1 These General Conditions of Contract shall apply to and therefore constitute an integral part of all offers, pieces of advice, activities, agreements and the engagements arising there from. If at some point there occurs a deviation from any provision laid down in these General Conditions of Contract, the other provisions thereof shall remain in full force and effect, also if this is not expressly stated.
2 The General Conditions of Contract applied by Fenestrae shall prevail over any deviating general conditions referred to by the Buyer. Any provisions that are at variance with these General Conditions of Contract shall only be binding upon Fenestrae if and in so far as Fenestrae shall have expressly agreed to the applicability thereof in writing.
3 Whenever the word “Buyer” is used in these General Conditions of Contract, the term shall also include contractor, principal, Buyer and user, meaning the natural or legal person with whom an agreement is or has been concluded, including any representative(s), proxy or proxies, successor(s) in title and heirs of the said natural or legal person.
1 All offers hold good during the period to be specified by Fenestrae. In the event that no period is specified, the offers made by Fenestrae shall be without engagement.
2 Pieces of advice and/or quotations shall be without engagement and shall be based on the information supplied by the Buyer.
3 In the event that Fenestrae incurs expenses of any kind whatsoever when making an offer, submitting a quotation or giving pieces of advice, Fenestrae shall be entitled to charge such expenses to the Buyer, also if no agreement is concluded,provided these costs have been approved by customer prior to having been incurred.
4 Sending of offers and/or other documentation shall neither oblige Fenestrae to deliver any goods nor to accept any orders.
1 Without prejudice to the provisions stated hereinafter, an agreement between Fenestrae and the Buyer shall only be concluded after the moment when Fenestrae shall expressly have accepted a commission and/or an order in writing or otherwise, or shall have confirmed the same. The written confirmation of order shall be deemed fully and correctly to reflect the agreement.
2 Any additional understandings entered into after the conclusion of the agreement and/or promises made or made on behalf of Fenestrae by its employees, its sales persons, agents, representatives or any other intermediaries of Fenestrae, shall only be binding upon Fenestrae if these have been confirmed by Fenestrae in writing.
1 All prices quoted by Fenestrae are net, and therefore exclusive of any sales turnover tax due and any other governmental levies imposed and exclusive of additional costs such as costs with respect to packing, carriage and insurance.
2 Unless otherwise provided all quotations shall be subject to variation.
3 In the case of unforeseen increases in prices that have an influencing factor on the pricing of Fenestrae products, Fenestrae will be entitled to adjust the pricing accordingly. Any such increase is justified even if an agreement has been previously reached. In the case of an increase in price within 90 days of the start of such an agreement, the Buyer is entitled to request the termination of said agreement, on the condition that the Buyer does so in writing, within 2 weeks after the date that the price increase was communicated by Fenestrae to the Buyer. The factors mentioned hereinbefore that raise the cost price include (but are not limited to) rise in costs due to alterations in foreign exchange rates, rise in salaries, rise in purchase prices, rise in import duties, sales turnover tax and excise duties and a rise in prices charged by the suppliers of Fenestrae.
The abovementioned provision shall also apply if an increase in the price is due to foreseeable circumstances, that nevertheless reasonably ought to be borne by the Buyer
V SECURITY FOR PAYMENT
1 Fenestrae shall be entitled on conclusion of the agreement to demand a down payment in the form of payment in advance of at least 30%.
2 Furthermore Fenestrae shall be entitled to demand sufficient security from the Buyer for the performance of his financial obligations under the agreement, for instance be means of a banker’s guarantee.
1 At the discretion of Fenestrae, payment shall take place either immediately by telephone transfer, or by payment in advance, or net cash, or within 30 days after the invoice date at the office of Fenestrae, or by depositing the amount due on a bank or giro account to be specified by Fenestrae.
2 All payments made by the Buyer to Fenestrae shall be applied in payment of the oldest outstanding invoices of longest standing of the Buyer, irrespective of any description thereof to the contrary.
