Terms
GENERAL CONDITIONS OF SALE AND DELIVERY
OF THE PRIVATE COMPANY WITH LIMITED LIABILITY FLUIDMASTER B.V,
having its registered office and principal place of business at (6827 BP) Arnhem, the Netherlands,
at Driepoortenweg 5
Article 1 Definitions
Paragraph 1
In these general terms and conditions the following definitions apply:
user: the user of these general terms and conditions, the private company with limited liability FLUIDMASTER B.V.;
other party: the person who has accepted the validity of these general terms and conditions by signing a document or in any other way;
Paragraph 2
Wherever these general terms and conditions refer to 'goods', this will be understood to mean both the goods to be supplied by the user and the services to be provided by the user.
Paragraph 3
Wherever these general terms and conditions or the agreements concluded between the user and the other party refer to an internationally defined stipulation, such a stipulation must be understood to be in accordance with the Incoterms 2010 published by the International Chamber of Commerce.
Article 2 Applicability
Paragraph 1
Unless otherwise agreed in writing, these "general terms and conditions" apply to every contract between the user and the other party and to all offers made by the user.
Paragraph 2
The provisions of the previous paragraph also apply to (further or supplementary) agreements between the User and the Other Party whereby the applicability of these "general terms and conditions" is not (explicitly) invoked.
Paragraph 3
The applicability of general terms and conditions used by the other party, even if previously referred to by the other party, is expressly rejected.
By accepting the applicability of these general terms and conditions, the other party accepts this rejection.
Paragraph 4
If user and the other party explicitly agree in writing on the applicability of the other party's general terms and conditions, this shall not affect the applicability of these general terms and conditions of user. In the event of any conflict between the other party's general terms and conditions and these general terms and conditions of the user, the general terms and conditions of the user shall prevail.
Paragraph 5
Deviations from these general terms and conditions will not be binding on user unless they have been agreed in writing.
If, where appropriate, user agrees to a deviation from these general terms and conditions, this shall apply only to the case in question and the other party shall not be able to invoke it in subsequent agreements.
Article 3 Offers/concluding the agreement
Paragraph 1
All offers, in whatever form, are without obligation for the user, unless they contain a term for acceptance, and are based on delivery under normal circumstances and during normal working hours.
Paragraph 2
If a non-binding offer is accepted, MSS shall be entitled to withdraw the offer within seven days of receipt of such acceptance.
Paragraph 3
Illustrations, catalogs, drawings and other data provided by the user are subject to change without prior notice and are not binding on the user. In addition to what is stated in catalogs and/or brochures etc., the normal and/or customary tolerances apply to all goods offered. In particular, an explicit reservation is made with regard to nuances in specified colors. We reserve the right to make minor deviations from the illustrations and/or descriptions in the catalogs, brochures, etc. The other party cannot derive any claims from such deviations.
Paragraph 4
Drawings, images, catalogs and other information provided by the user will always remain the property of the user.
Paragraph 5
An agreement shall only be concluded after the other party's order has been confirmed by the user in writing.
If the other party does not dispute an order confirmation from the user within seven days of it being sent, the order confirmation shall be deemed to accurately and fully reflect the agreement.
If with regard to an agreement neither an offer nor an order confirmation was sent, the invoices and delivery note are each considered to be order confirmations and to reflect the agreement correctly and completely.
Paragraph 6
Agreements with or undertakings by representatives or subordinates of MSS are not binding on it, unless such further agreements or undertakings are confirmed in writing by MSS.
Article 4 Nature and scope of the agreement
Paragraph 1
With due observance of the provisions of Article 3, paragraph 5 of these general terms and conditions, the order confirmation, and in the absence thereof, the offer, respectively the invoice or delivery note of the user, will be binding for the scope and nature of the agreement.
Paragraph 2
The agreement only includes the delivery of those goods that have been explicitly agreed upon.
Paragraph 3
The user will not be bound by any deviation from or addition to the scope and nature of the agreement as described in the order confirmation, and in the absence thereof, the offer, respectively invoice or delivery note of the user, unless explicitly agreed upon in writing between the parties. In the latter case, user shall be entitled to adjust the agreed price, method of delivery and delivery time, as well as other parts of the agreement in accordance with the agreed changes.
