1.1 In these General Conditions the term “Floris” means Floris Veterinaire Produkten B.V. and all (legal) persons and companies connected with it who use these General Conditions with permission of Floris Veterinaire Produkten B.V., and the term “Customer” means all (legal) persons and companies to whom an offer has been made and/or with whom an agreement is or has been concluded.
1.2 These General Conditions shall apply to all offers of and agreements with Floris. Exclusively deviations from these General Conditions that have been accepted by Floris in writing shall be valid. Any general conditions of the Customer shall not apply to offers of and agreements with Floris.
1.3 The nullity or nullification of one or more provisions of these General Conditions shall not prejudice the applicability of the other provisions of these General Conditions. Floris and the Customer shall enter into consultations to replace null or nullified provisions of these General Conditions by provisions that will as much as possible approach the objects and the intended meaning and effect of the null or nullified provisions.
2.1 Any offers of Floris shall be without engagement and may be revoked, withdrawn or modified by Floris within 7 calendar days after Floris has been informed of the acceptance of its offer. Any errors or omissions in an offer, in pieces of advice or in recommendations provided by Floris within the framework of an offer or in – general – information not exclusively intended for the Customer, shall not bind Floris.
2.2 An offer of Floris shall be valid during 14 calendar days after it has been sent by Floris, unless the offer states another validity period, or the term of validity has before the expiry thereof been extended by Floris in writing.
2.3 If an offer requested by the Customer of Floris has not led to an agreement between Floris and the Customer, the Customer shall be held to reimburse to Floris the expenses incurred by Floris in connection with making the offer.
2.4 If Floris has made an offer, an agreement between Floris and the Customer shall only come about by the unconditional acceptance by the Customer of the offer of Floris or by the execution of an order of the Customer by Floris. Exclusively the offer of Floris respectively the invoice of Floris for the execution of the order shall be deemed to reflect the contents of the agreement correctly.
2.5 If Floris has made no offer, an agreement shall only come about by the written acceptance or the execution of an order of the Customer by Floris. Exclusively the written acceptance of the order by Floris, or the invoice of Floris for the execution of the order respectively, shall be deemed to reflect the contents of the agreement correctly.
2.6 The Customer shall be held to inform Floris in a timely manner of all specifications, laws and regulations and standards with which the goods to be delivered by Floris and (the result of) services to be rendered by Floris have to comply.
2.7 Changes of and/or supplements to the agreement shall only be valid after those changes and/or supplements have been accepted by Floris and the Customer unambiguously in writing.
2.8 The Customer shall only have the right to cancel or dissolve the agreement if this has been agreed in writing or if the Customer derives that right from binding and applying legislation. If the Customer (duly) cancels or dissolves the agreement, the Customer shall be held simultaneously to deliver back any goods and rights delivered under the agreement, to cease exercising any rights granted under the agreement and to compensate to Floris the costs incurred by Floris in connection with the offer and the coming about and the execution of the agreement.
2.9 Floris shall have the right to terminate the agreement unilaterally with immediate effect in full or in part and/or to suspend the performance of any obligations arising from the agreement with immediate effect in full or in part if one or more of the following events take place:
a. the Customer has imputably failed in the performance of one or more obligations arising from the agreement and is in default in that respect;
b. the filing of a petition to grant a (provisional) suspension of payments to the Customer;
c. the filing of a petition to pronounce the (provisional) bankruptcy of the Customer;
d. an executorial attachment being levied under Floris for the charge of the Customer;
e. the coming about of a resolution to dissolve and/or liquidate the Customer;
f. transfer of one or more shares in the capital of the Customer to others than the shareholder(s) at the coming about of the agreement;
g. full or partial transfer of the enterprise carried on by the Customer to one or more others.
The Customer shall be held to inform Floris immediately of the occurrence of any of the events mentioned in this Clause.
2.10 Floris shall for the termination of the agreement and the suspension of the obligations arising from the agreement on the basis of the events mentioned hereinbefore in Clause 2.9 never be due any damages to the Customer.
