Fortes General Conditions of Sale
The following terms in the General Conditions, written with a capital letter, are defined as follows:
Customer: the other party to Fortes.
General Conditions: these general conditions of sale and delivery of Fortes.
Fortes: Fortes Import Installatie Agenturen B.V. and all its affiliated parties within the meaning of Sections 24a and 24b of Book 2 of the Dutch Civil Code.
Agreement: an agreement between Fortes and the Customer to which these General Conditions are applicable.
Party: Fortes or the Customer, depending on the context.
Product: the movable goods to be supplied by Fortes to the Customer under the terms of this Agreement, including all associated services.
2.1 The General Conditions are applicable to offers by and all agreements with Fortes for the sale and delivery of a Product, including all related services.
2.2 The applicability of general conditions used by the Customer are herewith explicitly rejected.
2.3 Fortes has the right to amend the General Conditions unilaterally. An amendment is applicable to existing Agreements, commencing 14 days after Fortes has informed the Customer accordingly, unless the Customer lodges a written objection to the amendment within these 14 days. In that case, the present General Conditions will remain applicable to all existing Agreements.
3 Offers and Agreement
3.1 All offers of Fortes are non-binding and may be changed or withdrawn by Fortes at any time.
3.2 Orders placed by the Customer will be considered as irrevocable. Orders given by the Customer are not binding to Fortes.
3.3 An Agreement between the Customer and Fortes will be deemed to have been concluded only after Fortes has confirmed the formation of the Agreement in writing (which includes by email).
3.4 An amendment or addition to the Agreement will only be binding to Fortes after Fortes has accepted such an amendment or addition in writing (which includes by email). The General Conditions are applicable to all such amendments or additions to the Agreement.
4.1 All documents and information of any nature whatsoever, concerning offers made by Fortes, such as price lists, drawings, brochures, schedules and other information will be as accurate as possible. However, Fortes cannot guarantee that no discrepancies will occur in the documents and information.
4.2 The documents are and remain the property, including the intellectual property, of Fortes and may not be passed on to third parties or made available for inspection, copied or reproduced in any manner without prior written permission of Fortes.
5.1 The prices quoted by or agreed with Fortes are net, Ex Works (according to the provisions of the most recent version of Incoterms drawn up by the International Chamber of Commerce). Prices are therefore also excluding VAT, excluding import and export duty, excise duty and other taxes or charges imposed or levied concerning the Product and excluding transport costs.
5.2 If and in so far as the prices are based on the price lists of Fortes, the price list that is valid at the moment of delivery will be applicable. Fortes reserves the right to adjust the prices or amend the price list. In the event of a price adjustment or an amendment to the price list, Fortes will inform the Customer in writing as soon as possible, however no later than the date on which such an adjustment or amendment comes into effect. If the Customer does not agree to the proposed price adjustment or amendment to the price list, Fortes will be entitled to terminate the Agreement with immediate effect and without any obligation to pay any form of compensation to the Customer.
5.3 For orders with a total price of less than EUR 250 (excluding VAT) Fortes is entitled to charge an administration fee of EUR 30. For orders with a total price of EUR 250 and higher, Fortes is entitled to charge at least 2% of the total order price for costs and transport.
6 Invoicing and payment
6.1 Payment must be made, without any discount, at the agreed time or, if no time has been agreed, within 14 days of the invoice date, in the currency stated in the invoice and only in the manner stipulated in the invoice. The value dates stated on the bank or giro statements of Fortes are decisive in determining the payment date.
6.2 Fortes reserves the right at all times to demand full or part advance payment and/or security for payment in another manner, in the form of a bank or corporate guarantee or in any other manner at Fortes’ discretion. As long as the Customer has not fulfilled this obligation, Fortes has the right to suspend all its obligations without being obliged to pay any compensation or costs arising for the Customer as a result of the suspension.
6.3 The Customer waives all rights to set off amounts due against each other. Complaints do not defer the Customer’s payment obligations.
