1.1 These conditions apply to all offers by and all orders to Multifoil Tapes (hereafter: "Multifoil") for the sale and delivery by Multifoil of products (hereafter: "goods"), and to all agreements with Multifoil with respect thereto.
1.2 The applicability of conditions of the other party or customer (hereafter: customer) of Multifoil is hereby expressly excluded.
1.3 Provisions that deviate from these conditions can be invoked by the customer only if and to the extent that these provisions are accepted by Multifoil in writing.
1.4 The Incoterms 2000 are applicable and are considered to form part of these general conditions. In case of inconsistency between these general conditions and the Incoterms 200, these general conditions do prevail.
2. Offers, orders and agreement
2.1 All quotations and/or offers are valid 30 days from the acknowledgement of the order of the customer.
2.2 Orders and acceptances of offers by the customer are irrevocable.
2.3 Multifoil is only bound when it has accepted an offer in writing or has begun implementation. Multifoil is moreover only bound as was accepted in writing. Verbal commitments or agreements by or with its personnel do not bind Multifoil except and insofar as Multifoil confirms these in writing.
2.4 These conditions apply to changes to the agreement as they do to separate agreements.
2.5 Minimum order value amounts to EUR xxx or the equivalent amount in applicable currency. For orders less than EUR xxx a surcharge of EUR xxx is due or the equivalent amount in applicable currency.
3. Drawings, statements, documents
3.1 Catalogues, brochures, pictures, diagrams, statements of weights and of measures and similar disclosed data are only binding if and insofar as that has been expressly agreed in writing.
3.2 Multifoil is not bound to furnish construction, manufacturing or detail drawings.
3.3 Foundations or erection drawings furnished by Multifoil are only submitted by way of information. They are not based on mathematical or quantitative data or scientific formulae.
3.4 Documents and data originating from Multifoil may not be passed along or disclosed to third parties, except with the express permission of Multifoil.
3.5 Multifoil Tapes is not liable for infringements on proprietary rights of the customer or third parties as a result of the use of drawings, models, instructions etcetera supplied by the customer.
4.1 Prices set by or agreed to with Multifoil are net, therefore exclusive of V.A.T., among other things, and are valid only for the delivery ex factory or warehouse of unpacked goods. They are also exclusive of the costs of packaging, loading, transport, unloading, insurance, installation, assembly and/or other services.
4.2 Prices may be altered based on changes of currency exchange rates and other events such as a cost price increase having an impact on the purchase price between the date of quotation and or offer and acknowledgement of the customer's order
5. Delivery period and delivery
5.1 Multifoil, at its own discretion, has the right to estimate the date of delivery based on normal practice. The delivery period starts after the conclusion of the agreement, and after Multifoil has received all items, documents and data to be provided by the customer, and after any agreed upon advance payment has been received by Multifoil, or any agreed upon security for payment has been put at its disposal.
5.2 Apart from the exception indicated in article 7.3, goods to be delivered by Multifoil are deemed to be delivered as soon as they have left the factory or warehouse of Multifoil or third parties brought in by it for transport to or for the benefit of the customer.
5.3 Failure to deliver within the delivery period does not entitle the customer to additional or substitute damages, nor to non-fulfilment by it of any of its own obligations arising from the agreement. The customer is, however, entitled to rescind the agreement by a written declaration, if and insofar as after the above-mentioned failure to deliver, Multifoil still fails to deliver the agreed upon goods within a reasonable period as agreed to with the customer in writing.
5.4 Delivery periods will be extended by the amount of time that the implementation of the agreement is delayed by force majeure. They will also be extended by the time that the customer is later in the fulfilment of any obligation than is agreed to or could reasonably be expected by Multifoil.
5.5 If Multifoil has agreed to a penalty for late delivery, then Multifoil is only obliged to pay this penalty if this late delivery was due to its own negligence and the customer supplies evidence of an actual loss suffered as a result of such late delivery. The penalty due is never higher than the amount of the loss actually suffered.
5.6 Multifoil has the right to deliver in parts. Each partial delivery will be deemed an independent delivery with respect to the applicability of these conditions.
