Terms & Conditions

General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 1 of 12

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF FCW EUROPE B.V., FCW
CLEANING EUROPE B.V., FCW KAINOS EUROPE B.V. AND FCW ECSIA EUROPE B.V.

1. Definitions
In these General terms and conditions (‘Conditions’) the following terms have the meanings
indicated:
(a) Supplier: FCW Europe B.V., with its registered office in Breda, the Netherlands and with its
principal place of business at Burgemeester Kerstenslaan 4, 4837BM Breda, the Netherlands,
registered at the Dutch Chamber of Commerce under number 91529530, and/or FCW
Cleaning Europe B.V., with its registered office in Breda, the Netherlands and with its principal
place of business at Burgemeester Kerstenslaan 4, 4837BM Breda, the Netherlands, registered
at the Dutch Chamber of Commerce under number 91702062, and/or FCW Kainos Europe
B.V., with its registered office in Breda, the Netherlands and with its principal place of business
at Burgemeester Kerstenslaan 4, 4837BM Breda, the Netherlands, registered at the Dutch
Chamber of Commerce under number 91702186, and/or FCW ECSIA Europe B.V., with its
registered office in Breda, the Netherlands and with its principal place of business
at Burgemeester Kerstenslaan 4, 4837BM Breda, the Netherlands, registered at the Dutch
Chamber of Commerce under number 91718910.
(b) Agreement: each and every agreement between Supplier and the Customer, concerning the
delivery of a Performance to the Customer, as well as any change therein or amendment
thereto, as well as any (legal) acts in preparation or execution of such agreement.
(c) Customer: any person of legal entity that places an order with Supplier, with which Supplier
has concluded an Agreement or with which Supplier is in the process of discussing or
negotiating the possible conclusion of an Agreement or to which Supplier has made an offer.
(d) Performance: any Products delivered and/or to be delivered, Services performed and/or to be
performed, or a combination thereof, however described, by Supplier to the Customer.
(e) Products: any products delivered and/or to be delivered by Supplier to the Customer,
however described.
(f) Services: any services performed and/or to be performed by Supplier to the Customer,
however described.
(g) Confidential Information: any and all material and information regardless in whatever form or
medium that is disclosed by or on behalf of Supplier, directly or indirectly, to the Customer or
its representatives. For example, any material and information that is designated by Supplier as
confidential or proprietary and/or when a reasonable person would recognize the material
and/or information as confidential or proprietary considering the nature of the material and/or
information.
2. Scope of application
2.1. These Conditions apply to and form an integral part of every offer, quotation, proposal, order
confirmation of Supplier and any Agreement between Supplier and the Customer governing
the legal relationship concerning the delivery of a Performance by Supplier to the Customer,
unless Supplier and the Customer have explicitly agreed in writing otherwise.
2.2. Customer accepts the applicability of the Conditions through the sole fact of enquiring
and/or ordering.
2.3. Supplier explicitly rejects the applicability of any purchase conditions or any other (general)
terms and conditions of the Customer, unless these are explicitly accepted in writing by
Supplier in respect of a specific transaction. Failure by Supplier to object to any terms and
conditions set by Customer shall in no event be construed as an acceptance of any of the
terms and conditions of Customer. Neither Supplier’s commencement of performance nor
Supplier’s delivery shall be deemed as acceptance of any of Customer’s terms and
conditions.
General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 2 of 12
3. Offers, effectuation of Agreements
3.1. All offers or quotations issued or made by Supplier are without any obligation for Supplier,
unless stated otherwise in writing.
3.2. Supplier is not bound by any offer or quotation if the Customer can reasonably understand
that the offer or quotation, or a part thereof, contains a mistake or a clerical error.
3.3. Any offer or quotation, even if it is irrevocable, may be withdrawn by Supplier, if the
withdrawal reaches Customer before or at the same time as the acceptance of the offer.
3.4. An Agreement, as well as modifications and additions thereto, is concluded at the moment
when accepted or confirmed in writing by Supplier or after Supplier started to perform the
Agreement.
3.5. If a Customer’s reply to an offer differs or contains additions, limitations or other
modifications from the offer of Supplier (whether or not the
difference/addition/limitation/modification pertains to points of minor significance), Supplier
shall not be bound by the difference, additions, limitations or other modifications, unless
Supplier states explicitly otherwise in writing.
3.6. If Supplier provides an offer or quotation for a Performance consisting of a certain amount or
range of Products and/or Services, the quotation shall only apply if the Customer accepts the
offer in full and takes delivery of the full range and number of Products and/or Services. If the
Customer only wants a part and/or not the complete number or range of offered Products
and/or Services, the price per Product and/or Service shall be higher than a corresponding
proportion of the quoted price, unless Supplier has stated explicitly otherwise in writing in its
offer or quotation.
3.7. All offers and quotations issued or made by Supplier shall relate exclusively to the quantities
of Products and/or Services specified in the offer and/or quotation and shall not
automatically apply to repeat orders.
