Conditions of Use of:
F-Tech B.V. en Verstegen en Van Zuiden BV
1812 RH Alkmaar
phone: +31 72 5038 122
Number of Chamber of Commerce for Northwest-Holland: 370824980000
Article 1: Appropriateness, definitions
1. These conditions of use are applicable to all agreements of purchase and sale by F-Tech B.V. and Verstegen and Van Zuiden B.V., established in Alkmaar, hereafter named “the user”.
2. The buyer will be referred to as “the counterparty”.
3. A couple of conditions in these conditions of use are only applicable to a situation in which the counterparty is a natural person who does not act as a part of a job or business. When this is the case, the counterparty will be referred to as “the consumer”.
4. In these conditions of use “written” means: via post, e-mail, fax or any other possible way of communication that is according to the present state of technology and the current general societal view.
5. A possible non-appropriateness of one (or a part of a) provision of these conditions of use leaves the appropriateness of the other conditions unharmed.
6. These conditions of use are also applicable on re-orders or parts of orders respectively originated from the agreement.
7. In case the user has put these conditions of use at the counterparty´s disposal a couple of times, one talks about a trading relation. Then the user does not need to dispose the conditions of use every time again to let them be applicable on future agreements.
Article 2: Establishing agreements
1. The agreement will be established after the counterparty has accepted the offer by the user, even if this acceptance differs from the offer on the questions below. However, if the counterparty´s acceptance differs on main questions from the offer, the agreement will only be established if the user has explicitly agreed on these differences in written form.
2. If the counterparty issues or places an order without making a preceding offer to the user, the user is not committed to this order until he has confirmed this in written form.
3. The user is only committed to oral agreements after he confirmed those in written form to the counterparty or if the user – without objection by the counterparty – has started with the execution of these agreements.
4. Additions to or alterations of these conditions of use or the agreement respectively bind the user only after this is confirmed to the counterparty in written form.
Article 3: (Special) offers, prices
1. All offers by the users are informal except for when they contain a deadline for acceptance. In case an offer is informal and the offer is accepted by the counterparty, the user has the right to revoke the offer within 2 work days after receiving the acceptance.
2. The prices of the offers are exclusive VAT and other potential costs, like transporting costs, delivery costs, administration costs and declarations of involved third parties.
3. A compounded offer does not oblige the user to deliver a part of the offer for a part of the price.
4. In case the offer is based on the counterparty´s data and this data seems to be inaccurate, incomplete or it changes afterwards, the user is authorized to adjust the prices and/or delivery times mentioned in the offer.
5. (Special) offers and prices do not apply to re-orders.
6. Shown or provided samples and models, specifications of colors, measurements, weights and other descriptions in brochures, promotion material and/or on the website of the user are as accurate as possible, but are only an indication. The counterparty cannot derive rights from this.
7. The samples and models mentioned in the previous article stay in the ownership of the user and have to be returned on the user´s first request from the counterparty.
8. a. If there are price increasing circumstances for the user during the agreement and its execution due to legislation or issuing of rules, currency fluctuations or changes in prices of involved third parties or suppliers etc., the user is authorized to increase the agreed price and charge this to the counterparty.
b. In case of price increases within 3 months of establishing the agreement, the consumer is authorized to dissolve by means of a written statement. If the consumer did not let the user know that he wants to make use of his right of dissolution within 14 days after the announcement, the user may assume that the consumer has accepted the price change.
Article 4: Deployment of third parties
If a good execution of the agreement requires a third party, the user is authorized to let carry out certain deliveries by that third party.
Article 5: Obligations of the counterparty
1. The counterparty has to make sure that all needed information for executing the agreement will be on time and that this information is correct and complete.
2. All objects delivered by the user are only allowed to be sold in the original packaging of the user or his suppliers. The counterparty is not allowed to make any changes to the original packaging and is obliged to prevent any kind of damage.
