Article 1 Definitions
In these general conditions of sale, the following definitions have the following meaning:
the private limited liability company Famous Obstacles & Gameshows B.V. (with its registered office at Amsterdam, The Netherlands, and its business address at Beusichem (4112 NS), Beneden Molenweg 3, The Netherlands, listed in the Chamber of Commerce under number 69314519) and its affiliates;
legal entity who has contact with FOG in connection with the (possible) conclusion of an agreement with FOG;
every order for the supply of Products issued to FOG by the Client;
the agreement concluded between FOG and the Client with regard to the supply of Products;
Wipeout branded entertainment obstacles, merchandise and/or any other product(s) sold by FOG to the Client;
FOG and the Client combined;
- Terms & Conditions
the present general terms & conditions of supply.
Article 2 General
- These Terms & Conditions apply to all legal relations in which FOG acts as (potential) seller and/or supplier of the Products, including all offers made by FOG with regard to the Products, Orders and the acceptance of Orders by FOG.
- The applicability of the Client’s own general terms and conditions is hereby explicitly excluded and rejected by FOG.
- If there is a conflict between the content of the Agreement and the Terms & Conditions, the provisions of the Agreement prevail.
- If a provision of the Terms & Conditions is void or voided or cannot be invoked by the Parties for any other reasons, FOG may replace that provision by a provision that is valid and enforceable, and of which the object and purport resembles the original provisions as closely as possible. The other provisions shall remain in full force and effect in that event.
- The Client is not allowed to transfer the Agreement or any rights or obligations ensuing from it to any third party without the express, prior and written consent from FOG. FOG is allowed to transfer its rights and obligations ensuing from the Agreement to a third party. The Client hereby grants his consent thereto, now and in future.
Article 3 Offers and concluding the Agreement
- All offers, in any form whatsoever, made by or on behalf of FOG are free of engagement and are based on data, drawings et cetera provided by the Client, if any. The offers do not bind FOG and are only deemed to be an invitation to place an Order.
- If the offer provides a term for acceptance, the offer can only be accepted within that term.
- An Agreement is not concluded until the Client has accepted the offer in writing or by email and FOG has confirmed the acceptance of the Client in writing or by email, or when FOG has commenced the execution thereof.
- All drawings, calculations, plans, methods and other data will remain the property of FOG and may not be disclosed to third parties by the Client without the prior written permission of FOG.
- The prices stated by FOG are based on the price determining factors valid at the time of the quotation, including government levies and wages, calculated according to the usual working times adhered to by FOG. If one or more of these cost price factor changes before the offer is accepted, - including changes due to fluctuations in the exchange rate of foreign currency - even if this is a result of foreseeable circumstances, FOG is entitled to modify the price quoted accordingly. FOG will inform the Client accordingly in that case.
- FOG is entitled to refuse (an) Order(s) or to attach certain conditions to the supply of the Products. The fact that FOG has supplied Products to the Client on any regular basis in the past whatsoever will not lead to the creation of an agreement concluded for a specific duration, of any nature whatsoever, between Parties or will not mean that FOG is obliged to accept (a) new Order(s).
- Any additional agreements or arrangements made at a later point in time, as well as any (oral) agreements and/or promises made by staff employed by FOG or made on behalf of FOG by any sales person, agent, representative or any other intermediary will only bind FOG if and insofar as these have been confirmed in writing by individuals authorized by FOG to do so.
Article 4 Prices and Payment
- Unless expressly otherwise agreed in writing, all prices issued by FOG or agreed with FOG are quoted in Euro’s and exclusive of VAT and/or any other government duties, costs regarding customs, installation costs, transport costs, packaging, insurance and the like.
- The prices quoted by FOG in catalogues, price lists, et cetera are only indicative and thus without obligation and may be modified without prior notification.
- The prices of the Products are the prices as mentioned in the offer or the Order, unless exceptional circumstances occur after concluding the Agreement that lead to a change in the prices. Price increases caused by production activities being delayed through no fault of FOG or as a result of an increase in one or more cost price factors, even if such increase has occurred due to foreseeable circumstances, or as a result of government regulations coming into force, will be for the account of the Client.
- In no event shall a change in prices form ground for dissolving an Agreement.
- All amounts due are payable within 14 days of the date of the invoice, unless agreed otherwise. The Client is to issue payment exclusively in the manner(s) indicated by FOG and into a bank account assigned by FOG. Payments are to be issued in Euro’s, unless expressly agreed otherwise in writing. Any costs in connection with effecting payments via banks, conversion of currency, credit costs, etc. are at all times for the account of the Client.