6. Risk and transfer of title
6.1 Goods to be delivered by Multifoil are at the risk of the customer from the moment the goods are deemed to be delivered as referred to in article 5.2 or article 7.3.
6.2 Loading, despatch or transport, unloading and insurance of the goods to be delivered takes place at the risk of the customer, even if these are handled by Multifoil.
6.3 The industrial and intellectual property rights to or associated with the goods delivered or to documents, products and/or services in connection with the delivered goods remain with Multifoil or third parties entitled thereto, and are never transferred to the customer.
7. Acceptance of delivery, inspection
7.1 The customer shall cooperate without delay in any inspection or test agreed upon. If the customer does not cooperate in the inspection or test on time or at the agreed upon time, the objects will be deemed to have been approved.
7.2 The customer shall accept delivery at the time at which the goods to be delivered are ready for transport or despatch.
7.3 If the customer does not cooperate in a timely fashion or at the agreed upon time in inspection, testing, or acceptance of delivery, the goods will be deemed to be delivered at the time that inspection, testing or acceptance could have been required or expected by Multifoil, in deviation from the provision of article 5.2.
7.4 Multifoil is entitled to compensation from the customer for damage and costs which are the consequence of refusal of or delay in the inspection, testing or acceptance.
8. Force majeure
8.1 Multifoil is entitled to invoke force majeure if the implementation of the agreement is, in whole or in part, temporarily or not, prevented or impeded by circumstances reasonably out of its control, including site or building blockades, strikes, specific work interruptions or work-to-rule slowdowns and lockout, delay in the provision to Multifoil of parts, goods or services ordered from third parties other than by circumstances to be imputed to Multifoil, accidents and interruptions of business operations.
8.2 In the case of force majeure on the part of Multifoil, its obligations are suspended. If the force majeure lasts longer than three months, Multifoil and the customer are both authorized to rescind the non-feasible parts of the agreement by a written declaration, without prejudice to the provision of article 12.
9.1 Multifoil guarantees the good quality of goods it delivers to the extent that in case of defects in construction, materials or finishing which appear during the guarantee period and for which claims are submitted in a timely fashion, it will either redeliver at no cost, or repair the good in question at no cost, or credit the customer as far as reasonable in whole or in part for the invoice value of the good in question, all of this at Multifoil' option.
9.2 The guarantee period is [months] after delivery.
9.3 With respect to noticeable defects, the customer must submit a claim no later than at the inspection or test, or, if such an inspection or test has not been agreed to, in writing within 14 days after delivery, failing which any claim on Multifoil will lapse.
9.4 Claims with respect to other defects must be made in writing within 14 days after their appearance, on penalty of loss of any claim on Multifoil.
9.5 After a claim has been submitted to Multifoil, the customer shall administer the goods with proper care until Multifoil agrees in writing which of the remedies mentioned in article 9.1 it shall choose.
9.6 Any right to a guarantee lapses if:
9.6a the directions given by Multifoil for storage, placement, testing, installation, assembly, monitoring, maintenance, and/or use are not followed exactly;
9.6b the delivered goods are used improperly or other than in conformity with the agreed to or usual purpose;
9.6c the customer or third parties not brought in by Multifoil has/have performed operations on the goods delivered by Multifoil without Multifoil' permission;
9.6d the customer has not fulfilled any of its obligations toward Multifoil arising from the underlying agreement, or has not fulfilled them adequately or on time.
9.7 For goods or parts of goods which Multifoil procures from third parties, the guarantee obligations of Multifoil toward the customer are never greater or of longer duration than the guarantee obligations of those third parties toward Multifoil. Multifoil will be discharged with respect thereto when it transfers its claim on the third party to the customer.
9.8 The customer shall enable Multifoil at its request to carry out its guarantee activities [and it shall inform Multifoil immediately in case of a possible obligation enabling Multifoil to reduce costs involved.]
10. Liability and indemnification
10.1 Multifoil' liability in connection with any defects in goods it delivers is limited to the fulfilment of the guarantee described in the previous article.
10.2 Multifoil is never obliged to pay substitute or additional damages except if and insofar as the damage suffered was inflicted intentionally or by the gross negligence of Multifoil or its own employees. Multifoil' liability for loss of profits, consequential or indirect damages is, however, at all times excluded, except in the case of intention on the part of Multifoil itself.
