General conditions

GENERAL TERMS AND CONDITIONS FiberCore Europe (SAMI Composites BV).
Version dated July 2023
Filed with the Chamber of Commerce under number 90788362
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A. Provisions concerning the applicability of these general terms and conditions and the formation of an agreement

 

1
Applicability

1.1
These General Conditions shall apply to all quotations, offers, quotations and agreements for the carrying out of work, the realization of a work of a material nature and/or the supply of products by FiberCore Europe (SAMI Composites BV), (hereinafter referred to as: "FiberCore"), and all ensuing and/or related agreements between Client and FiberCore, or their legal successors.

1.2
The applicability of contrary general (purchase) conditions is expressly rejected by FiberCore.

1.3
In the event of a conflict between the provisions of these General Conditions and the provisions of the agreement entered into between FiberCore and Customer, the provisions of the agreement shall prevail.

1.4
Deviations or amendments to these general terms and conditions shall be valid only to the extent agreed in writing.

1.5
These general conditions are also stipulated for the benefit of the (legal) persons engaged by FiberCore in the performance of the agreement, the directors and shareholders of FiberCore, as well as the directors and (indirect) shareholders of the relevant shareholders and all those who work for FiberCore, whether or not in employment.

2
Quotes and offers

2.1
All verbal and/or written quotations, offers and quotations of FiberCore are revocable and expire after thirty (30) days, the amounts contained therein are exclusive of sales tax unless otherwise stated.

2.2
Where no exact price is specified in the quotation, offer and/or quotation, FiberCore shall perform its work on a cost-plus basis. In this case, the Customer shall pay the price to be determined on a subsequent costing basis based on FiberCore's customary rates and methods. Where a guide price has been issued by FiberCore, it should be understood that this guide price is no more than a non-binding indication. The guide price may be exceeded or fallen below without limitation.

2.3
The quotation, offer or quote shall include an exhaustive list and description of the work to be performed by FiberCore for Client.

2.4
Customer shall use FiberCore's quotation, offer or quotation and FiberCore's knowledge and ideas contained therein solely for the purpose of considering whether or not to enter into an agreement with FiberCore.

2.5
FiberCore has the right to adjust all prices, rates and the like issued by it annually as of January 1.

3
Establishment of the agreement

3.1
The agreement is established by means of the order confirmation signed by the Client and returned by FiberCore or by FiberCore actually carrying out what is included in the quotation/offer.

3.2
Amendments, deviations and/or supplements to the agreement shall be binding only after they have been agreed upon in writing between the parties.

B. Provisions regarding orders to perform work

 

4
Order to perform work

4.1
The provisions of Articles 4 and 5 of these General Conditions shall apply to all orders to FiberCore to perform work within the meaning of Article 7:400(1) of the Dutch Civil Code, such as the provision of consultancy or design services.

4.2
The order to perform work by FiberCore is a best-efforts obligation.

4.3
The execution of the orders issued shall be exclusively for the benefit of the Client. Third parties cannot derive any rights from this.

4.4
FiberCore shall exercise due care when engaging third parties not belonging to its organization and shall consult with the Client in the selection of these third parties as much as reasonably possible.

5
Liability

5.1
All orders referred to in clause 4 shall be deemed to have been exclusively given to and accepted by FiberCore, even if it is the express or implied intention that the order be carried out by a specific person. Notwithstanding Articles 7:404, 7:407(2) and 7:409 of the Civil Code, the directors of FiberCore, as well as those working for or on behalf of FiberCore, whether in employment or otherwise, shall not be personally bound or liable and the assignment shall not terminate by their death, even if the assignment is given with a view to a specific person.

C. Provisions relating to work contracts

 

6
Contracts for work

6.1
The provisions of Articles 6 to 9 apply to all orders to FiberCore for the realization of a work of a material nature within the meaning of Article 7:750(1) of the Civil Code.

7
More and less work

7.1
Settlement of additional and less work takes place:
a. in case of amendments to the contract;
b. in the event of instructions by or on behalf of the government on the basis of statutory regulations or decrees, insofar as these could not have been foreseen before or at the conclusion of the contract;
c. in case of deviations from the amounts of the provisional sums;
d. in case of deviations from offsettable quantities; or
e. in cases where settlement of additional and/or less work is prescribed in the contract.

8
Completion of a work

8.1
FiberCore shall endeavour to observe the agreed period of performance to the best of its ability, but this period shall never be regarded as a strict deadline. In the event of an overrun or threat of an overrun FiberCore shall consult with the Client.

