General Terms of Sale and Delivery version 3.2 of March 2023
Article 1: Applicability
1.1 These general conditions apply to all offers made by Feltest Equipment B.V. (hereinafter called: `Feltest´ or ´Seller´), to all agreements Feltest conclude with another party and to all agreements that may be the result thereof, hereinafter called ‘contract’. Hereinafter the contractor of Feltest shall be called ´Buyer´.
1.2 General conditions of Buyer do not apply and are hereby explicitly turned down by Feltest.
Article 2: Offers
2.1 All offers made by Feltest are without engagement.
2.2 The prices referred to in an offer are based on delivery ex works in accordance with the Incoterms 2020, unless Seller and Buyer have agreed otherwise, and are exclusive of taxes and packaging.
2.3 Buyer is fully responsible for the correctness of any data, drawings etc. which are supplied to Seller for making his offer. Seller cannot be held responsible for any damages etc. which are the result of the incorrectness of these data, drawings etc.
2.4 If the offer of Seller is rejected, he can charge Buyer for all the costs made for making his offer.
Article 3: Advice
3.1 Buyer cannot claim any rights and/or damages suffered resulting from advice and/or information which is provided by Seller if they are not directly related to an order made.
Article 4: Delivery time
4.1 The delivery time mentioned in the contract or in the order confirmation must be considered as being approximated, unless Seller and Buyer have agreed otherwise. If the delivery period is fixed Seller assumes that he can execute the order in the circumstances known to him at that time.
4.2 The delivery period starts when 1) Seller and Buyer have reached agreement on all details, and 2) all necessary documents are in the possession of Seller, and 3) the agreed payment or installment has been received by Seller and 4) Buyer has fulfilled all other requirements of the contract.
4.3 Delivery does not take place before all conditions of the contract have been fulfilled. 4.4 If circumstances occur other than those known to Seller at the moment of fixing the delivery period, Seller may extend the delivery period by the time necessary to execute the order in these circumstances. Seller will inform Buyer that delivery is delayed.
4.5 If performance of the contract is impossible owing to acts of God (e.g. weather conditions, earthquakes, fire, loss or theft of tools, loss of processed materials, road blockades, strikes or work stoppages and import, export or trade restrictions, pandemics, international sanctions or embargos, or similar acts) the delivery period shall be extended for the period of the delay.
4.6 If extra work has to be done, the delivery period shall be extended by the time that is necessary to supply the materials and parts for this purpose and to carry out the additional work. Seller will inform Buyer that delivery is delayed.
4.7 If there is a suspension of obligations by Seller, the delivery period shall be extended for the period of the suspension. Seller shall inform Buyer why he suspends his obligation.
4.8 If and insofar the delivery period is exceeded, Buyer will not be compensated for this unless parties have agreed otherwise in writing.
Article 5: Transport
5.1 If transport is for Sellers expense, Seller will choose the cheapest manner and route for transport. If Buyer wants a specific kind of transportation, all (sur) charges are at his expenses and will be invoiced at cost.
Article 6: Transmission of risks
6.1 In accordance with Incoterms 2020 the risk in relation to the goods shall pass when Seller makes the goods available to Buyer, if the goods are delivered ex works.
6.2 Irrespective of the provisions in article 6.1, Seller and Buyer may agree that Seller shall arrange for the carriage. In that case the risk of storage, loading, carriage and unloading shall be borne by Buyer, who may insure himself against these risks. Any import or export duties or any other duties or taxes imposed on Seller shall be passed on to Buyer.
6.3 Even if Seller installs and/or assembles the goods sold, the risk in relation to the goods shall pass in accordance with article 6.1.
6.4 If a purchase involves a trade in and Buyer continues to use the goods to be traded in pending delivery of new goods, the risk in relation to the goods to be traded in shall continue to be borne by Buyer until the moment at which he transfers them to the possession of Seller.
Article 7: Price (changes) and Payment
7.1 All prices are in Euros (EUR), unless Seller and Buyer have agreed otherwise.
7.2 Payment has to be in accordance with the contract and/or the order confirmation. Deductions of any kind which are not mentioned therein are inadmissible. Discountable bills of exchange shall be credited after consultation with Seller, deducting the discount and any other fees.
7.3 Payment shall be made at the place of business of Seller or by remittance to his bank account. Unless agreed otherwise, payment shall be made as follows: - in case of an over the counter sale: cash; - in all other cases: within 30 days of the date of the invoice.
7.4 In case of financial difficulties or default on part of Buyer Seller has the right to refuse further manufacturing and delivery of goods until adequate compensation or security has been provided.
7.5 Regardless of the agreed terms, Buyer shall be obliged, at the request of Seller, to provide such security for the payment as Seller deems sufficient for payment. If Buyer doesn’t provide such security within the specified period, Buyer shall be immediately in default. In that case Seller has the right to terminate the contract and recover his loss or damage from Buyer.
7.6 If four months have passed since the date on which the contract was concluded and its performance has not yet been completed by Seller, an increase in price-determinants may be passed on to Buyer.
7.7 Payment of the price increase mentioned in article 7.6 shall take place together with the next payment from Buyer after the moment it has been passed on to him.