3.8. Any information or materials, including samples, provided to Customer, regardless in which
form, are solely for information purposes and shall in no way imply any express or implied
conditions or warranties of any kind, including as to description, merchantability, suitability or
fitness for any purpose. Customer shall be deemed to have satisfied itself as to such matters
prior to ordering any Performance.
3.9. If Customer provides or must provide any data or information for the execution of the
Agreement, Customer will be fully responsible for these data or information, and the timely
supply thereof. Supplier accepts no liability with regard to such data or information.
3.10. Offers and quotations of Supplier, and or any agreed deviations or additions thereto, do not
automatically apply to future orders. The Customer cannot derive any rights from any offers,
quotations and/or any agreed deviations or additions thereto, for other and/or future
transactions.
4. Execution Agreement
4.1. Supplier only assumes a commercially reasonable efforts obligation toward the Customer
under any Agreement.
4.2. The Customer acknowledges and understands that the Supplier’s Performance could be
subject to various factors, including but not limited to the cooperation and timely provision of
information by the Customer. Supplier cannot be obliged to commence performance of the
Agreement before all necessary information etc. have been received from the Customer and
all necessary cooperation has been provided by the Customer.
4.3. The Supplier’s obligations under any Agreement shall in any event be limited to a
commercially reasonable efforts basis.
4.4. Only Supplier shall be deemed the contracting party vis-à-vis the Customer. This also applies
if it is the express or implied intention of the Customer that the Agreement and/or the
Services be performed by a specific person. The applicability of Articles 7:404, 7:407
paragraph 2 and 7:409 of the Dutch Civil Code are expressly excluded.
4.5. Supplier determines the manner in which and the person(s) by whom the Services are
performed.
General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 3 of 12
4.6. Supplier is entitled to engage third parties in the performance of the Agreement. If the
Customer has prescribed the (use of the) third party, the subcontracting will be fully for the
risk and account of the Customer. Supplier is not liable for shortcomings or other acts and/or
omissions of any third parties, with the exception of intent or gross negligence of Supplier.
5. Terms of delivery
5.1. The delivery times/dates specified by Supplier or agreed upon by the parties, are in all cases
estimated times/dates and shall never be considered as final or a deadline and shall in all
cases be merely indicative. The Customer must take this into account when making
agreements with its own customers. The mere fact that a delivery time/date/, final or
otherwise, specified by Supplier or agreed between the parties has been exceeded, shall not
mean that Supplier is in default. For exceeding any delivery time/date by Supplier, Customer
shall not be entitled to any damages, nor will Customer be entitled to suspend, rescind or
terminate the Agreement.
5.2. In case of late delivery or late completion of the Agreement, Supplier shall only be in default
upon notification of default in writing, providing Supplier with the opportunity to perform
within a reasonable period, and Supplier remains in default of its obligations after the
previously mentioned period. The notice of default of the Customer must contain – as
comprehensive and detailed as possible – a description of the breach, in order to ensure that
Supplier has the opportunity to respond adequately.
5.3. The delivery time commences on the date the Agreement is effectuated. If Supplier requires
data or auxiliaries for the execution of the Agreement that have to be provided by the
Customer, the delivery time shall not commence until the Customer has provided to Supplier
all the required data or auxiliaries, if this is later than the date of effectuation of the
Agreement.
5.4. At all times, Supplier shall be entitled to deliver the Performance in installments. In the event
of a delivery in instalments, Supplier shall be entitled to invoice each partial delivery
separately.
5.5. Delivery of the Products shall be Ex Works (EXW) warehouse Supplier in the Netherlands, in
accordance with the most recent Incoterms of the International Chamber of Commerce in
force at the time when the Agreement is concluded, unless Supplier and Customer agreed
otherwise in writing. Unless parties explicitly agreed otherwise in writing, all Products shall be
transported for the account and risk of the Customer, even if Supplier has arranged the
transport and/or where the dispatch is made carriage paid.
5.6. Delivery shall be deemed to have taken place at the time when the Products are made
available by Supplier to Customer.
5.7. If the Customer fails to collect the Products in full or in time or fails to provide information or
instructions necessary for the delivery, (i) the Customer shall be in default without any notice
of default being required and the Customer shall be obliged to compensate Supplier for all
ensuing damages, and (ii) in addition to all its other rights, Supplier is entitled to store the
Products at the expense and risk of the Customer or to sell them to a third party. The
Customer will nevertheless be due the purchase price plus interest and costs by way of
damages, increased by all additional costs incurred by Supplier, including but not limited to
storage and handling costs.
5.8. Supplier shall provide all Services on the basis of a commercially reasonable efforts
obligation, unless parties have agreed explicitly otherwise in writing and in so far as Supplier
has explicitly undertaken in the written Agreement to achieve a specific result and the result
in question is sufficiently determined.
6. Quantities, weight, deviations
6.1. Quantities and weight ordered by the Customer will be automatically adjusted by Supplier by
minimum quantities/weight/packaging units applied by Supplier subject to permissible
deviations. A 10% deviation from the ordered quantities and/or weight is allowed and will
never be able to provide grounds for any complaints or claims.
