GENERAL TERMS AND CONDITIONSGeneral Conditions of Afpro Filters B.V. Deposited with the Chamber of Commerce of Alkmaar on 26 June 2007 under number 37053830.
1.1. In these Conditions “customer” means: every (legal) person who has made or wishes to make a contract with Afpro Filters B.V., and his representative(s), agent(s), legal successor(s) and heirs.
1.2. In these Conditions “assignment” means: every assignment for the providing of services and/or making of deliveries which the customer grants to Afpro Filters B.V.
1.3. All offers and contracts are exclusively governed by these Conditions. The applicability of general conditions of the customer is explicitly rejected.
2.1. All offers are without commitment, unless the contrary explicitly ensues therefrom.
2.2. All price specifications are made subject to the reservation that price changes may be made. Prices are:
3. INTELLECTUAL PROPERTY/CONFIDENTIALITY
3.1. Afpro Filters B.V. reserves all intellectual property rights relating to details furnished, services provided by and/or goods delivered by Afpro Filters B.V.
3.2. The customer undertakes to only use all (technical) details which Afpro Filters B.V. has made available to it, such as schedules, drawings and designs, for his own (internal) use and not to allow third parties to inspect such in any way.
3.3. In the event of breach of our intellectual property or breach of Article 3.2, the customer will forfeit an immediately due penalty of EUR 20,000 per breach and for each day that the breach continues, without prejudice to the right to full compensation.
4.1. A contract will first be made after Afpro Filters B.V. has explicitly accepted and confirmed an assignment in writing, or if Afpro Filters B.V. has started execution of the assignment. The assignment confirmation is deemed to accurately and fully represent the contract.
4.2. Any later additions, changes, (verbal) agreements and/or commitments are only binding on Afpro Filters B.V. if Afpro Filtertechniek has confirmed such in writing.
4.3. Afpro Filters B.V. is entitled to engage third parties in the execution of an assignment, and to pass on the costs to the customer in accordance with the price specification or the cost price.
5. PRICE CHANGES
5.1 If within 3 months after granting the assignment the execution thereof has not yet been completed, Afpro Filters B.V. is entitled to charge the customer an increase in the cost-price determining factors accordingly. If this increase is greater than 5%, the customer has the right to dissolve the contract.
6. DELIVERY AND DELIVERY/COMPLETION TERM
6.1. Unless otherwise agreed delivery will be ex warehouse Afpro Filters B.V.
6.2. Delivery of goods will be effected because the goods leave the warehouse of Afpro Filters B.V. or, in the event of delivery by a third party, leave the warehouse of such third party, or if they are otherwise at the disposition of the customer, unless a different delivery time is agreed in writing.
6.3. Completion of work executed by or on behalf of Afpro Filters B.V. takes place at the time that the work has been completed or when the customer puts the work into use. Defects or incomplete points of a subordinate nature will not stand in the way of completion.
6.4. Time is never of the essence with regard to delivery/completion terms and are approximates. Terms will be reasonably extended if changes occur in the scope of the assignment and/or the circumstances under which the assignment is executed.
6.5. Exceeding the delivery/completion term does not give any entitlement to compensation.
6.6. If the term for delivery or the day when repaired goods are to be picked up expires and the customer has not accepted or picked up the goods, they will be stored at the customer’s risk and expense. If the customer has not picked up the goods three weeks after storage, Afpro Filters B.V. is entitled and has the power to sell and deliver the goods to third parties and to pay itself from the proceeds, without prejudice to other rights under the heading of the assignment.
7. TRANSPORT AND RISK
7.1. Transport is at the customer’s expense and risk. The customer must take out insurance against such risks.
7.2. As of the time of delivery as referred to in Art 6.2 the goods are at the customer’s expense, even when goods must be processed or installed subsequently by or on behalf of Afpro Filters B.V.
7.3. The customer is liable for all loss resulting from loss or theft of or damage to goods which are used in the execution of an assignment and which are located at the place there the activities are carried out. This is not the case when said goods are used in a workplace of Afpro Filters B.V. or a third party engaged by it.
8. FORCE MAJEURE
8.1. Afpro Filters B.V. is not bound to perform any obligation to the customer if it is prevented from doing so as a result of a circumstance which is not due to fault, and is not at its expense either under the law, a legally binding transaction or custom.
8.2. In these General Conditions force majeure means, in addition to everything it is understood to mean in the law and jurisprudence, all external causes, foreseen or unforeseen, which are beyond the control of Afpro Filters B.V., but in consequence of which Afpro Filters B.V. is not able to perform its obligations. This in any event includes work strikes in the business of Afpro Filters B.V. or in the business of third parties and non-performance of their obligations by suppliers/customers of Afpro Filters B.V. Afpro Filters B.V. also has the right to claim force majeure if the circumstance which impedes (further) performance of the contract arises after Afpro Filters B.V. should have performed its obligation.
8.3. During the period that the force majeure continues Afpro Filters B.V. can suspend the obligations under the contract. If this period lasts longer than two months, each of the parties is entitled to dissolve the contract, without an obligation to compensate loss to the other party.
