coming into effect and performance of the Agreement
3.1 Fitec is not bound to any descriptions, brochures and samples provided by it or on behalf of it. Derogations therefrom will never give Other Party the right to compensation or terminations of the Agreement.
3.2 Except for the provisions below, an Agreement between Fitec and Other Party only comes into effect after Fitec has expressly confirmed the Agreement in writing.
3.3 Any additional arrangements, alteration made after the coming into effect of the Agreement, as well verbal agreements and/or promises made by (staff of) Fitec, will only bind Fitec if Fitec has confirmed these arrangement, alterations and/or promises expressly in writing.
3.4 If neither of the parties confirms the Agreement in writing and Fitec with the agreement of Other Party has commenced the performance of the Agreement, then the Agreement will be deemed to have come into effect.
3.5 Unless Fitec has expressly stated otherwise in writing, the prices stated by Fitec are in Euros, excluding turnover tax (VAT), excluding other taxes imposed on the Agreement, excluding transport costs and excluding packaging costs. Payment by Other Party to Fitec must take place in Euros.
3.6 Unless Fitec has expressly confirmed otherwise in writing, payment must always take place within thirty days from the invoice date.
3.7 If Fitec requires (full) advance payment of the agreed price, Other Party will be bound to this.
3.8 Other Party is never entitled to set off the amount owed to Fitec against any other amount, or to suspend its payment obligation(s) toward Fitec.
3.9 The terms stated by Fitec only commence after Fitec has received the required information and matters, the necessary formalities have been fulfilled and any advance payment owed by Other Party has been received by Fitec.
3.10 Fitec is entitled, no later than one working day prior to the expiry of the agreed delivery date, to unilaterally extend the agreed delivery date by thirty days. In that event Other Party cannot derive any rights from the delivery dates stated in the Agreement.
3.11 Fitec is entitled to use third parties during the performance of the Agreement concluded with Other Party. Fitec is not liable for shortcomings of these third parties, or damage caused by these third parties.
3.12 If Other Party has insured any risk related to the Agreement, the Other Party is obliged to indemnify Fitec against the damage suffered or to be suffered by Fitec as a result of the realisation of this risk.
3.13 Delivery takes place ‘ex business location’ of Fitec. All risk with regard to the matters bought transfers to Other Party from the time that the matters to be transported are loaded.
3.14 After delivery (as described in article 3.13) the matters are on the risk of Other Party, also if Fitec after that still (has carried out) carries out work with or on the delivered matters.
3.15 If the delivered matters are not taken possession of by Other Party, Fitec will store these on the account and risk of Other Party. In such an event Other Party is obliged to pay to Fitec compensation to the full amount of the agreed price, plus the unplanned storage and transport costs.
5. Default Other Party, suspension and termination
5.1 If Other Party does not, or not in time, fulfil its payment obligations, Other Party does not, not in time or not properly fulfil any of its obligations on the basis of the Agreement with Fitec, as well as in the event of Other Party being declared insolvent, Other Party has been granted moratorium, Other Party is placed under a guardianship order, in other events than aforesaid through which Other Party can no longer freely dispose of its assets, in the event of the taking receipt of the delivery by Other Party remains not forthcoming and in the event of Other Party has been requested by Fitec to provide sureties for the fulfilment of its obligations and Other Party does not provide these sureties and/or these sureties are insufficient, then the claims of Fitec will be immediately due and payable in full and Other Party will be in default by operation of law. Furthermore Fitec is in such an event entitled, at its discretion, to terminate the Agreement with Other Party wholly or in part and/or to unilaterally terminate the Agreement in the interim with due regard to any notice period and/or to suspend its obligations.
5.2 Other Party will owe interest over the amount owed to Fitec over the period of time that Other Party is in default of payment. This interest is on an annual basis equal to the statutory commercial interest under Section 119a Book 6 of the Civil Code (Nederlands Burgerlijk Wetboek), increased by 2%.
5.3 After Other Party is in default, Fitec will be entitled without further notice of default to proceed with collection of the amount owed to it. All costs connected thereto, including judicial as well as extrajudicial costs, will be on the account of Other Party. The extrajudicial costs amount to at least 15% of - including the interest owed - over the amount owed by Other Party, all this with a minimum of € 1,500.00.