- In the event of late payment the Client owes interest, as from the due date of the invoice, equal to 3 points above the percentage of the current statutory interest in the Netherlands as referred to in Sections 6:119a and 6:120 Paragraph 2 of the Dutch Civil Code, while FOG will be entitled to suspend the fulfilment of its obligations by the amount of time by which the payment has been delayed.
- If the term of payment is exceeded the Client shall additionally owe Company all extra judicial costs, including the costs incurred in drawing up and sending reminders, in carrying on negotiations with regard to a possible settlement and in carrying out any other actions in preparation of a possible legal procedure, as well as all legal expenses reasonably incurred by FOG.
- FOG’s claim for payment shall be immediately due and payable if:
- a term of payment is exceeded;
- the Client is declared bankrupt, or a petition for its bankruptcy is filed, or it files for a moratorium;
- any of the Client’s assets or receivables are seized;
- the Client is dissolved or liquidated.
- Any payments issued by the Client will first be used to settle any legal and non-legal expenses incurred by FOG and thereafter any possible interest owed or any possible damages incurred by FOG and will only then be deducted for the oldest invoice outstanding that was sent to the Client, regardless of whether that invoice pertains to another agreement concluded between Parties.
- The Client is not allowed to suspend its payment obligations or to set off any claims of FOG.
Article 5 Delivery
- Deliveries of Products are made ex works (EXW, Incoterms current on the date of the offer).
- The agreed delivery time commences as from the latest of the following dates:
- the day on which FOG has sent the Client the written order confirmation;
- the date of receipt of the instalment due under the Agreement;
- If FOG is unable to carry out the Agreement, be it partially or in full, within the agreed term, FOG commits to informing the Client in writing of said fact as soon as possible.
- FOG has the right to make partial deliveries as well as to invoice any partial deliveries it has carried out by separate invoice.
- Exceeding the agreed delivery time does not entitle the Client to claim compensation nor give it the right to terminate or annul the Agreement or to suspend fulfilment of its own obligations.
- The Client warrants that the agreed delivery address is accurate and complete and that the Products may actually be delivered at that address. Regarding the delivery of Products, if applicable, the Client is obligated to prepare the subsoil in accordance with any instructions given by FOG. If it turns out to be impossible to deliver (unload) or install the Products, FOG may deliver the Products, for the risk of the Client, at the most suitable location in the immediate vicinity of the agreed delivery address, such to the discretion of FOG and/or its haulier, or take the Products back, store it elsewhere and/or deliver it at a later date for the account and risk of the Client.
Article 6 Risk and Retention of Title
- The risk with regard to damage, theft, loss, etc. of the Products passes to the Client at the moment when the Products are delivered at the location of Client.
- The ownership of the Products delivered to the Client will be transferred to the Client once he has paid all that FOG is owed in respect of deliveries or services under the Agreement, Order(s) or other similar agreements, including loss, penalties, interests and costs, or once he has provided satisfactory security for the fulfilment of his obligations. FOG has the right to retrieve Products or to have them retrieved immediately at the location where they are being held if the Client fails to fulfil its obligations as referred to in this article. The Client will fully cooperate in this instance. The Client hereby grants FOG the authorization to enter the premises used by or on behalf of the Client, now and in future, for this purpose. All costs incurred in retrieving the Products will be charged to the Client. FOG is also entitled to recover any possible damages from the Client or to invoice the Client for any reductions in Product value.
- The Client is prohibited from transferring, pawning or otherwise mortgaging the Products or to rent said Products out, lend them or release them for his control in any way whatsoever, barring instances within the framework of the Client's standard business practice. The Client is furthermore obliged to ensure that the Products are adequately insured.
- If a third party or third parties assert(s) any rights to Products supplied by FOG and subject to a restriction of right of ownership or if the Client is aware that a third party or third parties is/are planning to assert rights to the aforementioned Products, the Client will inform FOG of this fact immediately and in writing.
Article 7 Security
- Notwithstanding the agreed conditions of payment, FOG will be entitled at all times to demand security from the Client for the fulfilment of his obligations before commencing delivery or before continuing a delivery that has already commenced. If the Client fails to provide sufficient security for payment within the stipulated period, the Client shall be automatically be in default.
Article 8 Inspection and Complaints
- The Client is obliged to inspect the Products delivered - or have them inspected - immediately upon arrival in order to verify that they meet the agreed quantities and that they are undamaged.
- The Client is obliged to mention any shortage of or damage to Products and/or packaging materials that are or can be detected on the delivery note, the invoice and/or the transport documents, in the absence of which FOG will not consider any complaints on the matter. FOG’s administrative records will be decisive in this respect.