6.4 If an amount due on the basis of an invoice has not been paid within the stipulated period of time, the Customer will be immediately in default without a warning or prior notice of default being required, and the Customer will owe interest of 1% per month calculated from the day of the default until the day payment is made in full. All judicial and extrajudicial costs that Fortes must incur as a result of or in connection with failure to pay on time will be charged to the Customer. The judicial and extrajudicial costs will amount to at least 15% of the claim, with a minimum of EUR 500 (excluding VAT).
6.5 Claims of Fortes on the Customer, on whatever basis, are in any case immediately payable, without a warning or prior notice of default being required, in the following situations: if the Customer fails to pay in time, if the Customer is declared bankrupt or insolvent or a petition for such has been filed, if a suspension of payments has been applied for or is granted to the Customer and in the event of the liquidation of the Customer or discontinuation of its business activities.
6.6 Payments made by the Customer serve always to settle (in this order) (i) all judicial and extrajudicial costs, (ii) all interest due and (iii) invoices that have been outstanding the longest. The above applies even if the Customer states that the payment is for a different claim.
7.1 The delivery term commences at the moment that the Agreement has been confirmed by Fortis. The delivery term will be extended by the length of time that performance of the Agreement is delayed by force majeure (as specified in Article 13 of the General Conditions). Delivery will depend on availability and sufficient capacity, unless agreed otherwise. If there is no availability or insufficient capacity, Fortes and the Customer will consult each other in good faith to reach a solution.
7.2 Unless agreed otherwise in writing, the delivery times stated will never be regarded as strict deadlines but always as an indication.
7.3 Fortes has the right to engage third parties for the performance of the Agreement or parts thereof.
7.4 Unless the Parties explicitly agree to another form of delivery, deliveries will be Ex Works (in accordance with the most recent version of the Incoterms). Fortes has the right to deliver in batches, where each batch delivery will be regarded as an independent delivery.
7.5 The Customer has an obligation to take delivery. The product must be accepted in full by or on behalf of the Customer at the agreed place and at the agreed time of delivery. The Customer will ensure that sufficient loading and unloading facilities are available to enable fast unloading.
7.6 If the Customer does not accept the Product, or does not accept it in time, it will be in default without notice of default being required. If the Product is not accepted by the Customer, the risk of the Product passes to the Customer as soon as Fortes presents the Product for delivery in accordance with the Agreement. All costs in connection with the non-acceptance will be at the expense of the Customer.
7.7 If Fortes organizes the transport for the Products to be delivered, Fortes will determine the form of the agreed transport and any packaging. The Customer will bear the risk of damage to or loss of the Product from the moment that the Product is loaded for transport, even if Fortes agrees with the carrier that any damage occurring during the transport will be charged to Fortes.
8 Transfer of risk and ownership
8.1 The risk of the Product passes to the Customer as soon as Fortes presents the Product for delivery in accordance with the Agreement.
8.2 All Products delivered by Fortes remain the property of Fortes until the moment of full payment of all that Fortes has to claim in connection with the Agreement and/or earlier or later similar agreements, including compensation, costs and interest. The Customer waives in advance any right of retention concerning the Products and will not levy attachment or have attachment levied on the Products.
8.3 The Customer is required to keep and/or make the Products on which the right of retention of Fortes rests clearly identifiable and to keep them separate from each other and from other goods kept by the Customer.
8.4 As long as the Products remain the property of Fortes, the Customer is not entitled to dispose of them other than in the normal conduct of its business, or to establish any right on them.
8.5 The Customer is required to insure the Products that are subject to retention of title by Fortes against fire, explosion and water damage as well as theft and to provide Fortes with the policies or a copy thereof should Fortes so demand. All claims that the Customer may have on the insurer on the basis of the aforementioned insurance policies will be pledged to Fortes by the Customer should Fortes so demand.
8.6 If the Customer fails to comply with its payment obligations or if Fortes has good grounds to fear that the Customer will default on its payments, Fortes will be entitled to take back the Products that are subject to its retention of title. In that case the Customer is required to show Fortes the location where the Products concerned are stored and in such a case will permit access to the locations and buildings concerned to enable the Products concerned to be recovered.
8.7 Following the return of the goods, the Customer will be credited the market value, which will never be higher than the original sale price, after deducting the costs of claiming back the goods and the loss incurred by Fortes by taking back the Product.