8.2
The Work shall be considered completed if it is or is deemed to be approved by the Client in accordance with the following paragraphs of this Article.

8.3
At least one (1) week prior to the day on which, in FiberCore's judgment, the work is complete, the Customer shall be invited to proceed with the inspection of the work. The inspection shall be conducted by the Customer in the presence of FiberCore for the purpose of ascertaining that FiberCore has completed the work in accordance with the agreement.

8.4
Within eight (8) days of inspection, the Customer shall notify FiberCore in writing whether or not the work has been approved. In the former case indicating any minor defects in the latter case indicating the defects that constitute the reason for withholding approval.

8.5
Minor defects shall never be grounds for withholding approval, provided they do not prevent the work from being put into use.

8.6
If the Client does not give written notice in accordance with Article 8.4 within eight (8) days of inspection, the Work shall be deemed approved on the eighth (8th) day after inspection.

8.7
If the Customer fails to survey the work - despite FiberCore's invitation to do so in accordance with Article 8.3 - FiberCore may by registered letter invite the Customer for a second time to survey the work. If the Customer again fails to comply with the request to inspect the work, the work shall be deemed to have been approved on the date of the first invitation to inspect. If the Client does comply with the request, the provisions of Article 8 sub-articles 3 through 8 sub-article 6 will apply accordingly.

8.8
The Work shall in any case be deemed approved if the Customer puts it into use. The day on which the work or a part thereof is put into use shall be deemed to be the day of approval of the work or the part in question.

9 Defects

9.1
Customer shall forfeit any claim on account of a defect in the work if he has not notified FiberCore in writing within fourteen (14) days after he has discovered or reasonably should have discovered the defect. The Customer is required to closely supervise and monitor the work during the execution and delivery of the work so that defects can be discovered.

9.2
In any event, any legal claim due to a defect in the Work shall lapse by operation of law five (5) years after completion.

 

D. Provisions concerning the purchase and delivery of finished goods

 

10
Agreement of purchase of a finished product

10.1
The provisions of Articles 10 to 14 apply to all agreements between FiberCore and the Customer concerning the purchase and delivery of moveable goods (finished goods) within the meaning of Article 7:1 of the Dutch Civil Code.

11
Delivery of a product

11.1
The place and manner of delivery shall be determined in the Agreement. The moment of delivery is the offering of the product at the agreed place and time, even if Client does not take delivery of the product. The costs of delivery shall be borne by Customer.

11.2
FiberCore shall make every effort to meet the agreed delivery time as much as possible, however, this period shall never be regarded as a deadline. If the delivery period is exceeded, the parties shall consult with each other.

11.3
The product is at the Client's risk after delivery.

11.4
Without prejudice to the provisions of the law, ownership of the product shall not pass to the Customer until he has fulfilled all his payment obligations to FiberCore under the agreement.

11.5
During the time that FiberCore is to be considered the owner of the product, the Customer is obliged to FiberCore to treat the product already delivered with care and not to pledge, process, transfer or surrender the product other than in the ordinary course of business.

12
Complaints

12.1
The Customer shall be required to notify FiberCore within twenty-four (24) hours after delivery of a product of those defects that were found or could reasonably be found by him upon delivery.

12.2
The provisions of Article 9.1 shall also apply to the agreement of sale between FiberCore and Customer.

 

E. Provisions applicable regardless of the nature of the contract

 

13
Other provisions

13.1
The provisions of Articles 14 to 19 inclusive shall apply to all orders for the performance of work and/or the creation of a work of a material nature, or to agreements for purchase.

14
Payment

14.1
Payment of the invoice amount by the Customer shall be made within fourteen (14) days of the invoice date, in Euros, by deposit in favor of a bank account designated by FiberCore and without any right of suspension, discount or set off.

14.2
If the Customer fails to pay within the aforementioned deadline, he shall be in default by operation of law and shall owe the statutory commercial interest rate plus two (2) percentage points on the amount due until the date of payment in full, without prejudice to FiberCore's other rights and claims under this agreement and the law. If Customer is in default, all claims of FiberCore in respect of work performed and costs incurred shall become immediately due and payable.

14.3
Costs resulting from judicial or extrajudicial collection of the claim shall be borne by the Client. The extrajudicial costs are set at least fifteen percent (15%) of the amount to be claimed with a minimum of €1,500.00 (in words: fifteen hundred Euros).

15
Intellectual property and know how

15.1
FiberCore reserves all rights with respect to intellectual property rights and (secret) know-how, which it uses or has used in the performance of the agreement with the Customer.