General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 4 of 12
6.2. The quantities or weights delivered are stated by Supplier on a delivery document. If the
Customer has not objected within 24 hours of receipt, the quantity or weight stated on the
delivery document will be deemed to be an accurate representation of the Products
delivered.
7. Prices
7.1. All prices for the Performance are in Euros, net cash, without reduction and are exclusive of
VAT and any other taxes, duties, levies, costs and charges, unless stated otherwise by
Supplier in writing. Except where explicitly agreed otherwise in writing, the prices of the
Performance are based on delivery Ex Works, warehouse Supplier in the Netherlands, in
accordance with the most recent Incoterms in force at the time when the Agreement is
concluded, and shall not include the costs of transport, insurance, (durable) reusable
packaging etc.
7.2. If an Agreement is entered into and no definite price has been agreed upon, the Agreement
will be executed at the prices of Supplier for the Performance which are valid at the time of
the conclusion of the Agreement.
7.3. If Supplier has delivered any Performance that falls outside of the content or scope of the
agreed Performance, at the request or with the consent of the Customer, such Performance
shall be paid for by the Customer in accordance with the agreed rates. If no rates have been
agreed, Supplier’s standard rates shall apply.
7.4. Any changes in factors affecting the price for the Performance or Supplier’s additional costs,
including, but not limited to purchase prices, energy costs, fuel rates, labour costs, exchange
rates, insurance premiums, freight costs, governmental charges, import and export duties
and other levies due upon import or export, and other levies or taxes after the conclusion of
the Agreement will be recharged by Supplier to Customer, even if parties agreed upon a
fixed price, and regardless of whether or not the cost price increase was foreseeable at the
time of the conclusion of the Agreement.
7.5. Customer shall indemnify Supplier against all damages, loss and/or costs that may ensue for
Supplier from the fact that Customer is not properly registered for VAT or similar tax
purposes and/or that Customer has issued incorrect data or has not on time issued data to
Supplier.
8. Payment
8.1. Customer shall pay all invoices of Supplier and all other amounts due to Supplier, on the
basis of net cash in the invoiced currency, before delivery in conformity with the Agreement
or – if stipulated otherwise on the invoice and/or Agreement – within the stipulated due date
of the invoice date and/or the date or payment scheme in the Agreement without deduction,
suspension, set-off or discount to the bank account designated by Supplier on the invoice,
unless the parties agreed otherwise in writing. Supplier is entitled to send invoices
periodically.
8.2. With regard to payment for the Performance by Customer, time is of the essence. The
payment term referred to in Article 8.1, or the otherwise agreed-upon dates/term of payment
by the Customer, is/are final. If the Customer fails to pay the amounts due or to pay the
amounts due in a timely manner the Customer is, without a notice of default being required,
in default by operation of law. As from the due date, the Customer shall be obligated to pay
– in addition to the costs mentioned in Article 8.3 of these Conditions – the statutory
commercial interest applicable in the Netherlands at that time (Article 6:119a Dutch Civil
Code) on the outstanding amount until the date on which the principal sum is paid in full,
without any further notice of default being required and without prejudice to any other rights
of Supplier.
8.3. All actual extrajudicial costs and judicial costs, internal as well as external, incurred by
Supplier, with respect to the collecting of any payments, obtaining an out of court settlement,
the protection of its rights, and/or in the event that the Supplier is in any (other) way involved
in a dispute with or a procedure against the Customer, regardless of whether that will be as
General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 5 of 12
claimant or defendant, shall be for the account of the Customer, even when these costs
exceed any liquidated amount. Without prejudice to the foregoing, the Customer will be
obligated to pay to Supplier a minimum of at least 15% of the principal sum plus VAT, without
a demand or notice of default being required, as compensation for the extra judicial costs
incurred with respect to the collecting of any payments. The Customer shall also owe
statutory (commercial) interest applicable in the Netherlands at that time on the extrajudicial
and judicial costs, from the date of default to the date on which the extrajudicial and judicial
costs are paid in full.
8.4. Payments made by Customer will, notwithstanding the description or instruction of the
Customer, first be applied towards the payment of the extrajudicial and judicial costs, next
towards the interest due and finally towards the principal sum – more specific with the
invoices in the order of their age, also if not yet matured – and accrued interest.
8.5. In case of late payment any adverse exchange rate difference shall be for the account of
Customer. Reference dates are the due date of the invoice and the date of payment.
8.6. Objections to the amount of an invoice shall not suspend the obligation of the Customer to
pay the invoiced amount.
8.7. Supplier shall at all times be entitled to require the Customer to give proper security for the
performance of all its obligations under the Agreement in a manner as will be deemed
sufficient by Supplier or to demand at any moment that the Customer pays the purchase
price for the Performance in advance. Failing immediate provision of such security or
advance payment, Supplier will be entitled to suspend further execution of the Agreement
until such time as the Customer will have provided the required security or payment in
advance.
