General Terms and Conditions of Delivery
Table of contents
Article 1. Applicability of the General Terms and Conditions of Delivery
Article 4. Delivery and performance
Article 8. Liability and indemnification
Article 11. Termination by Fodor
Article 12. Right of withdrawal (Consumers only)
Article 13. Processing of personal data
Article 14. Partial invalidity
Article 15. Applicable law and competent court
Article 1. Applicability of the General Terms and Conditions of Delivery
- These general terms and conditions of delivery (“General Terms and Conditions of Delivery”) apply to and form part of all quotations and offers issued by Fodor B.V. (“Fodor”), as well as every acceptance by Fodor of orders placed by the buyer (“Buyer”) and all agreements (“Agreements”) concerning the sale by Fodor of goods and services (“Products”).
- These General Terms and Conditions of Delivery expressly also apply to offers of Products by Fodor - and to orders placed or Agreements concluded - via a website or digital environment for offering products (“Platform”) that is managed by third parties.
- A reference by the Buyer to other (general) terms and conditions does not make them applicable. Fodor expressly rejects the applicability of any general terms and conditions of the Buyer.
- Arrangements deviating from these terms and conditions are only valid if and insofar as they have been confirmed in writing by Fodor, and then only for the agreement concerned. Fodor reserves the right to amend these General Terms and Conditions of Delivery. Amendments take effect 30 days after publication by Fodor. If the Buyer does not wish to accept the amendment, the Buyer is entitled to terminate the Agreement within two weeks of the publication referred to in this article, without any right to compensation.
- Fodor has its registered office at Vareseweg 44 3047AV in Rotterdam and is registered in the trade register of the Chamber of Commerce (Kamer van Koophandel) under number 82740739. Fodor can be reached by email at hello@fodor.nl and by telephone on: +31 85 070 37 06
Article 2. Offer
- An offer or (price) quotation from Fodor is not binding on Fodor and only constitutes an invitation to the Buyer to place an order. Unless stated otherwise, all offers and quotations from Fodor expire automatically 30 days after the offer or (price) quotation was issued.
- An agreement between the Buyer and Fodor is only concluded if and insofar as Fodor accepts an order from the Buyer or an order is carried out by Fodor. Fodor has the right to refuse orders or assignments, or to accept them only on condition that shipment takes place cash on delivery or after advance payment.
Article 3. Prices
- The prices stated in quotations, (price) quotes or order confirmations include (turnover) tax and other government levies, as well as normal freight and packaging costs, unless stated otherwise therein.
- Fodor is entitled to charge an amount for shipping and administration costs if, in Fodor's opinion, the order is of low value. The costs of shipment cash on delivery are always borne by the Buyer. Fodor reserves the right to charge the Buyer for the costs of special packaging or packaging prescribed by the Buyer.
- Fodor is entitled at all times to adjust the price agreed with the Buyer. Consumers are entitled to dissolve the Agreement if a price increase occurs within three months of the conclusion of the Agreement.
Article 4. Delivery and performance
- Unless otherwise agreed in writing, Fodor determines the method of shipment. The risk of the Products passes to the Buyer at the moment the Products are offered for receipt at the address specified by the Buyer. If the Buyer has requested a specific method of shipment, the risk of the Products is borne by the Buyer from the moment the Products have been loaded for transport.
- Fodor reserves the right to deliver and invoice ordered Products in partial shipments.
- Agreed or stated delivery times are indicative. If no delivery time has been stated, Fodor will deliver with due dispatch. Exceeding the delivery time or the expected repair time, for whatever reason, does not entitle the Buyer to compensation.
- The Buyer is obliged to accept the Products upon delivery. If the Buyer does not accept the Products to be delivered by Fodor, the Products will be stored at the Buyer's expense and risk. If the Buyer has not collected the Products within three months, Fodor has the right to sell the Products to third parties and to hold the original Buyer liable for any loss. The original Buyer is at all times obliged to reimburse the costs of the aforementioned storage and the (additional) shipping and administration costs incurred by Fodor.
- The Buyer is obliged to check the Products upon receipt for completeness and visible defects. Any discrepancies in quantity or quality must be reported to Fodor by the Buyer in writing within five days of receipt of the Products, failing which any claim of the Buyer against Fodor will lapse. In the event of missing goods or goods that were not ordered, the Buyer must enclose the packing list with the notification referred to here.