3 Under no circumstances shall the Buyer be entitled to invoke any rights of deduction or set-off and the Buyer herewith expressly renounces any of the aforementioned rights.
4 Any deviating agreements with respect to payment shall only have a binding effect if these agreements are drawn up and concluded in writing.
5 In the event any deviating way of payment shall have been agreed, payment shall be made within 30 days after the date of the invoice concerned.
6 Any complaints with respect to an independent item of a specified invoice shall under no circumstances relieve the Buyer from his obligation to pay the other items on the invoice within the time stated on the invoice.
7 The Buyer shall be automatically in default by the mere expiry of the time of payment, without any further summons or notice of default being required.
8 In the event that an invoice shall within the above mentioned time not be paid or not be paid in full, the Buyer shall owe Fenestrae an interest amounting to the statutory interest increased by 2% per year over the principal amount.
9 In the event of an extra judicial collection or an attempt thereto, the Buyer shall owe Fenestrae, apart from the principal amount and the interest, costs of collection that amount to 15% of the principal amount due, with a minimum of EURO 250.00 (exclusive of sales turnover tax). The Buyer shall be held to pay the said costs by the mere notification in writing of the Buyer by a third-party collector.
VII RETENTION OF OWNERSHIP
1 All goods delivered by Fenestrae that are still under or with the Buyer shall remain the property of Fenestrae until payment in full of all that the Buyer may be due to Fenestrae from any cause whatsoever, including interest and costs (and in the event that delivery takes place current account, until the moment of settlement of the balance due of the Buyer).
2 Fenestrae shall at all times be entitled on the basis of the ownership retention to have the goods delivered removed from the premises of the Buyer in the event that the Buyer wholly or partially does not perform his obligations towards Fenestrae. The Buyer shall provide his cooperation thereto under forfeiture of a penalty of EURO 500.00 for each day that the Buyer fails so to cooperate.
3 Any taking back of goods in conformity with the provisions of this clause shall leave in full force and effect the right of Fenestrae to claim damages under the provisions that apply to any non-imputable failure in the performance of an obligation.
VIII DELIVERY/TIME OF DELIVERY
1 Unless otherwise provided delivery shall take place ex premises/shop/warehouse of Fenestrae. At the moment the goods leave the premises/shop/warehouse of Fenestrae the risk in the goods shall pass to the Buyer. Delivery shall only take place carriage paid if and in so far as this shall be stated by Fenestrae on the confirmation of order, the invoice or otherwise.
2 The Buyer shall either on delivery inspect the goods delivered and the packing for defects and/or damage, or carry out the said inspection after notification by Fenestrae that the goods are at the disposal of the Buyer.
3 Fenestrae shall be entitled to deliver and to invoice the goods in parts.
4 In the event that the Buyer finds the goods delivered, to be delivered in short or to be damaged the Buyer shall state this on the packing list, on the invoice, or on the shipping documents or by FAX, which will be sent to Fenestrae within 24 hours, in default whereof complaints shall not be taken into consideration.
5 If the Buyer shall not, not properly, or not in time perform any of his obligations towards Fenestrae, or if it is doubtful whether the Buyer shall be able to perform his obligations towards Fenestrae under the agreement, Fenestrae shall be entitled without notification of default or interposition of the Court, either to suspend the performance of any agreement entered into with the Buyer, or to demand security or further security, or wholly or partially to cancel the agreement, all this without Fenestrae being held to pay any damages and without prejudice to any other rights accruing to Fenestrae.
6 Times of delivery and other times shall be an estimate and shall be neither binding nor peremptory, unless expressly otherwise provided. Fenestrae undertakes to comply as much as possible with the time of delivery agreed. No excess in the time of delivery, irrespective of the cause thereof, shall ever give the Buyer the right to cancel the order, to invoke nullity of the agreement, to claim damages, or not to perform any or all of his obligations under the agreement.