3. The counterparty is obliged to charge the buyer the (minimum) sales price potentially fixed by the user or his supplier respectively. When offended, this causes a penalty of an immediately due fine of 500,00 €.
This will not diminish the user from claiming a complete compensation.
Article 6: Delivery, delivery periods
1. Agreed delivery periods can never be considered as statutory limits. In case the user does not (on time) fulfill his delivery obligations, the counterparty is obliged to inform him in written form about that. He will be granted one other reasonable delivery period to fulfill his delivery obligations.
2. The user is authorized to send the delivery in parts, whereby each part of the delivery will be charged independently.
3. The risk concerning delivered objects will transfer to the counterparty on the moment of delivery. In these conditions of use the moment of delivery is defined as: the moment at which the to be delivered objects leave the property, the storehouse or the store of the user or the moment at which the user has told the counterparty that these objects can be picked up.
4. Without prejudice to the provision in paragraph 3 of this article the moment of delivery concerning consumers will be defined as: the moment at which the objects are actually at the consumer´s disposal.
5. Shipping and transportation of ordered objects respectively happens by means that are determined by the user, but on charge and risk of the counterparty. The user is not liable for any damage, of whatever sort – on the objects itself or not – which are related to the delivery and transportation respectively.
6. Without prejudice to the provision in paragraph 5 of this article, for consumers it applies that delivery and transportation respectively are at the user´s risk, but on charge of the consumer.
7. In case it does not seem possible to deliver the objects to the counterparty (on the agreed method) or in case the objects will not be picked up, the user is authorized to store the objects at risk and on charge of the counterparty. Except the user explicitly sets another deadline in written form, the counterparty is obliged to allow the user to deliver the objects 1 month after notification of the storage, or is obliged to pick up the objects within this deadline.
8. In case the counterparty does not comply with the obligation of acquisition concerning the in paragraph 7 of this article mentioned expiration of the deadline, he will be directly in default. The user then has the right to dissolve, without juridical intermediation, partially or completely and sell the object to third parties immediately. This will not result in any compensation of damage, costs or returns on the side of the user.
9. The beforehand mentioned concerning the compensation of potential (storage) costs, delay-costs, transportation costs, loss of profits or other damages leave the obligations of the counterparty unimpeded.
10. The user cannot sooner be obliged to start with the delivery of objects until he has received all needed information and the possible beforehand agreed payments by the counterparty. If this causes delays, the delivery periods will be extended proportional to that.
Article 7: Packaging
1. If the objects are delivered in packaging that will be re-used by the user, the packaging remains property of the user. This packaging may not be used for other purposes than for what it is supposed to.
2. The user is authorized to charge compensation from the counterparty for this packaging. If the counterparty returns the packaging free within the agreed period of time, the user is obliged to take the packaging back and the user will restitute the charged compensation to the counterparty.
3. If packaging is damaged, incomplete or lost the counterparty is liable for this damage and the right of restitution expires.
4. If the damage mentioned in paragraph 2 of this article is higher than the charged compensation, the user is authorized to not take back the packaging. The user can then charge the costs of packaging for its cost price reduced by the compensation paid by the counterparty beforehand.
5. If the packaging is meant to only be used once, the user does not need to take it back and is authorized to leave this packaging at the counterparty´s property. Potential costs of removal of this packaging are to be paid by the counterparty.
Article 8: Complaints and return shipments
1. The counterparty is obliged to check the delivered objects right after reception and to state potential visible deficiencies, defects, damages and/or differences in numbers on the delivery note or bill. If there is no delivery note or bill, the counterparty needs to inform the user within 24 hours after reception of the objects in written form about the deficiencies, defects etc.
2. Other complaints need to be reported in written form to the user directly after discovery – at least within the agreed warranty period. All consequences that result from not reporting directly to the user are at the risk of the counterparty. If there is not explicitly agreed upon a warranty period, a period of 1 year after reception applies.
