General terms and conditions of sale
Of Furukawa Rock Drill Europe BV
Proostwetering 29, 3543 AB Utrecht, the Netherlands
1.1 These general terms and conditions of sale shall apply to all offers, quotations made and agreements entered into by Furukawa Rock Drill Europe BV, having its registered office in Utrecht, the Netherlands (hereinafter referred to as “FRD”).
1.2 Any offer, quotation, acceptation or other statement shall only be binding upon FRD if and insofar it is comprised in a written statement to the other party.
1.3 No indication of weight, dimensions, measures, capacity, color or other quality of the product that is sold by FRD (hereinafter to be referred to as “the Product”), including but not limited to indications in catalogues or in other Product related documentation provided by FRD to the other party shall be binding upon FRD.
2 Order and order confirmations
2.1 Only written orders are acceptable to FRD.
2.2 FRD shall only be deemed to have accepted an order when a written confirmation to this extent has been sent to the other party. FRD may send a pro forma invoice for this purpose.
3.1 Prices shall be in Euro, unless specifically agreed otherwise.
3.2 Prices shall not include cost of transportation and insurance thereof, import and export duties (if the delivery term is such that these costs shall be born by FRD) nor shall they include taxes and levies, or cost of packaging.
3.3 FRD reserves the right to change prices prior to the moment of delivery in the event of an increase in the prices of factors effecting cost, including but not limited to an increase in the cost of raw materials, wages, fuel, power, any other supply costs and including any cost increase caused by environmental or other – whether or not similar – charges or governmental measures.
3.4 If it is agreed that FRD will provide for transportation, FRD shall have full discretion to decide which mode of transportation shall be used.
3.5 In case FRD has opted to deliver Products in partial deliveries, FRD shall be entitled to invoice those partial deliveries separately.
4.1 Any delivery date specified by FRD shall not be of the essence. In the event of late delivery of the Product, FRD must therefore be given notice of default, while granting FRD a reasonable period, in its opinion, to perform its obligations. If such extended period is exceeded, the other party will have the right to dissolve the sales agreement (in part) only sofar as no delivery of Products has taken place.
4.2 FRD shall be entitled to deliver the Products in partial deliveries.
4.3 The other party shall be required to accept delivery of the Product at FRD’s first request. If the other party refuses to accept delivery of the Product or is in any way negligent in providing information or instructions needed for delivery, the Product will be stored at the expense of the other party and all extra costs incurred will be born by the other party.
5.1 Payment cannot be effected by means of set off.
5.2 Any delay in payment shall incur interest at the rate of nine (9) percent a year. All extrajudicial costs, including fees of collection agencies, process servers and attorneys, incurred by FRD to obtain payment shall be payable by the other party, amounting to no less than fifteen (15) percent of the outstanding amount with a minimum of 150 euro. If a court of law fully or substantially awards judgment against the other party and the decision has become final, the other party shall fully reimburse FRD for all judicial costs, including any amount not awarded by the court.
6 Retention of title
6.1 FRD shall retain title to all Products until the full purchase price payable for any Product shall be paid. All costs incurred by FRD in repossessing the Products shall be paid by the other party.
7.1 Any defect in the Product delivered by FRD has to be reported by fax or by registered mail within eight days after the defect was discovered or could have been discovered. After expiry of this term the other party can no longer exercise any rights.
7.2 Any (alleged) mistake or fault in an invoice has to be reported to FRD by fax or by registered mail within 48 hours after receipt of the invoice, after which period the invoice will have become binding upon the other party.
8.1 FRD warrants that the Product shall be free from defects in material and workmanship for a period of one year after delivery (spare parts 3 months).
8.2 FRD’s liability ensuing from any sale of the Product shall be limited to the repair or replacement, at FRD’s election at no additional costs, of any part or component of the Product which is determined by FRD to be defective within the above-mentioned warranty period. All alleged defects shall be reported to FRD by the other party by means of a dated and signed written report indicating the nature of the malfunction. The Product may only be returned after written consent thereto has been given by FRD.
8.3 The above warranty is expressly conditioned upon and may be voided by FRD if the defect is caused by any circumstance that is not attributable to FRD.
9.1 FRD’s obligations under this warranty shall be the sole remedy and in no event shall FRD incur any other liability under any sales agreement, including liability for loss of profit, and/or other consequential damage.
9.2 Except where damage is a consequence of an intentional act or omission or gross negligence of FRD or its management, FRD will not accept any liability for any advice given to the other party, including advice regarding the quality, composition or operation of the Product (alone or in combination with other goods). FRD will have a best-efforts obligation only to give proper advice.
9.3 Except for actions by FRD to collect amounts due from the other party, no action arising out of or in connection with any sale may be brought by either party more than twelve (12) months after the cause of the action has accrued.
10 Force majeure
10.1 FRD shall not be liable for any event or (non-)performance caused by force majeure. An event of force majeure of FRD will include an event of stagnation at suppliers, transport problems, declared or undeclared war, demands or requests of governmental authority, national defense, civil commotion, riots, strikes, labor shortage, fire, rain or storm, failure in production or production equipment, inability to obtain fuel, power, raw materials, or any other causes failing beyond the reasonable control of FRD.
11 Governing law and forum
11.1 The competent court in Amsterdam shall be the forum for the adjudication of all disputes arising between FRD and the other party, without prejudice to FRD’s rights to file the dispute with any other competent court.
11.2 Any agreement between FRD and the other party shall be governed by Dutch law.