General conditions of sale, delivery and services
1.All sales, deliveries and services performed and effected by AFI shall be governed by these general terms and conditions. These general terms and conditions shall also be applicable to and take effect on any and all transactions concluded with AFI in future. Purchaser's terms and conditions shall not be binding on AFI.
Contract, Scope of Deliveries and Services
2. AFI's written order confirmation shall be decisive for the scope of deliveries and services. In case AFI's offer submitted with a set time limit for its acceptance is accepted in time, and in case AFI has not yet confirmed said order, AFI's offer shall be decisive for the scope of deliveries and services. Alterations to the scope of deliveries and services shall require AFI's written confirmation.
3. Documents forming an integral part of the offer such as illustrations, drawings, data on quantities and volumes, measures, weights, loads, processes, consumption figures, and performance data as well as on set deadlines for performance, assembly and/or installation and on the number of personnel assigned to performance, assembly and/or installation and supervision shall be deemed approximate, unless designated expressly as being binding terms.
4. AFI reserves all proprietary rights and copyrights for cost estimates, drawings, and other documents; such records shall not be disclosed to third parties without prior written approval by AFI. Drawings and other documents forming part of offers submitted by AFI shall be returned to AFI immediately if the relevant order is not placed with AFI.
5.Purchaser warrants and represents that it has obtained all governmental approvals and/or permits, if any, required for the use, sale and/or distribution of the goods and for performance of the services. Purchaser furthermore warrants and represents that it will only use, sell and/or distribute the goods in accordance with any applicable governmental rules or regulations, and with any required governmental approvals and/or permits. In case governmental decisions and imposed regulations involve increases in deliveries or services, AFI shall be entitled to a reasonable extra-price.
Prices and Payment
6. AFI's prices are ex works Nuth, The Netherlands, unless agreed otherwise in writing.
7. AFI’s prices are exclusive of any present or future sales, revenue, use or excise tax, duties or similar charges, all of which shall be paid by Purchaser, and shall be added to the purchase price unless Purchaser provides to AFI appropriate certification of exemption.
8. Unless agreed otherwise in writing, payment shall be made in cash without any deduction or set off, and prior to delivery or commencement of the services. Amounts not paid when due will bear legal interest at the applicable rate.
9. In case changes in cost factors arise until delivery AFI has the right to make price adjustments as well as adjustments in mutually agreed interest rates to suit changing monetary market conditions if deliveries and services are effected within a period exceeding 4 (four) months after contract conclusion.
Term of Performance
10. The term of performance is indicative and shall commence on receipt of the order confirmation, but not prior to furnishing and clarifying component parts and documents, permits, release to be procured or delivered and/or effected by Purchaser, and not prior to receipt of an agreed down payment. If Purchaser fails to fulfil these obligations in due time or if Purchaser wishes modifications to be done to the scope of delivery or services, the term of performance shall be extended accordingly.
11. The term of performance shall be deemed met if AFI’s readiness to perform has been duly advised and notified.
12. The term of performance by AFI shall be extended reasonably in the event of force majeure as defined in these general conditions, and in the event of other unforeseeable unusual circumstances, such as: difficulties in procurement of materials, factory disturbances, strike, lock-out, governmental interventions, difficulties in supply of energy. This provision shall also take effect if said circumstances occur with suppliers, subvendors or agents of AFI in the course of an already existing delay. If said circumstances make it impossible or unreasonable for AFI to perform deliveries or services either partly or wholly, AFI shall be released from its obligation to perform.
13.If shipment or collection is delayed by more than one week after AFI has issued notice that the shipment is ready for dispatch, AFI at its own discretion shall be permitted to take the consignment on stock at Purchaser's cost and risk. If said consignment is taken on stock at AFI's own works, AFI shall have the right to charge at least 0.5 % per month of the contract price of consignment components being taken on stock.
Transfer of Risk/Acceptance
14. The risk shall transfer to Purchaser upon dispatch of consignment components, even if partial deliveries are effected or if AFI has performed other services such as: shipment, carriage or assembly/installation.