9. Retention of title
9.1. Notwithstanding the actual delivery, all Products delivered by Supplier shall remain the
property of Supplier until such time, and the title to the Products will pass to Customer only,
after the Customer has fully paid any amounts in connection with Products delivered or to be
delivered due to Supplier, including the contract sum, any surcharges, interest, taxes and
expenses that may be due in accordance with the Agreement or these Conditions as well as
any activities that may have been performed or are to be performed by virtue of such
Agreement. The subject to retention of title delivered Products will be for the account and
risk of Customer.
9.2. As long as the title to the Products has not passed to Customer, Customer shall not be
entitled to lease, rent out or sell and deliver the Products to third parties or have third parties
use them, to pledge them or otherwise encumber them in any way or position them out of
control. However, the Customer that acts as a reseller shall be entitled to sell, resell, rent out
and/or lease the Products that are subject to Supplier’s retention of title in so far as this is
customary within the context of the normal course of the Customer’s business.
9.3. The Customer should do all that may reasonably be expected of the Customer to protect
Supplier’s rights. Customer shall preserve the Products delivered to it subject to retention of
title carefully and as Supplier’s recognizable and identifiable property.
9.4. The Customer undertakes to insure the supplied Products covered by retention of title, to
keep them insured against normal business risks, including but not limited against fire,
damage caused by explosion and water and against theft, and shall provide Supplier with a
copy of the insurance policy immediately upon first request. Supplier is entitled to the money
from any payment from the insurance. Insofar as necessary, the Customer undertakes in
advance to cooperate with Supplier in all that is or might prove necessary or desirable in that
context. Upon Supplier’s first request to that effect, the Customer shall assign any and all
rights towards the insurers involved to Supplier.
9.5. If and as long as Supplier is the owner of the Products, Customer shall notify Supplier without
delay in the event that any part of the Products should be lost or damaged, or in the event
that the Products should be seized and/or other claims are laid on (any part of) the Products.
General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 6 of 12
Furthermore, Customer shall inform Supplier upon its first request where the Products in
respect of which Supplier has retained its title, are located.
9.6. Supplier shall at all times be entitled to reclaim the Products delivered to Customer subject to
retention of title in case Customer has not fulfilled its obligations or Supplier expects that
Customer will not fulfil its obligations. Customer hereby unconditionally and irrevocably gives
its permission and shall lend every co-operation to Supplier or to a third party designated by
it, to enter all locations and places where Supplier’s property will be located and to remove
said property if and when Supplier wishes to exercise its rights of ownership. The costs of and
relating to such reclaim will be for the account of Customer.
10. Complaints
10.1. The Customer is required to inspect, or to have inspected, the Products on the delivery, or as
soon as the Products are placed at the Customer’s disposal, whichever dates comes first,
and/or the Services as soon as they are performed. More specific, the Customer must
examine whether and satisfy itself that the delivered Performance complies with the
Agreement, including the quality and/or quantity of the delivered Performance.
10.2. The Customer must notify Supplier immediately in writing of any complaints concerning (any
alleged defects in) the Performance. Any notification of a shortcoming/defect/complaint of
the Customer should contain a description of the concerning Performance, the purchase
order, the delivery date, a copy of the regarding invoice and the nature of the
shortcoming/defect/complaint, all as detailed as possible so that Supplier can respond
adequately (hereinafter the ‘Notification’). The Customer is obligated to allow Supplier the
opportunity to examine the complaint or to have the complaint examined.
10.3. In case of visible deficiencies in the Performance and/or failing quantities of the Performance,
Customer must submit the Notification as mentioned in Article 10.2 of these Conditions, to
Supplier in writing as soon as possible, but within seven (7) calendar days after delivery of the
Performance, and in case it concerns a Product record these deficiencies and/or shortfalls
also on the relevant transport document. For all other defects or complaints with regard to
the Performance (e.g. hidden defects), the Customer must submit a Notification to Supplier in
writing immediately, but in any case, within the time limit of seven (7) calendar days, after the
date on which the complaints, shortcomings and/or defects became known or might
reasonably have been expected to become known to the Customer. Any use of the
Performance or any use, alteration, incorporation, processing, transportation, storage,
importation, exportation or (re)sale of the Products shall be deemed to be an unconditional
acceptance of the Products and/or Services by the Customer as of the date of delivery and a
waiver of all claims in respect of the Products and/or Services.
10.4. Customer must notify Supplier in writing of any complaints relating to the level of the
invoiced amount within seven (7) calendar days after receipt of the invoice, giving a
description of the complaints.
10.5. Any failure by Customer to report a complaint or defect within the time specified in Articles
10.3 and 10.4 above and/or in accordance with Articles 10.3 and 10.4 above, shall result in
the loss of any claims of the Customer whatsoever in this respect.
10.6. Complaints of any nature whatsoever will not postpone Customer’s obligations to pay and
can only be brought to Supplier’s notice in writing within the periods laid down in this Article
10.
