Article 1. General
1. In these Terms and Conditions, the terms and expressions used below are defined as follows:
(a) Customer: any natural or legal person with whom Folat concludes or has concluded an Agreement, to whom Folat issues or has issued a Quotation or who otherwise qualifies as Folat's other party;
(b) Folat: the private company with limited liability Folat B.V., having its registered office in Beverwijk, the Netherlands, and its principal place of business in (2033 AP) Haarlem at the address Diakenhuisweg 15 (Chamber of Commerce: 340.83.586);
(c) Agreement: an agreement concluded between Folat and the Customer for the sale and delivery of products or any other agreement in which these Terms and Conditions are declared applicable;
(d) Quotation: an (online) offer by Folat to conclude an Agreement;
(e) Party: Folat or Customer;
(f) Parties: Folat and Customer together;
(g) Terms and Conditions: the present general terms and conditions.
2. These Terms and Conditions apply to all Quotations issued and to be issued, as well as to all Agreements concluded and to be concluded.
3. Any deviations, additions, limitations and/or adjustments to an Agreement and/or the Terms and Conditions shall be valid only if expressly agreed upon in advance in writing by Folat and Customer and, in such case, shall apply only in respect of the specific Agreement to which the deviations, additions, limitations and/or adjustments relate and, therefore, not to previous or future Agreements.
4. If and to the extent that any provision of these Terms and Conditions is declared null and void or is annulled, the remaining provisions of these Terms and Conditions shall remain in full force and effect.
5. The applicability of general terms and conditions of the Customer is expressly rejected. If Customer declares its own general terms and conditions applicable to an Agreement or refers to them, those general terms and conditions will not be accepted by Folat and these Terms and Conditions shall prevail.
Article 2. Quotations and Agreements
1. Every Quotation is free of obligation, even if it contains a deadline for acceptance. The deadline for acceptance is intended solely to indicate that the Quotation will lapse as soon as it is not accepted within the time period set out in it. In any case, up to seven calendar days after acceptance, Quotations may be revoked in writing by Folat.
2. Folat cannot be held to a Quotation if the Customer should reasonably understand that it contains an obvious mistake or clerical error.
3. Quotations and/or promotions mentioned in advertising materials - including catalogues, price lists, folders, websites, including those of third parties - are never binding on Folat. However, online offers in Folat's webshop, which are aimed at the formation of an Agreement, are deemed Quotations within the meaning of these Terms and Conditions.
4. Subject to the provisions of the preceding paragraphs of this article, the Agreement comes into effect when the Customer has accepted the Quotation, and the terms and conditions (including these Terms and Conditions) set out therein.
Article 3. Price
1. All prices quoted by Folat in the Quotations are exclusive of VAT and government-imposed levies and exclusive of shipping and packaging costs.
2. Folat is entitled to adjust the prices or components thereof to reflect possible changes in price determining factors, such as raw material prices, wages, transport costs, taxes, production costs, currency exchange rates, energy costs and fuel surcharges.
3. If Folat wishes to adjust the prices in the sense referred to above in this article, Folat will immediately notify the Customer in writing. If the Customer refuses this adjusted price, Folat is entitled to dissolve the Agreement with immediate effect.
Article 4. Delivery
1. The delivery of products by Folat is subject to the manufacturing, supply and other capabilities available to Folat at the time of execution of the Agreement. Notwithstanding this, Folat will endeavour to meet the delivery deadlines as stated in the Quotations, Agreements or otherwise as much as possible.
2. However, the delivery periods mentioned in the first paragraph of this article are never to be regarded as strict deadlines and in the event that a delivery period is exceeded, the Customer shall not be entitled to compensation and this shall not constitute a ground for dissolution of the Agreement.
3. Unless otherwise agreed in writing and in advance, all deliveries are made "ex warehouse" of Folat.
4. Folat has the right to deliver up to a maximum of ten per cent more or less than agreed with the Customer. The price owed by the Customer shall in such cases be adjusted accordingly by ten per cent more or less.
5. The Customer shall enable Folat to make the delivery and provide all necessary cooperation to enable delivery by Folat.
Article 5. Shipping
1. Regardless of the value of the products to be delivered, Folat will determine the method of shipment.
Article 6. Packaging
1. Unless otherwise agreed in writing, all products are delivered in standard packaging and in standard packaging quantities.
2. If the Customer and Folat have agreed to deviate from the standard packaging or standard packaging quantities, the additional costs involved will be borne entirely by the Customer, unless otherwise agreed in writing.
3. The Customer is responsible for compliance with the obligations under and arising from laws and regulations relating to packaging waste. This means that the Customer is obliged (among other things) to report to the competent authorities the amount of packaging waste it receives and to pay the related taxes, charges and/or contributions. Such obligations, notwithstanding the foregoing, shall rest with Folat only if and to the extent that the said laws and regulations so require.