2.11 If the agreement has been dissolved, the performances already received by the Customer in the execution of the agreement and the payment obligations of the Customer connected thereto shall not fall under any obligation to make already received performances undone, unless Floris is in default with respect to those performances. Any amounts of money invoiced by Floris in respect of the already carried out performances before or at the dissolution of the agreement, shall after the dissolution immediately be due and payable by the Customer.
2.12 The Customer shall not have the right to suspend and/or set off any payment obligations towards Floris against obligations of Floris towards the Customer.
3.1 If no other place has been agreed, the delivery of goods and the provision of services by Floris shall take place at the place of the enterprise of Floris. Floris shall not be held to deliver goods and to provide services at another place than the agreed place.
3.2 Floris shall have the right under otherwise identical conditions to make deliveries in parts and/or to deliver at most 10% more or less than the agreed quantities. If it is agreed that services will be provided in phases, Floris shall have the right to postpone the execution of subsequent phase(s) until the Customer has approved the results of the preceding phase(s) in writing.
3.3 Any periods stated by Floris have been determined to the best knowledge of Floris on the basis of the information known to Floris at the coming about of the agreement, shall not constitute an essential component of the agreement and shall be observed by Floris as much as possible. Floris shall not be in default by the sole excess of a period, and from the sole excess of a period made known by Floris the Customer cannot derive any right to cancel the agreement in full or in part. Periods shall not apply if they cannot be observed due to circumstances beyond the control of Floris that have precipitated after the coming about of the agreement.
3.4 The Customer shall be held to take receipt of and accept goods to be delivered and of services to be provided within the agreed periods. If no periods have been agreed, the Customer shall be held to take receipt of and accept goods to be delivered and of services to be provided at the first request of Floris. By the failure to perform the obligations referred to hereinbefore in this Clause 3.4 the Customer shall immediately be in default.
3.5 The Customer shall be held to check the soundness of the goods delivered by Floris and of the results of services provided by Floris on delivery, and to notify Floris at the delivery of any suspected unsoundness of the goods delivered by Floris. Any goods delivered by Floris and results of services provided by Floris that are kept by the Customer or by an auxiliary person of the Customer during 7 calendar days after delivery without objection, or that have in full or in part been taken is use, processed or delivered to others, shall be deemed to comply with the agreement.
3.6 If Floris delivers goods and/or services to the Customer that have been manufactured and/or provided by others, the conditions of the manufacturer or the subcontractor or the provider of the goods or services shall apply with respect to (the soundness of) those goods or services, in addition to and with priority over the agreement between Floris and the Customer (including these General Conditions).
3.7 Without prejudice to the Clauses 3.4 and 5.1, the goods to be delivered by Floris shall be for the risk of the Customer as from the moment on which (an auxiliary person of) the Customer has the actual power over those goods, or as from the failure of the Customer to accept and take receipt of the goods to be delivered by Floris.
3.8 Floris shall not be held to accept any goods returned by the Customer to Floris. If Floris accepts any goods returned by the Customer to Floris this shall not imply any acknowledgement by Floris of the reason for returning the relevant goods. The Customer shall be due the agreed compensation until Floris has credited the Customer for those goods. If Floris does not accept returned goods, the Customer shall be held to reimburse to Floris any costs incurred by Floris in connection with the returned goods.
3.9 Floris shall have the right to let services be carried out in full or in part by one or more others (then one or more specific persons) with the same qualifications.
4.1 Any prices and rates stated by Floris shall be exclusive of VAT, other levies and charges imposed by the government and other amounts of money due to third parties, and exclusive of costs of transport, sending, shipment, import, export, storage and insurance. Any prices and rates stated in an offer that is not exclusively intended for the Customer shall not bind Floris. Others can derive no rights from any prices and rates stated in an offer intended for the Customer.
4.2 Floris shall have the right to change agreed prices and rates – with immediate effect – with due observance of the consumer price index rates (CBS). A change of agreed prices and rates shall not prejudice the agreement.
4.3 The costs of carrying out any changes of and/or additions to the agreement requested by the Customer and accepted by Floris shall be for the charge of the Customer. If at the execution of the agreement at the time of the coming about of the agreement any unforeseen circumstances occur, any additional costs arising therefrom shall be for the charge of the Customer.