10.7. If the complaint relates to a part of the Products delivered, this shall not constitute grounds
for rejection of the entire batch.
10.8. The Products must be made available to Supplier for examination upon first request, freight
pre-paid by the Customer. The Customer shall not be entitled to return any Products without
the prior written consent of Supplier. The costs of any returns shall be for the Customer and
the Products will remain at the risk of the Customer. The mere fact that Supplier examines any
complaint does not imply that it acknowledges any liability or the complaint.
10.9. In the event that Supplier deems a complaint justified, it shall at its sole discretion deliver a
replacement, similar but not necessary identical, Performance or parts thereof) (after which
General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 7 of 12
the replaced Performance or parts thereof shall become the property of Supplier) or give a
price reduction or send a credit invoice.
10.10.If it is established that a complaint cannot be substantiated by the Customer or if the
complaint is unjustified, the costs arising from the complaint and related thereto, including
the costs for examination on the part of Supplier, shall be fully borne by the Customer,
including administration costs, shipping costs and call-out charges.
10.11.Upon receipt of a complaint, Supplier is entitled to suspend all further deliveries until the
complaints are established to be unfounded and/or refuted or until the defect has been
totally cured.
10.12.Notwithstanding statutory time limits, in any event, all claims of the Customer will become
time barred unless legal proceedings have been instituted by the Customer before the
competent court or arbitration body within twelve (12) months after the date of
delivery/Performance, or the date that delivery/Performance should have been made.
10.13.Deviations in colour, quality, shape, weight and the like common in the trade in Products
delivered by Supplier and damage to Products delivered by Supplier which have occurred
because the Customer has acted contrary to the applicable handling, treatment, transport,
use or storage instructions shall not be eligible for any complaint.
11. Warranty
11.1. Unless it has been agreed otherwise, Supplier guarantees towards Customer, subject to the
conditions set below and set in Article 10 of these Conditions, that the Product shall conform
to the agreed upon specifications as stated in Supplier’s order confirmation or in the absence
thereof, to the most recent specifications used by Supplier at the time of delivery of the
Product, in any event provided that the Products have been stored, transported, used and
handled properly taking into account the nature of the Product and in accordance with the
instructions and all (applicable) (EU-)legislation. The foregoing warranty is exclusive and in
lieu of all other warranties, representations, conditions or other terms, express, implied,
statutory, contractually or otherwise. Supplier makes no guarantee or warranty express or
implied with respect to the Products sold and/or the Services provided hereunder, including
any warranties of merchantability, fitness or suitability for any purpose for which the
Customer or the customers of the Customer wish to use the Products and/or Services.
11.2. Supplier’s warranty does not cover and Supplier shall have no (warranty) obligations
whatsoever towards the Customer, in/with regards to the following events or if the defects or
damages are, partly or entirely, caused by or the result from: (i) normal wear and tear, (ii)
minor deficiencies or deviations, which fall within the levels of tolerance as accepted in good
commercial practice, (iii) incorrect, improper, negligence, injudicious or incompetent use,
storage, handling or transportation etc. of the Products by the Customer or a third party, any
government regulation with regard to the Products or the manufacture etc. thereof or the
Services, or (v) the Customer has not fulfilled its obligations towards the Supplier (financially
or otherwise).
11.3. Supplier’s warranty obligations with respect to the Products and/or Services are strictly
limited to the terms of warranty as set forth in this article 10. Customer explicitly relinquishes
all its (other) rights and claims it may have under the applicable law. In the event that a
warranty claim is justified, Supplier shall at its sole discretion deliver a replacement, similar
but not necessary identical, Performance or parts thereof) (after which the replaced
Performance or parts thereof shall become the property of Supplier) or give a price reduction
or send a credit invoice.
11.4. If Supplier delivers Products to Customer which Supplier has obtained from its supplier(s),
Supplier shall never be bound by any warranty or liability towards Customer that extends
beyond the warranty or liability that Supplier can claim of its supplier(s), unless parties
explicitly agreed otherwise in the writing.
11.5. Customer warrants towards Supplier that the Products with a best-before-date or (other)
expiration date are no longer processed, used or sold etc. after the expiry of such bestbefore-date or other expiration date. The Customer expressly indemnifies the Supplier in this
General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 8 of 12
respect against all claims from third parties on account of damage resulting from the
purchase, processing or any (other) use etc. of Products delivered by Supplier, if these have
been processed, used or sold etc. by the Customer after the best-before-date or expiry date.
12. Intellectual property and confidentiality
12.1. All (intellectual property) rights, whether existing as of the date of the Agreement or in the
future, arising out of or relating to the Performance, including, without limitation, all names,
trademarks, copyrights, patents, trade secrets, know-how, technology, data, designs,
specifications, materials, processes, computer software and (related) documentation and
source code and other (intellectual property) rights, are and shall remain the exclusive
property of Supplier (or its licensees). Nothing in the Agreement or these Conditions, or the
sale of delivery of any Performance, shall be deemed to transfer or grant to Customer a
license or other right to use Supplier’s intellectual property, except as expressly provided in
the written Agreement.