8.8 In the event of an attachment or any other claim by third parties on the Products that are subject to retention of title by Fortes, the Customer will inform Fortes immediately and will inform the third parties concerned immediately that the Products are the property of Fortes.
9.1 Immediately after delivery the Customer is required to inspect the Product carefully, or have the Product carefully inspected, and to verify that the Product is in conformity with the Agreement as regards quality and quantity. If it is not reasonably possible to carry out the inspection and verification immediately, this must be done as soon as possible.
10 Conformity and other guarantees
10.1 Fortes guarantees that the Product is in conformity with the Agreement at the moment of delivery. The Product is not in conformity with the Agreement if the Product does not possess the properties that the Customer could have reasonably expected on the grounds of the Agreement and if this forms an impediment to the normal use of the Product.
10.2 Fortes can give specific guarantees for specific Products.
11.1 Any complaints concerning non-conformity or defects, including those under guarantee, must be notified to Fortes in writing within 7 days of them being found, or after the Customer could have reasonably found them (taking account of the obligation to inspect set out in Article 9), failing which the Customer can make no further claim that the Product does not comply with the Agreement (and/or a guarantee). A complaint must contain an accurate description of the defect. A complaint does not release the Customer from its payment obligations.
11.2 All rights ensuing from non-conformity and/or defects, including those under guarantee, will cease to apply if the Product has been transported, installed, handled, used, processed, stored or repaired by or for the Customer in an improper manner or contrary to instructions given by or on behalf of Fortes.
11.3 All legal claims and defenses in connection with non-conformity and/or defects, including those under guarantee, will lapse 6 months after the notification as referred to in Article 11.1.
11.4 In the event of a justified and prompt claim, solely at the discretion of Fortes, the only recovery open to the Customer will be: (i) delivery of the missing Product or part thereof, (ii) repair of the Product by Fortes or (iii) replacement of the defective Product by a Product that is in conformity. The costs of these available means of recovery will be at the expense of Fortes.
12.1 Fortes has the right to suspend performance of the Agreement or to terminate or cancel all or part of it, either in or out of court, with immediate effect by means of a written notice and without prior notice of default, subject to retention of all its rights to compensation of costs and loss, if: (a) the Customer fails to comply, or fails to comply in time or in full, with one or more of its obligations, or if it becomes evident that compliance without shortcomings will be impossible; (b) a petition for bankruptcy or insolvency or a moratorium, provisional or otherwise, of the Customer has been filed or ordered/granted, if the business of the Customer is discontinued or terminated or proves to be otherwise insolvent; (c) in the opinion of Fortes a significant change occurs in the direct or indirect ownership or control structure at the Customer.
13 Force majeure
13.1 Fortes is not liable for any failure or any delay in the performance of the Agreement, if this is caused by force majeure on the part of Fortes.
13.2 Force majeure on the part of Fortes is taken to mean all circumstances where the cause cannot be reasonably attributed to Fortes and which temporarily or permanently affect Fortes’ compliance with the Agreement, including but not limited to: strikes, sit-ins, illness of employees, transport problems, riots, acts of war, willful damage, fire, storm, water damage, flooding, explosion, machinery breakdowns, defects to computers, power outages, government measures (including in any case import and export bans, sales bans, the inability to obtain the necessary permits) and all other business interruptions, both at Fortes and its suppliers, as well as failures on the part of its suppliers as a result of which Fortes cannot comply with its obligations, or comply with them in time, towards the Customer.
13.3 If Fortes believes that the force majeure is temporary in nature, it will be entitled to postpone implementation of the Agreement until the circumstance that is causing the force majeure has ceased to exist. If a period of temporary force majeure lasts longer than one month (or if Fortes can reasonably expect that this period will last longer than one month), Fortes will be entitled to adapt the Agreement in line with the circumstances or to cancel or terminate all or part of it out of court, without being obliged to pay the Customer any compensation whatsoever.
13.4 If Fortes believes that the situation of force majeure is permanent in nature, Fortes is entitled to adapt the Agreement to the circumstances or to cancel or terminate all or part of it out of court, without being obliged to pay the Customer any compensation whatsoever.