If such an addition or deviation leads to a longer delivery time, user is in no case liable for fines and/or damages for exceeding the delivery time.
Article 5 Price
Paragraph 1
Unless explicitly agreed otherwise in writing between the User and the Other Party, the prices quoted by the User shall be based on delivery ex works, warehouse or other storage facility, exclusive of turnover tax, import duties or other taxes, levies or obligations and exclusive of the costs of loading and unloading, transport and insurance, all of which costs shall be borne by the Other Party.
The User shall not recognise any exemption from any tax or levy whatsoever, unless the Other Party provides the User with a sound certificate of exemption from the tax in question.
Paragraph 2
The price or prices stated in the offer are based on the cost-determining factors at that time.
If during the period between the date of offer and that of delivery the prices of raw materials, equipment, energy, wages, social security contributions, taxes and/or other cost-determining factors, including the prices charged by suppliers to the user, change, the user shall be entitled to change the offered or agreed prices accordingly.
Paragraph 3
Unless otherwise agreed in writing, the prices of user are indicated in Euros. The exchange rate risk will be borne by the other party.
Paragraph 4
If the price is set in a currency other than euros, the corresponding amount in euros at the time of payment will not be lower than the price in euros at the time of the conclusion of the agreement.
Paragraph 5
All goods commissioned to the user by or on behalf of the other party, which the user has supplied and/or fitted above the originally agreed quantities and/or types of materials to be processed, or has carried out above the originally agreed work, shall be charged as additional work.
Article 6 Delivery time
Paragraph 1
The delivery time commences on the latest of the following dates:
the day the agreement is concluded;
the day on which the user receives the documents, data, permits, specifications, drawings, technical data, approvals and all other material and the like required for the production, completion or delivery;
the day of receipt by MSS of the amount the other party is required to pay in advance in accordance with the agreement.
Paragraph 2
Stated delivery times shall never be regarded as deadlines, unless explicitly agreed otherwise. In the event of late delivery, the user must therefore be given written notice of default.
Paragraph 3
If delivery is prevented in part or in full by force majeure, the user will be entitled to suspend delivery, or to dissolve the agreement in part or in full, insofar as it has not been carried out, and to claim payment for the parts which have been carried out, without being obliged to pay any compensation to the other party.
Paragraph 4
If delivery is delayed due to a circumstance not attributable to the user, other than as referred to in the previous paragraph, the agreed price(s) will be invoiced by the user and the other party must pay as if delivery had taken place on time.
Paragraph 5
If, as a result of a delay as referred to in the previous two paragraphs, the user is forced to take back or store goods, it shall in that case be entitled, without prejudice to the provisions of the following paragraphs of this article, to charge the other party an amount equal to 2% of the price of those goods per month.
Paragraph 6
If the other party has not taken delivery of the goods after expiry of the delivery period, they will remain at his disposal and stored at his expense and risk, but the user will also be entitled to dissolve the agreement by means of a written statement and to claim full compensation or to claim release from his obligation at law.
Paragraph 7
If, in the case of an agreed delivery of goods of a specific type, these have not been taken possession of by the other party after expiry of the delivery term, the user shall be entitled to designate the goods intended for delivery, in which case it shall only be obliged to deliver these goods after notifying the other party, without prejudice to its right to deliver other goods which meet its commitment and without prejudice to the provisions of the previous paragraph.
Article 7 Assembly and installation
Paragraph 1
Unless otherwise agreed in writing, the other party will be solely responsible for the receipt, installation, use and maintenance of all goods that are part of the agreement between the parties. User has no obligations towards the other party in that respect.
Any liability for installation of products delivered by user by others than user is explicitly excluded.
Paragraph 2
Only if explicitly agreed in writing will goods supplied be assembled by (fitters of) the user or its suppliers. Unless explicitly agreed otherwise in writing, the costs associated with assembly and installation are not included in the price agreed between the parties, but will be settled separately by the user at its usual rates and charged to the other party.
Paragraph 3
The employees charged with assembly and installation are limited to assembling the goods delivered by the user and/or the goods that were included in the assignment. The user is not liable for assembly work performed outside the scope of the assignment.