- Products are returned at the Buyer's expense and risk. Fodor only accepts returned Products if and insofar as Fodor has agreed to the return in advance in writing and the Products are delivered to the address to be specified by Fodor in the original packaging and in the condition in which Fodor delivered or offered these Products to the Buyer. This does not apply to a Consumer who returns the Product within the Cooling-off Period, see article 12. Complaints regarding Products belonging to a partial shipment do not affect previous and subsequent partial shipments forming part of the same order.
- Any credit for returns is based on the purchase price charged to the Buyer.
Article 5. Retention of title
- Fodor retains title to all Products delivered by Fodor. Title to the Products only passes to the Buyer once the Buyer has fully complied with all of the following obligations under all agreements concluded with Fodor:
- the consideration(s) for Products delivered
or to be delivered by Fodor; and
- any claims of Fodor against the Buyer due to
non-performance by the Buyer of (an) agreement(s) concluded with Fodor.
- The Products delivered by Fodor that are subject to the retention of title pursuant to article 1 may only be resold in the context of the Buyer's normal business operations. The Buyer is not authorised to modify or pledge the delivered Products or to encumber them with any other right. If third parties wish to create or assert any right to the Products delivered under retention of title, the Buyer is obliged to inform Fodor immediately.
- The Buyer is obliged to ensure that the Products remain identifiable as Products delivered by Fodor. The brands and the type or identification numbers or marks affixed to the Products delivered by Fodor, including the packaging, may not be removed, damaged or altered.
- The Buyer must grant Fodor free access at all times to the location where the Buyer has stored the Products delivered by Fodor. If the Buyer fails to fulfil its obligations towards Fodor, or if Fodor fears that the Buyer will not fulfil its obligations on time or in full, the Buyer is obliged, at Fodor's first request, to return the Products at the Buyer's own expense and to give Fodor all cooperation to enable Fodor to retrieve its Products.
- At Fodor's first request, the Buyer undertakes to assign to Fodor all claims against third parties arising from the delivery to those third parties of Products subject to the retention of title referred to in article 1, or, at Fodor's request, to create a right of pledge on those claims and in that case to perform all acts required for that purpose. Any costs associated with this are borne by the Buyer.
- The Buyer undertakes to insure the Products delivered under retention of title, and to keep them insured, against fire, explosion and water damage and against theft. The Buyer must make the insurance policy available for inspection at Fodor's first request. The Buyer is obliged to assign to Fodor all claims of the Buyer against insurers relating to the Products delivered under retention of title or, at Fodor's first request, to pledge them to Fodor in accordance with the provisions of article 3:239 BW.
Article 6. Payment
- Unless otherwise agreed in writing, payment for delivered Products must be made to Fodor's bank account in favour of Fodor, as stated by Fodor on the invoice or otherwise communicated to the Buyer.
- Payment must be made without any right to discount, suspension (does not apply to Consumers) or set-off within thirty days of the invoice date, unless otherwise agreed. If the payment term is exceeded, the Buyer is in default by operation of law, without any notice of default being required, and owes compound interest of two (2) percent per month from the due date. In that case, the Buyer must also reimburse all extrajudicial and judicial (collection) costs that Fodor may incur. The extrajudicial collection costs are in principle set at ten (10) percent of the amount due, with a minimum of EUR 250. All of this is without prejudice to Fodor's other statutory claims for reimbursement of costs and compensation for damage.
- By way of derogation from the provisions of article 2, the following applies to a Consumer who fails to meet their payment obligation(s) on time: after a notice of default granting a period of 14 days to still meet the payment obligations, the Consumer owes statutory interest and Fodor is entitled to charge the extrajudicial collection costs it has incurred.
- Payments made by the Buyer always serve first to settle those claims Fodor may have against the Buyer in respect of which Fodor has not retained title, then to settle all interest and costs due, and finally to settle the payable invoices that have been outstanding the longest, all of this even if the Buyer states that the payment relates to a specific claim or invoice.
Article 7. Warranty
- Without prejudice to the provisions of Article 9. and subject to the provisions of this article, Fodor warrants that the Products delivered by Fodor will, for 24 months after delivery, have the properties required for the agreed use. This warranty only applies to defects in the delivered Product that were not discernible at the time of delivery and that the Buyer proves occurred solely or predominantly as a direct result of design or material faults. Minor deviations and differences in quality, colour, size or finish that are customary in the trade or technically unavoidable do not constitute a defect. Normal wear and tear and defects due to improper use of the Products are excluded from the warranty. Warranty claims are not transferable.
