Fetim Group
Mondial, a private limited liability company, having its registered office in
Amsterdam, the Netherlands, where it is listed in the Commercial Register under
number 28092229
filed with the
Registry of the Amsterdam District Court, on 23 December, 2013 under number
110/2013.
DEFINITIONS
1. ‘Supply/Delivery’ is the actual making
available of Goods to the Buyer or to a third party designated by the Buyer.
2. ‘General Terms and Conditions’, ‘General
Terms and Conditions of Sale’ and ‘Terms and Conditions’ refer to the present
provisions.
3. The ‘Buyer’ is the party contracted by Fetim
Group Mondial or Fetim Group Mondial’s intended contracting party.
4. An ‘Offer’ is every oral or written offer made
by Fetim Group Mondial for the conclusion of an agreement with it.
5. ‘Goods’ are all corporeal objects to which the
agreement pertains and/or, if applicable, the work or services to be performed
by Fetim Group Mondial.
Article 1 APPLICABILITY
1. These General Terms and Conditions of Sale
will apply to all Offers made by Fetim Group Mondial and all agreements
concluded with Fetim Group Mondial.
2. Amendments and/or supplements to these General
Terms and Conditions of Sale will not be legally valid unless they have been
laid down in writing and have been signed for approval by Fetim Group Mondial’s
Management Board.
3. Unless provisions to the contrary have been
agreed in writing, the Buyer’s general terms and conditions of purchase will
only apply to the extent that they do not conflict with these General Terms and
Conditions of Sale. In the event of any doubt or in the event of conflict with
the Buyer’s general terms and conditions of purchase, these General Terms and
Conditions of Sale will apply to the exclusion of all other terms and conditions.
Article 2 OFFERS / CONCLUSION OF AGREEMENTS
1. Offers made by Fetim Group Mondial will be
without obligation and may be withdrawn by Fetim Group Mondial at all times,
also in the event that the relevant Offer states a term for acceptance.
2. The Buyer may only accept the Offer in
writing. The Buyer must sign the confirmation of the Offer enclosed by Fetim
Group Mondial for approval and return same to Fetim Group Mondial within eight
(8) days of the dispatch date.
3. If this eight-day term is exceeded, Fetim
Group Mondial will be free to accept the written confirmation as yet and decide
that an agreement has been concluded with the Buyer.
Article 3 PRICES
1. The prices applied by Fetim Group Mondial are
based on the price-determining factors as known during the negotiations and/or
the issue of the Offer. These factors may include import and export duties and
similar duties, freight rates, insurance premiums and contributions, levies,
taxes and other government charges.
2. If one or more of these price-determining
factors changes before Delivery is effected, Fetim Group Mondial will be
entitled to reasonably adjust its prices.
3. For each agreement, including delivery on
supply, a change in the exchange rates of one or more currencies on which the
conclusion and/or performance of the agreement was based will entitle Fetim
Group Mondial to adjust the price, withdraw the Offer or dissolve the
agreement.
4. Fetim Group Mondial will be entitled to adjust
the prices immediately following a change in the statutory price-determining
factors.
Article 4 INCOTERMS
1. The goods will be transported DDP (Delivery
Duty Paid), carriage paid, including any charges. Article 7(1) of these
Terms and Conditions will remain fully applicable. In addition, the risk of
violence and catastrophes, including terrorist acts and natural catastrophes,
will be borne by the Buyer. If any other terms and conditions of delivery have
been declared applicable, this must be explicitly agreed upon in writing. In
the event that goods are transported at the Buyer’s expense and risk pursuant
to the terms and conditions of delivery agreed upon, then the Buyer will be
obliged to take out insurance against this risk.
2. If Fetim Group Mondial arranges transport, the
provisions of paragraph 1 of this Article will remain fully applicable.
Article 5 DELIVERY / DELIVERY DATES
1. In the event that an Offer or confirmation
states a delivery date or such has been agreed upon, same may not be deemed to
be a firm deadline for Fetim Group Mondial. Delivery dates will only serve as
an indication and are therefore not guaranteed by Fetim Group Mondial.
2. If a delivery date is exceeded, the Buyer must
give Fetim Group Mondial written notice of default, simultaneously granting Fetim
Group Mondial a reasonable term to comply as yet.
3. Any exceeding of the delivery term will not
oblige Fetim Group Mondial to compensate the Buyer and/or any third parties for
damage possibly incurred. Any exceeding of the delivery term will not entitle
the Buyer to dissolve the agreement or fail to perform or suspend its
obligations ensuing from this agreement or another agreement.
4. Unless the contrary has been explicitly agreed
in writing by Fetim Group Mondial, Fetim Group Mondial will be entitled to
deliver an order in its entirety or, if the Goods become available in
consecutive batches, in parts. In the event that Fetim Group Mondial sends the
Buyer separate invoices for each partial delivery, the Buyer will be obliged to
pay those separate invoices in accordance with Article 11.