14 Retention of right to demand compliance
14.1 If Fortes fails to demand compliance with any provision within a period of time stated in the Agreement, this does not affect the right to demand compliance at a later moment in time.
15 Transfer of rights and obligations under the Agreement
15.1 The Customer is not authorized to transfer rights and obligations arising from the Agreement to third parties without prior written permission of Fortes. Fortes will not withhold its permission except on reasonable grounds. Fortes may attach conditions to this permission.
16.1 Fortes is not liable for any loss incurred by the Customer.
16.2 Fortes will in any case never be liable intangible loss nor for for indirect loss, such as but not limited to trading loss, consequential loss, additional loss, loss of income, loss of profits, loss of clients and reputational damage.
16.3 Fortes is not liable either for loss caused by incorrect, careless or irresponsible use of the Product, including in any case use (in the broadest sense) contrary to the instructions given by or on behalf of Fortis.
16.4 In all cases in which Fortes is required to pay compensation, this will never be higher than the amount of the invoice for the Product with regard to which the loss occurred, or the amount actually paid out by an insurer in this regard, at the discretion of Fortes.
16.5 The exclusions referred to in Articles 16.1 and 16.2 will cease to apply if and in so far as the loss is the consequence of intent or deliberate recklessness on the part of Fortes or the managing employees forming part of its management.
16.6 Fortes is not liable for any acts or omissions of third parties, whether or not contracted by Fortes. The applicability of Section 76 of Book 6 of the Dutch Civil Code is excluded.
16.7 Employees of Fortes and any other third parties contracted by Fortes in connection with the performance of the Agreement may rely on the provisions of the Agreement and the provisions of the General Conditions.
16.8 The Customer indemnifies Fortes against all claims from its auxiliary persons, including its personnel or representatives and/or third parties, concerning loss in connection with the performance of the Agreement, in so far as the loss is attributable to the Customer. The Customer is obliged to reimburse Fortes the reasonable costs of defense against claims from third parties.
16.9 The provisions of this article are applicable to both the contractual and non-contractual liability of Fortes (including that on account of an unlawful act).
17.1 Fortes may require the Customer to recall a Product that it has put on the market and which has a defect, or where there is a threat of a defect manifesting itself, within a reasonable period of time to be determined by Fortes. All costs in connection with such a recall will be at the expense of the Customer, unless the recall is not at the risk of the Customer under the Agreement, the General Conditions or the law.
17.2 The Customer will implement a recall at the request of Fortes without delay and within the stipulated period of time. Should it fail to do so, the Customer will be immediately in default without notice of default being required and liable for all costs and loss in connection with the recall, irrespective of whether the recall is at the risk of the Customer or Fortes.
18 Intellectual and/or industrial property rights
18.1 Unless explicitly agreed otherwise between the Parties, no intellectual and/or industrial property rights to the Product held by Fortes or third-party beneficiaries and/or services performed and/or all knowhow related hereto will be transferred to the Customer under the Agreement.
19 Non-disclosure clause
19.1 The Customer is required to observe secrecy with regard to all information that comes to its knowledge concerning Fortes, even if this information is not considered as confidential, and will refrain from directly or indirectly exploiting its relationship with Fortes for promotional or other purposes without prior written permission of Fortes. The Customer will ensure that its officers, employees and third parties engaged by it will also observe this secrecy.
19.2 If the Customer is obliged by the court or pursuant to a judicial order to disclose confidential information, the Customer may only do so after having obtained written permission from Fortes. Fortes will not withhold this permission except on reasonable grounds.
20.1 If one or more provisions of the General Conditions or the Agreement prove to be invalid or are annulled, the other provisions will retain their legal force.
21 Disputes and applicable law
21.1 All disputes between the Parties relating to or arising from the Agreement will be submitted exclusively to the competent court in the district of Midden-Nederland.
21.2 The Agreement and the relationship between the Parties arising from and relating to the Agreement will be governed by Dutch law. The applicability of the United National Convention on Contracts for the International Sale of Goods (the Vienna Sales Convention) is excluded.