7.1 Other Party must inspect (have inspected) the delivery immediately at the time at which the delivery is made available to it. Other Party must in the course of this check if the delivery corresponds to the Agreement. If visible defects are noticed, then Other Party must report this to Fitec forthwith and in writing. If the complaint is not made forthwith and no later than within one working day from receipt of this matter, then the work carried out and/or matters delivered by Fitec as well as the data in the delivery note and/or similar documents, will apply as having been accepted by Other Party as correct and complete.
7.2 Other Party must with regard to defects that were already present at the time of the delivery, but only appeared for the first time afterwards, complain in writing within five working days from delivery.
7.3 If Other Party does not complain within the periods of time as stated in articles 7.1 and 7.2, Other Party cannot derive any rights from its complaint.
7.4 If Other Party complains in time, as stated in articles 7.1 and 7.2, and the complaint, in the opinion of Fitec, appears to be well-founded, then Fitec will repair the defects free of charge, without Other Party in addition being able to enforce any right to any compensation whatsoever.
7.5 To be able to rely on the rights ensuing from article 7.4, Other Party must:
- inform Fitec in time, as stated in article 7.1 and 7.2, in writing about the defects noticed.
- prove that the defects are the direct result of an attributable shortcoming of Fitec.
- prove that the defects appear under normal circumstances and during the correct manner of use of the delivered matters;
- prove that the matters delivered by Fitec have not been (further) processed, treated, or otherwise modified, after the delivery by Fitec.
- provide Fitec will full cooperation to enable it to appropriate the defective delivery within a reasonable period of time.
7.6 If the costs of the work still to be carried out as agreed and/or the costs of repair, in the opinion of Fitec, are not in proportion to the interest of the Other Party in this, then Other Party - if Fitec is liable in this respect - has right to compensation, this with due regard to the provisions of article 8, because of which Other Party has no longer the right to repair. Fitec is in such an event never liable for more, or a higher amount than the amount to the level of the costs that it would have incurred during the fulfilment of the obligation described in article 7.4.
7.7 Return dispatch of the delivery by Fitec will be on the account and risk of Other Party.
9. Additional provisions with regard to Agreements of Assignments
9.1 Without prejudice to the validity and working of the other articles of these General Terms and Conditions, the provisions as included in present article 9 apply with regard to the Agreements of Assignment.
9.2 The applicability of Sections 404, 407 subsection 2 and 409 Book 7 of the Civil Code (Nederlands Burgerlijk Wetboek) is expressly excluded.
9.3 Other Party can never terminate an Agreement for a specified period or for a specified project in the interim. However, Fitec can do this, but in the event of agency contracts only with due regard to a notice period of three months.
9.4 Other Party and Fitec can terminate an Agreement of Assignment for an indefinite period at all times (in the interim) by registered letter with due regard to a notice period of six full calendar months.
9.5 The Agreement of Assignment for an indefinite period can be terminated (in the interim) by Fitec without due regard to a notice period in the events as stated in article 5.1, in the event that Fitec reasonably deems the occurrence of one of the circumstances stated in article 5.1 at Other Party plausible and in the event that a situation has arisen which justifies immediate termination in the interest of Fitec. Other Party is never entitled to unilaterally terminate the Agreement of Assignment for an indefinite period in the interim, without due regard to the notice period stated in article 9.4.
9.6 If the (in the interim) termination of the Agreement of Assignment is proceeded with by Other Party, Fitec will have the right, in addition to all other compensation accrued to her on the basis of Dutch legislation, to compensation of all loss resulting from lower capacity utilisation as well as the premature termination of the Agreement, which together will amount to at least an amount equal to 30% of the order amount, with a minimum of € 4,000.00.
2. Applicability General Terms and Conditions
2.1 These General Terms and Conditions apply to and form part of every offer by Fitec, all requests made by Other Party, all quotes made by Fitec, all assignments provided by Other Party to Fitec and all Agreements between Fitec and Other Party, as well as all following (from these) agreements, all additional agreements and subsequent agreements, all howsoever named and under whatsoever title, concluded between Fitec and Other Party.
4. Force majeure
4.1 If the performance of the Agreement is prevented or becomes exceedingly onerous due to force majeure, Fitec will have the right to adjust the Agreement to the circumstances, or to (have) terminate(d) and/or cancel(led), or to suspend the performance of the agreement.
4.2 Force majeure includes, in addition to that which is included by law and case law, all causes, foreseen or unforeseen, over which Fitec has no control, but which cause Fitec not to be able to fulfil its obligations toward Other Party. In any event force majeure included (threat of) war, riot, act of war, strikes, fire, water damage, natural force, floods and other hindering weather circumstances, traffic obstructions, sickness of staff, business sit-in, business disruptions, energy breakdowns, breakdowns of a (telecommunication) network or connection, force majeure of suppliers or other engaged third parties, failed or late delivery by suppliers or other engaged third parties and the absence of any permission to be acquired from authorities.
