Clause 1. General
1. In these Conditions, the following terms are
defined as follows: Folat: the private company incorporated under Dutch law,
Folat B.V., with its registered office according to its articles of association
in (2033 AP) Haarlem at the address Diakenhuisweg 15 (Ch. of Comm.:
340.83.586); Customer: any natural person or legal entity, acting in the course
of his/its professional or business operations and who/which has a contractual
relationship with Folat on account of a purchase agreement entered into with Folat
or on account of any other type of agreement. Conditions: these General
Conditions.
2. These Conditions are applicable to all quotations and offers as well as to
any agreement between Folat and the Customer and all obligations arising from
them.
3. Any deviations from these Conditions are only possible if they have
explicitly been agreed in writing and in advance by Folat and the Customer and
in that case they will only apply with regard to the specific agreement to
which the deviations relate and therefore not to previous or future agreements
between Folat and the Customer.
4. If or insofar as any provision of these Conditions is declared invalid or is
annulled, the remaining provisions of these Conditions will remain in full
force and effect.
5. The applicability of the general terms of the Customer is explicitly
excluded. If the Customer declares his own general conditions applicable to an
agreement with Folat or refers to them, those general conditions will not be
accepted by Folat and the General Conditions of Folat will prevail.
Clause 2. Quotations and agreements
1. All offers and quotations of Folat are without any
obligation and it can revoke them at any time even if they contain a period for
acceptance. Offers and quotations can also be revoked in writing within seven
calendar days after having received acceptance in which case no agreement will
have been formed between the parties.
2. Folat cannot be held to its quotations and offers if the Customer can
reasonably understand that the quotations and offers include an obvious error
or mistake.
3. Folat can choose to accept a verbal acceptance of the quotation as if it was
in writing.
4. Quotations and offers mentioned in advertising materials - including
catalogues, price lists, brochures, websites, also those of third parties -
will never be binding on Folat.
5. With due observance of the provisions in the previous paragraphs of this
Clause the agreement will be formed at the moment the Customer has accepted the
quotation or the offer and the conditions stipulated in it.
Clause 3. Price
1. All prices stated by Folat in the offers and
quotations are excluding VAT and levies imposed by the authorities and
excluding dispatch and packing costs
2. Folat is entitled to adjust the prices or parts of them for products not yet
delivered and/or not paid for if there are any changes in price-determining
factors such as prices of raw materials, wages, taxes, production costs and
currency exchange rates.
3. Folat will be entitled at any time to adjust the prices immediately if a
legal price-determining factor would give rise to it.
4. The price of Helium is linked to the Platts energy index. If the fluctuation
and the world market price is passed on by our suppliers in such a way that
this has a big impact on our pricing of helium products, Folat will be allowed
to make a price adjustment. If the Customer refuses this adjusted price, Folat
will be entitled to terminate the agreement with immediate effect.
Clause 4. Delivery
1. The delivery of products by Folat is subject to the
manufacturing, supply and other options which are at the disposal of Folat at
the moment of performing the agreement, so that Folat endeavours to observe the
delivery periods as stated in the offers and quotations, confirmations and contracts
as much as possible.
2. However, the periods referred to in the first paragraph of this Clause can
never be considered as deadlines and in the event of a period being exceeded,
the Customer will not be entitled to any compensation and it does not
constitute a ground for dissolution of the agreement.
3. Unless otherwise agreed in writing and in advance, all deliveries will take
place ex-works in Velsen.
4. Unless otherwise agreed in writing and in advance, the carriage of the
products will take place at the expense and risk of the Customer from the
moment the products leave the warehouse.
5. Folat is entitled to deliver in excess or short by ten percent maximum of
the delivery quantities agreed with the Customer. The price payable by the
Customer will in that case be adjusted accordingly by ten percent for any
excess or short delivery.
6. The Customer undertakes to enable Folat to be able to make the delivery and
to give all the necessary cooperation in order to enable the delivery by Folat.
Clause 5. Dispatch
1. Regardless of the value of the dispatch, Folat will
determine the delivery method.
2. Loading and unloading the products as well as their transport will not be
the responsibility of Folat and will be at the expense and risk of the Customer,
except in cases where Folat itself carries out the transport, the loading and
unloading.
Clause 6. Packaging
1. Unless otherwise agreed in writing, all products
will be delivered in their standard packaging.
2. If the Customer requests Folat to change the standard packaging or packaging
volumes, the associated extra costs will be fully at the expense of the
Customer.
Clause 7. Risk and retention of title
1. After the delivery of the products the Customer
will bear the full risk of these products.
2. The ownership of the products delivered by Folat to the Customer will only
pass to the Customer after the Customer has fulfilled all his obligations
including the obligation to full payment of all invoices arising from all
agreements entered into with Folat.