4. Folat is not obliged to inform the Customer of the weight per raw material in the packaging.
Article 7. Retention of title
1. Ownership of the products supplied by Folat to the Customer shall not pass to the Customer until the Customer has fulfilled all its obligations, including the obligation to pay all invoices in full, arising from all Agreements concluded with Folat.
2. The Customer will at no time be authorised to encumber, pledge, transfer as security and/or lend and/or hand over products delivered under retention of title in any way. Nor is the buyer entitled to make any changes to the products as long as ownership of the products rests with Folat.
Article 8. Payment
1. Folat will at all times be entitled to demand security from the Customer for the correct and timely fulfilment of its payment obligations.
2. If delivery of the products is made in parts, each part may be invoiced separately by Folat to the Customer.
3. Unless expressly agreed otherwise in writing, payment must always be made within 8 days of the date indicated on the invoice and to a bank account number designated by Folat.
4. If the Customer fails to pay within the agreed payment term, the Customer shall be in default by operation of law and - without a notice of default being required - shall owe interest of 4% per month or part of a month on the outstanding amount from the invoice date.
5. In the event of default of payment, all judicial costs, as well as extrajudicial collection costs, incurred by Folat in order to secure fulfilment of the Customer's obligation shall be borne by the Customer. The extrajudicial collection costs shall amount to 15% of the amount owed by the Customer, including the aforementioned interest.
6. Folat has the right to apply payments made by the Customer firstly to reduce the costs, then to reduce the interest falling due and finally to reduce the principal sum and current interest.
7. In the event of default of payment by the Customer, Folat shall be entitled to suspend or dissolve performance of the Agreement and all related Agreements.
8. Setting-off by the Customer is never permitted.
Article 9 Conformity of the goods and complaints
1. Folat guarantees that its products meet the quality requirements that the Customer may expect given the nature of the relevant products and according to objective standards. In particular, Folat's products meet the requirements imposed by the competent authorities within the EU under the relevant laws and regulations (on product safety).
2. No guarantee is given for the absence of discolouration or other defects of a minor nature, which are technically unavoidable and generally accepted according to use.
3. Folat does not guarantee that the products are suitable for the purpose for which the Customer intends to use them, even if this purpose has been made known to Folat, unless the opposite has been agreed between the Parties.
4. The guarantee on the delivered products shall in any case lapse in the event of wear and tear deemed normal, but also if the damage or defect is evidently the result of intent or gross negligence, which in any case includes improper use, use other than normal use, (over)heating by heating sources, exposure of products to humidity, extreme heat, cold or dryness and failure to observe the instructions for use or to observe them correctly.
5. The Customer must check the products for defects and/or shortcomings upon or immediately after receipt. Visible defects and/or shortcomings must be reported in writing to Folat as soon as possible, but in any case within 48 hours of receipt by the Customer, specifying the nature of the defects and/or shortcomings. Non-visible defects and/or shortcomings must also be reported to Folat in writing by the Customer as soon as possible, but in any case within 48 hours of discovery or after they should reasonably have been discovered, stating the nature of the defects and/or shortcomings.
6. Any claim due to non-compliance of the products with the Agreement and/or with applicable laws and regulations shall lapse if notification thereof is not made within the periods mentioned in paragraph 5 above, but in any case if notification thereof is not made within 1 year after delivery of the product concerned.
7. Defects observed in only part of the delivered products do not entitle the Customer to also complain in respect of the remaining part of the delivered products.
8. If, in accordance with the provisions of paragraph 6, the Customer has timely reported the non-conformity of the products with the Agreement and/or with applicable laws and regulations, and there is actually a non-conformity, Folat will be given the opportunity by the Customer to remedy this non-conformity or send a replacement product within a reasonable period of time.
9. In the event that the products are printed, no claims can be asserted for errors caused by unclear writing by the Customer. In the case of balloon printing, no complaints are possible regarding the printing quality.
Article 10. Liability
1. If and insofar as Folat has failed imputably in the fulfilment of any of its obligations under the Agreement or is otherwise liable to the Customer, its liability to compensate for the resulting damage shall be limited to the amount paid out under Folat's applicable liability insurance policy in the case in question.
2. If for any reason no payment is made under the aforementioned insurance, any liability of Folat shall be limited to the amount paid by the Customer to Folat in respect of the Agreement in connection with which the liability has arisen.
3. Folat can never be held liable for indirect damage, including consequential damage, loss of profit, missed savings or damage due to business interruption.
4. The limitations of liability set out in this article 10 will not apply in the event of intent or gross negligence on the part of Folat and/or its affiliated persons (including, but not limited to, employees and directors of Folat).
5. Notwithstanding the provisions of the preceding paragraphs of this article, Folat can never be held liable if the damage is due to an intentional act or omission and/or gross negligence and/or culpable actions on the part of the Customer or inexpert or improper use of the delivered products by the Customer.
