These General Terms and Conditions of Services and Sale shall apply to all offers made and all agreements concluded with SFC Energy B.V., hereinafter to be referred to as ‘SFC’, for which SFC is the supplier of services and/or goods. Any Terms and Conditions of Purchase of the other party (the ‘Customer’) and any deviations from these General Terms and Conditions of Services and Sale shall apply only if and insofar as they have been expressly accepted in writing by SFC. Verbal commitments shall be binding upon SFC only if and insofar as they are confirmed in writing by SFC.
1.1 These General Terms and Conditions of Services and Sale shall apply to all offers made and all agreements concluded with SFC Energy B.V., hereinafter to be referred to as ‘SFC’, for which SFC is the supplier of services and/or goods.
1.2 Any Terms and Conditions of Purchase of the other party (the ‘Customer’) and any deviations from these General Terms and Conditions of Services and Sale shall apply only if and insofar as they have been expressly accepted in writing by SFC. Verbal commitments shall be binding upon SFC only if and insofar as they are confirmed in writing by SFC.
2.1 All offers made by SFC in any form shall be free of obligation, unless explicitly stated otherwise. SFC shall be entitled to withdraw its offer within 5 working days after receipt of the acceptance of the offer.
2.2 SFC shall at any time be entitled to amend its services and alter the goods, specifications and instructions for use to improve them or to comply with applicable standards and governmental regulations.
2.3 Illustrations, catalogues, printed information, colours, drawings, dimensions, statements of weight and measurements etc. made available by SFC are only meant to present a general idea of the goods to which they refer; they are approximate only and not binding.
3.1 Unless otherwise agreed to in writing, services and goods will be charged in the agreed upon manner. If SFC has agreed to perform services on a fixed price basis, SFC is allowed to charge ‘additional work’ in case it has performed more services than the services agreed upon.
3.2 If SFC has made a quote regarding the hours to be spent performing the services, that quote will be regarded as an estimate only. If SFC has spent more hours than the hours quoted, SFC will be allowed to charge those extra hours.
3.3 All prices are exclusive of sales tax (VAT). With regard to the delivery of goods the prices are based on delivery Ex Works (Incoterms 2020). If, after the date the agreement was entered into, circumstances occur which give rise to price alterations for the services and/or the goods, such as – but not limited to – changes in raw material costs, increase in wages, alterations by legal authorities of charges, duties and/or taxes and/or levies regarding the services and/or goods to be supplied, SFC shall have the right to increase or decrease its prices accordingly. Prices quoted shall apply to the quantities quoted only.
4.1 Unless the parties agree otherwise in writing, the services and/or the goods shall be paid within 30 days after the invoice date by transferring the amount due to the bank account indicated on the invoice. The day of payment shall be the date on which the amount due has been credited to the bank account.
4.2 The Customer shall not be entitled to invoke any set off or any right of suspension. Upon expiration of the term of payment, the Customer shall be in default and, as of that date, it shall owe interest at a rate corresponding to the Dutch statutory commercial interest rate plus 4% per year.
4.3 If the Customer fails to meet any of its obligations, all extra-judicial costs reasonably incurred to obtain such payment shall be at the Customer’s expense. Such costs shall in any event include the costs of collection agencies, process servers and attorneys. These costs shall amount to no less than 15% of the outstanding amount. If a court fully or substantially awards judgment against the Customer and its decision has become final, the Customer shall be under a duty to reimburse SFC for all judicial costs incurred at trial and appellate levels, including any amounts not awarded by the court.
5.1 SFC shall retain title to all goods delivered or to be delivered to the Customer until SFC has received payment in full of the purchase price of the goods, the fees for any work done in relation to any sales agreement concluded with the Customer and any other damage resulting from a breach by the Customer of any such sales agreement.
5.2 All costs incurred by SFC in repossessing the goods shall be paid by the Customer. During such time as SFC retains title to the goods, the Customer in possession of the goods shall have the power to deal with and actually deliver the goods in the normal course of its business.
6.1 The time for performance of the services or for the delivery of the goods shall not be of the essence and the terms are therefore not considered to be fatal terms.
6.2 The times given for (completion of the) services to be performed, dispatch of the goods and/or for completion of the installation services must be regarded as estimated only.
6.3 Unless otherwise agreed to in writing, delivery of the goods shall be Ex Works of SFC (Incoterms 2020). From the moment of pick-up at the SFC warehouse, the risk of loss or damage shall pass to the Customer, even if title to the goods has not yet passed.
