Article 1. Definitions
Business Day: a day other than a Saturday, Sunday or public holiday in the Netherlands.
Clause: a clause to these Conditions.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with Clause 12.4.
Confidential Information: any information of a confidential nature concerning the business, assets, affairs, buyers, clients or suppliers of the Supplier, including information relating to the Supplier's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and buyers.
Contract: the contract between the Supplier and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Buyer: the natural or legal person acting for professional purposes who purchases the Goods from the Supplier.
Delivery Date: the estimated date for delivery of the Goods specified in the Supplier’s written Order confirmation.
Force Majeure Event: any circumstance not in a Party's reasonable control including, but not limited to, (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination, or sonic boom; (e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts; (h) non(-timely) performance by suppliers or subcontractors; and (i) interruption or failure of utility service.
Goods: the goods (or any part of them) set out in the Order confirmation.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Order: the Buyer's order for the Goods.
Bulk Order: an order for Goods, outside the usual scope of orders with Supplier, that concerns Goods which are specially made for the Buyer in terms of certain specifications and/or large quantities.
Specification: any specification for the Goods, that is agreed in writing by the Buyer and the Supplier.
Supplier: Formani Holland B.V., a private limited company (“besloten vennootschap”) incorporated under the laws of the Netherlands, holding office at Europalaan 12, 6199 AB Maastricht and registered in the commercial register of the Chamber of Commerce under number 803905555.
Article 2. Basis of contract
2.1 These Conditions apply to each quotation for the Goods, each Order and each Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate (even if these terms state otherwise), or which are implied by law, trade custom, practice or course of dealing. In case of any conflict, discrepancy, inconsistency, contradiction or ambiguity between any provision of these Conditions and a written Contract, the provisions of the written Contract shall prevail.
2.2 The latest version of these Conditions are available in Dutch, Spanish and English on the website www.Formani.com.
2.3 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Buyer are complete and accurate.
2.4 The Order shall only be deemed to be accepted when the Supplier issues a written Order confirmation, at which point the Contract shall come into existence. After this date, the Order is final, and the Buyer may not amend or cancel the Order.
2.5 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.6 Any samples or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.7 A quotation for the Goods given by the Supplier shall not constitute an offer. Unless otherwise agreed between the parties, a quotation shall only be valid for a period of three (3) months from its date of issue.
Article 3. Goods
3.1 The Goods are described in the Supplier's catalogue, as modified by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This Clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Buyer in any such event.
3.4 The return of Goods which are manufactured in accordance with of which are supposed to meet a Specification supplied by the Buyer of the Goods which are ordered in a Bulk Order is not possible.
Article 4. Delivery
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the Order Nr., the type and quantity of the Goods (including the code numbers of the Goods, where applicable).
4.2 Unless otherwise agreed between the parties, delivery of the Goods takes place ex warehouse of Supplier (Maastricht) by the Delivery Date.
4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Delays in the delivery of the Goods shall not entitle the Buyer to (a) refuse to take delivery of the Goods; (b) claim damages; or (c) terminate the Contract. The Supplier shall have no liability for any failure or delay in delivering the Goods to the extent that any such failure or delay is caused by a Force Majeure Event or the Buyer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If the Buyer fails to take delivery of the Goods on Delivery Date, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract in respect of the Goods (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the Delivery Date; and (b) the Supplier shall store the Goods until actual delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
4.5 If ten (10) Business Days after the Delivery Date the Buyer has not taken actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and charge the Buyer for any shortfall below the price of the Goods.
4.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
Article 5. Quality
5.1 The Buyer shall examine the Goods upon receipt and notify the carrier as well as the Supplier immediately, and no later than six (6) hours after delivery, if the Goods have any transport damage. The Buyer notice shall include relevant documentary evidence of the alleged transport damage.
5.2 The Supplier warrants that on delivery, and for a period of twelve (12) months thereafter (the “Warranty Period”), the Goods shall (a) conform with their description and any applicable Specification; and (b) be free from material defects in design, material and workmanship. The Supplier does not provide the Buyer with any other warranties in respect to the Goods and in particular does not warrant that the Goods shall be fit for any (specific) purpose held out by the Buyer.
5.3 If the Buyer discovers that some or all of the Goods do not comply with the warranty set out in Clause 5.2, the Buyer shall give written notice to the Supplier during the Warranty Period. If asked to do so by the Supplier, the Buyer returns such Goods to the Supplier's place of business at the Buyer's cost. If the Buyer’s complaint is well-founded in the Supplier’s opinion, it shall, at its option, repair or replace the defective Goods.
5.4 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in Clause 5.2 or any additional charges arising therefrom if (a) the Buyer makes any further use of those Goods after giving notice in accordance with Clause 5.3; (b) the defect arises because the Buyer failed to follow the Supplier's oral or written instructions for the storage, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same; (c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Buyer; (d) the Buyer alters or repairs those Goods without the written consent of the Supplier; (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (f) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 Except as provided in this Clause 5, the Supplier shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in Clause 5.2.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
Article 6. Title and risk
6.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
6.2 Title to the Goods shall not pass to the Buyer until the Supplier receives payment in full (in cash or cleared funds) for the Goods (and any other goods that the Supplier has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums).
6.3 Until title to the Goods has passed to the Buyer, the Buyer shall (a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Supplier's property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (d) notify the Supplier immediately if it becomes subject to any of the events listed in Clause 9.1(b) to Clause 9.1(d); and (e) give the Supplier such information as the Supplier may reasonably require from time to time relating to the Goods and the ongoing financial position of the Buyer.
6.4 The Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Buyer resells the Goods before that time, title to the Goods shall pass from the Supplier to the Buyer immediately before the time at which resale by the Buyer occurs.