Article 11. Suspension, dissolution and early termination of the agreement
1. Folat is authorised to suspend the fulfilment of its obligations or to dissolve the Agreement immediately and with immediate effect if: (a) the Client fails to fulfil its obligations under the Agreement or to do so fully or on time, (b) Folat has good reason to fear that the Client will not fulfil its obligations under the Agreement, (c) the Client has been asked to provide security for the fulfilment of its obligations under the Agreement and such security is not forthcoming or is insufficient, (d) due to delays on the part of the Customer, Folat can no longer be required to fulfil the Agreement under the originally agreed conditions, or (e) circumstances arise that are of such a nature that fulfilment of the Agreement or unaltered continuation of the Agreement can no longer reasonably be demanded of Folat.
2. If Folat suspends fulfilment of its obligations, it will retain its claims under the law and the Agreement.
3. If Folat decides to suspend or dissolve the agreement on the grounds mentioned in this article, it will not be obliged to compensate for any damage and costs caused in any way whatsoever or to pay damages.
4. In the event of liquidation, an application for a moratorium or bankruptcy, or a granting thereof, attachment - if and insofar as the attachment has not been lifted within three months - of or against the Customer, debt restructuring or any other circumstance as a result of which the Customer can no longer dispose freely of its assets, Folat will be free to terminate the Agreement immediately and with immediate effect or to dissolve the Agreement, without any obligation on its part to pay any damages or compensation. Folat's claims against the Customer shall in such a case be immediately due and payable.
5. If the Customer cancels all or part of the Agreement and Folat agrees to this, the costs already incurred by Folat and the working time reserved for the execution of the Agreement, including that of third parties hired by Folat, will be charged in full to the Customer.
Article 12. Force majeure
1. Circumstances outside Folat's sphere of influence that prevent Folat's fulfilment of any obligation under an Agreement in whole or in part, or at least seriously hinder it, shall be considered force majeure (non-attributable shortcoming) and release Folat from fulfilling that obligation.
2. In these Terms and Conditions, force majeure means in any case: (a) strikes of Folat's employees or of third parties it engages for the purpose of executing the Agreement, (b) fire, (c) illness of Folat's employees or of third parties it engages for the purpose of executing the Agreement, (d) government measures and/or prohibitions by which Folat is bound, (e) unforeseen and unpredictable traffic hindrances, (g) (culpable) shortcomings in the performance of Folat's suppliers, (h) theft of goods required for the implementation of the Agreement, as well as (i) all other unforeseen circumstances preventing Folat from fulfilling the Agreement properly and in due time.
3. If the period of force majeure continues for more than two months, each of the Parties shall be entitled to dissolve the Agreement, without any obligation to pay compensation to the other Party.
4. If, at the time of the occurrence of force majeure, Folat has already partially fulfilled its obligations under the Agreement or will be able to fulfil them, and independent value can be attributed to the part already fulfilled or to be fulfilled respectively, Folat will be entitled to separately invoice the part already fulfilled or to be fulfilled respectively. The Customer is obliged to pay this invoice as if it were a separate Agreement.
Article 13. Export licence
1. If an export licence is required for the delivery of one or more products, including products listed in the EU regulation for the export of dual-use goods, Folat can only and for the first time be held to its obligations under the Agreement with the Customer if the required export licence has actually and definitively been issued for those products.
2. The Customer is obliged to cooperate fully and provide all information necessary for applying for the export licence referred to in the first paragraph of this article.
3. Folat reserves the right to terminate and/or dissolve the Agreement with the Customer at any time if the Agreement relates to products in the sense of the first paragraph of this article and it is evident or probable that the required export licence will not be obtained. In such cases, Folat shall in no way be obliged to compensate any damages incurred by the Customer.
Article 14. Intellectual property rights
1. The products and packaging offered and supplied by Folat are protected by intellectual and industrial property rights.
2. The Customer shall never be permitted to reproduce the products and packaging offered and supplied by Folat, or have them reproduced by third parties, or to act in any other way as a result of which the rights mentioned in the first paragraph of this article are infringed.
3. If the Customer violates the previous paragraph, Folat reserves all rights to take immediate legal action against the Customer.
Article 15. Applicable law and disputes
1. All legal relations between Folat and the Customer shall be governed exclusively by Dutch law, even if all or part of an obligation is performed abroad or if the Customer involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is expressly excluded.
2. The parties will only resort to the courts after making every effort to settle a dispute by mutual agreement.
3. All disputes between Folat and the Customer will be submitted exclusively to the competent court of the District Court of Noord-Holland, Haarlem location.
Article 16. Dutch text and amendment of terms and conditions
1. The Dutch text of the Terms and Conditions is always decisive for its interpretation.
2. Folat has the right to amend the Terms and Conditions unilaterally. Folat will make the amended Terms and Conditions available to the Customer at least 1 month before they take effect.
3. The parties shall be bound by the amended Terms and Conditions from the day they enter into force.
4. In the event of a change in the Terms and Conditions that is unfavourable to the Customer, the Customer will be entitled to terminate the current Agreement in writing before the change(s) come into force, with effect from the day the amended Terms and Conditions come into force, unless Folat has indicated that the old Terms and Conditions will remain in force for the Customer.