15. The type of transport will be chosen at AFI's discretion by exclusion of any liability. If requested and at Purchaser's charge, AFI will make out an insurance - to the extent possible - for the transport demanded by purchaser.
16. If shipment is delayed due to circumstances which Purchaser is answerable for, then the risk will pass over to Purchaser from the day of notifying consignments readiness for shipment.
17. In case it has been agreed to subject certain consignment parts to an acceptance test, such test shall be effected immediately at manufacturer's or AFI’s works after notice of readiness for acceptance test. The costs incurred for the execution of the acceptance test shall be for the account of Purchaser.
If no acceptance test was agreed, the delivery or service shall be deemed accepted upon delivery.
Retention of Title
19. AFI will remain full owner of any item delivered until full settlement of any and all claims and demands arising from the business relationship with Purchaser at the date of delivery.
20. Purchaser shall be entitled to alienate the delivery item in orderly course of business, but merely on the following conditions:
Prior to transfer of any item owned by AFI, Purchaser shall notify transferee of AFI’s ownership of such item, and each and every transfer by Purchaser shall be effected subject to retention of AFI’s title. Purchaser shall assign to AFI any and all claims and demands it has against transferee in connection with the transfer. The assigned claims and demands serve as security for all claims and demands AFI has or may have against Purchaser.
Purchaser shall be deemed authorized to collect the claim/demand from resale for and on behalf of AFI. AFI's authority to collect shall not be affected by Purchaser's power of attorney. AFI will not collect the demand/claim assigned to it as long as Purchaser duly fulfils all its payment obligations towards AFI.
AFI shall be notified of the debtors of assigned claims/demands and the assignment of claims/demands shall be notified to debtors upon AFI’s first written request.
21.Purchaser shall not pledge any item owned by AFI nor encumber such item with any security right whatsoever. Purchaser shall notify AFI without delay of any seizure, attachment or lien of any of the items owned by AFI.
22.AFI shall be entitled to repossess any items delivered to Purchaser but owned by AFI in the event Purchaser fails to timely or fully execute any of its obligations under its agreement with AFI. The enforcement of AFI’s ownership of such items however shall not be deemed as a rescission of the contract.
23. Except where agreed otherwise in writing, any and all subjects of the agreement are sold and transferred ‘as and where lying’, and Purchaser represents and warrants that it has duly inspected these subjects prior to conclusion of the agreement. AFI makes no warranty of any kind whatsoever, expressed or implied, in relation to the subjects of the agreement, and specifically disclaims any implied warranty of merchantability or fitness for a particular purpose.
24. AFI excludes any liability for direct damages caused by AFI, with the exception of direct damages caused by wilful misconduct or gross negligence of AFI or AFI’s management. AFI in no event is liable for any indirect or consequential damages of any kind and sustained from any cause. In no event shall AFI be liable to Purchaser in an amount exceeding the purchase price of the subject goods or services. Any lawsuit by Purchaser against AFI shall be filed within twelve months from the date of delivery of the subject goods or services, failing which the right to file such lawsuit will expire.
25. AFI shall not be liable for, nor be deemed in default by reason of, any failure or delay in such performance where such delay or failure is caused in whole or in part by any act of God or the public enemy, regulations or order of any government agency, war, riot, strike, or civil commotion, embargo, damage or delay in transportation, inability to obtain necessary labor or materials from usual sources, or other causes beyond the reasonable control of AFI.
26. Purchaser shall not be permitted to transfer rights and duties arising under this
27. Taxes, duties and levies, that come up in connection with the fulfilment of the contract, are payable by Purchaser.
28.The laws of The Netherlands will govern the contractual relationship between AFI and Purchaser. Applicability of the UN Convention of 11 April 1980 on the International Sale of Goods is expressly excluded. The competent court in Amsterdam, The Netherlands, will have exclusive jurisdiction over any and all disputes arising from such contractual relationship.
29. The contract shall remain binding and effective in its other parts even if individual provisions thereof are ineffective.