12.2. Whilst Supplier has verified the possible existence of third party intellectual property rights,
Supplier shall not be held liable for any loss or damage for the unexpected infringed on
these rights as a consequence of the sale and/or delivery of the Performance.
12.3. Supplier expressly disclaims any intellectual property warranties; and Customer expressly
assumes all risks of infringement by reason of its use or sale of the Performance, singularly or
in combination with other materials, or in any processing, other operation etc. Supplier is not
liable for damage as a consequence of infringement on patents, licenses, or other third-party
rights.
12.4. Customer undertakes not to infringe or to attack Supplier’s (intellectual property) rights in any
way, directly or indirectly, by use or otherwise and acknowledges that Supplier is the
beneficiary with regard to these rights.
12.5. It is not permitted to the Customer to (let) modify or (let) remove any indication in or on
Products delivered to him with regard to rights, warnings, information or indications of
brands or (brand) names of Supplier or third parties.
12.6. The Customer shall use the Confidential Information only for the purpose of the transactions.
The Customer shall at no time use the Confidential Information in any manner adverse to, or
to the detriment of, Supplier and/or its affiliates and/or Supplier’s business. The Customer
shall keep such Confidential Information strictly confidential and shall protect such
Confidential Information from disclosure to third parties using at least the same degree of
care used to protect its own confidential or proprietary information of like importance, but no
less than a reasonable degree of care. Customer shall not use the Confidential Information
for any other purposes than the authorized purpose Customer and Supplier agreed upon.
The Customer may only disclose the Confidential Information to its employees or a third
party who need to know such information for the authorized purpose Customer and Supplier
agreed upon and who are contractually bound to protect and not disclose such Confidential
Information as required under this article, or with the explicit prior written consent of
Supplier. Customer’s obligation hereunder shall not restrict any disclosure required by law to
a judicial or governmental body of competent jurisdiction, provided, however, that the
Customer shall give advance notice of such disclosure requirement to Supplier (where
reasonably practicable and to the extent legally permissible) and give Supplier reasonable
opportunity to object to and contest such disclosure, including seeking to obtain a protective
order. Confidential Information and all copies thereof remain the property of the Supplier.
Customer shall upon demand promptly return to Supplier all Confidential Information and
copies thereof. Customer shall not retain a copy thereof. Without prejudice to the foregoing,
upon Supplier’s first request, Customer will sign a confidentiality agreement and have its
employees sign one.
13. Liability and indemnity
13.1. The total liability on the part of Supplier, for an attributable failure to comply with any of its
obligations under any Agreement and/or these Conditions, explicitly including any failure to
General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 9 of 12
comply with a warranty obligation agreed with the Customer, based on a tort, or due to any
other reason or on any other ground, shall in all circumstances be limited to the direct
damages and loss not exceeding the sum of the invoice exclusive of VAT for the Performance
that is subject of the claim. Customer explicitly waives all other claims it may have against
Supplier. Without prejudice to the foregoing, the total liability of Supplier for direct damages
or loss, for any reason whatsoever, shall, however, under no circumstance exceed the amount
which Supplier receives from its insurer under its commercial liability insurance in relation to
the damage for which Customer has held Supplier liable.
13.2. Under no circumstances will Supplier be liable to Customer for any special, consequential,
indirect, criminal or incidental loss, including but not limited to losses caused by or based
upon delays, lost profits, lost savings, increased operational costs, damages or loss as a result
of claims from Customer’s customers, loss of customers, loss of goodwill, work stoppage,
production failure, impairment of other goods or otherwise etc., howsoever caused,
regardless of the basis of liability, and regardless of whether it was advised in advance of the
possibility of such damages arising in any way from the Agreement or otherwise.
13.3. The restrictions and exclusions referred to in Articles 13.1 and 13.2 shall no longer apply if
and in so far as the damage in question is solely caused by an intentional act or gross
negligence on the part of the management of Supplier.
13.4. Except where compliance by Supplier is permanently impossible, Supplier shall only be
liable, if Supplier receives notice of default in writing from Customer immediately, in which a
reasonable period is allowed to remedy the failure, and Supplier remains in default of its
obligations after the aforesaid period. The notice of default of the Customer must contain – as
comprehensive and detailed as possible – a description of the breach, in order to ensure that
Supplier has the opportunity to respond adequately.
13.5. Customer’s right to any damage compensation is always conditional to the notification
thereof to Supplier in writing immediately upon occurrence. Any claim for damages against
Supplier is extinguished automatically by the mere passage of twelve months after the
inception of the claim.
13.6. The provisions of this Article 13 and all other restrictions and exclusions of liability referred to
in these Conditions and/or the Agreement are third party clauses which also apply in favour
of all (legal) persons, including third parties, that Supplier engages to execute (a part of) the
Agreement and all employees and the directors of Supplier. The previous mentioned (legal)
persons can therefor rely on the provisions of this Article 13 as well as all other restrictions
and exclusions of liability referred to in these Conditions and/or in the Agreement.