Paragraph 4
Insofar as assembly and installation work has been agreed, the other party will ensure that auxiliary staff are available and that the rooms where work has to be done are cleared out in good time, failing which all costs incurred will be at the expense of the other party.
If the assembly and installation work cannot take place regularly and without interruption or is delayed in any other way through no fault of the user, the user shall be entitled to charge the other party the resulting additional costs at the user's usual rate.
Paragraph 5
The other party must ensure that any personnel to be instructed are present at the agreed time.
Paragraph 6
If the user, without having been commissioned to assemble and/or install, does provide help and assistance of any kind during the assembly and/or installation, this shall take place entirely at the expense and risk of the other party and shall never result in any liability for the user.
Paragraph 7
The other party must provide luggage assistance, lubricants and cleaning materials and the necessary heating and lighting during the assembly and/or installation.
Paragraph 8
The other party shall ensure at its own expense and risk that:
the documents, information, permits and the like necessary for the execution of the assignment are obtained. If user has to deliver documents and/or certificates for the other party on account of governmental provisions at home or abroad, the other party shall be obliged to specify these accurately in the order for delivery. Without prejudice to the other provisions of these general terms and conditions, the user shall never be liable for damage suffered by the other party as a result of the non-delivery or late delivery of the documents referred to above if the need for and precise description of these documents are not explicitly stated in every individual order for delivery;
suitable accommodation and/or other facilities required by law are available for the user's employees;
the access roads to the place of installation are suitable for transport;
the designated place of assembly and/or installation is suitable for storage and assembly and/or installation;
the necessary lockable storage places for materials, tools and other items are available;
the necessary and usual assistants, auxiliary tools, auxiliary and business materials are timely and freely available at the right place of user;
all necessary safety and other precautionary measures have been taken and are maintained;
at the start of and during assembly the goods supplied are present at the right place.
Paragraph 9
During the assembly and installation work, a contact person from the other party must always be present who is aware of the provisions made for carrying out the installation and assembly work and also knows the technical possibilities of the goods to be delivered.
Paragraph 10
If the goods to be delivered cannot be functionally delivered due to a lack of facilities, the extra hours to be spent as a result will be charged to the other party.
Paragraph 11
After the departure of the employees charged with assembly and installation, complaints regarding the execution of the assembly and installation work or the duration thereof will no longer be accepted.
Article 8 Delivery and acceptance
Paragraph 1
Unless otherwise agreed in writing, delivery of goods shall take place ex works, in which case the goods shall be deemed to have been delivered by the user and accepted by the other party as soon as the goods have been offered to the other party and/or as soon as the goods have been loaded into or onto the means of transport.
Paragraph 2
If carriage paid delivery has been agreed, the items shall be deemed to have been delivered by the User and accepted by the Other Party as soon as the items have been delivered to the delivery address specified by the Other Party.
Paragraph 3
In the event of delivery of services, these are deemed to have been delivered and accepted by the other party as soon as the work has been completed and the user's staff have left.
Article 9 Transfer of risk
The goods to be delivered shall be at the expense and risk of the other party from the moment of delivery as referred to in the previous article.
Article 10 Transport
Paragraph 1
Unless otherwise agreed in writing, the manner of transport, forwarding, packing and the like shall be determined by the user without any liability arising therefrom.
Par. 2
Unless otherwise agreed in writing, transport will take place at the risk and expense of the other party, even if the transporter has explicitly stipulated that all transport documents must state that all damage as a result of the transport is at the expense and risk of the sender. Any costs incurred by the user for transport insurance shall be borne by the other party.
Paragraph 3
Acceptance of the goods by the transporter, without any notation on the waybill or receipt, is proof that the packaging has been received by the transporter in good condition.
Article 11 Retention of title
Paragraph 1
The User will retain ownership of all items it has delivered to the Other Party until the purchase price for all these items has been paid in full.
Paragraph 2
If, in the context of the agreement concluded with the other party, the user carries out work for the benefit of the other party that is to be reimbursed by the other party, the retention of title also applies until the other party has also paid this claim from the user in full.
