1.1. All offers made by door Freshfilter B.V. and all purchase agreements concluded with them and the deliveries of products and services (in the following 'goods') flowing therefrom are subject to these conditions.
1.2. Freshfilter B.V. is referred to as contractor. The counterparty is referred to as client.
1.3. The applicability of the terms and conditions used by the client is expressly excluded
1.4. A derogation to these conditions can only be appealed to if contractor has expressly agreed to this in writing.
1.5. To the extent these terms and conditions have been prepared as well in a language other than Dutch, the Dutch version is always decisive in case of differences.
2.1. All offers and price quotations made by contractor are non-committal.
2.2. When client provides contractor with information, contractor may assume the correctness and completeness thereof and he will base his offer thereupon.
2.3. An agreement is only adopted when contractor has confirmed the order in writing or when contractor has made a start with the execution of the order.
2.4. If payment by way of an L/C is established, the agreement is only adopted after written acceptance of the irrevocably confirmed L/C by contractor.
3.1. All information provided by or in name of contractor to client (such as offers, designs, pictures, drawings, and know-how) of any nature and in any form whatsoever, is confidential and will not be used by client for any other purpose than to implement the agreement.
3.2. The information referred to in section 1 of this article will not be disclosed or multiplied by client.
3.3. If client violates one of the obligations indicated in section 1 and 2 of this article, he owes, per violation, an immediately payable fine of € 25,000. This fine can be claimed besides compensation of damages on grounds of the law.
3.4. Client must either return or destroy the information, at the option of contractor, referred to in section 1 of this article upon first request, within such term as is established by contractor. Upon violation of this provision, client owes contractor an immediately payable fine of € 1,000 per day. This fine can be claimed besides compensation of damages on grounds of the law.
4.1. All prices for the goods are established in Euros, exclusive of sales tax, and are based on ex works, Raamsdonksveer, the Netherland (EXW, Incoterms 2020).
4.2. Prices listed in quotations are based on the price level at the moment of issuance of the quotation. Contractor reserves himself the right to pass on changes that occur to one or more of the factors that determine the price of costs to the client.
5.1. Payment of the goods sold by contractor must occur within the payment term as indicated per transaction by contractor on the quotation or the invoice.
5.2. As the date of payment applies the value date on which contractor receives the payment. In case of payment by bank, the date of crediting to the bank account of contractor will apply as date of payment.
5.3. The client is not entitled to any deductions, suspensions, or payment discounts, and an appeal to setoffs is expressly excluded as well. In case of the overrunning of the payment term, contractor has the right as from the due date to bill the statutory interest for commercial transactions, while all costs accruing on the claim are borne by client as well, both the judicial and the extrajudicial ones, which later are set at a minimum of 15% of the invoice amount with a minimum of € 500.
5.4. In case an order is carried out in batches, contractor has the right to demand payment for the partial deliveries, before carrying out the remaining partial deliveries.
5.5. Contractor has the right upon or after adoption of the agreement, before performing (further), to demand security from the client, that both payment and other obligations from this agreement are met. Refusal of the client to lodge the security requested, grants contractor the right to suspend his obligations and ultimately confers the right to him to rescind the agreement without default notice or judicial intervention completely or in part, without prejudice to his right to compensation of such damage as he may have incurred.
6.1. A delivery time or implementation period submitted is indicative.
6.2. The delivery time or implementation period only becomes effective when a consensus has been reached on all commercial and technical details, all information, including definitive and approved drawings and the like are in the possession of contractor, the established (instalment) payment has been received, and the other conditions for the execution of the order have been met.
6.3. In the event of:
a Other circumstances than were known to contractor when he submitted the delivery time or implementation period, the delivery time or the implementation period is extended by the time that contractor, with due regard for his planning, requires to carry out the order under such circumstances;
b Additional work, the delivery time or implementation period is extended by the time that contractor, with due regard for his planning, requires to (let) deliver the materials and parts for this and to carry out the additional work;
c Suspension of obligations by contractor, the delivery time or implementation period is extended by the time that, with due regard for planning, is required to carry out the order after the reason for the suspension has lapsed.
Barring proof to the contrary from client, the duration of the extension of the delivery time or implementation period is assumed to be required and to be the result of a situation as referred to above under a through c.
6.4. Client is obliged to settle all costs that contractor incurs or damage that contractor suffers as a result of a delay in the delivery time or implementation period as indicated in section 3 of this article.