13.7. Customer shall indemnify Supplier against any claims and (impending) claims by third parties
against Supplier, the costs (including reasonable legal fees) of defence against such claims,
and any obligations Supplier has to third parties if such claims, costs and obligations are
based on, arise from or in connection with any act or omission or any use of the Performance
by Customer or any third party engaged or employed by Customer and/or any failure to
properly perform the terms of the Agreement and/or these Conditions.
13.8. The Customer is bound to support Supplier without delay both out of court and in court and
to do all that may be expected of the Customer and requested by Supplier, in connection
with the handling of any claim of a third party. If the Customer fails to take adequate
measures, Supplier, without any notice of default being required, is entitled to take those
measures itself. The risk and expense of all costs and damage arising on the part of Supplier
and third parties in this regard shall be borne by the Customer.
13.9. The exclusions and limitations of the liability of Supplier as described in this Article 13, are
without prejudice to any other exclusions and limitations of liability of Supplier under these
Conditions and/or the Agreement.
13.10.Insofar as the Products Supplier has or will deliver have an expiration date or use-by date,
Supplier shall not be liable for consumption or use of these products after the expiry or useby date. The Customer guarantees towards the Supplier that Products, on which an expiry
date or a use-by date is indicated, will not be used, processed and/or sold by the Supplier
after the expiry of that date. The Customer expressly indemnifies Supplier against third-party
General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 10 of 12
claims arising from damage caused by consuming or using the Products (to be) delivered by
Supplier if these have been processed, used or sold by the Customer after the expiration
date or use-by date.
13.11.During (internal) transport and storage of the Products, the Customer must act in accordance
with the applicable laws and regulations, including the hygiene rules, the HACCP standards,
and storage instructions, failing which all Customer’s rights will be lost and no liability
whatsoever can be accepted by the Customer for (damage resulting from) defects in the
Products.
14. Compliance with laws and standards
14.1. Customer acknowledges that the handling, use, alteration, incorporation, processing,
transportation, storage, importation, exportation and (re)sale of the Products (‘Use’) may be
subject to requirements or limitations under any law, regulation, rule, code or standard etc.
14.2. It is the Customer’s responsibility to independently assess, ensure the suitability,
permissibility of Use of the Product and ensure that the Use complies with applicable laws,
regulations and all applicable requirements, as well as identify and manage any risks that
may arise from the Use of the Product. Customer shall be exclusively responsible for ensuring
compliance with all laws, regulations, etc. associated with its intended Use of the Products
and obtaining all necessary approvals, registrations, permits or clearances for such Use.
14.3. Customer must solely rely on its own expertise, know-how and judgment in relation to the
Products and Customer’s Use thereof as well as in Customer’s application of any information
obtained from Supplier for the purposes intended by Customer. Consultation provided by
Supplier shall not give rise to any additional obligations and / or liabilities for the Supplier.
Details and information provided with regard to the suitability and Use of the Products shall
not be binding and Supplier does not assume any liability based on such consultations.
Customer shall indemnify and hold Supplier harmless from and against any and all damages,
losses, costs, expenses, claims, demands and liabilities (including without limitation product
liabilities) arising out of or in connection with the Products and Customer’s Use thereof or
application of any information disclosed or provided by or on behalf of Supplier.
15. Force majeure
15.1. Force majeure means, in addition to the circumstances intended in the law and case law, all
external causes, whether they could have been foreseen or not, over which Supplier has no
control, but due to which Supplier is not capable or makes it unreasonably burdensome for
Supplier to fulfil its obligations or any part thereof, temporarily or permanently, including but
not limited to COVID-19, pandemic, epidemics, strikes at Supplier or at third parties, lockout,
labour disturbances, electricity failure, faults effecting the internet, computer network or
telecommunication facilities, lack or raw materials, breakdown of essential materials, war,
terrorism, riot, sabotage, accident, whether circumstances, earthquakes, fire, loss or theft of
tools, the circumstance where suppliers and/or sub-contractors of Supplier fail to comply with
their obligations at all or on time or properly, import or commercial restrictions, trade
restrictions imposed or advised by any authority, legal restrictions, government measures,
general transport problems etc.
15.2. Supplier shall not be liable to the Customer for any failure to perform its obligations, for as far
as that failure is caused or relates to Force Majeure. In case of Force Majeure, the delivery
and other obligations of Supplier are suspended for the duration of the Force Majeure event.
If this period lasts more than (3) three months, Supplier is entitled to terminate the
Agreement without obligation to compensate the Customer for any damages.
15.3. Insofar as Supplier has already partially fulfilled its obligations arising from the Agreement, or
shall be able to fulfil its obligations in part, at the time the Force Majeure event originates,
Supplier shall be entitled to invoice for the fulfilled part or as the case may be, the part that
will be fulfilled and the Customer shall be obliged to pay this invoice as if it were a separate
Agreement.