3. If the complaint is not reported to the user within the periods of the before mentioned paragraphs, the objects are considered to be received in a good state and to comply with the agreement. In that case there is no appeal possible on the agreed warranty.
4. Ordered objects are delivered in (wholesale)-packages that are available in the user´s stock. In the branch accepted differences of sizes, weights, numbers, colors, etc. do not count as shortcomings of the user. There is no appeal on warranty possible.
5. Complaints do not abolish the payment obligations of the counterparty.
6. Paragraph 5 of this article does not apply to the consumer.
7. The counterparty needs to ensure that the user can examine the complaint and to provide the user with all the relevant information. In case the examination of the complaint makes it necessary to return the deliveries, this will be charged and be at risk of the counterparty, unless the complaint turns out to be legitimate afterwards.
8. In all cases the return of the deliveries will be executed in a way that is determined by the user and will has to be in its original packaging.
9. Complaints are not possible concerning imperfections or characteristics of products that are produced from natural materials, if these imperfections and characteristics are inherent and a result of the sort of the material.
10. Complaints are not possible concerning discolorations and little mutual color-deviations.
11. Complaints are not possible concerning objects that are changed in constitution and/or composition, and/or are completely or partly processed or worked on, or objects that are no longer in their original packaging.
Article 9: Warranties
1. The user will ensure that the agreed deliveries will be executed according to the in the branch applicable norms, but will not give a more extensive warranty than the one that is explicitly agreed upon between the two parties.
2. The user warrants a normal quality and soundness of the delivered objects during the warranty period.
3. If there is a producer´s or supplier´s warranty on the delivered objects, this warranty will be applicable on the two parties on the same conditions. The user will inform the counterparty about that.
4. The user does not warrant and will never be considered to having warranted that the delivered objects are suitable for a purpose in which the counterparty wants to process or work on it, uses or let it use, except when he explicitly confirmed this in written form to the counterparty.
5. If the counterparty correctly made an appeal to the warranty-provisions, the user will take care of mending of the object or restitution of or reduction of the agreed purchase price for free respectively.
This happens at the choice of the user. If there is additional damage, the conditions of use included in article 10 are applied.
Article 10: Liability
1. Apart from the explicitly agreed warranties, the user will not accept any kind of liability.
2. Without prejudice to the provision in paragraph 1 of this article the user is only liable for direct damage. Every liability of the user for consequential loss, such as loss of profits and/or suffered loss, loss due to delays and/or personal injury is explicitly excluded.
3. The counterparty is required to engage in steps that are necessary to prevent or restrict damage.
4. If the user is liable for the counterparty’s suffered damage, the user’s damage compensation will be at all times limited to the maximum amount of money that will be granted by his insurer. If the user’s insurer will not pay or the damage is not included in any other insurance, the user’s compensation will be limited to the maximum invoice amount of the delivered objects.
5. The counterparty is obliged to let the user know about the suffered damaged within 6 months after it has been become known or could have been become known.
6. In deviation from paragraph 5 of this article for the consumer it applies a deadline of 1 year.
7. The counterparty is neither able to make any further appeal on the warranty, nor is it able to assume liability of the user based on other reasons, if the damage is caused by:
a. incompetent use or use that is in conflict with the purpose of the delivered or the given instructions, advices, manuals, information leaflets etc;
b. incompetent storage of the delivered objects;
c. mistakes or incompleteness of the information given to the user;
d. instructions from or in the name of the counterparty;
e. the fact that reparations of the delivered objects by or in the name of the counterparty or other activities or treatments respectively are executed, without explicit, preceding approval by the user.
8. The counterparty is completely liable for all damages that result from the summed up cases of paragraph 7 and protects the user explicitly from all claims concerning compensation of damages by third parties.
9. The included limitations in this article of liability do not apply if the damage is attributable to evil intent and/or conscious recklessness by the user or his executive staff or if the forced legally provisions are in conflict with that. Only in these cases the user will protect the counterparty from potential claims by third parties.