- All complaints regarding visible defaults (quality or quantity, or other deviations and/or damage) must be submitted by the Client in detail to FOG within 3 days of receipt of the Products, in writing or by email. Complaints will no longer be accepted once the Client has processed the delivered Products or has them delivered to third parties.
- All complaints with regard to hidden defaults upon delivery that have not been discovered during the inspection as mentioned in paragraph 1 above, and which were discovered during the warranty period as mentioned in article 9.1, should be confirmed within a maximum of 8 days following the moment they were discovered or could reasonably have been discovered. Notifications are to be sent to FOG in writing, providing a clear description of the nature and scope of the default(s).
- The decision whether the complaints reported by the Client are justified is solely to the discretion of FOG, which shall act in this regard as a reasonably acting supplier. Upon request, the Client shall provide FOG with all information that is necessary in its judgment. A default shall only exist if the Product does not fully satisfy the warranties mentioned in article 9.1.
- Complaints with regard to invoices are to be confirmed to FOG within 8 days from date of invoice.
- Once the aforementioned terms have expired, the Products will be deemed to have been received in good condition by the Client. Client's right to complain will moreover expire and complaints on the matter will no longer be considered by FOG.
- The Client’s right will also expire and complaints on the matter will no longer be considered by FOG if:
- The Client does not cooperate fully in the investigation of FOG of whether the complaint is justified; and/or
- The Client has not treated, used or stored the Products according to any instructions given by FOG and/or in a way which is generally viewed as reasonable.
- Any complaints in respect of a specific Product, which was delivered amongst other Products, shall in no event entitle the Client to rescind the Agreement entirely or partially.
8.10 During the term of the Agreement the Client is obliged to make sure that the Products will comply with any local laws and regulations, including health and safety regulations, and the Client is solely responsible for performing safety checks and inspections by reputable companies on a regular basis. All costs regarding such checks and inspections will be borne by the Client. Regarding all Products the Client is obligated to maintain and make available to FOG at its first request a log of actual maintenance and repair activities regarding the Products.
8.11 Upon first request of FOG, the Client is obliged to provide access to FOG and/or any parties appointed by FOG for any audit and/or compliance checks by or on behalf of FOG.
Article 9 Warranty
- The Client accepts the fact that the use of the Products may involve risks. The Client is obliged to use the Products in the manner specified and as prescribed by FOG. The Client is obliged to strictly observe any (safety)instructions provided by FOG to the Client. Failure to use the Product in the prescribed manner shall result in a lapse of any warranty and/or liability of FOG.
- FOG solely guarantees that the Products meet the agreed specifications and are suitable for the purpose for which they are developed and produced by FOG. The guarantee will in no event be valid for more than three months as from the date of delivery to the Client.
- Defects caused by normal wear and tear, inappropriate and/or improper use, or insufficient maintenance, will in no event be covered by the guarantee.
- If the Client has complained within the terms as mentioned in article 8 above, and FOG decided that the complaint was well-founded and the warranty period as mentioned in paragraph 1 above did not pass, FOG will, at its discretion:
- repair the default(s) of the Product concerned at its own costs; or
- replace the Product(s), after receipt of the faulty Product(s); or
- refund the purchase price/credit the invoice and rescind – without judicial intervention –the Agreement. Both as far as the purchase price, the invoice and the Agreement relate to the faulty Product(s).
FOG will in no event be obliged to compensate any consequential loss or other (in)direct damage suffered by the Client, howsoever named.
- Any claim the Client has in respect of a default will lapse if the Client has made any alterations and/or repairs to the Product(s) without the prior written consent of FOG.
- The Client may only invoke the warranty if it has fulfilled all of its obligations towards FOG.
Article 10 Liability
- Without prejudice to the content of articles 8 and 9, FOG is solely liable for any loss the Client suffers in the event of willful misconduct or gross negligence on the part of FOG or its directors.
- FOG is not liable for any damage caused by its subordinates or by third parties engaged in the execution of the Agreement.
- The Client is solely responsible to make sure that the Products will only be used by the intended target group (such as but not limited to customers/visitors of the correct age and fitness and sobriety), , and that use of the Products will only be permitted under guidance of sufficient qualified employees. The Client is solely responsible to inform any third parties (i.e. customers/visitors) on the potential risks of using the Products and to agree upon written registration forms and/or legal waivers with such third parties. Therefore, FOG is not liable for any loss the Client incurs towards third parties due to or in connection with the (use of) the supplied Products or due to delayed delivery. The Client will indemnify FOG against all third-party claims in connection with (the use of) Products supplied to the Client by FOG.