10.3 In all cases in which Multifoil is obliged to pay damages, these will never be higher than, at its option, either the invoice value of the good delivered whereby or in connection with which the damage was caused, or, if the damage is covered by an insurance policy of Multifoil', the amount that is actually paid out by the insurer with respect thereto.
10.4 In all cases in which Multifoil owes a fine, its obligation to pay damages is limited to payment of the amount of the fine, without prejudice to the provision of article 5.5.
10.5 Any claim toward Multifoil, except those recognized by Multifoil, lapses after a period of [months] from the time the claim arose.
10.6 Conditions which limit, exclude or determine liability, which Multifoil is subject to by Multifoil' suppliers or subcontractors in connection with the delivered goods, can be imposed on the customer by Multifoil's.
10.7 Multifoil' employees, or independent contractors brought in by Multifoil for the implementation of the agreement, can, toward the customer, invoke all means of defence afforded by the agreement as if they themselves were party to that agreement.
10.8 The customer will hold harmless and indemnify Multifoil, its employees and independent contractors brought in by it for the implementation of the agreement for each claim by third parties in connection with the implementation by Multifoil of the agreement, insofar as those claims are greater than or different from those to which the customer is entitled from Multifoil.
10.9 The customer shall adhere strictly to national or international government restrictions placed on export, import and application with respect to the goods to be delivered. It shall compensate Multifoil with respect to damage that arises for Multifoil due to failure to adhere to these restrictions.
11. Payment and security
11.1 Payment must take place within 30 days after the date of delivery. Payments must be made to the bank account designated by Multifoil. Multifoil has however at all times the right to claim full or partial payment in advance, and/or otherwise to obtain security for payment.
11.2 The customer relinquishes any right to set off amounts charged by and between parties. Any payments made by the customer shall be applied to settle the oldest outstanding debt first. Guarantee claims do not suspend the payment obligations of the customer.
11.3 If the customer does not pay any amount it owes pursuant to the foregoing, it is in default without notice. As soon as the customer is in default on any payment, all Multifoil's remaining claims on the customer are due, and the customer is immediately in default without notice with respect to those claims. As from the day on which the customer is in default, he owes to Multifoil the statutory interest per month or part of a month during which the default continues.
11.4 All costs of Multifoil in connection with collecting of any monies due by the customer are for the account of the customer.
12.1 If the customer does not fulfil one or more of its obligations, does not fulfil them on time or adequately, is declared bankrupt, requests (temporary) moratorium, or proceeds with the liquidation of its business, as well as when its assets are attached in whole or in part, Multifoil has the right to suspend the implementation of the agreement or to rescind the agreement in whole or in part, without prior notice of default, by written declaration, at its option and always reserving any rights to which it is entitled with respect to compensation for costs, damage and interest.
12.2 The customer is authorized to rescind only in the cases referred to in articles 5.3 and 8.2 of these conditions, and then only after payment to Multifoil of all amounts owed to Multifoil at that time, whether or not due.
12.3 If the agreement terminates pursuant to article 12.1 before the agreed goods are finished or delivered, Multifoil is entitled to the full agreed price for those goods, decreased by the savings arising directly from the termination. If the agreement ends pursuant to article 12.2, Multifoil is entitled to a part of the agreed price in proportion to the ratio in which the scope of the activities already performed stands in relation to the agreed goods and the activities required therefore, decreased by the savings arising directly from the termination. Costs already incurred or investments already made at the time of the termination of the agreement must always be completely reimbursed by the customer.
13. Disputes and applicable law
13.1 All disputes existing between with respect to the delivered goods or the interpretation of these general conditions shall be heard exclusively by the competent court which is located closest to the Multifoil Tapes company offering, quoting, delivering or selling the goods, unless Multifoil prefers another competent forum
13.2 The agreement is subject to the law of the country of origin of the supplying Multifoil Tapes company.
13.3 If any provision of these general conditions is held to be invalid or unenforceable, then such provision shall be given no effect and shall be deemed not to be included in these general conditions but without invalidating any of the remaining provisions of these general conditions