7.8 Buyer has not the right to set off claims against Seller, nor can he claim a right of retention with respect to the goods delivered, unless Seller and Buyer have agreed otherwise in writing or Seller has been declared bankrupt.
7.9 Full payment shall be immediately due and eligible if:
a. a payment period has been expired;
b. Buyer has been declared bankrupted or Buyer has demanded for a suspension of payments;
c. assets of Buyer have been seized;
d. Buyer, being a company, is wound up or liquidated;
e. Buyer, being a natural person, has been set under guardianship, or dies.
7.10 If payment has not been received within the payment period, Buyer shall be due interest to Seller. The interest rate shall either be ten (10) percent per annum or the statutory rate of interest, whichever is the highest. For the purpose of calculating the interest, part of a month will be treated as a full month.
7.11 If payment has not been made within the agreed period for payment, Buyer shall be due the compensation for the costs of recovery, as determined in the Decision Compensation for Extrajudicial Costs (in Dutch: Besluit vergoeding voor buitengerechtelijke incassokosten), as amended from time to time, the current minimum compensation is EUR 40 and the current maximum compensation is EUR 6775. In case of proceeding Buyer is due to Seller all costs actually made by Seller with respect thereof, with a minimum of EUR 1000 (thousand).
Article 8: Reservation of ownership
8.1 All goods supplied and/or sold by Seller remain his property as long as Buyer:
a. has not performed or has indicated that he will not perform his (payment) obligations under the contract or other similar contracts (extended reservation of ownership);
b. has not paid or has indicated that he will not pay for activities performed or yet to be performed under such contracts (extended reservation of ownership);
c. has not paid claims which are the result of the non-observance of the above-mentioned contracts such as damage, penalties, interests and costs.
8.2 Buyer has to take all measures necessary for the protection of Sellers properties.
8.3 As long as the property of the goods is retained by Seller, Buyer is not allowed to (re)sell or to use the goods as security for payment to third parties.
8.4 If Buyer infringes his obligations under the contract or any other similar contract (extended reservation of ownership), in particular being in default of payment, Seller has the right to invoke his reservation of ownership and retake possession of the delivered goods, in which case Buyer shall do whatever, according to Seller, is required to enable Seller to take possession of the goods.
Article 9: Impossibility of performance
9.1 Seller is authorized to suspend performance of his obligations if he is temporarily prevented from performing them by circumstances that could not be foreseen at the time of the contract and which are beyond of his control.
9.2 Circumstances which could not be foreseen by Seller and which are beyond his control are deemed to include failure of his suppliers and/or subcontractor to fulfill their obligations or to do so in good time, weather conditions, earthquakes, fire, loss or theft of tools, loss of processed materials, road blockades, strikes or work stoppages, pandemics, international sanctions or embargos and import or trade restrictions.
9.3 Seller shall not be authorized to suspend performance if the performance is permanently impossible or if a temporary impossibility has lasted for longer than eight months. The contract may then be terminated in respect of such part of the obligations as have not yet been performed. In that case parties shall not be entitled to request for compensation for damage suffered or yet to be suffered as a result of the termination.
Article 10: Liability
10.1 Seller is only liable for damage which Buyer suffers if this damage is the direct and sole result of a failure attributable to Seller. However, only loss or damage for which Seller is insured or for which he should reasonably have been insured will be eligible for compensation. Seller’s total accumulated liability for damage or loss is maximized to the (day value) price of the lost or damaged product.
10.2 The following are (in any case) not eligible for compensation:
a. consequential loss or damage, including for example loss or damage due to business standstills and loss of profit;
b. damage to goods which are being worked on and/ or to goods which are in the neighborhood of the place where the work is being carried out;
c. damage to persons who are working with the goods and/or to persons who are in the neighborhood of the place where the work is being carried out;
d. damage caused by the intent or deliberate recklessness of Buyer, its employees or any (indirect) user or the supplied and/or sold goods;
e. consequential loss or damage caused by injudicious use;
f. all kinds of losses or damages caused through misusing the product by Buyer, e.g. (not limitative) by abnormal use of the product and/or abnormal service conditions, a misuse by not acting in line with the enclosed instructions and/or a misuse in the sense that the measuring of the product is wrongly and/or wrongly interpreted. Other ways and/or manners of misuse are also possible and therefore explicitly not excluded for being not eligible for compensation;
g. in the case of devices supplied by Seller that become part of the network of Buyer: all damages caused by defects and imperfections in the network used by Buyer and/or damages caused by imperfections in software supplied by third parties for the system.
10.3 Buyer indemnifies Seller against all claims of third parties on account of product liability due to a defect in a product which has been supplied by or through the customer to a third party and consisted wholly or partly in products and/or materials supplied by Buyer.
10.4 If Seller is liable for unsound delivered and/or ordered goods, Seller may choose whether:
a. to repair the item of goods;
b. to replace the item of goods;
c. to provide the customer with a credit note for a proportionate part of the invoiced amount.