4.3 Fitec also can successfully rely on force majeure if the circumstance, which prevents the performance of the Agreement, occurs after Fitec should have performed the agreement.
4.4 Other Party can never derive any right to compensation from the termination, amendment and/or suspension of (the performance of) the Agreement as a result of force majeure.
4.5 Suspension, amendment or termination of (the performance of) the Agreement on the basis of force majeure does not release Other Party from its payment obligation of that which has been delivered and/or performed at the time of the occurrence of the force majeure situation.
6. Retention of title
6.1 All that which is delivered by Fitec to Other Party remains the property of Fitec until Other Party has properly fulfilled all obligations under the Agreements(s) concluded with Fitec.
6.2 Other Party irrevocably authorises Fitec to, if Other Party does not fulfil its (payment) obligations toward Fitec, without further notice of default or judicial intervention, take back the matters delivered subject to retention of title. Other Party will provide full cooperation to the aforesaid repossession and provides in advance, unconditional and irrevocable permission to Fitec, and to third parties to be designated by Fitec, to enter those places where the property of Fitec are situated.
8. Limitation of liability
8.1 The liability of Fitec, as referred to in article 7.6, as well as every other liability, ensuing from other facts or circumstances or otherwise, will never exceed, and is always limited to that which is described in present article 8.
8.2 Fitec can exclusively be liable for its attributable, direct damage. Direct damage includes:
a. reasonable costs to ascertain the cause and the extent of the damage, insofar as the ascertaining relates to the damage within the meaning of these General Terms and Conditions.
b. reasonable costs necessary to have the defective performance of Fitec meet the Agreement.
c. reasonable costs, incurred to prevent or limit the damage, insofar as Other Party demonstrates that these costs have caused limitation of direct damage as referred to in these General Terms and Conditions.
8.3 Fitec is never liable for all other than aforesaid direct damage, such as consequential damage, resulting damage, lost profit, lost savings and loss due to business interruption.
8.4 If the performance of the Agreement by Fitec causes liability, then this liability will always be limited to the amount to which Fitec can make claim under the insurance taken out by Fitec.
8.5 If for whatsoever reason no payment pursuant the insurance referred to in article 8.4 were to take place, as well as in all other cases, every liability of Fitec will be limited to the price charged by Fitec to Other Party for the Agreement concerned, with a maximum of € 20,000.00.
8.6 Fitec is not liable for the damage caused by a defect in or on the matters delivered, respectively work carried out by Fitec if:
- the damage is caused through improper use of the delivery or through the use thereof for a purpose other than that for which it is suitable according to objective standards;
- it is plausible, having regard to the circumstances of the case, that the defect that caused the damage, did not exist at the point in time of delivery by Fitec;
- the defect that has caused the damage is a result of the fact that the matters delivered and/or work carried out by Fitec comply with mandatory (authority) regulations;
- the defect is attributable to information, instructions, data and instructions that have been provided by or on behalf of Other Party to Fitec.
8.7 Other Party fully indemnifies Fitec with regard to all claims of third parties for compensation of damage related to, or are a result of the use of the matters delivered by Fitec to Other Party, respectively the work carried out by Fitec.
8.8 Every liability of Fitec lapses after one year from the time that the matters have been delivered by Fitec, respectively the work has been carried out by Fitec. The claim for compensation or repair of Other Party Fitec toward Fitec becomes time barred by the passing of one year after Other Party Fitec has held Fitec liable in writing.
10. Other provisions
10.1 If a provision of these General Terms and Conditions are nul and void or voidable, then this does not result in another provision of these General Terms and Conditions becoming (in part) nul and void or voidable. If a provision of these General Terms and Conditions were to be nul and void or voidable, then it will be replaced by a valid provision which most closely approaches the effect of the nul and void or voidable provision.
10.2 The law of the Netherlands exclusively applies to every legal relationship between Other Party and Fitec, to which these General Terms and Conditions relate, with the exclusion of the Vienna Sales Convention (CISG / Weens Koopverdrag).
10.3 All disputes between Fitec and Other Party will be settled by the Breda (the Netherlands) District Court with subject matter jurisdiction.
10.4 The Dutch text of these General Terms and Conditions will prevail over every translation thereof.