Article 11: Payment
1. The user is at all times authorized to demand (partial) advance payment or any kind of other security of payment by the counterparty.
2. Payment needs to be made within a due date of 30 days after the invoice date, except when both parties explicitly agreed differently in written form. Thereby the correctness of the invoice is fixed if the counterparty did not make any objection within this payment date.
3. If an invoice has not been paid after the expiration of the in paragraph 2 mentioned deadline, the counterparty owes the user default interests of 2% per month, cumulatively summed up upon the total sum. Parts of one month will be counted as a whole month.
4. If the payment has not been made after the user has demanded payment, the user is additionally authorized to invoice extrajudicial collection expenses.
5. The in paragraph 4 mentioned extrajudicial collection expenses run up to a total sum of maximum
a. 15% of the amount of the total sum of the first € 2.500,00 of the claim (with a minimum of € 40,00);
b. 10% of the amount of the total sum of the following € 2.500,00 of the claim;
c. 5% of the amount of the total sum of the following € 5.000,00 of the claim;
d. 1% of the amount of the total sum of the following € 15.000,00 of the claim.
6. If the total sum runs up to more than € 25.000,00, the user is authorized to invoice extrajudicial collection expenses according to paragraph 5 of this article and to invoice the any amount above with 10%.
7. To calculate the extrajudicial collection expenses the user is authorized to increase the total amount of the claim after 1year with the default interests of that year and in accordance with paragraph 3 of this article.
8. If the counterparty does not pay the total amount, the user is authorized to dissolve the agreement without any further proof of default or judicial intermediation by means of a written statement, or to postpone his obligations of the agreement until the payment has been finally made or the counterparty thoroughly proved security about this. The user is also authorized to postpone his obligations if he doubts the creditworthiness of the counterparty before the payment is delayed.
9. Payments made by the counterparty will be used to cover all due interests and costs and, after that, to cover the oldest due invoices, except the counterparty explicitly stated in written form that the payment refers to a subsequent invoice.
10. a. The counterparty is not authorized to take claims into account with potential counterclaims. This also applies if the counterparty asks for suspension of payment or files his petition in bankruptcy.
b. The provisions of a. in this article do not apply to agreements with the consumer.
Article 12: Retention of Title
1. The user reserves the ownership by virtue of delivered and yet to be delivered objects of the agreement until the counterparty has fulfilled all its obligations to pay.
2. The in paragraph 1 mentioned obligations to pay include the payment of the purchase price of the delivered and yet to be delivered objects, multiplied with direct claims of activities that are related to the delivery and claims that are attributable to shortcomings of the counterparty concerning its obligations, which include compensations, extrajudicial collection expenses, interests and potential fines.
3. If the delivery concerns identical, non-individualizable objects, the party with the oldest invoice will get the objects at first. Therefore, the retention of the title always rests on all delivered objects that are still in stock/store of the counterparty on the moment of enlistment.
4. Objects on which rests a retention of title are not allowed to be sold by the counterparty by means of normal business activities, provided that he also insisted on a retention of title of the delivered objects concerning his buyers.
5. As long as there is retention of title on the objects, the counterparty is not authorized to pledge those objects on any kind or to bring them in the actual power of a manager.
6. The counterparty is obliged to inform the user in written form if third parties pretend to have received title of ownership or other rights on the objects on which rests a retention of title.
7. The counterparty is obliged to store the user’s titles identifiable and careful until he has fulfilled all his obligations to pay towards the user.
8. The counterparty needs to take care of such a business interruption insurance and a fire and theft insurance respectively, so that the objects that have been delivered as retention of title are at all times insured. Furthermore, the counterparty hast to give access to the insurance policy and the corresponding proofs of payment of premiums.