8.4. Insofar as Afpro Filters B.V. has already partly performed its obligations under the contract at the time the force majeure arises or will be able to do so, and the part performance has an independent value, Afpro Filters B.V. is entitled to separately invoice the part already performed or to be performed. The customer is bound to pay this invoice as if it were a separate contract.
9.1. Afpro Filters B.V. guarantees the soundness of goods delivered and work carried out for a period of 6 months after delivery/ completion, without prejudice to the provisions of Article 9 of these General Conditions. A guarantee in respect of goods taken from third parties or work executed by third parties will only be given if and insofar as the relevant third party gives a guarantee in such respect.
9.2. No guarantee whatsoever is given with regard to alleged shortcomings in the degree of functionality, as this functionality is greatly determined by circumstances which lie outside of Afpro Filters B.V.’s area of influence.
9.3. Defects must be reported to Afpro Filters B.V. in writing within 14 days after they are detected, precisely setting out the nature, scope and (suspected) cause of the defect; failure to do so will result in lapsing of the guarantee.
9.4. No guarantee is given in respect of normal wear and tear, when changes or repairs have been made by third parties, the goods are used for purposes other than the normal use and/or when there is (was) faulty maintenance, storage or any other form of inexpert use.
9.5. In the event of a guarantee claim Afpro Filters B.V. can, at its own election, replace or repair the item or credit the customer for a proportional part of the invoice.
9.6. The existence of a guarantee claim is without prejudice to the customer’s (payment) obligations and does not constitute grounds for suspension or dissolution.
10.1. The liability of Afpro Filters B.V. goes no further than as worded in Article 9 of these General Conditions. Should Afpro Filters B.V. nevertheless be subject to a further-reaching liability, then such is
limited to the amount which is paid out under the insurance taken out by Afpro Filters B.V. in such case, increased by the excess under such insurance. If no (full) cover is provided and/or if no insurance was taken out for the relevant loss, any liability of Afpro Filters B.V. is limited to € 15,000.
10.2. Any liability of Afpro Filters B.V. for damage as a result of mistakes of agents is excluded, including cases of intent or gross negligence of such agents.
10.3. Afpro Filters B.V. is in no way liable, i.e. including up to the limit mentioned in Article 9.1, for consequential damage, lost profit and other pure financial loss suffered by the customer and/or
10.4. The customer indemnifies Afpro Filters B.V. against all claims of third parties under the heading of product liability, and furthermore against all claims of third parties which are directly or indirectly connected with work executed/goods delivered by Afpro Filters B.V. in the framework of the execution of the assignment, or the use of goods by the customer or third parties.
11. RENTENTION OF TITLE
11.1. Afpro Filters B.V. remains the owner of all goods it has delivered, up to the time when the customer has performed all obligations under the heading of goods which have been or are to be delivered, work which has been or is to be executed, and with regard to claims relating to default on the performance of such contracts.
11.2.The customer is entitled to use or supply the goods in the framework of the normal course of business. Any retention of title which the customer stipulates in respect of the supply of goods supplied by Afpro Filters B.V. will be on behalf of Afpro Filters B.V.
11.3. If the retention of title cannot be enforced as a result of change in form, processing or accession, the customer is bound upon first request to provide substitute real security on behalf of Afpro Filters B.V.
11.4. If goods which are subject to a retention of title are destroyed or damaged, as of that time Afpro Filters B.V. is entitled to the insurance payout which the customer receives as a result of the destruction or damage. At the time of destruction or damage the customer is bound to immediately inform Afpro Filters B.V. thereof. On the first request of Afpro Filters B.V. the customer is obliged to pledge any insurance payout and compensation claims to Afpro Filters B.V. and to fully cooperate with regard to all formalities required in this respect.
12. PAYMENT, INTEREST, COASTS AND DISSOLUTION
12.1. Payment is to be cash on delivery/completion, or within 30 days after the invoice date by means of deposit on or transfer to a bank or giro account designated by Afpro Filters B.V. Every claim for set-off or suspension is excluded.
12.2. As of the time that the customer is in default he will owe interest of 1.5% per month, as well as compensation to cover extrajudicial costs, which are fixed at 15% of the principal with a minimum of €250. Payments will first be applied to payment of interest and extrajudicial costs.
12.3. If the customer loses the (free) disposition of his assets or a petition for such has been presented, Afpro Filters B.V. is entitled to dissolve contracts with immediate effect. The receiver or administrator does not have the power mentioned in Art. 11.2.
13. APPLICABLE LAW AND CHOISE OF FORUM
13.1. All offers, contracts and the performance thereof are exclusively governed by Dutch law, with the exclusion of the applicability of the Vienna Sales Convention and any other international regulations, the exclusion of which is permitted.
13.2. With regard to the interpretation of international trade terms, the “Incoterms” as compiled by the International Chamber of Commerce in Paris apply.
13.3. Disputes can only be brought before the District Court of Alkmaar, unless Afpro Filters B.V. chooses another court.
13.4. This translation has no legal force. The original Dutch text of these General Conditions will be binding and shall prevail in case of any variance between the Dutch text and the English translation.