4.4 Invoices of Floris will have to be paid in Euros in accordance with the payment conditions stated on the invoice of Floris. If no term of payment has been stated, the invoice will have to be paid within 14 calendar days after the invoice date.
4.5 If the Customer has failed to pay any amounts due within the applying period, the Customer shall immediately be in default and shall be due the statutory interest on the outstanding amounts of money. If the Customer fails to pay any amounts due after having received a first reminder, the Customer shall be due the costs of legal assistance in and out of court incurred by Floris (including not-liquidated costs of litigation) and any court costs to Floris.
4.6 Floris shall have the right to use any payments received from the Customer (irrespective of any deviating indications of the Customer) first to payment of claims that do not arise from the agreement and of claims that arise from failures of the Customer in the performance of obligations arising from the agreement.
4.7 The Customer shall not have the right to suspend payment obligations towards Floris and/or to set them off against obligations of Floris towards the Customer.
4.8 The Customer shall be held at the first request of Floris to insure and keep insured any claims arising from the agreement. If the Customer nevertheless fails to insure and keep insured the payment or fulfilment of any claims sufficiently, Floris shall have the right to suspend its obligations towards the Customer in full and/or to not perform them at all.
5.1 Any goods to be delivered under the agreement shall always be delivered by Floris to the Customer under the suspensive condition that the amounts of money that are due for that to Floris and the amounts or money that are due in connection with the failure to execute the agreement properly, including any amounts due under Clause 4.4 and Clause 4.5, have been paid to Floris in full. The Customer shall until full payment not have the power of disposition with respect to goods that have been delivered under the suspensive condition referred to hereinbefore in this Clause 5.1, and shall be held to inform interested parties – including intended or prospective successors in title – of that lack of power of disposition.
6.1 Liabilities and statutory obligations to pay damages to Floris are restricted by the Clauses 6.1 up to and including 6.5. The Clauses 6.1 up to and including 6.5 shall apply mutatis mutandis to claims based by the Customer on torts of Floris. Auxiliary persons of Floris shall have the right towards the Customer to invoke the Clauses 6.1 up to and including 6.5.
6.2 Floris shall exclusively be liable for failures in the performance that can be attributed to Floris because of intent or gross negligence of Floris.
Failures in the performance that can be attributed to Floris shall in any case not be acts of auxiliary persons and use of (unsuitable) auxiliary
6.3 Liability of Floris can exclusively arise after the Customer has placed Floris in default forthwith after the delivery or, in case of a failure in the
performance that is not detectable on delivery, forthwith after the discovery of the failure in the performance, by means of a letter sent by
registered post, and after the Customer has granted Floris a reasonable period to remedy the failure in the performance.
6.4 Any obligation of Floris to pay damages shall be limited to compensation of any direct damage suffered up to at most the amount of the agreed
price, exclusive of VAT and other levies imposed by the government, in so far as these have been paid by the Customer. Under no circumstances shall the damages due by Floris amount to more than the amount of money paid out under the liability insurance of Floris in connection with the relevant obligation to pay damages. Floris shall in no event be held to compensate immaterial or indirect damage, such as consequential damage, loss of turnover and damage due to loss of time, loss of data and/or not realising financial advantages.
6.5 The Customer shall indemnify Floris against claims of third parties arising from and/or connected with any goods delivered by Floris and/or services provided by Floris within the framework of the agreement. The Customer shall indemnify Floris against claims of third parties based on product liability for goods delivered by the Customer to third parties that also consist of goods delivered by Floris to the Customer, unless the liability has exclusively been caused by goods delivered by Floris. The Customer shall indemnify Floris against consequences of the use of specifications originating from and/or prescribed by the Customer.
7.1 If Floris due to force majeure is temporarily unable to execute the agreement, it shall have the right to suspend the execution of the agreement in full or in part as long as the force majeure continues. If Floris due to force majeure is permanently unable to execute the agreement, it shall have the right to cancel the agreement in full or in part with immediate effect. Force majeure shall inter alia include failures in the performance of (suppliers of) Floris and/or other auxiliary persons, interruptions of production, work stoppages and excessive sickness absence of employees and/or other auxiliary persons, government measures and weather conditions.