General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 11 of 12
16. Termination of the Agreement
16.1. Without prejudice to all other statutory and contractual rights of Supplier to rescind or
terminate the Agreement, Supplier is entitled (i) to immediately rescind or terminate the
Agreement, as well as all related agreements, by letter, without any judicial intervention
being required and with immediate effect, without incurring any liability to pay damages,
and/or (ii) to suspend its obligations to the Customer, if: a. the Customer is granted a
suspension of payments, provisionally or otherwise, or if the Customer applies for a
suspension of payments; b. the Customer is wound up or terminated for reasons other than
reconstruction or the merger of companies; c. if there is a change in the individual or board
that has decisive control over the Customer’s company; d. the Customer becomes bankrupt
or is liquidated, or an equivalent of the previous concepts occurs (pursuant to a foreign law
system); e. a composition of creditors is offered by the Customer; f. a full or partial
attachment order has been imposed on the Customer’s assets; g. the Customer fails to
comply with an obligation arising from the Agreement and/or these Conditions, or does not
fulfil it on time or not properly.
Supplier shall under no circumstances be obliged to reimburse any sums of money that have
already been received or to pay any compensation in the event of a termination or
suspension by Supplier, save where the claim for damages is based on an attributable breach
of contract or a tort of Supplier. A rescission or termination or suspension of any obligations
as referred to under points a-g of this paragraph shall not prejudice, limit or restrict any and
all other potential rights that Supplier may have pursuant to the foregoing, including
Supplier’s right to claim damages.
16.2. If any Agreement is terminated, any claim of Supplier against the Customer becomes
immediately due and payable.
16.3. The Customer shall only be authorized to terminate the Agreement if Supplier fails to comply
with a fundamental obligation under such Agreement and Supplier, after receipt of a written
notice of default per registered letter, providing as many details as possible and setting a
reasonable term in which the breach can be remedied, still attributably failed to meet its
fundamental obligations arising from the Agreement.
17. Miscellaneous
17.1. The headings contained in the Conditions are included for mere convenience of reference
and shall not affect the latter’s construction or interpretation.
17.2. Supplier shall have the right to transfer any of its rights and obligations under any Agreement
with Customer to any third party. Customer shall not be entitled to transfer its rights and/or
obligations under an Agreement to any third party without Supplier’s prior written consent.
17.3. Supplier shall be entitled to alter these Conditions or make any additions thereto unilaterally.
Supplier shall notify the Customer thereof in writing. Customer accepts such modifications
and additions in advance. Unless the Customer informs Supplier in writing, that it does not
accept the changes and/or additions within fourteen (14) calendar days after the date of the
notification of Supplier, the Customer shall have accepted such modifications and additions.
17.4. Failure, delay or omission by Supplier to enforce at any time any provision of the Conditions
and/or Agreement shall not be construed as a waiver of Supplier’s right to act or to enforce
any such provision. No waiver by Supplier of any breach of Customer’s obligations shall
constitute a waiver of any other prior or subsequent breach.
17.5. If, at any time, one or more provisions in these Conditions and/or the Agreement are fully or
partially void or voidable, the remaining provisions of these Conditions and/or the
Agreement will remain in full force and effect. In such an event, Supplier and the Customer
will consult each other in order to agree on new provisions which are not void and voidable
to replace the void or voidable provisions and which new provisions as closely as possible
corresponds with the void and voidable provision, whereby the intent and meaning of the
original provisions shall be taken into consideration as far as possible.
General Terms & Conditions Sale & Delivery FCW Europe, version November 2023 Page 12 of 12
18. Choice of law and forum
18.1. All offers or quotations issued by Supplier, these Conditions, any Agreements and any
agreements following therefrom or related thereto shall be exclusively governed by Dutch
law.
18.2. If the Customer is domiciled in a Member State of the European Union, any and all disputes
that may arise between Supplier and the Customer, ensuing from or relating to any offer or
quotation of Supplier, the Conditions, and/or any Agreement and/or any agreements
following therefrom or related thereto, shall be exclusively submitted to the competent court
in Zeeland-West-Brabant, the Netherlands. Nonetheless, Supplier also has the right to submit
the dispute that may arise between Supplier and the Customer, ensuing from or relating to
any offer or quotation of Supplier, the Conditions, and/or any Agreement, to a court of the
Member State where the Customer is domiciled.
18.3. If the Customer is not domiciled in a Member State of the European Union, any and all
disputes that may arise between Supplier and the Customer, ensuing from or relating to any
offer or quotation of Supplier, the Conditions, and/or any Agreement and/or any agreements
following therefrom or relating thereto, shall be finally settled by arbitration in accordance
with the Rules of Arbitration of the International Chamber of Commerce (‘ICC’) in accordance
with the following: (i) the arbitral tribunal shall be composed of three (3) arbitrators; (ii) the
place of arbitration shall be the Netherlands; (iii) the arbitral procedure shall be conducted in
the English language and (iv) the arbitral tribunal shall decide in accordance with the rules of
law.