6.5. The overrunning of the delivery time or implementation period under no circumstance confers the right to compensation of damages or rescission to client. Client safeguards contractor against any possible claims of third parties as a result of the overrunning of the delivery time or implementation period.
7.1. Unless established otherwise in writing, all deliveries occur ex works, Raamsdonksveer, the Netherlands (EXW, Incoterms 2020).
7.2. Delivery occurs at the moment that contractor makes available the matter to client at the former's business location and has announced to client that the matter is available to him. As from that time, client bears the risk for maters such as the storage, loading, transportation, and unloading of the matter.
8.1. A shortcoming in complying with his obligations cannot be attributed to contractor if such shortcoming is the result of force majeure.
8.2. By force majeure is intended, among other matters, the circumstance that third parties engaged by contractor, such as suppliers, sub-contractors, and transporters, or other parties that client depends on, do not or do not timely meet their obligations, weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power outage, loss, theft, of the going lost of equipment, materials, or information, road blocks, strikes or work interruptions, and import or trade restrictions.
8.3. Contractor has the right to suspend compliance with his obligations if he is temporarily prevented by force majeure from fulfilling his obligations vis-a-vis. When the situation of force majeure has lapsed, contractor fulfils his obligations as soon as his planning so permits.
8.4. In case of force majeure, where compliance is or becomes permanently impossible, or the temporary situation of force majeure has lasted for more than six months, contractor is authorised to rescind the agreement with immediate effect completely or in part. Client is authorised in such cases to rescind the agreement with immediate effect, but only for the part of the obligations that has not been fulfilled by contractor yet.
8.5. Parties are not entitled to compensation of the damage incurred or to be incurred as a result of the force majeure, suspension, or rescission in the sense of this article.
9.1. Changes to the work result in additional work in any case if:
a There is a change to the design, the specification, or the itemised work order;
b The information provided by client does not correspond with reality;
c Estimated quantities deviate more than 5%.
9.2. Additional work is calculated on the basis of the price-determining factors that are effective at the moment that the additional work is carried out. Client is obliged to settle the price of the additional work upon first request of contractor.
10.1. Client is obliged to investigate the goods upon delivery for visible and/or immediately perceivable defects. Designated as such are all defects that can be identified by way of normal sensory perception or simple sampling. Client is furthermore obliged to check whether the delivered goods also correspond with the order on other points. By not complying with the control obligation, the client forfeits any possible claims on contractor.
10.2. Complaints regarding the quality and quantity of the delivered goods must be submitted in writing no later than within 10 calendar days after delivery. Defects that can only be discovered at a later stage (non-visible defects) must be communicated to contractor immediately after discovery. As soon as these terms have been exceeded, the client is deemed to have approved the delivered matters and complaints will no longer be taken under advisement.
10.3. The complaint must contain a description of the defect and contractor must be given the opportunity upon first request to investigate the complaint. The client must allow contractor to have an inspection of the goods involved carried out by an expert or an independent inspection agency. In case the complaint is declared legitimate by the expert, the costs of the inspection are borne by contractor. In case it is declared unfounded, the costs are borne by the client.
10.4. If the client has timely reported a complaint to contractor and the latter has recognised the complaint, then contractor is exclusively obliged at his option to either deliver what is missing or to replace or restore the delivered goods.
10.5. By submitting a complaint, the payment obligation of the client is not suspended, unless contractor expressly agrees to such a suspension.
10.6. The sending back of goods occurs at the expense and risk of the client and can only occur following the prior written permission of contractor. Contractor reserves the right to charge an additional fee if the goods are not returned in their original condition.
10.7. Complaints about invoices must be submitted in writing within eight days after invoice date. If no written complaint is submitted within this term, the client is deemed to have approved the invoice.
11.1. Barring in the event of the wilful intend or gross fault of contractor and barring civil liability on grounds of mandatory legal provisions, contractor is never liable for any damage incurred by client. Liability for indirect damage, consequential damage, supervision damages, immaterial damage, business damage or environmental damage, or damage as a result of liability vis-a-vis third parties, is furthermore expressly excluded. Without prejudice to the preceding, contractor is never liable for any damage that has occurred after modifications have been applied to (one of) the goods by client or third parties.