Article 7. Price and payment
7.1 The price of the Goods shall be the price set out in the Supplier’s written Order confirmation.
7.2 The Supplier may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to (a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (b) any request by the Buyer to change the delivery date(s), including increased costs arising from requested faster delivery by Buyer, quantities or types of Goods ordered, or the Specification; or (c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods (a) excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and (b) excludes the costs and charges of packaging, insurance, export formalities, transport of the Goods and order administration, which shall be invoiced to the Buyer.
7.4 The Supplier may invoice the Buyer for the Goods on or after the completion of delivery. The Supplier may at any time require the Buyer to pay for the Goods prior to delivery and refuse delivery of the Goods until such payment is received.
7.5 Unless otherwise agreed between the parties, the Buyer shall pay each invoice and delivery submitted by the Supplier in full and in cleared funds in advance (or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Buyer). Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment shall be of the essence for the Contract.
7.6 If the Buyer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under Clause 9, the Buyer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 7.6 will accrue the legal commercial interest in accordance with Article 119a of the Dutch Civil Code. In addition the Buyer shall pay all reasonable costs incurred by Supplier for the collection of the overdue sum, equal to 15 (fifteen) % of the overdue sum, with a minimum of EUR 250.
7.7 If the Buyer disputes any invoice, the Buyer shall immediately, and in any case not later than fourteen (14) calendar days of the invoice date, notify the Supplier in writing. The Buyer provides the Supplier with the reasons for the dispute and any evidence as may be reasonably necessary to support the dispute. Beyond the deadline as set out in this Clause 7.7, the invoice shall be deemed accepted by the Buyer. Where only part of an invoice is disputed, the undisputed amount shall be paid by the Buyer on the due date as set out in Clause 7.5.
7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Article 8. Limitation of liability
8.1 References to liability in this Clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract excludes or limits any liability which cannot legally be excluded or limited, including liability for (a) death or personal injury caused by fault; (b) fraud or fraudulent misrepresentation; or (c) deliberate default.
8.3 Subject to Clause 8.2, the Supplier's total liability to the Buyer in respect of an Order shall not exceed the total sums paid by the Buyer for that Order.
8.4 Subject to Clause 8.2, the following types of loss are wholly excluded (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss of or damage to goodwill; (g) damage to property; and (h) indirect or consequential loss.
8.5 Subject to Clause 8.2, the Buyer agrees, and accepts, not to hold the directors, employees, officers, representatives[, contractors, subcontractors] and advisers of the Supplier personally liable for or in connection with the Contract. Any (liability) claim for or in connection with the Contract shall be brought by the Buyer exclusively against the Supplier.
8.6 This Clause 8 shall survive termination of the Contract.
Article 9. Termination
9.1 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect, without court intervention and without notice or payment of any compensation, by giving written notice to the Buyer if (a) the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) calendar days of the Buyer being notified in writing to do so; (b) the Buyer takes any step or action in connection with its entering administration (insolvency), provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; (c) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or (d) the Buyer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Supplier (without court intervention) if the Buyer becomes subject to any of the events listed in Clause 9.1(b) to Clause 9.1(d), or the Supplier reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect, without court intervention and without notice or payment of any compensation, by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
9.4 In any case of early termination in accordance with Clause 9.1 or 9.3, the price for the Goods remains due (even in respect of Goods not yet supplied to the Buyer) by way of compensation to the Supplier.
9.5 On termination of the Contract for any reason the Buyer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Buyer immediately on receipt.
9.6 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
9.7 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination the Contract shall remain in full force and effect.
Article 10. Intellectual Property Rights
The Supplier is and remains the sole and exclusive proprietary owner of all Intellectual Property Rights related to the Goods (including any improvements, new versions, developments, enhancements, modifications or derivatives of the Goods). Nothing in these Conditions shall be deemed as an implied or express assignment of the Supplier’s Intellectual Property Rights to the Buyer.
Article 11. Force Majeure
The Supplier shall not be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations under the Contract if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for sixty (60) calendar days, either party may terminate the Contract by giving a fourteen (14) calendar days' written notice to the other party.
Article 12. General
12.1 Assignment and other dealings.
The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2 Confidentiality.
The Buyer undertakes that it shall not at any time during the Contract and for a period of two (2) years after termination of the Contract, disclose to any person any Confidential Information, except as permitted by this Clause 12.2. The Buyer may disclose the Supplier's Confidential Information (a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the Buyer's rights or carrying out its obligations under the Contract (provided that the Buyer ensures that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the Supplier's Confidential Information comply with this Clause 12.2; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. The Buyer shall not use the Supplier's Confidential Information for any purpose other than to exercise its rights and perform its obligations under the Contract.
12.3 Entire Agreement.
The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
12.4 No variation.
The Supplier may vary these Conditions at any time. Such variation shall be binding on the Buyer upon written notice to the Buyer unless the Buyer disputes the variation in writing within fourteen (14) calendar days of the Supplier’s notice.
12.5 Waiver.
Except as set out in Clause 2.5, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
12.6 Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this Clause 12.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.7 Notices.
Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by (a) hand or registered mail at the other party’s offices (or such other address as that party may have specified in accordance with this Clause 12.7); or (b) by e-mail to the e-mail address the other party used for the Order (confirmation) (or such other address as that party may have specified in accordance with this Clause 12.7). Any notice shall be deemed to have been received (a) if delivered by hand, at the time the notice is left at the proper address; (b) if sent by registered mail, at 9.00 am on the third (3rd) Business Day after posting, unless proof of earlier receipt can be provided; and (c) if sent by e-mail, at the time of transmission.
12.8 Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract, its subject matter or formation, shall be governed by and construed in accordance with Dutch Law.
12.9 Jurisdiction.
Each party irrevocably agrees that the courts of Limburg, Location Maastricht shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract, its subject matter or formation.