3. The Customer will never be entitled to encumber, pledge, transfer as a
security and/or lend or give on loan and/or surrender to others in any way the
products delivered under the retention of title. Neither is the Customer
entitled to make any changes to the products for as long as the products are
owned by Folat.
Clause 8. Payment
1. Folat is entitled at any time to demand security
from the Customer for the accurate and timely fulfilment of the latter's
payment obligations.
2. If the delivery of the products takes place in parts, Folat can invoice the
Customer separately for each part.
3. Insofar as not explicitly agreed otherwise in writing, payment must always
take place within 8 days after the date stated on the invoice and into a bank
account number to be indicated by Folat.
4. If the Customer does not pay within the agreed payment period, the Customer
will be in default by operation of law and from the invoice date onwards -
without a notice of default being required - the Customer will owe interest of
4% per month (or any part of a month) on the amount still outstanding.
5. In the event of a payment default all judicial costs, as well as the
extra-judicial collection costs incurred by Folat in order to bring about
fulfilment of the Customer's obligation, will be at the expense of the
Customer. The extra-judicial collection costs amount to 15% of the amount
payable by the Customer, including the interest referred to.
6. Folat is entitled to allow the payments made by the Customer to serve firstly
to reduce the costs, then to reduce the interest outstanding and finally to
reduce the principal amount and the current interest.
7. In the event of a payment default by the Customer Folat will be entitled to
suspend the performance of the agreement and all associated agreements or to
dissolve the agreement.
8. The Customer will never be allowed to offset any amounts.
Clause 9. Conformity of the items and complaints
1. Folat warrants that its products meet the quality
requirements which the Customer can expect considering the nature of the
respective products and objective standards. In particular the products of
Folat meet the requirements laid down by the Dutch authorities in connection
with the relevant regulations (in the area of product safety).
2. No warranty is given with regard to discolouration or deviations of a minor
nature which technically cannot be avoided and which are generally accepted in
practice.
3. The warranty on the products delivered will in any case lapse with regard to
wear and tear considered normal or if the damage or the defect is apparently
the consequence of: intention or gross negligence;- improper use or use for a
use other than normal; (over-)heating from heat sources, exposing products to
dampness, extreme heat, cold or dryness and not or not properly observing the
instructions for use;
4. Upon delivery or immediately afterwards the Customer must examine the
products delivered to see whether they comply with the agreement. The Customer
cannot invoke that the products delivered do not comply with the agreement if
he omits this examination or he has not informed Folat in writing of the
defects within four working days after the delivery.
5. Any defects established with regard to only part of the products delivered,
do not entitle the Customer to exercise the right to complain with regard to
the other part of the products delivered.
6. In the event that the products are printed, no complaints can be exercised
by the Customer with regard to faults caused as a result of unclear writing.
With regard to printed balloons no complaints can be submitted due to the
printing quality.
Clause 10. Liability
1. The liability of Folat to the Customer for direct
loss in the event of not performing, not performing in a timely manner or not
properly performing the agreement is limited to the amount that will be paid in
the respective case under a liability insurance taken out by Folat.
2. If the loss as meant in the first paragraph of this Clause is not covered by
the liability insurance, Folat will never pay more compensation than the net
invoice value of the respective products.
3. The limitation stipulated in the previous paragraphs of this Clause will
also apply if Folat is held liable on grounds other than on the agreement
entered into between them.
4. By direct loss is meant exclusively:
• the reasonable costs which the Customer must
incur to enable Folat's performance to comply with the agreement. Such loss
will however not be compensated if the Customer has dissolved the agreement; •
the reasonable costs which the Customer had to incur to determine the cause and
the extent of the loss insofar as the determination relates to direct loss
within the sense of these Conditions;
• the reasonable costs which the Customer had to
incur to prevent or mitigate the loss insofar as the Customer demonstrates that
these costs resulted in the limitation of direct loss within the sense of these
Conditions.
5. Folat will never be liable for indirect loss, including consequential loss, lost
profits, missed savings, loss due to operational delays and all losses which
are not covered by the direct loss within the sense of these Conditions.
6. The limitation of liability will not be applicable if there is intention or
gross negligence of the directors and managers of Folat.
7. Notwithstanding the provisions set out in the previous paragraphs of this
Clause, Folat will never be liable if the loss is due to the intention and/or
gross negligence and/or culpable acts or improper or inappropriate use by the
Customer of the products delivered.
Clause 11. Suspension, dissolution and premature
termination of the agreement
1. Folat is entitled to suspend the performance of the
obligations or to dissolve the agreement forthwith and with immediate effect
if: a. the Customer does not perform the obligations under the agreement or
does not fully perform them or does not perform them in a timely manner; b.
circumstances come to the notice of Folat after the agreement has been formed
giving good reason to fear that the Customer will not fulfil his obligations;
c. the Customer was requested on entering into the agreement to furnish
security for the performance of his obligations under the agreement and this
security has not been forthcoming or is insufficient; d. due to delay on the
part of the Customer Folat can no longer be required to fulfil the agreement
under the conditions originally agreed; e.if circumstances occur which are of a
nature such that fulfilment of the agreement cannot possibly be required of
Folat or unchanged maintenance of the agreement cannot reasonably be required
from Folat.