7 In the event that the Buyer shall not have taken delivery of the goods after the time of delivery has expired, the goods shall be stored at the risk and expense of the Buyer and shall remain at his disposal. After a period of four weeks Fenestrae shall have the right to sell the goods (privately) and any less proceeds together with the expenses shall be charged to the Buyer in full.
IX CARRIAGE AND RISK
1 Fenestrae shall have the right to choose the means of carriage, shipment and/or packing and no liability shall arise there from if Fenestrae shall have observed due care in making its choice.
2 The goods shall travel at the risk and expense of the Buyer, also if the carrier requires that a provision be added to the consignment notes etc. to the effect that all damage in transit shall be at the risk and expense of the sender.
3 In the event of delivery free of charge, the costs of carriage shall not be charged through to the Buyer.
4 Any transport insurance shall have to be provided for by the Buyer.
X FORCE MAJEURE
1 In these General Conditions of Contract “force majeure” means: any circumstance that is unforeseeable or beyond the control of the parties, due to which performance of the agreement may not reasonably be demanded.
2 With respect to the above-mentioned, force majeure shall include:
– any interruption of operation in the business of Fenestrae, or any other impediments whereby the normal performance of the agreement is obstructed, becomes more expensive, or onerous;
– strikes, illness of or accidents with respect to key employees charged with the execution of the commission;
– war, danger of war, riots, natural disasters, fire, obstruction in transportation, government measures affecting the execution of the commission, and also any other untoward circumstances in the business of Fenestrae or in the businesses that supply Fenestrae with goods that are connected with the commission.
3 In the event of force majeure the Buyer shall, for the period of one month after the agreed date on which the goods are to be delivered, give Fenestrae the opportunity to perform its obligations. If the circumstances constituting force majeure last, Fenestrae shall be entitled to demand modification of the commission in such a manner that execution thereof shall become possible. If the aforementioned is not reasonably possible, either party shall be entitled to deem the agreement cancelled. The other party shall be notified in writing of such cancellation. If the cancellation is caused by any of the circumstances constituting force majeure as referred to in this sub-clause, neither party shall be liable for damages towards each other.
XI INSTALLATION OF EQUIPMENT/ ACCEPTANCE
1 The price shall not include installation of equipment sold and may be invoiced separately by Fenestrae. Fenestrae shall only be held to installation of the equipment if this was expressly agreed between the parties.
2 Installation shall be deemed to take place under normal working conditions and during the normal working hours of Fenestrae. In the event that the activities shall wholly or partially have to take place outside the normal working hours, Fenestrae shall be entitled to charge to the Buyer any additional expenses caused thereby.
3 The Buyer shall provide for the installation of the necessary electrical installations and mains up to the footing of the equipment, together with cables and any equipment forming the connection between the terminals and the central unit of the equipment (terminal cables, modems, line drivers, etc.)
4 Fenestrae shall during the execution of the installation activities under no circumstances accept any liability for any personal injury, damage to buildings, installations or any other goods, nor for any other damage that may directly or indirectly be caused by acts or omissions of Fenestrae, its employees or other persons used by Fenestrae in the execution of the activities, unless in the case of gross culpability or intent.
5 The Buyer shall provide for an area where the equipment may be installed in accordance with installation specifications.
6 In the event that the equipment has to be installed in a space that does not comply with the requirements set by Fenestrae, any extra costs incurred in putting the equipment into use shall be charged to the Buyer.
7 Fenestrae is entitled to deliver the equipment in parts and to charge the purchase price for the said parts separately to the Buyer.
8 After installation of the equipment it shall be tested by Fenestrae. If the said test and a functional inspection have shown that the equipment is functioning properly, the equipment shall be deemed approved and completed.
9 In the event that the delivery of the equipment and/or the software by Fenestrae is not to the full satisfaction of the Buyer, he shall be obliged to notify Fenestrae thereof immediately in writing. If the Buyer does not accept the equipment/software, the Buyer shall not be authorized to use the equipment/software for operational activities.