11.2. If and to the extent, despite what is established in article 8.1, contractor is subject to any liability, on any account whatsoever, then such liability is limited to the amount equal to the net invoice value of the goods involved, under the proviso that contractor will be liable at most and exclusively up to an amount of a maximum of €500,000 per case of damage. A series of related damage-causing events is considered a single event/case of damage for the application of this article.
11.3. Client safeguards contractor against claims by third parties on account of damage that has occurred in connection with goods delivered by client to such third parties, unless it is established before the court that these claims are a direct result of gross fault or wilful intent on the part of contractor and client furthermore proves that he bears no responsibility whatsoever in the matter.
11.4. Client is obligated to mitigate the damage as much as possible, for example by timely calling in the help of contractor as from the time that the damage may occur.
12.1. Contractor guarantees that the goods at the moment of delivery are free from any significant defect and that they meet the product specifications.
12.2. The warranty period for goods delivered by contractor amounts to 12 months after delivery of the goods.
12.3. All claims on any possible warranty lapse when the client or a third party, without the permission of FRESHFILTER BV, adapts or processes the goods or applies changes thereto, or uses or has used the goods in an inexpert manner, or redelivers them while pledging a warranty that goes beyond the one provided by contractor. The client safeguards contractor in the matter against any possible claims by third parties.
13.2. In case the client cancels the agreement completely or in part as a result of any cause whatsoever, contractor will only be required to accept this on condition that the client pays an indemnification which is at least equal to 25% of the invoice value of the cancelled goods. Contractor also has the right in such case to bill all costs incurred until such time.
14.1. The property of the goods delivered by contractor is not transferred to client until after the integral payment of all amounts invoiced by contractor including any possible interest, fines, and costs, as well as of all claims on account of the falling short in complying with client's obligations from this agreement or other agreements. The release of a cheque or other payment document does not count as payment in this context.
14.2. Contractor has the right to immediately recover the sold goods if the client fails in any manner to meet his payment obligations. In such case, the client is obliged to provide contractor with access to his premises and buildings.
14.3. Client must store the goods that are subject to a retention of title separate from the other goods, such in order to be able to continue to distinguish the goods of contractor.
14.4. For as long as the delivered goods are subject to a retention of title, client may not, outside his normal exercise of business, dispose of them, encumber them, pawn them or otherwise bring them under the control of third parties. It is not permitted to the client, however, to dispose of the goods in the context of his normal exercise of business at the moment that suspension of payments has been applied for by client, or the client has been declared bankrupt.
15.1. In case the client does not, does not timely, or does not properly comply with the obligations flowing for him from the agreement concluded, or if there is a legitimate fear to such effect, as well as in case of an application for suspension of payments, bankruptcy, or liquidation of matters of the client as well as in case of his decease or respectively dissolution or termination of the client, if he is a corporation, of in case a change occurs to his company form or to the governance of the corporation or to the contribution of the activities of the corporation, contractor has the right, without default notice and without judicial intervention, to suspend the agreement at a reasonable notice or to rescind the agreement without any obligation to provide compensation of damages.
15.2. The claim of contractor in the matter of the part of the agreement already implemented, as well as the damage flowing from the suspension or rescission, also including lost profit, is instantly payable.
16.1. Contractor reserves himself all rights that contractor possesses in the field of intellectual property in connection with goods delivered and/or developed by contractor.
16.2. It is not permitted to client to alter goods delivered completely or in part or to provide them with a different brand name, or to use the relevant brand in a different manner or to register it under the own name.
17.1. In case any provision of these General Sales and Delivery Conditions were not to be applicable or were to be in conflict with public order or the law, then only the provision in case will be considered not written, while the conditions will otherwise remain fully effective. Contractor reserves himself the right to modify the rejected one into one with legal validity.
18.1. All disputes, even those only designated as such by one of the parties, will be subject to the judgment of the court of law that is competent within the area of establishment of contractor, such without prejudice to the authority of contractor to submit the dispute, if he so wishes, to a different competent court of law. Disputes between contractor and clients established outside the EU will be definitively settled in accordance with the Arbitration Regulation of the ICC by one or several arbiters appointed in accordance with this Regulation. The language of proceedings is English. Arbitration will occur in Amsterdam (the Netherlands).
18.2. All offers made and quotations issued by contractor as well as all agreements concluded between client and contractor are exclusively subject to Netherlands Law.