6.4 In the event of late delivery of the services and/or the delivery of the goods, SFC must be formally declared to be in default in writing and must be granted an additional reasonable term to satisfy its obligations. If the extended term is exceeded, the Customer shall be entitled to dissolve the agreement insofar as no services have been performed or deliveries have taken place.
6.5 SFC shall not be liable for any damage resulting from late delivery or late performance. SFC shall be allowed to deliver the sold goods in partial consignments. If the goods are delivered in partial consignments, SFC shall be entitled to separately invoice the Customer for those partial consignments, and the Customer shall be obliged to pay such invoices as if they concerned separate agreements.
6.6 The Customer shall be obliged to accept delivery of the goods.
6.7 Unless otherwise agreed to in writing, the Customer shall promptly collect the goods or arrange for their collection from SFC once SFC has notified the Customer that the goods are ready for collection. If the Customer does not accept prompt delivery of the goods or is negligent in providing necessary information or instructions for delivery for any reason whatsoever then the goods will be stored at the Customers risk. The Customer shall pay SFC all additional delivery, storage and insurance costs and any other costs incurred, along with any loss arising in connection with such neglect or refusal.
7.1 Upon receipt of the services and/or the goods, the Customer shall be obliged to inspect the services and the goods for defects. The Customer shall in particular examine whether the result of the services conform to the objective of the Agreement, whether the correct goods have been delivered and whether the quantity of the delivered goods is in conformity to that agreed upon.
7.2 Visible defects must be reported to SFC in writing within five (5) working days after the date of pick-up at the SFC warehouse. Defects that are not visible upon receipt must be reported to SFC within five (5) working days after discovery or within five (5) working days after the Customer should reasonably have discovered the defects. If the complaint is justified, SFC shall only be obliged to either reperform (part of the) the services or to replace or repair the defective goods. If SFC finds – in such case- that it should not be required to reperform (part of) the services or to replace or repair the goods, or that such reperforming of the services, or such replacement or repair of the goods is impossible, SFC shall credit the price received regarding the respective services or the goods to the Customer.
7.3 SFC shall in no event be obliged to replace or repair if the damage is a result of normal wear and tear or is a result of circumstances attributable to the Customer. Even if the Customer complains in a timely fashion, it shall remain obliged to pay for and take receipt of all orders placed. The Customer is not allowed to suspend any of its obligations towards SFC.
7.4 Products may only be returned to SFC subject to its prior written consent and instructions. The right to complain on any basis whatsoever shall lapse if the defect or the damage is reported too late or one year after the delivery, whichever occurs first, unless a different time period has been agreed upon.
8.1 SFC’s liability on the basis of an improper performance of any obligation or on the basis of wrongful act or tort, is limited to reperforming the services and/or to the repair or replacement of the goods or – at its discretion- to the repayment of the price received with regard to the respective services or goods from which the damage arose.
8.2 SFC shall not be liable for consequential damages, including but not limited to damages resulting from late delivery, damages to other goods of the Customer or any third party, damages resulting from incorrect or improper use of the services or goods by the Customer, loss of turnover, loss of profit or loss caused by the inoperability of equipment, nor for damages resulting from any incorrect and/or incomplete information supplied by the Customer.
8.3 The liability limitations set forth in these General Terms and Conditions of Services and Sale shall not apply if the damage was caused intentionally or due to gross negligence of SFC or its management. Any claim for damages, for defective services or for the repair or replacement of the goods and/or for the delivery of missing parts, on whatever basis, as well as any right to rescind the agreement, shall lapse if the defect or the damage is not reported within one (1) year after the delivery or performance of the services, unless a different time period has been agreed upon in writing.
9.1 Except where intended to serve as instructions for use or advertising purposes, or where information is or becomes rightfully part of the public domain, all information (including know-how) in relation to the services rendered and/or the goods supplied and their maintenance are SFC’s property and remain its property and may not be utilized or copied, reproduced, transmitted or communicated to third parties without the prior written consent of SFC.
9.2 The Customer shall in particular observe confidentiality with respect to any and all information (including know-how) provided to it during or in connection with the agreement by SFC and it shall not disclose, make public or use this information to render services to third parties, unless explicitly approved in writing by SFC.