XII INTELLECTUAL PROPERTY
1 Unless expressly otherwise agreed between the parties, Fenestrae shall at all times retain the ownership of the computer software furnished and/or developed by Fenestrae.
2 The user of the software furnished by Fenestrae shall only be entitled to use it for the purposes for which Fenestrae has given its consent. The said right of use shall not be transferable.
3 The user shall not be authorized to copy, multiply and/or disclose the software and/or the documentation, other than for backup purposes as reasonably required.
4 In the event that the provisions of sub-clauses 1 up to 3 of this clause are violated, the user/Buyer shall without requirement of a declaration of default forfeit an immediately exigible to the amount of EURO 5,000.00 for each violation or each day a violation lasts. The provisions of the preceding sentence shall leave in full force and effect the right of Fenestrae to claim damages arising from the rules that apply to an imputable failure in the performance of an obligation.
5 On condition that Fenestrae shall be notified immediately in writing of any action (including any preceding measures) brought against the Buyer because of the fact that use or sale of the equipment, software or documentation produced by Fenestrae and delivered under these General Conditions of Contract allegedly infringe on any patent rights, copy rights or rights with respect to the assembly or manufacture of print-boards, Fenestrae shall bear the costs of the defense against such claims and pay the remedies apportioned by the Court to the other party, all this, however, only if and in so far as the defense against an action, including all negotiations with respect to any settlement, shall be completely left to Fenestrae.
By means of defense or settlement Fenestrae shall:
a. either on behalf of the Buyer become entitled to continue the use of the equipment, software or documentation;
b. or replace or modify the equipment, software or documentation in such a manner that the infringement shall no longer exist;
c. or, in the event that the aforementioned reasonably cannot be realized, take back the equipment, software or documentation while crediting the Buyer for an amount equal to the value of the product concerned, taking into account the normal standards of downward value adjustment (depreciation).
Fenestrae shall under no circumstances be liable to the Buyer for the consequences of an infringement of any patent rights or copyrights, if this infringement arises from or is based on the use of equipment, software or documentation in combination with any other products that were not delivered by Fenestrae, including software.
6 Furthermore, Fenestrae shall under no circumstances be liable for violations or embezzlement of, or infringements on, intellectual property rights. Moreover, Fenestrae shall under no circumstances be liable for any additional or consequential damage.
XIII SOFTWARE/RIGHT OF USE
1 Rights of use with respect to the software shall only be transferred to the Buyer by granting of the right of use by Fenestrae, at all times conforming to the licensing agreement included in the software.
2 In the event of violation of the provisions of the preceding sub-clause the user/Buyer shall forfeit an immediately exigible penalty, to the amount of EURO 5,000.00 for each violation or each day a violation lasts. The provisions of the preceding sentence shall leave in full force and effect the right of Fenestrae to claim damages under the provisions that apply to an imputable failure in the performance of an obligation.
3 Fenestrae is entitled without interference of the Court to, giving reasonable notice, and at it’s own expense, determine on the premises of the Buyer the correct use of the software and Buyer agrees to allow such access to Fenestrae or it’s legal representative.
XIV MAINTENANCE MATERIALS
1 All materials – including diagnostic software, documentation, (test) equipment, diagrams and auxiliary materials for use – used by Fenestrae for the installation or for the performance of its obligations of guarantee, may be supplied together with the products or be stored at the installation address of the Buyer. These materials shall at all times remain the property of Fenestrae and Fenestrae shall not transfer any proprietary rights or rights of use with respect thereto.
2 The Buyer agrees that he shall properly store the goods and shall not use them in any way or form, or give them to the disposal of any third parties without the prior written consent of Fenestrae.
1 Without prejudice to any stipulation to the contrary in these General Conditions of Contract, the products, software and technical information in any from may only be delivered to the Buyer if and when the required export licenses have been granted.