15.2
All rights of intellectual property and know-how that come to the knowledge of the parties or are created or can be acquired during the joint or non joint performance of the work shall belong exclusively to FiberCore. To the extent necessary, the Customer hereby (in advance) transfers to FiberCore all rights of intellectual property arising during the joint performance of the work, which transfer is hereby (in advance) accepted by FiberCore.

15.3
If the joint or non-joint performance of the work would lead to results that would lend themselves to patent applications, FiberCore shall have the sole right to apply for a patent in its name and at its own expense. Customer shall be required to provide FiberCore with every assistance in filing a patent application. During the performance of the work, the parties are obliged to inform each other mutually with regard to suspected patentable results.

15.4
Customer is expressly prohibited from duplicating, publishing or exploiting the rights and know-how referred to in this article 15, with or without the involvement of third parties, without FiberCore's prior written consent. Neither party shall disclose the content of the assignment(s) or agreements concluded between the parties to third parties. The parties warrant that the provisions of this Article 15 will be complied with by third parties including employees engaged by or on behalf of that party.

15.5
In all cases, the Customer shall not be entitled to make use of reports, calculations, recommendations, designs and other copyrighted matters drawn up by FiberCore before the payment to FiberCore has been made in full. In the event of unauthorized use, the Customer shall forfeit to FiberCore a penalty of € 10,000.00 (in words: ten thousand Euros) for each day that the unauthorized use continues, without prejudice to FiberCore's right to compensation for its actual damages and its other rights under the agreement and the law.

16
Suspension, early termination, notice of termination

16.1
The Customer shall be entitled to terminate the agreement in whole or in part at any time. In the event the Customer terminates the agreement pursuant to this paragraph, FiberCore shall be entitled to payment of the full price plus the costs incurred by FiberCore as a result of the non-completion, less the costs saved by FiberCore as a result of the premature termination and plus an additional compensation of ten percent (10%) of the full price that is or would have been payable under the agreement. The latter additional compensation shall not be payable if the agreement is terminated for compelling reasons attributable to FiberCore.

16.2
FiberCore is entitled to dissolve the agreement in the event of liquidation, of (a request for) suspension of payments, debt restructuring and/or bankruptcy of the Customer or in the event of seizure at the expense of the Customer - if and to the extent that the seizure has not been lifted within three (3) months - or of any other circumstance as a result of which the Customer can no longer freely dispose of his assets. In such cases, the Customer shall not be entitled to compensation and/or damages. In the event that FiberCore terminates the agreement under this paragraph, it shall be entitled - without prejudice to its other rights and claims under the law - to payment of the full price plus the costs incurred by FiberCore as a result of non-completion, less the costs saved by FiberCore as a result of the premature termination.

16.3
During the time that the Customer is in default with respect to its payment obligations or any other obligation under the agreement (including these general conditions), FiberCore shall be entitled to suspend its activities. Provisions to be made by FiberCore as a result as well as any damage FiberCore may suffer as a result shall be compensated to FiberCore by the Customer.

17
Liability

17.1
Except in the case of intent or wilful recklessness on the part of FiberCore or its executive subordinates, FiberCore's total liability on account of and failure to perform the agreement, tort or otherwise - including any warranty and indemnity obligation - shall be limited to direct loss and up to the amount reimbursed by FiberCore by its insurance company in this regard. If for whatever reason no payment is made under the insurance policy, FiberCore's total liability shall be limited to the amount paid by the Client under the relevant agreement with a maximum of €500,000.

17.2
FiberCore shall never be liable for indirect damage. The aforementioned term indirect damage should include (but is not limited to) consequential damage, loss of sales, loss of production, loss of profit, missed savings, stagnation damage.

17.3
The Customer shall indemnify FiberCore and/or the persons engaged by FiberCore in the performance of the work against all third party claims for product liability as a result of a defect in a product supplied by the Customer to a third party which consisted (in part) of products and/or materials supplied by FiberCore.

17.4
Any (warranty) claim due to defects in the delivered goods shall lapse if:

a. different and/or more stringent requirements have been placed on the work performed and/or goods delivered than were known at the time the agreement was concluded;
b. repairs or other work have been carried out by third parties without FiberCore's prior written consent;
c. the materials delivered and the work performed have not been used and/or maintained in the manner intended; or
d. the Customer has not fulfilled its obligations to FiberCore.

18
Choice of law and forum

18.1
All agreements between the Customer and FiberCore shall be governed exclusively by the laws of the Netherlands. The applicability of the Vienna Sales Convention is excluded.

18.2
Disputes shall be submitted exclusively to the District Court of Rotterdam, location Rotterdam.