Article 11: Warranty
11.1 Seller warrants the proper execution of the agreed performance for a period of twelve months after delivery.
11.2 Seller warrants that the goods are of good quality and free from defects. Seller shall only be liable under this warranty if the product is used under normal use and service conditions and in a proper manner as specified in the enclosed instructions. All other warranties are excluded.
11.3 Seller warrants that software shall not contain any computer code designed to disrupt, disable, harm or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the software, or any other associated software, firmware hardware, computer system or network (sometimes referred to as “viruses” or “worms”), or that would disable the software or impair in any way its operation based on the elapsing of a period of time, exceeding an authorized number of copies, advancement to a particular date or other numeral.
11.4 During the warrant term, this warranty applies to the original buyer of the product and to each transferee owner of the product.
11.5 No warranty is given for defects that are the result of:
a. normal wear and tear;
b. injudicious use;
c. non-maintenance or defective maintenance;
d. installation, alteration, assembly, modification or repair by Buyer or by third parties;
e. delivered items of goods that were not new at the moment of delivery;
f. defects in software/network used by Buyer or defects in software supplied by third parties
11.6 No warranty is given for consequential loss or damage, for misusing and/or abusing and/or improperly maintaining the product in a manner contrary to Sellers instruction manual.
11.7 If it transpires that the delivery or the product has not been sound and is covered under the warranty, Seller may choose whether:
a. to repair the item of goods;
b. to replace the item of goods;
c. to provide the customer with a credit note for a proportionate part of the invoiced amount.
11.8 For warranty Services, buyer must return the product at Buyer’s costs and risk to Seller’s site at the following address:
Feltest Equipment B.V.
Stuijvenburchstraat 155
6961 CV Eerbeek
The Netherlands
11.9 Buyer may no longer invoke an instance of non-performance if he does not lodge a written claim with Buyer within one month of the date on which he discovers the defect or could reasonably be expected to discover it.
Article 12: Uncollected goods
12.1 Buyer is obliged to collect the goods supplied and/or sold by Seller within 30 days after being offered for delivery by Seller.
12.2 When goods have not been collected by Buyer at the time that the delivery period expires, the goods will be held available for Buyer. The uncollected goods will be stored up at the expense and risks of Buyer. Seller may always establish the right mentioned in article 6:90 of the Dutch Civil Code.
Article 13: Reservation of title and right of lien
13.1 If Buyer is unable to invoke his reservation of title because the delivered goods have been mingled, distorted or changed by way of accession, the Buyer shall be obliged to grant Seller a lien on the newly created goods.
Article 14: Sanctions or embargoes
14.1 Buyer acknowledges that economic or finance sanctions or embargoes are imposed and enacted from time to time by the UN, EU, USA or other countries (‘Sanctions’).
14.2 Buyer warrants that it will comply with all applicable Sanctions and that the products received from Feltest will not be exported, re-exported, transferred, used or provided directly or indirectly to any country, or legal or natural person in violation of the Sanctions.
14.3 Buyer warrants that at all times in connection with and throughout the course of the contract, Buyer shall comply with, and shall take adequate measures to ensure that its employees and contractors comply with, the Sanctions.
14.4 Buyer shall indemnify and hold harmless Feltest in the event of any loss or damage resulting from a breach or an alleged breach of Sanctions by Buyer, its employees or contractors. Breach of this clause shall be deemed to be a material breach of the contract.
Article 15: Repair orders
15.1 In addition to the previous provisions, the following provisions apply with regard to repair orders. In the event of a conflict between the foregoing provisions and the provisions of this article, the provisions of this article shall prevail.
15.2 Insofar as possible, the Buyer will be informed by the Seller about the estimated repair price when offering a good for repair (unless it concerns a repair as referred to in Article 11.7 sub a) and the estimated repair time.
15.3 The repair time indicated by the Seller is based on an estimate and is therefore not binding.
15.4 If it appears during the repair that the estimated repair sum will be exceeded by 15%, the Buyer will be informed about this in good time. The Buyer then has the right to terminate the repair order, subject to the obligation to reimburse the costs incurred by the Seller up to that point.
15.5 The Buyer is obliged, at its own expense and risk, to deliver the good to be repaired to the repair address indicated by the Seller, and to have it collected again after the repair.
15.6 The seller acquires a right of pledge on the goods offered for repair that have come into its possession, for all claims arising from the repair order or from previous repair orders.
15.7 The Seller guarantees the soundness of the repair carried out for six months after it has indicated to the Buyer that it has been properly repaired and can be collected.
15.8 For the rest, the liability provisions as included in Article 10 apply in full.
15.9 Deviating agreements with regard to this present repair provisions must be recorded in writing and signed by both parties.
Article 16: Applicable law and choice of forum
16.1 The law of the Netherlands is applicable.
16.2 Title 1 of Book 7 of the Dutch Civil Code and the Vienna Convention on Contracts for the International Sale of Goods are not applicable, nor is any other international regulation the exclusion of which is permissible.
16.3 Only the civil court that has jurisdiction in the place of establishment of Seller may take cognizance of disputes, unless this would be contrary to peremptory law. Seller may deviate from this rule of jurisdiction and apply the statutory rules governing jurisdiction.
16.4 The parties may agree on arbitration or mediation.