9.3 Any and all rights regarding information (including know-how) and goods, including components, materials, raw materials, tools, drawings and specifications, which SFC puts at the Customer’s disposal for the benefit of performance of the agreement will remain vested in SFC. The above also applies to specific tools produced and/or designed by SFC for – or on behalf of – the Customer. The Customer is not entitled to (directly or indirectly) use those tools in another manner than that agreed upon between parties nor is the Customer allowed to produce, reproduce or copy such tools. Unless otherwise agreed in writing, SFC shall retain the ownership of such tools. If such tools are produced at the specific request of the Customer and the Customer has fulfilled all of his obligations vis-à-vis SFC, the Customer is entitled to request SFC to destroy said tools in case the relationship between SFC and the Customer has been terminated.
10.1 Any and all rights of intellectual property that are owned by SFC at the moment the parties enter into an agreement, including but not limited to, copyright (including software), patents and trademarks solely belong to SFC, unless a different arrangement has been made contractually.
10.2 In case any intellectual property rights are brought into existence during or in connection with the execution of the agreement, SFC will be entitled to such rights, unless otherwise agreed in writing. If necessary, those rights will be transferred to SFC at its first request. The Customer is obliged to take any legal and practical steps in order to transfer the intellectual property rights to SFC free of charge. Furthermore, the Customer is never allowed to register any conceived IP rights (including but not limited to patents), regardless of the country in which it is registered, without prior written approval of SFC.
10.3 In the event SFC makes use of intellectual property rights belonging to third parties on the request of the customer, the customer will vouch for the legality of using such rights. It will indemnify SFC for any third party claims, except for when SFC uses intellectual property rights of a third party at its sole discretion.
11.1 SFC shall not be liable for any damage incurred by the Customer in case of improper performance if it is due to the occurrence of events which cannot be attributed to SFC on the basis of either SFC’s fault, or by virtue of law, agreement or generally prevailing opinion (‘force majeure’).
11.2 If the period during which SFC cannot fulfil its obligations exceeds or will exceed two months, either party shall be entitled to terminate the agreement without judicial intervention and without any obligation to pay damages to the other party.
11.3 If SFC has performed part of its obligations when the situation of force majeure arises or if it can only perform part of its obligations, it shall be entitled to separately invoice the Customer for the partial performance and the Customer shall be obliged to pay such an invoice as if it concerned a separate agreement.
11.4 Within the meaning of this Article, force majeure shall include strikes, export regulations or export prohibitions, lack of raw materials, delays in deliveries by suppliers, war, civil unrest, insurrection, fires, floods, labour disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any required permits, licences and/or authorizations, defaults or force majeure of suppliers or subcontractors and transportation problems. These circumstances shall constitute force majeure for both SFC and its suppliers.
12.1 SFC shall be entitled to suspend any (further) performance of the agreement or to rescind the agreement, without prejudice to its right to claim alternative or additional damages, if any goods of the Customer are attached or if the Customer is granted a suspension of payments or is declared bankrupt, if the Customer defaults in complying with one or more of its obligations to SFC or if SFC fears that the Customer is or will be unable to meet its obligations under the agreement and the Customer fails to offer adequate security for the performance of its obligations.
12.2 If one of the events referred to in this article occurs, all claims it may have against the Customer on whatever basis will immediately become due.
Unless otherwise agreed, each agreement will be entered into for one specific and specified job. SFC may for weighty reasons, to be determined at its discretion, prematurely discontinue or give notice of termination of the agreement in whole or in part without prejudice to any other right. The Customer is, in such case, obliged to (i) pay for the work actually performed in the event of periodic payment, or (ii) pay a proportional part of the agreed upon compensation, considering the term of the agreement already expired and the work performed, in the event of a fixed contract sum. SFC will not be obliged to compensate any damage which the customer might incur as a consequence thereof.
14.1 All offers and agreements existing between SFC and the Customer shall be governed by the laws of the Netherlands. Application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
14.2 In the event of a dispute, which is the case when one or both parties consider the situation a dispute, the parties will first and foremost strive to solve the dispute amicably.
14.3 If the parties have not succeeded in solving the dispute amicably, all disputes shall be submitted to binding arbitration by the Netherlands Arbitration Institute and shall be settled in accordance with its Arbitration Rules.
14.4 The arbitral tribunal shall be composed of one arbitrator.
14.5 The place of arbitration shall be Almelo (The Netherlands) and the language of the arbitration will be English.
14.6 The other party is obligated to elect domicile in the Netherlands in dispute proceedings, insofar as the other party is not already established in the Netherlands.