1.1. All offers made by FRESHFILTER BV and all purchase agreements concluded with it and the resulting deliveries of products and services (hereinafter 'goods') are governed by these terms and conditions.
1.2. The applicability of the general terms and conditions used by the client is expressly excluded.
1.3. A deviation from these terms and conditions can only be invoked if FRESHFILTER BV has expressly agreed to this in writing.
1.4. Insofar as these general terms and conditions are also drawn up in a language other than Dutch, the Dutch text is always decisive in the event of differences.
2.1. All offers and quotations made by FRESHFILTER BV are without obligation.
2.2. An agreement is only concluded when FRESHFILTER BV has confirmed the order in writing or when FRESHFILTER BV has started the execution of the order.
2.3. If payment by means of an letter of credit is agreed, the agreement is only concluded after written acceptance of the irrevocably confirmed letter of credit by FRESHFILTER BV.
3.1. All prices for the goods are determined in Euros, exclusive of turnover tax and are based on ex works, Raamsdonksveer, the Netherlands (EXW, Incoterms 2000).
3.2. Prices included in quotations are based on the price level at the time the quotation is issued. FRESHFILTER BV reserves the right to pass on to the client subsequent changes in one or more of the cost-determining factors.
4.1. Payment of the goods sold by FRESHFILTER BV must take place within the payment term as indicated per transaction by FRESHFILTER BV on the quotation or invoice.
4.2. The date of payment is the value date on which FRESHFILTER BV receives the payment. When paying by bank, the date of payment is the day of crediting the bank account of FRESHFILTER BV.
4.3. The client is not entitled to any deduction, suspension or payment discount and an appeal to set-off is also expressly excluded. If the payment term is exceeded, FRESHFILTER BV is entitled to charge the statutory interest for commercial transactions from the due date, while all costs related to the collection are also for the account of the client, both judicial and extrajudicial, the latter at least 15 % of the invoice amount with a minimum of € 500, =.
4.4. In the event that an order is executed in parts, FRESHFILTER BV is entitled to demand payment for the partial deliveries before making the other partial deliveries.
4.5. FRESHFILTER BV is entitled upon or after entering into the agreement, before performing (further) performance, to demand security from the client that both payment and other obligations under this agreement are met. Refusal by the client to provide the required security, FRESHFILTER BV has the right to suspend its obligations and ultimately gives it the right to dissolve the agreement in whole or in part without notice of default or judicial intervention, without prejudice to its right to compensation for any damages suffered by its injury.
5.1. Unless otherwise agreed in writing, all deliveries take place ex works, Raamsdonksveer, the Netherlands (EXW, Incoterms 2000).
5.2. Although the stated delivery time will be observed as much as possible, this delivery time is only approximate and can never be regarded as a strict deadline. FRESHFILTER BV will not be in default with regard to the delivery time until after it has been given written notice of default by the client, the latter has hereby given it the opportunity to still deliver within a reasonable term and FRESHFILTER BV has not complied with this.
5.3. The delivery period commences at the time the agreement is concluded in accordance with Articles 2.2 and 2.3.
5.4. Only in case of excessive exceeding (more than 12 weeks) of the delivery time does the client have the right to dissolve the agreement, unless the exceeding is caused by force majeure. However, the client is never entitled to any penalty or compensation.
5.5. Failure to comply (on time) with any payment obligation by the client suspends the delivery obligation of FRESHFILTER BV.
6.1. In the event of impeding government measures, strike, machine breakdown, war, fire or other disasters and all other circumstances, independent of the will of FRESHFILTER BV and regardless of whether these occur at FRESHFILTER BV, its suppliers or at the transport company engaged by it, or in the event of such a change in circumstances that further compliance with the obligations of FRESHFILTER BV cannot reasonably be demanded, FRESHFILTER BV is entitled to withdraw its offers, to suspend deliveries or to dissolve the agreement without judicial intervention and without being obliged to pay any compensation to be.
6.2. If the agreement has already been partially executed by FRESHFILTER BV, the client will pay the sales price of the delivered goods.
7.1. The Client is obliged to inspect the goods on delivery for visible and/or immediately observable defects. All defects which can be detected by means of normal sensory perception or a simple sample are considered as such. Furthermore, the client is obliged to check whether the delivered goods are also in accordance with the order in other respects. By failing to comply with the inspection obligation, the client loses all possible claims against FRESHFILTER BV.
7.2. Complaints regarding the quality and quantity of the delivered goods must be submitted in writing within 10 calendar days after delivery. Defects that can only be discovered at a later stage (non-visible defects) must be made known to FRESHFILTER BV immediately after discovery. As soon as these terms have been exceeded, the client is deemed to have approved the delivered goods and complaints will no longer be processed.
7.3. The complaint must contain a description of the defect and FRESHFILTER BV must be given the opportunity to investigate the complaint on first request. The client must allow FRESHFILTER BV to have an inspection of the goods concerned by an expert or an independent inspection body. When the expert declares the complaint justified, the costs of the inspection are for FRESHFILTER BV. In the event of a declaration of unfoundedness, the costs will be borne by the client.
7.4. If the client has reported a complaint to FRESHFILTER BV in a timely manner and the latter has acknowledged the complaint, then FRESHFILTER BV is exclusively obliged, at its discretion, to deliver the missing item or replace or repair the delivered goods.
7.5. By submitting a complaint, the payment obligation of the client is not suspended, unless FRESHFILTER BV expressly agrees to such suspension.
7.6. The return of the goods takes place at the expense and risk of the client and can only take place after prior written permission from FRESHFILTER BV.