Paragraph 3
The retention of title shall also apply with respect to any claims which the user may acquire against the other party due to the other party's failure to fulfil one or more of its obligations towards the user arising from the agreement concerned between the parties.
Paragraph 4
As long as ownership of the delivered goods has not been transferred to the other party, the latter may not pledge them or grant any other right to them to a third party, subject to the provisions of the next paragraph of this article.
Paragraph 5
The counterparty is permitted to sell and transfer the goods delivered under retention of title to third parties in the context of the normal operation of its business. If the goods are sold on credit, the other party will be obliged to demand a retention of title from its buyers in accordance with the provisions of this article.
Paragraph 6
The other party undertakes not to assign or pledge claims which it acquires against its buyers to third parties without the prior written consent of the user. The other party further undertakes to pledge said claims to the user as soon as the latter expresses the desire to do so in the manner indicated in Article 3: 239 of the Dutch Civil Code, as additional security for all claims the user has on the other party for whatever reason.
Paragraph 7
The other party is obliged to store the goods delivered under retention of title with the necessary care and as the user's recognizable property.
Paragraph 8
The other party is obliged to insure the goods for the duration of the retention of title against damage caused by fire, explosion and water, as well as against theft, and to submit the policies of this insurance to the user for inspection on demand.
All claims of the other party on the insurers of the goods on account of the aforementioned insurance will, as soon as the user indicates that it wishes to do so, be pledged to it by the other party in the manner indicated in Article 3: 239 of the Dutch Civil Code, as additional security for all claims of the user on the other party for whatever reason.
Paragraph 9
If the other party fails to meet its payment obligations towards user or user has good reason to fear that it will fail to do so, user shall be entitled to take back the goods delivered under retention of title. By accepting the applicability of these general terms and conditions, the other party grants the user or its designated representative(s) advance power of attorney to enter the other party's premises, warehouses, factory buildings and the like in order to repossess the goods delivered subject to retention of title. After repossession, the other party will be credited for the market value, which will in no case be higher than the original purchase price, less the costs involved in the repossession.
Article 12 Transfer of rights and obligations
The other party shall not be entitled to transfer its rights and obligations under the agreement to third parties in whole or in part or to alienate them in any other way or to encumber them with any limited right without the prior written consent of the user.
Article 13 Payment
Paragraph 1
Unless otherwise agreed in writing and without prejudice to the provisions of the following paragraphs of this article, payments to MSS must be made net within 30 days of the invoice date, which period is regarded as a strict deadline.
Paragraph 2
All payments must be made without any discount and/or setoff in the manner agreed.
The other party is not entitled to suspend payments, on any grounds whatsoever, or to set off payments against (alleged) claims against the user.
Paragraph 3
The user is always entitled to demand full or partial payment in advance for each delivery or partial delivery.
Paragraph 4
If, with regard to certain goods to be delivered or delivered, the user allows payment of the principal sum or part thereof in instalments, the turnover tax on the total amount of the payment will be due at the same time as the first instalment, unless agreed otherwise in writing.
Paragraph 5
The costs for the account of the user, advanced by the other party, will be settled upon payment of the last instalment.
Paragraph 6
Before delivering or continuing to deliver, the user will always be entitled to require sufficient security from the other party for the fulfilment of all or part of its payment obligations.
Paragraph 7
The User will be entitled to suspend further deliveries if the other party fails to fulfil its payment obligations, or fails to fulfil its obligation to provide security or otherwise fails to fulfil one or more of its obligations towards the User, even if a fixed delivery time has been agreed, all this without prejudice to the User's other rights in that case.
Paragraph 8
Unless explicitly agreed otherwise, all payments, by whatever name, made by the other party will first be applied to reduce the costs, then the interest due and finally the principal sum of the unpaid invoice, whereby, if several invoices remain unpaid, the payment will first be applied to reduce the principal sum of the oldest invoice.
Paragraph 9
If the other party fails to pay within the agreed period, it will be in default by operation of law and will owe the user interest equal to the statutory commercial interest as referred to in Section 6:119a of the Dutch Civil Code on the outstanding amount from the due date of the unpaid invoice(s), without any notice of default being required.