5. The Buyer will be obliged to take receipt of
the Goods and to unload same forthwith. If the Goods are not taken delivery of
within three (3) hours of delivery, they will be stored at the location
designated for that purpose pursuant to the agreement, the law or standard
practice. Storage by Fetim Group Mondial will be at the Buyer’s expense and
risk.
Article 6 QUANTITY
1. If Fetim Group Mondial uses the word
‘approximately’ (‘approx.’)’ in Offers, the quantity delivered may deviate from
the quantity stated in the Offer or the confirmation by a maximum of 10%.
2. The Buyer undertakes to pay for any excess
quantity delivered in accordance with the agreed invoice price.
Article 7 QUALITY AND PROCESSING
1. Fetim Group Mondial will not be liable for any
reduction in quality of Goods after the time that they have left its warehouse
or the warehouse of a third party, or any other place of storage or dispatch.
2. Unless the contrary has been explicitly agreed
in writing, processing a Good, for instance sawing or drying a Good, will be at
the Buyer’s expense and risk.
Article 8 COMPLAINTS
1. The Buyer must check the number of Goods
delivered. The quantities or numbers stated in the consignment note, delivery
receipt or other certified document will be deemed to be correct, unless any
shortages are noted by the Buyer in the receipt forthwith.
The Buyer will subsequently be obliged to
report the shortages to Fetim Group Mondial by registered letter, fax or email
within eight (8) days of their discovery, while submitting a detailed overview
of the relevant shortages. Upon submitting such report by fax or email, the
Buyer must keep a confirmation of receipt or a read receipt.
2. Complaints regarding the quality of and/or any
deviations in the Good delivered must be reported by the Buyer to Fetim Group
Mondial by registered letter, fax or email within eight (8) days of delivery of
the relevant Good.
3. The Buyer shall grant Fetim Group Mondial the
opportunity to inspect the Good following Delivery, in order to establish
whether the complaints are well-founded. The Buyer will no longer be entitled
to submit a complaint regarding the quality of or any deviations in the Goods
delivered after they have been fully or partially processed.
4. In the event that the Goods in question are
not located in Fetim Group Mondial’s warehouse, they must be stored by the
Buyer at the Buyer’s own expense and risk. In that event, the Buyer will bear
the responsibility for the Goods. In addition, the Buyer shall take out proper
insurance against the usual risks.
5. The submission of a complaint will not entitle
the Buyer to fully or partially suspend payment of the purchase price or any
additional costs.
6. The Buyer will be deemed to have accepted the
Good in good condition, unless it submits a complaint in accordance with this
Article.
Article 9 Liability
1. Fetim Group Mondial will not be liable for any
consequential damage, trading losses or indirect damage as a consequence of any
non-performance, late performance or improper performance by Fetim Group
Mondial.
2. Fetim Group Mondial will not be liable for any
damage inflicted on persons and/or property due to an intentional act or
omission and/or gross negligence of employees below management level.
3. The Buyer will indemnify Fetim Group Mondial
against all claims of third parties for compensation of loss items as referred
to in paragraphs 1 and 2.
4. In the event that any deficiencies are to be
borne by Fetim Group Mondial pursuant to the nature of the performance, Fetim
Group Mondial will have the choice of the following alternatives:
a. Fetim Group Mondial may replace the faulty
Good after the Buyer has returned same to it; or
b. Fetim Group Mondial may pay the Buyer damages
subject to a maximum amount equalling the faulty Good’s invoice value.
Fetim Group
Mondial will not be obliged to repair the Good delivered.
5. Minor deviations in size and/or thickness or
minor colour deviations will not mean that Fetim Group Mondial has not properly
performed its obligations.
6. The Buyer will be obliged to grant Fetim Group
Mondial the opportunity to perform its obligations ensuing from the agreement
and must render any cooperation necessary in this respect.
Article 10
CANCELLATION / SUSPENSION
1. In the event of failures on Fetim Group
Mondial’s part which cannot be attributed to it, including in the event that Fetim
Group Mondial is unable to effect delivery because its suppliers have not
enabled it to do so, the obligation to effect delivery will be suspended to the
extent that performance is not permanently impossible.
2. In the event that Fetim Group Mondial expects
the delivery term to be extended by more than three (3) months, or in the event
that performance proves impossible as yet, then Fetim Group Mondial will be
entitled to dissolve the unperformed part of the agreement. In that event, Fetim
Group Mondial will not be obliged to pay any damages. In the event of partial
performance by Fetim Group Mondial, the Buyer will be obliged to pay the
corresponding part of the total price agreed upon.
3. Each failure on the Buyer’s part will entitle Fetim
Group Mondial to suspend all its obligations vis-à-vis the Buyer with immediate
effect until the Buyer has performed all its exigible obligations.