1 Complaints with respect to any invoice shall be lodged with Fenestrae within 14 days after the invoice date and shall be sufficiently explained, in default whereof the right to lodge complaints of the Buyer shall expire.
2 Without prejudice to the provisions stated hereinafter, Fenestrae guarantees that the goods delivered and/or the services rendered by it shall be sound and of such quality as to be conform to the requirements that reasonably may be set to goods of the kind delivered, and Fenestrae also guarantees that the goods delivered shall in no way constitute an infringement on any intellectual or industrial property rights established under the law of The Netherlands of any third parties.
3 Guarantee with respect to goods or services that Fenestrae procured from third parties for the performance of the agreement shall not reach beyond the guarantee (if any) provided for by the said third parties.
4 Any defects caused by any act or omission or by a failure properly or timely to perform any obligation by the Buyer or by third parties, or that are caused by circumstances beyond the reasonable control that cannot reasonably be imputed to Fenestrae, shall not come under the guarantee provided by Fenestrae.
5 In the event that the Buyer invokes guarantee, Fenestrae shall be entitled to inspect the goods delivered and/or installed in order to determine whether the claim is justified.
6 If in the opinion of Fenestrae the Buyer justifiably invoked guarantee, Fenestrae shall pay the Buyer a compensation that under no circumstances shall exceed the amount invoiced or paid with respect to the said goods, or it shall replace the goods delivered and/or installed, or shall have them replaced, or it shall take back the goods and shall replace them with proper goods or goods of the same quality that do not infringe on any intellectual or industrial property rights of third parties, all this at the discretion of Fenestrae.
7 Guarantee shall under no circumstances apply to defects in goods delivered and/or installed if the said defects are directly or indirectly caused by wear, by insufficient care observed in the use of the goods, by any event causing damage arising after Fenestrae has performed its obligations or by any modification implemented or activity carried out with respect to the goods delivered by Fenestrae.
8 Any claim for guarantee shall within one month after delivery and/or installation of the goods be lodged with Fenestrae in writing, and shall be accompanied by a proper explanation, in default whereof the right to guarantee shall expire.
1 Fenestrae shall not be liable for the consequences of incorrect data and advice from its employees or for errors in leaflets, brochures and/or other advertising material.
2 Save for the obligatory statutory provisions with respect to (products) liability, Fenestrae shall not be liable to pay any damages, irrespective of the nature thereof, whether direct or indirect, including trading loss with respect to both immovable and movable property, or personal injury, both with the Buyer and with third parties.
3 If the Court shall for any reason whatsoever establish liability of Fenestrae, the liability of Fenestrae shall at all times be limited to an amount equal to the invoiced amount with respect to the goods delivered or the activities carried out to which the liability relates.
4 The Buyer is held to indemnify Fenestrae from and against all claims from third parties, under whatever name and on whatever basis.
XVIII GENERAL PROVISIONS
1 The products delivered by Fenestrae are exclusively meant for standard commercial use. Fenestrae shall only be entitled to demand additional contractual securities if the Buyer uses or wants to use the goods for other purposes.
2 The rights and obligations of the Buyer as laid down in these General Conditions of Contract and in all agreements to which these General Conditions of Contract apply, shall not be transferable by the Buyer without the prior written consent of Fenestrae.
3 The Buyer shall refrain from recruiting or attempt recruiting employees of Fenestrae who are involved in the performance of the obligations under this agreement without the prior written consent of Fenestrae, and under forfeiture of the amount of EURO 50,000.00 for each employee so recruited.
XIX GOVERNING LAW
1 All offers, pieces of advice, activities carried out or services rendered by Fenestrae, together with all agreements and the performance thereof, shall exclusively be subject to Dutch law.
1 All disputes – including disputes with respect to the construction of these General Conditions of Contract – shall be submitted exclusively to the competent Court in The Hague, The Netherlands, unless Fenestrae chooses to submit the dispute to the statutory competent Court. The provisions of this clause shall not apply if the Sub district Court has absolute jurisdiction.