- Fodor may, at its own discretion, choose to repair or replace Products covered by the warranty, or to take them back against a credit of the purchase price to the Buyer. All costs exceeding mere repair or replacement, such as (but not limited to) transport costs, shipping costs, travel and accommodation expenses and the costs of (dis)assembly, are borne by the Buyer. Products or parts replaced under the warranty become or remain the property of Fodor. No warranty is given on repaired or replaced Products.
- Unless otherwise agreed in writing, the warranty does not cover defects that arise from, or are wholly or partly the result of:
- failure to observe operating and maintenance instructions;
- careless use;
- normal wear and tear;
carried out by third parties, including the Buyer;
- use for purposes other than normal use;
- use in an aggressive environment or exposure to extreme
conditions;
- a battery running flat;
- damage to the exterior.
- The Buyer cannot claim under the warranty if the type or serial number of a Product has been removed or altered, if the Buyer does not give Fodor sufficient opportunity to remedy the defect, or if the Buyer fails to fulfil its obligations under an agreement concluded with Fodor.
- The Buyer must report complaints relating to defects to Fodor in writing within fourteen days after the Buyer discovered or could reasonably have discovered the defects, failing which any claim of the Buyer against Fodor in respect of these defects will lapse.
- Failure to fulfil any warranty obligations does not release the Buyer from its obligations towards Fodor under the Agreement.
Article 8. Liability and indemnification
- Fodor's liability is limited to the fulfilment of the warranty obligations set out in Article 7.
- Without prejudice to the provisions of the previous paragraph, Fodor can only be liable for damage in the event of an attributable failure in respect of which Fodor is in default after a written notice of default, or in the event of intentional unlawful conduct by Fodor.
- Fodor's total and cumulative liability will in all cases be limited to an amount equal to ten percent (10%) of the invoice last paid by the Buyer, with a maximum of EUR 5,000. Without prejudice to the foregoing limitations, Fodor's liability for damage is in any event limited to the amount paid out by the insurer. Fodor's liability for indirect damage and consequential damage, including (but not limited to) damage due to lost turnover, lost profit, missed savings, reduced goodwill and damage due to business interruption, is entirely excluded.
- The limitations and exclusions of liability set out in this Article 8 only apply insofar as permitted by law.
- Rights of claim of the Buyer lapse no later than one year after they arise, whereby for Consumers these lapse in all cases one year after they arise.
- The Buyer must indemnify and hold Fodor harmless against all damage that Fodor may suffer and against all claims that may be brought against Fodor by a third party in connection with the performance of the Agreement. This Article 6 does not apply to Consumers.
- The Buyer must indemnify and hold Fodor harmless against all damage that Fodor may suffer and against all claims that may be brought against Fodor on account of product liability under article 6:185 BW.
Article 9. Waiver of rights
- If, in the context of a warranty claim, the Buyer has handed in a Product and has not collected that Product within three months after the handed-in Product or a replacement Product is (again) at the Buyer's disposal, or the Buyer has refused to pay the cash-on-delivery charges and the Products have therefore not been delivered to the Buyer, the Buyer is deemed to have relinquished that Product in favour of Fodor and indemnifies Fodor against all (third-party) claims in that respect, unless the Buyer proves that the Buyer was prevented from collecting or accepting the Product due to a failure not attributable to the Buyer.
Article 10. Force majeure
- In the event of force majeure, Fodor has the right to suspend performance of the Agreement for as long as the situation in which the force majeure persists continues or, if the force majeure has lasted for a month, to terminate the Agreement in whole or in part without judicial intervention, with repayment of the amount (if any) paid by the Buyer, without Fodor being obliged to pay any compensation as a result.
- In addition to the provisions of law and case law, force majeure on the part of Fodor in these General Terms and Conditions of Delivery means all external causes, whether foreseen or not, including: strikes, fire, loss of Products in transit, water damage, government measures, delays in shipping abroad, war, mobilisation, transport obstructions, import obstructions, export obstructions, default by suppliers, as well as all circumstances that hinder Fodor in the normal conduct of its business.
Article 11. Termination by Fodor
- If the Buyer fails to fulfil its obligations towards Fodor, or fails to do so on time or in full, or in the event of (provisional) suspension of payments, bankruptcy, cessation or liquidation of the Buyer's business, legal merger of the Buyer, or in the event of a substantial change in the control of the Buyer, Fodor is entitled to terminate all agreements concluded with the Buyer (whether or not by dissolution) in whole or in part with immediate effect, or to suspend its obligations towards the Buyer, without the Buyer being entitled to compensation. The foregoing is without prejudice to Fodor's other rights under the law or the Agreement.