Paragraph 10
If the other party is in default as a result of the provisions in paragraph 9 of this article, all outstanding claims against the other party by MSS will be immediately due and payable in full from that moment.
Paragraph 11
In the event of payment by means of bills of exchange and cheques, the exchange and cheque costs shall be for the account of the other party. The same applies to cash on delivery costs.
Paragraph 12
If the other party consists of more than one natural person or legal entity, each natural person and legal entity is severally liable to the user for all the other party's obligations under the relevant agreement.
Article 14 Extrajudicial and judicial costs
All extrajudicial and judicial costs to be incurred by MSS in connection with the collection of debts from the other party shall be for the account of the other party, whereby the extrajudicial costs shall be calculated in proportion to the principal sum to be claimed or in proportion to the value of the performance otherwise to be demanded from the other party, in the manner indicated below, on the understanding that these shall amount to a minimum of € 40, as well as on the understanding that MSS shall be entitled at all times to claim the extrajudicial costs actually incurred by it in so far as these exceed the amount calculated in the manner set out below. The extrajudicial costs shall be calculated over the principal sum to be claimed or over the value of the performance otherwise to be demanded from the other party, as follows:
over the first € 2,500: 15%
for the remainder up to € 5,000: 10%.
for the remainder up to € 10,000: 5%.
over the amount up to € 100.000,-- : 1 %
on the amount exceeding € 100,000.-- : 0,5%.
Article 15 Moulds
Paragraph 1
If user has to manufacture, change and/or improve a mould, form, auxiliary tool or similar for the other party, this shall take place at the other party's expense. The User shall not undertake such manufacture, alteration, etc. until the Other Party has paid the User the agreed costs estimated by the User.
Paragraph 2
If the other party has made moulds, shapes, auxiliary tools, etc. available to the user for the manufacture of products by the user, the user shall only be obliged to return these to the other party after the other party has paid all claims of the user by virtue of the work carried out and products supplied, or for any other reason whatsoever.
Paragraph 3
The user is not liable for loss of or damage to moulds, shapes, auxiliary tools, etc. made available by the other party, except in the case of intent or gross negligence on the part of the user's management or executive employees.
Paragraph 4
If the user manufactures moulds, shapes, auxiliary tools, etc. for the benefit of the other party, either wholly or partly on the instructions of the other party, the user shall keep these moulds, shapes, auxiliary tools, etc. for the benefit of the other party for a period of one year after delivery of the last order placed with the user by the other party, provided that the other party has paid the production costs due. After this period has expired, the user shall deliver the moulds, forms, auxiliary tools, etc. to the other party at the other party's expense and risk on the latter's written request. If the other party does not submit a written request for the delivery of the moulds, shapes, auxiliary tools, etc. to the user within the aforementioned period, the moulds, shapes, auxiliary tools, etc. concerned will lapse and the user will be free to dispose of these items as it sees fit.
Paragraph 5
If the other party has indicated in writing the number of products for which a mould, form, auxiliary tool, etc. can normally be used, such mould, form, auxiliary tool, etc. shall, after the production of that number, be deemed no longer suitable for further production and shall no longer be used for that purpose by the user.
If no such written statement has been made, the user shall inform the other party if in its opinion a mould, form, auxiliary tool, etc. is no longer suitable for production. At the same time, the User shall indicate the costs involved in repairing or re-manufacturing the mould, form, auxiliary tools, etc.
Article 16 Intellectual property rights
Paragraph 1
The user will at all times retain all intellectual property rights, including design rights, copyrights and patents, on all designs, drawings, models, products, moulds, forms, auxiliary tools, etc. made by the user, as well as on the production methods used by the user.
Paragraph 2
All designs, drawings, models, estimates, diagrams, quality manuals, etc. supplied by the user remain the property of the user at all times and must be returned to the user immediately on request.
Without the express prior written consent of the user, the other party is not permitted to copy these in whole or in part, hand them over to third parties or make them available for inspection, or use them for the production of goods and/or services to which they relate.