9. If the counterparty acts in conflict with the provisions of this article, or the user makes an appeal to the retention of title, the user and his employees get the irrevocable right to enter the ground of the counterparty and to take back the delivered objects that were given with retention of title. This without prejudice to the user’s right of compensation, lost profits and interest and the right to dissolve the agreement by means of a written statement without any further proof of default.
Article 13: Bankruptcy, Incompetence of Disposition etc.
1. Without prejudice to the provision in the other articles of these conditions of use, the user is authorized to dissolve the agreement without any further proof of default or judicial intermediation, by means of a written statement or to postpone his obligations of the agreement, if the counterparty:
a. Is in a state of bankruptcy or files petition of bankruptcy;
b. Asks for (temporarily) suspension of payment;
c. Is hit by enforceable attachment;
d. Is made a ward of;
e. Loses its disposition competence or legal capacity concerning (parts of) its competence;
2. The in paragraph 1 of this article mentioned provisions are applicable except if the conservator recognizes the obligations that emerge from the agreement as liabilities of estate.
3. The counterparty is at all times obliged to inform the conservator about the (content of the) agreement and its conditions of use.
Article 14: Circumstances beyond one’s control
1. If there are circumstances beyond the user’s or the counterparty’s control the user is authorized to dissolve the agreement without any further proof of default or judicial intermediation, by means of a written statement or to his obligations of the agreement, or to postpone the fulfilment of his obligations to the counterparty to a reasonable date without being obliged to pay any kind of compensation.
2. Circumstances at the side of the user are: a non-liable shortcoming of the user, involved third parties or suppliers or other consequential reasons at the side of the user.
3. Circumstances beyond one’s control are: war, revolt, mobilization, riots at home and abroad, government measures, strike actions within the organisation of the user and/or the counterparty or the threat of such circumstances, interruptions of operations due to fire, burglary, sabotage, natural phenomena, etc. as well as transport difficulties and delivery problems due to weather circumstances road barriers, accidents etc.
4. If one of those situations takes place while parts of the agreement are executed, the counterparty is required to fulfil its obligations towards the user until that specific moment.
Article 15: Cancellation, Postponement
1. In case the counterparty wishes to cancel the agreement before or during its execution, he owes the user a compensation that is determined by the user. This compensation entails all the user’s costs and his damage that is due to the cancellation including the lost income. The user is authorized to appoint the compensation mentioned above and – according to his choice and dependent on the already executed deliveries – to invoice 20 to 100% of the agreed upon price.
2. The counterparty is liable for the consequences of the cancellation towards third parties and will protect the user against claims from third parties.
3. The user is authorized to deduct already paid amounts by the counterparty with the due amount of the compensation.
4. In case of postponement of agreed deliveries on the counterparty’s request, all costs that have been made until that moment are immediately claimable and the user is authorized to invoice these claims. In addition to that, the user is authorized to invoice all costs that are to be made or have been made during the postponement phase.
5. If the execution of the agreement cannot be resumed after the agreed upon postponement phase, the user will be authorized to dissolve the agreement without judicial intermediation, by means of a written statement to the counterparty. If the execution of the agreement can be resumed after the agreed upon postponement phase, the counterparty is adhered to compensate for potential costs that arose due to this resumption.
Article 16: Applicable law/ Court of jurisdiction
1. Only Dutch law is applicable to the agreement concluded by the user and the counterparty.
2. Potential disagreements will be decided by a competent judge in the place where the user is settled. The user is always authorized to present the disagreement to the competent judge in the place where the counterparty is settled.
3. The consumer is always authorized to choose for settlement of differences through a legally competent judge, provided that he will let the user know about that on time. On time is defined as: within one month after the user has informed the consumer in written form about the fact that he wants to present the disagreement to the judge at his domicile.
4. If the counterparty is settled outside of the Netherlands, the user is authorized to act according to the provision in paragraph 2 of this article or – as he wishes – to present the disagreements to a competent judge in the country of the counterparty.
Date: 7th April 2010
This is a translation. The counterparty can only derive rights from the original Dutch conditions of use.