7.2 If Floris due to force majeure is temporarily or permanently unable to execute the agreement, the Customer towards Floris cannot claim execution of the agreement, dissolution of the agreement and/or damages.
8.1 Any intellectual property rights with respect to any goods and other products created, provided and/or delivered pursuant to, under and/or within the framework of the agreement (including without limitation texts, drawings, analyses, reports, methods, technologies, computer software, databases and documentation), shall be vested exclusively in Floris and/or its licensor(s), unless agreed otherwise in writing. The Customer shall refrain from removing or changing or tampering with signs containing notices regarding intellectual property rights.
8.2 If and in so far as goods have been delivered in respect of which intellectual property rights are vested in others than Floris, in respect of those goods any conditions used by the proprietor(s) thereof shall apply instead of any provisions in these General Conditions derogatory therefrom. The Customer shall accept any conditions of third parties referred to in this Clause 8.2 of which the Customer has been able to take note by requesting Floris to provide them to the Customer.
8.3 Without prejudice to Clause 6, Floris shall indemnify the Customer against claims of third parties based on the allegation that the Customer by the use of delivered goods infringes intellectual property rights of those third parties, if the Customer informs Floris forthwith in writing of the existence and the content of the relevant claims, leaves the handling of those claims entirely to Floris and follows the instructions of Floris in respect thereof. This obligation for indemnification shall expire if and in so far as the delivered goods have been changed by another than Floris. If the infringement of intellectual property rights referred to hereinbefore in this Clause 8.3 is irrevocably established in court or is irrevocably acknowledged by Floris, Floris shall either take back the relevant goods from the Customer against (re)payment of the costs of acquisition, or enable the Customer to continue using the relevant goods or to continue using functionally equivalent goods while maintaining the agreement.
Floris shall not be liable in any other and/or further respect, nor be held to indemnify the Customer.
8.4 The Customer shall indemnify Floris against claims of third parties based on the allegation that Floris by using products delivered and/or
prescribed by the Customer infringes any intellectual property rights of third parties, and shall perform all obligations of Floris arising from those claims as its own obligations and shall compensate any damage arising from those claims to Floris.
9.1 The Customer guarantees that third parties will not be able to and cannot, by any actions of and/or omissions by them and/or of their employees and/or other auxiliary persons, take note of any information of a confidential nature provided by Floris, received from Floris and/or arising from the execution of the agreement. Information shall in any case be deemed to be confidential if the relevant information has been qualified as such by Floris.
9.2 The Customer shall during the term of the agreement and during one year after the end of the agreement without having received permission from Floris refrain from employing any employees and/or other auxiliary persons of Floris, and from being involved in any economic activities of employees and/or other auxiliary persons of Floris involved in the (execution of the) agreement.
9.3 By a breach of Clause 9.1 and/or Clause 9.2 the Customer shall by force of law and automatically be in default, and shall be due to Floris an immediately due and payable fine of EUR 100,000.00 for each violation and of EUR 2,500.00 for each day that the breach continues, without prejudice to the obligation of the Customer to cease and keep ceased any breach, to compensate to Floris any damage arising from any breach, and to render an account to Floris for and to transfer to Floris any advantages arising from any breach.
10.1 Electronic statements and/or legal acts shall not be qualified as statements and legal acts in respect of which the agreement or these General Conditions require the written form.
10.2 The Customer shall keep Floris informed of the correct name and address of the Customer, and shall inform Floris immediately in writing of any changes in the name and address of the Customer.
10.3 Offers of and agreements with Floris shall exclusively be governed by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 shall not apply to offers of and agreements with Floris.
10.4 The court with subject-matter jurisdiction in the court district of ‘s-Hertogenbosch, the Netherlands, shall be competent and shall to the exclusion of others have jurisdiction to hear any disputes directly or indirectly arising from the agreement.
10.5 If Floris uses a version of these General Conditions that is not in the Dutch language and differences exist between the Dutch version and non- Dutch version, exclusively the Dutch version shall be binding.
Vught, the Netherlands, 16 November 2009