- If an event as referred to in article 1 occurs, all claims of Fodor against the Buyer become immediately due and payable in full, and Fodor is entitled to take back the Products it delivered under retention of title.
- The Buyer is not permitted to dissolve (or have dissolved) an Agreement in whole or in part, or to annul (or have annulled) it in whole or in part, or to demand its amendment on the grounds of error. The Buyer is not permitted to dissolve the Agreement without an attributable failure on the part of Fodor as a result of which Fodor is in default after prior notice of default by the Client. The exclusion of the right of dissolution does not apply to Consumers.
Article 12. Right of withdrawal (Consumers only)
- This Article 12 only applies to Buyers who are natural persons not acting for purposes related to the exercise of a trade, business, craft or professional activity (“Consumer”).
- The Consumer may withdraw from an Agreement relating to the purchase of a Product without giving any reason within a cooling-off period of 30 days (“Cooling-off Period”).
- The Cooling-off Period starts on the day after the Consumer, or a third party designated in advance by the Consumer who is not the carrier, has received the Product, or:
- if the Consumer has ordered several Products in one and the same order: the day on which the Consumer, or a third party designated by the Consumer, has received the last Product. Fodor may refuse an order for several Products with different delivery times;
-
if the delivery of a Product consists of several shipments or parts: the day on which the Consumer, or a third party designated by the Consumer, has received the last shipment or the last part.
- During the Cooling-off Period, the Consumer will handle the Product and its packaging with care. The Consumer will only unpack or use the Product to the extent necessary to establish the nature, characteristics and functioning of the Product. The basic principle is that the Consumer may only handle and inspect the Product as they would be allowed to in a shop. The Product must not be damaged and must be accompanied by its original packaging.
- The Consumer is only liable for any reduction in the value of the Product that results from handling the Product in a way that goes beyond what is permitted under article 4.
- If the Consumer wishes to exercise the right of withdrawal, the Consumer must notify Fodor of this within the Cooling-off Period by means of the model withdrawal form or in any other unambiguous manner. The model form can be downloaded from our Returns page.
- As soon as possible, but within 14 days from the day following the notification referred to in article 6, the Consumer returns the Product with all accessories supplied, if reasonably possible in its original condition and packaging and in accordance with the reasonable and clear instructions provided by Fodor. The risk and burden of proof for the correct and timely exercise of the right of withdrawal lie with the Consumer.
- Returning is free of charge: after the notification, Fodor sends the Consumer a return label.
- If the Consumer exercises the right of withdrawal, all ancillary agreements are dissolved by operation of law.
- Fodor refunds all payments made by the Consumer, including any shipping costs paid at the time of ordering for the purchased Product, without delay but within 14 days of the day on which the Consumer notifies Fodor of the withdrawal. Fodor is entitled to withhold the refund until Fodor has received the Product or until the Consumer demonstrates that the Product has been returned, whichever is earlier. If the Consumer has chosen a more expensive method of delivery than the cheapest standard delivery, Fodor does not have to refund the additional costs of the more expensive method of delivery.
- Fodor uses the same means of payment for the refund that the Consumer used, unless the Consumer agrees to a different method. The refund is free of charge for the Consumer.
Article 13. Processing of personal data
- The Buyer declares to be aware of and to agree that the Buyer's address details, email address and telephone number will in any event be processed in order to perform the Agreement and for other purposes for which the Buyer has given consent. Fodor is entitled to use the Buyer's data insofar as this is useful in the context of handling and performing the Agreement or when the Buyer has consented to the use of the data.
Article 14. Partial invalidity
- If one or more provisions of these terms and conditions are or become null and void, this does not affect the validity of the other provisions. If a provision is null and void, the Buyer and Fodor will be bound by a provision whose purport corresponds as closely as possible to it and that is not open to annulment.
Article 15. Applicable law and competent court
- All agreements between Fodor and the Buyer and all disputes that may arise from them or are related to them, including disputes about the formation of these agreements, are governed by Dutch law. The applicability of the Vienna Sales Convention is excluded.
- All disputes between Fodor and the Buyer will be settled exclusively by the court in Rotterdam, without prejudice to Fodor's right to submit the dispute to the court that has jurisdiction by law. Consumers may, within one month after Fodor has invoked this paragraph, choose the court that would have jurisdiction if this paragraph had not been agreed.