Paragraph 3
The other party indemnifies the user against all costs, expenses, damage and losses as a result of the violation of a patent, intellectual property rights and/or trademarks, arising from the execution of the design, specification or instruction of the other party, all this in the broadest sense of the word. The other party will immediately inform the user of any action or impending action based on such an alleged infringement, and the other party will offer the user the opportunity, if so desired, to participate in any action or defence against any claims from third parties in this regard.
Paragraph 4
If a third party on the basis of an alleged patent or intellectual property right objects to the manufacture or delivery of the products as referred to in the previous paragraph, the user shall be entitled to cease the manufacture and/or delivery of these products with immediate effect, without prejudice to the other rights to which it is entitled in that case, and to claim compensation from the other party for the costs incurred.
Article 17 Force Majeure
In these general terms and conditions, force majeure means every circumstance independent of the User's will - even if this could already be foreseen at the time the agreement was concluded - which permanently or temporarily obstructs performance of the agreement, as well as, insofar as not already included, war, danger of war, civil war, riots, strikes, lock-outs, transport difficulties, fire and/or serious disruptions in the business of the User or of its supplier(s).
Article 18 Guarantee and complaints
Paragraph 1
With due observance of the following restrictions and for a maximum period of time after delivery as referred to in paragraph 2 of this article, user shall guarantee the soundness of the goods he delivers in the sense that, if these goods do not comply with the agreement, user shall still deliver the missing goods, or repair the delivered goods, provided that user can reasonably do so, or replace the item delivered, unless the deviation from what was agreed is too minor to justify this, or the item has deteriorated after the time at which the other party should reasonably have taken account of its rectification because the other party has not taken care of its preservation like a diligent debtor.
Paragraph 2
The guarantee referred to in the previous paragraph is granted for a maximum of the following periods after delivery:
Reservoirs: ten (10) years with the exception of rubber parts and electronics for flushing technology for which a guarantee period of two (2) years and one (1) year respectively applies
Ceramic products: -ten (10 years) for ceramic products under one of Fluidmaster's brand names;
-five (5) years for other ceramic products on the understanding that the guarantee for ceramic products supplied by the User but purchased by it from third parties shall apply in so far as and to the extent that the supplier of those ceramic products has given the User a guarantee.
Manholes and waste elbows: ten (10) years
Toilet seats: five (5) years
Acrylic shower trays and bath tubs: ten (10) years
Whirlpool system: two (2) years
Glass products: two (2) years
Steam rooms and shower columns: two (2) years with the exception of taps, shower heads and thermostats, which are subject to a subsequent warranty period
Taps, shower heads and thermostats: one (1) year
The User is explicitly entitled to grant in writing a different (shorter) guarantee period than indicated above.
Paragraph 3
The other party cannot derive any claims on the basis of this article from minor deviations in quality, dimensions and color that cannot be prevented from a technical point of view and are generally permitted or accepted according to commercial practice, or from normal wear and tear of the product or parts thereof.
Paragraph 4
In the event of replacement or compensation, the use that has meanwhile been made of the delivered product will be taken into account.
Paragraph 5
Unless explicitly agreed otherwise in writing, the fulfilment of the user's guarantee obligation will apply exclusively within the Netherlands.
Paragraph 6
The guarantee will only apply if the other party has fulfilled all its obligations towards the user. In addition, the user is not obliged to provide any guarantee, by whatever name, if the items it has delivered have meanwhile been processed, if the other party has not adhered strictly to the recommendations of the user and the operating and assembly instructions of the manufacturer and/or supplier(s) of the user, or if third parties, whether or not on the instructions of the other party, have made any changes to the items delivered by the user without the prior written permission of the user.
Paragraph 7
With regard to goods and/or raw materials delivered by the user but obtained from third parties, the provisions of this article apply only insofar and to the extent that the supplier of those goods and/or raw materials has given the user a guarantee.
Paragraph 8
The guarantee referred to in this article does not apply to products which the user has explicitly excluded from the guarantees referred to in this article, or to products consisting of remnants or special batches, unless the user has explicitly guaranteed these products in writing.
Paragraph 9
Complaints concerning externally visible defects must be made in writing within 8 days of delivery, which period is considered an expiry period.