- FOG is in no event liable for consequential loss or any indirect damages suffered by the Client. Consequential loss is understood to include damages caused by faulty Products, loss of profit, losses suffered and costs incurred, as well as loss of business opportunities and savings not realized, loss caused by interruption, delay in delivery or standstill in the daily operations.
- In the event FOG is liable, FOG’s liability shall in all instances be limited to the amount for which it is insured and payment is made under the terms of said insurance cover. FOG is not obliged to exercise its rights under the terms of its insurance when held responsible by the Client.
- FOG accepts no liability whatsoever for any advice it provides without express agreement.
- All claims for compensation will lapse after 2 months, as from the date when the Client has become aware of the loss.
- FOG reserves the right to all legal and contractual means of defense it can invoke to fend off its own liability towards the Client, also on behalf of its subordinates and any non-subordinates, whose actions they would be considered responsible for pursuant to the law.
- FOG may engage the services of third parties in the execution of the Agreement and is at all times entitled to invoke any limitations of liability invoked by these third parties against FOG against the Client.
- The foregoing is without prejudice to the liability of FOG under mandatory statutory provisions.
Article 11 Force Majeure
- Where the non-fulfilment of an Agreement by FOG is caused by circumstances beyond the control of FOG - even though such circumstances could have been foreseen at the time when the Agreement was concluded - such as (but not limited) war / danger of war, (threat of) terrorism, civil war, riot, revolution, and kindred risks, fire, water damage, flooding, government measures, import and export restrictions, defects to machinery, strikes, sit-ins, restrictions in transport due to weather conditions and traffic congestion, suppliers and/or subcontractors of FOG failing to timely fulfil their obligations, and disruptions in the supply of power and water in the business of FOG, the consequences will not be attributable to FOG.
- FOG may suspend the fulfilment of its obligations in the event and for the duration of a force majeure situation. The Agreement may be rescinded by FOG in case the force majeure situation did not end within three months.
Article 12 Suspension and rescission
12.1 Without prejudice to FOG’s remaining rights and without any proof of default or any obligation to compensation, FOG has the right to rescind the Agreement and/or the Order, partially or entirely, or to suspend the (subsequent) execution of the Agreement if:
- the Client does not fulfil or does not sufficiently fulfil its obligations under the terms of the Agreement towards FOG or does not fulfil these in a timely manner, even if this fact cannot be attributed to it;
- certain facts have come to the notice of FOG, giving FOG good reasons to fear that the Client will not fulfil its obligations, will not fulfil them in a timely manner or will not fulfil them in their entirety;
- the Client goes bankrupt, applies for a moratorium of payment, has gone into receivership or a request of that nature has been made or if the Client's company is dissolved, is on strike or has gone into liquidation.
12.2 In the event of any of the instances mentioned in paragraph 1, sub-paragraphs a. up to and including c. above, FOG will have the right to claim immediate settlement of all it is entitled to.
Article 13 Taxes
13.1 All taxes and duties imposed on FOG in the case of export, including import and custom duties, are for the account of the Client.
Article 14 Intellectual Property Rights
14.1 Unless otherwise agreed in writing, FOG and/or its licensors reserves all intellectual property rights in all of its offers, order confirmations, submitted designs, illustrations, drawings, models and delivered Products and the like, regardless of whether the Client has been charged any costs for preparing these. These data and objects may not be reproduced, used, or disclosed to third parties without the prior written permission of FOG.
- The Client will indemnify FOG against all third-party claims arising from the alleged violation of any intellectual property rights these third parties are entitled to.
- The Client is not allowed to use the trade name(s) of FOG and the brands or designations of its licensors such as “Wipeout” for its own business activities or to associate these with other than “Wipeout” branded Products, without the prior written permission of FOG. Furthermore the Client undertakes to inform FOG immediately of any infringement by third parties of the trade name(s) or brands of FOG.
- The Client is not allowed to remove or modify any designation of copyrights, trademarks, trade names or any other intellectual or industrial property right from the items referred to in paragraph 1 above.
Article 15 Applicable Law; Disputes
15.1 All legal relationships between FOG and the Client, regardless of their nature, are governed exclusively by the laws of the Netherlands. The Vienna Sales Convention (C.I.S.G.) is not applicable, nor is any other international regulation the exclusion of which is allowed.
- The competent court in Rotterdam, the Netherlands, has exclusive jurisdiction to take cognisance of any and all disputes between FOG and the Client, unless this is contrary to mandatory law. FOG may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.