4. Fetim Group Mondial will be entitled to
require full payment and/or sufficient security from the Buyer before
performing its own obligations if, in Fetim Group Mondial’s opinion, it is
likely that the Buyer will not – or will not be able to – perform its
obligation in a correct manner and/or on time.
Article 11 PAYMENT
1. Unless the Buyer has effected payment within
the term mentioned in paragraph 3 of this Article, the invoice may be
increased by interest charged on late payments at a rate of 2% with respect to
the total invoice amount.
2. Bill of exchange charges and bank charges and
other costs pertaining to the payment of the invoice will be borne by the
Buyer.
3. Payment must be effected within 30 days of the
invoice date. In the event that payment has not been effected within this term,
the Buyer will be in default forthwith.
In addition to
the interest charged on late payments referred to in paragraph 1, 1% in
interest will be payable by the Buyer for each month or part of a month that
the Buyer remains in default of payment.
4. Deviating payment terms will only apply if
they have been expressly agreed in writing by Fetim Group Mondial.
5. Upon effecting payment, the Buyer may not
deduct any discounts from the invoice amount. The Buyer may furthermore not set
off any discount, be it exigible or not, against an invoice sent by Fetim Group
Mondial.
6. The Buyer will be obliged to compensate Fetim
Group Mondial for all judicial and extra-judicial costs incurred by Fetim Group
Mondial as a consequence of the fact that the Buyer has remained in default of
timely and/or proper performance of its obligations.
7. In the event of non-timely performance, the
Buyer will owe compensation for the extra-judicial collection costs, subject to
a minimum amount of 15% of the amount payable by the Buyer (consisting of the
principal sum, the interest charged on late payments and the default interest).
8. In the event that a court, arbitrator or third
party charged with giving a binding opinion imposes an order to pay costs on
the Buyer which is lower an the judicial and extra-judicial costs actually
incurred, the Buyer must pay Fetim Group Mondial the difference as yet at Fetim
Group Mondial’s first request to that effect.
Article 12 Retention
of title
1. The ownership of the Good delivered by Fetim
Group Mondial will not pass to the Buyer until it has paid all amounts due to Fetim
Group Mondial pursuant to its agreements with the Buyer and in the context of
the services or work performed.
3. Should Fetim Group Mondial, despite the
provisions of paragraph 2, nevertheless lose the ownership of the Goods,
then the Buyer will grant Fetim Group Mondial all cooperation necessary for
creating a possessory or non-possessory pledge with respect to the Goods in
favour of Fetim Group Mondial, at Fetim Group Mondial’s first request.
4. Despite the provisions of paragraph 1,
the Buyer will be entitled to sell and supply the Goods it has received from Fetim
Group Mondial in the context of its normal business operations. This will
always be subject to the condition, however, that the Buyer notifies its
purchasing counterparty in writing of Fetim Group Mondial’s retention of title
well in advance of any purchase agreement being concluded.
5. Fetim Group Mondial will at all times be
entitled to impose the condition on the Buyer that the Buyer may only sell and
deliver the Goods after a non-possessory pledge has been created in favour of Fetim
Group Mondial.
6. The Buyer’s entitlement laid down in
paragraph 4 will lapse in the event that the Buyer is in default of proper
and/or timely performance of its obligations vis-à-vis Fetim Group Mondial.
This entitlement will revive – with retroactive force – as soon as the Buyer
performs its overdue obligations as yet.
7. As long as the ownership of the Goods
delivered has not passed to the Buyer, the Buyer will not be entitled to
encumber the Goods in any manner whatsoever and/or to grant same on loan for
use or loan for consumption and/or part with same to third parties.
Article 13
PLEDGING / ASSIGNMENT
As additional security for the full payment
of its claims vis-à-vis the Buyer, the Buyer will be obliged, further to a
request from Fetim Group Mondial, to cooperate in the pledging (at Fetim Group
Mondial’s request: public pledging) and/or assignment of all claims which the
Buyer may have at any point in time.
Article 14 Final
provisions
1. All disputes, including preliminary relief
proceedings, relating to and/or ensuing from these General Terms and Conditions
of Sale and/or any agreements to which these General Terms and Conditions of
Sale apply will be governed by Dutch law.
2. Disputes as referred to in paragraph 1
will be submitted to the District Court of Amsterdam, the Netherlands, except
in the event and to the extent that the Sub-District Division is competent.
3. The
usual trade abbreviations will be governed by the international rules on the
interpretation of trade terms (Incoterms 2000), supplemented by the most recent
publication of the International Chamber of Commerce (ICC).
4. Without Fetim Group Mondial’s prior written
permission, it will not be permitted to copy or use the text of these Terms and
Conditions, in whole or in part.
© All rights
reserved by Fetim Group Mondial 2013