Paragraph 10
Complaints relating to non-externally visible defects must be submitted in writing within eight days of discovery until the end of three months after delivery, both of which periods are considered to be expiry periods.
Paragraph 11
In the case of assembly and installation, no claims will be accepted after the departure of the employees charged with the assembly and installation, concerning the execution of the assembly and installation work or the duration thereof.
Paragraph 12
Complaints relating to the amount of the invoices sent by the user must be reported in writing within eight days of the invoice date, which period is regarded as an expiry period.
Paragraph 13
Except in the case of intent or gross negligence on the part of the management or managerial subordinate of MSS, fulfilment of MSS's guarantee obligation will constitute the only form of compensation. MSS shall not be obliged to pay any other compensation, in whatever form.
Article 19 Return shipments
Paragraph 1
Returned goods will only be accepted after prior written consent by MSS, provided that they are carriage paid.
Paragraph 2
Acceptance of any returns does not automatically imply approval by MSS.
Article 20 Liability
Paragraph 1
The User will never be liable for any loss whatsoever, except in the event of an intentional act or omission or gross negligence by the User's management or executive employees.
Paragraph 2
Without prejudice to the provisions in the previous paragraph, any liability of the user for trading loss or other indirect loss is explicitly excluded.
Paragraph 3
Without prejudice to the provisions of the previous paragraphs, in the event of the user being held liable, its obligation to pay compensation will always be limited to the invoice amount excluding turnover tax for the goods supplied.
Paragraph 4
Without prejudice to the provisions of the previous paragraphs, any right of action the other party may have against user will lapse one year after the damage occurred or started.
Article 21 Indemnification
Except in the event of intent and/or gross negligence on the part of the user's management or executive employees, the other party shall be obliged to indemnify the user in respect of all costs, loss or damage and interest which may arise for the user as a direct or indirect result of legal actions which are brought against the user by third parties in respect of or as a result of the execution of the agreement. Pursuant to the agreement the other party shall be obliged to comply with an appeal for indemnification by the user.
Article 22 Proof of records
Unless proven otherwise, the data contained in user's administration with respect to the agreement shall be decisive.
Article 23 Suspension and dissolution
Paragraph 1
Notwithstanding the provisions of the previous articles concerning suspension and dissolution, user shall be entitled, if the other party fails to meet any of its obligations arising from the agreement concluded between user and the other party, or does not meet them properly or in time, if there is serious doubt as to whether the other party can meet its obligations arising from the agreement, in the event of bankruptcy, suspension of payments the other party, full or partial transfer or (silent) pledging of his business or an important part of his business assets or business claims, either to suspend the agreement for a maximum of six months, or to dissolve it partially or entirely, without notice of default or judicial intervention, in which case the right of the user to compensation for his loss or loss of profit shall remain intact. User's right to compensation for damage suffered or profit lost shall remain unaffected.
Paragraph 2
In the event of dissolution, as referred to in the previous paragraph, the agreed price owed to the user, after deduction of what has already been paid and of any costs not yet incurred by the user, will become immediately due and payable.
Paragraph 3
In the cases referred to in the first paragraph, all outstanding claims which the user has against the other party at that time will be immediately due and payable in full.
Article 24 Invalid provisions
If any provision of these general terms and conditions is null and void or otherwise unenforceable, the other provisions thereof shall remain in full force and effect. In that case, the User and the Other Party shall make every effort to reach agreement on a provision that approximates the invalid provision as closely as possible.
Article 25 Dutch text binding
If versions of these general terms and conditions written in a foreign language have been or will be drawn up, the Dutch text and interpretation shall always be decisive in the event of any deviation from the Dutch text or in the event of a difference of opinion regarding the interpretation of any provision.
Article 26 Disputes/applicable law
Paragraph 1
Dutch law applies to all agreements to which these terms and conditions apply in full or in part.
Paragraph 2
The applicability of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (Treaty Series 1981, 184 and 1986, 61) is explicitly excluded.
Paragraph 3
All disputes will be settled in the first instance by the competent court in the district of Gelderland, location Arnhem, the Netherlands, to the exclusion of all other courts, without prejudice to the user's right to summon the other party to appear before the court that is competent according to the ordinary rules of law.