2. If the dissolution is attributable to the Customer, Folat will be entitled
to compensation for the losses including the costs directly and indirectly
caused by it.
3. If the agreement is dissolved the claims of Folat on the Customer will
become immediately due and payable. If Folat suspends the performance of the
obligations, it will retain its rights under the law and pursuant to the
agreement.
4. If on the grounds referred to in this Clause Folat proceeds to suspend or
dissolve the agreement, it will for that reason not be obliged in any way
whatsoever to make good the losses and costs caused by this in any way
whatsoever or pay compensation while the Customer would indeed be obliged to
pay damages or compensation on the ground of attributable failure.
5. In the event of a winding-up, (an application for) a moratorium or
bankruptcy, a seizure - if and insofar as the seizure is not lifted within
three months - at the expense of the Customer, a debt rescheduling scheme or
other circumstance by which the Customer loses the free disposal of its assets,
Folat will be free to terminate the agreement forthwith and with immediate
effect or to dissolve the agreement without any obligation on its part to pay
any damages or compensation. The claims of Folat on the Customer will in that
case be immediately due and payable.
6. After Folat has confirmed the agreement in writing, it will no longer be
possible for the Customer to cancel it and the Customer will be obliged to buy
the items from Folat pursuant to the agreement.
7. If the Customer cancels the agreement in whole or in part and Folat agrees
to this, the Customer will be charged integrally for the costs already incurred
by Folat for it and the working hours reserved for the performance of the
agreement, also those of third parties engaged by Folat.
Clause 12. Force majeure
1. Folat is not obliged to fulfil any obligation to
the Customer if it is prevented from doing so as a result of a circumstance not
attributable to its fault or which is not chargeable to it by virtue of the
law, legal act or common opinion.
2. The term force majeure in these Conditions means - apart from what it means
in legislation and case law - any external causes whether or not foreseen which
are beyond the control of Folat but which cause Folat to be unable to fulfil
its obligations. Folat is also entitled to invoke force majeure if the
circumstance preventing (a further) performance of the agreement occurs after
Folat should have fulfilled its obligation.
3. During the period that force majeure continues Folat can suspend the
obligations under the agreement. If this period exceeds two months, either
party will be entitled to dissolve the agreement without any obligation to pay
damages to the other party.
4. Insofar as during the force majeure period Folat had already partly
performed or will be able partly to perform its obligations under the agreement
and the part performed or to be performed respectively has independent value,
Folat will be entitled to invoice for the part already performed or to be
performed respectively. The Customer is obliged to pay this invoice as if this
constituted a separate agreement.
Clause 13. Dual use and related Regulations
1. If an export license is required for the delivery
of one or more products including products specified in the Dual Use
Regulation, Folat can only and for the first time be kept to its obligations
under the agreement with the Customer if the required license has in actual
fact and definitively been issued for those products.
2. The Customer is obliged to cooperate fully and to provide all information
necessary for the application of the license as meant in the first paragraph of
this Clause.
3. Folat reserves the right to terminate and/or dissolve the agreement with the
Customer at any time if the agreement relates to products within the sense of
the first paragraph of this clause and it is evident or probable that the
required license will not be obtained. In that case Folat will not be in any
way liable to compensate any damage of the Customer.
Clause 14. Intellectual property rights
1. The products and packaging offered and delivered by
Folat are protected by intellectual and industrial property rights.
2. The Customer will never be allowed to reproduce the products and packaging
offered and delivered by Folat, or to have them reproduced by third parties, or
to act otherwise as a result of which the rights as mentioned in the first paragraph
of this Clause are infringed.
3. If the Customer acts in contravention of the previous paragraph, Folat
reserves all rights to take immediate legal action against the Customer.
Clause 15. Applicable law and disputes
1. Dutch law applies exclusively to all legal
relationships in which Folat and the Customer are a party, even if a
contractual obligation is fully or partially executed abroad or if the Customer
involved in the legal relationship is domiciled abroad. The applicability of
the Vienna Sales Convention is explicitly excluded.
2. The parties will rely on the court only after they have done their utmost to
settle any dispute in mutual consultation.
3. Any disputes between Folat and the Customer will be submitted exclusively to
the competent court of the district court of Noord-Holland, based in Haarlem.
Clause 16. Reference and amendments to these
Conditions
1. The most recent version of these Conditions
mentioned most recently on Folat's website are at all times applicable or the
version which was applicable when the legal relationship was formed with the
Customer. The Dutch text of the General Conditions is at all times determinant
for their interpretation.