7.7. Complaints about invoices must be submitted in writing within eight days of the invoice date. If no written complaint is submitted within this period, the client is deemed to have agreed with the invoice.
8.1. Except in the event that there is intent or gross negligence on the part of FRESHFILTER BV and subject to statutory liability on the basis of mandatory provisions, FRESHFILTER BV is never liable for any damage suffered by the client. Liability for indirect damage, consequential damage, immaterial damage, trading loss or environmental damage, or damage as a result of liability towards third parties, is also expressly excluded. Notwithstanding the foregoing, FRESHFILTER BV is never liable for any damage that has arisen after the client, or third parties have made adjustments to (one of) the goods.
8.2. If and insofar as, despite the provisions of Article 8.1, FRESHFILTER BV has any liability, for whatever reason, then this liability is limited to the amount equal to the net invoice value of the goods concerned, on the understanding that FRESHFILTER BV at most and will only be liable up to a maximum amount of €500,000 per claim. A series of related damage-causing events is regarded as one event / claim for the purposes of this article.
8.3. The client indemnifies FRESHFILTER BV against claims from third parties due to damage that occurred in connection with goods delivered by the client to these third parties, unless it is established by law that these claims are a direct result of gross negligence or intent on the part of FRESHFILTER BV and the client, moreover shows that he cannot be blamed in this regard.
8.4. The client is obliged to limit the damage as much as possible, including by calling in the help of FRESHFILTER in a timely manner.
9.1. FRESHFILTER BV guarantees that the goods are free of any significant defects at the time of delivery and meet the product specifications.
9.2. The warranty period for goods delivered by FRESHFILTER BV is 12 months after delivery of the goods.
9.3. All claims to any warranty lapse if the client or a third party, without permission from FRESHFILTER BV, processes the goods or makes changes therein, or uses the goods in an injudicious manner or allows them to be used, or transfers them on under the promise of a more extensive warranty, than the warranty as provided by FRESHFILTER BV. The client indemnifies FRESHFILTER BV in this regard against any claims from third parties.
10.1. FRESHFILTER BV has the right to cancel an order if at the time of delivery, the client has not yet fulfilled its previous payment obligations towards FRESHFILTER BV or towards other creditors. FRESHFILTER BV can also make use of this right if the information regarding the creditworthiness of the client is considered to be insufficient by FRESHFILTER BV. The client cannot derive any rights from such cancellations and FRESHFILTER BV can never be held liable by the client.
10.2. If the client cancels the agreement in whole or in part, as a result of whatever cause, FRESHFILTER BV will only have to accept this under the condition that the client pays compensation, which is at least equal to 25% of the invoice value of the canceled goods. In that case, FRESHFILTER BV is also entitled to charge all costs incurred up to that point.
11.1. The ownership of the goods delivered by FRESHFILTER BV does not transfer to the client until full payment of all amounts invoiced by FRESHFILTER BV with any interest, fine and costs as well as all claims due to failure to comply with the client's obligations under this agreement or other agreements. The presentation of a check or other commercial paper does not constitute payment in this regard.
11.2. FRESHFILTER BV is entitled to immediately take back the sold goods if the client fails to fulfill its payment obligations in any way. In that case, the client is obliged to grant FRESHFILTER BV access to its sites and buildings.
11.3. The Client must store the goods subject to retention of title separately from the other goods, in order to be able to continue to distinguish the goods of FRESHFILTER BV.
11.4. As long as the delivered goods are subject to retention of title, the client may not alienate, encumber, pledge or otherwise place them under the control of third parties outside of its normal business operations. However, the client is not permitted to dispose the goods in the context of its normal business operations at the moment that the client has requested suspension of payments, or the client has been declared bankrupt.
12.1. In the event that the client does not, not timely or not properly comply with the obligations arising for him from the agreement concluded, or if there is a well-founded fear of this, as well as in the event of an application for a moratorium, bankruptcy or liquidation of the client's business, as well as in the event of the client's death or dissolution or termination, if the client is a company, or if a change occurs in its corporate form or in the management of the company or in the contribution of the company's activities, FRESHFILTER BV has the right to without notice of default and without judicial intervention to suspend the agreement with a reasonable term or to dissolve the agreement without any obligation to pay compensation.
12.2. The claim of FRESHFILTER BV with regard to the part of the agreement that has already been performed, as well as the damage resulting from the suspension or dissolution, including lost profit, is immediately due and payable.
13.1. FRESHFILTER BV reserves all rights that FRESHFILTER BV has in the field of intellectual property in connection with goods delivered and/or developed by FRESHFILTER BV.
13.2. The client is not permitted to change the delivered goods in whole or in part or to provide them with a different brand name, or to use the relevant brand in any other way or to register it in its own name.
14.1. Should any provision of these General Terms and Conditions of Sale and Delivery be inapplicable or in conflict with public order or the law, only the provision in question will be regarded as unwritten, but the conditions will otherwise remain in full force and effect. FRESHFILTER BV reserves the right to change the challenged into a legally valid one.
15.1. All disputes, also those that are only regarded as such by one of the parties, will be subject to the judgment of the competent court within the area of establishment of FRESHFILTER BV, without prejudice to the authority of FRESHFILTER BV to submit the dispute to another competent right. Disputes between FRESHFILTER BV and clients established outside the EU will be finally settled in accordance with the Arbitration Rules of the ICC by one or more arbitrators appointed in accordance with these Rules. The language used is English. The arbitration will take place in Amsterdam (Netherlands).
15.2. All offers and quotations made by FRESHFILTER BV as well as all agreements concluded between the client and FRESHFILTER BV are exclusively governed by Dutch law.