“Agreement” shall mean the General Terms together with the Order. ”Customer” shall mean the legal or natural person contracting or intending to contract with Lord and James Surface Prep B.V..
“”Lord and James Surface Prep B.V.” shall mean Lord and James Surface Prep B.V. or Lord and James Surface Prep Ltd. or any relevant subsidiary of Lord and James Surface Prep B.V. that is entering into the Agreement as identified in the quotation given by. This includes written orders given to any Employee of Lord and James Surface Prep B.V. or National Flooring Equipment.
“General Terms” shall have the meaning set out in Section 2.
“Quotation” refers to a specific quote given for a specific item and/or a valid pricelist provided to a specific customer.
“Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce (ICC) as set out in the version of the Incoterms published by the ICC that is in force at the time the Agreement is entered into between the parties.
“Order” shall mean the Customer’s order for the Items.
“Items” shall mean the items that Lord and James Surface Prep B.V. (from now on L&J) shall supply to the Customer.
These General Terms and Conditions (the “General Terms”) are applicable to all requests for quotation, quotations, offers, orders, confirmations, acceptances and deliveries made by or with L&J. Unless expressly otherwise agreed in writing between the parties, these General Terms shall prevail in the event of a discrepancy between these General Terms and any other written or oral agreement between L&J and the Customer. The applicability of any General Terms and Conditions of the Customer is hereby expressly rejected.
3. Offers and orders
In general a specific pricelist is provided to customers that is valid for a certain amount of time. The customer can consider this pricelist as our quotation for an item excluding additional costs as taxes, VAT, shipping costs. L&J can change the prices and validity date at any time, but needs to notify the customer about this. All requests for a quotation by Customers must be accompanied by a description of the Items and preferably the item number. Following a request by the Customer L&J may provide the Customer with a written quotation to manufacture and/or deliver the Item.
The written quotation shall constitute an offer to deliver the Item on the terms set out in that offer. L&J shall only be bound by a Customer’s written acceptance of L&J’ offer (Purchase Order). If the Customer responds to L&J’ offer with modifications, qualifications or assumptions, such response shall be considered a counter-offer by the Customer. Any such counter-offer shall only be binding upon L&J if and to the extent and when it is accepted in writing by L&J. L&J shall only be bound by the terms of its written acceptance of the Customer’s counter offer setting out, inter alia, any modifications to the Customer’s counter offer.
The Order shall only be deemed to be accepted when either:
(a) the Customer unequivocally accepts L&J’ offer; or
(b) L&J issues a written acceptance of the Customer’s counter offer, at which point the Agreement shall come into existence.
If L&J does not issue any written acceptance of the Customer’s counter offer, but delivers the Items to the Customer, the deliveries shall be deemed to have been made and the Agreement shall be deemed to have come into existence based on the terms set forth in the quotation given by L&J.
The Agreement (together with all documents to be entered into pursuant to it) sets out the entire agreement and understanding between the parties, and supersedes all proposals and prior agreements, arrangements and understandings between the parties, relating to its subject matter. Each party acknowledges that in entering into the Agreement it has not relied on any representation, warranty, collateral contract or other assurance (except those set out in the Agreement and the documents referred to in it) made by or on behalf of any other party before the date of the Agreement. Each party waives all rights and remedies which for this clause might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.
4. Intellectual Property Rights
The Customer shall at all times bear responsibility for the technical and industrial functionality of the Items delivered by L&J. The aforesaid shall apply also in cases where L&J has, at the request of the Customer or otherwise, proposed changes to the Customer’s specifications and such changes have been approved by the Customer.
Unless otherwise specifically agreed, L&J does not design the Items it delivers. Should the parties agree that L&J shall design, based on the specifications of the Customer, the Customer shall bear responsibility for the technical and industrial functionality of the Items manufactured in conformity with those specifications.
In the event that the Customer provides L&J with compared to the standard items deviating specifications, drawings, models, tools, fixtures and/or any other materials to be used by L&J:
(a) the Customer hereby grants to L&J a non-exclusive, royalty free, irrevocable license (with a right to grant sub-licenses) to use the designed items for any other purpose; and
(b) the Customer hereby warrants and represents to L&J that the Item itself and/or the use by L&J of the Item does not and will not infringe any intellectual property rights.
The Customer shall indemnify and hold L&J harmless in full in respect of and against any and all damage, loss, liabilities, costs and expenses (including the cost of legal or professional services and any Losses) incurred or suffered by L&J resulting, wholly or in part, directly or indirectly from any claim by a third party against L&J.
The intellectual property rights in and to the items, manufacturing methods and processes, manufacturing tools, manufacturing studies, research and / or patents used by L&J in performing its obligations under the Agreement shall remain the property of L&J or its third party licensor (as appropriate). Nothing in the Agreement (including the delivery of Items) shall transfer to the Customer ownership of or intellectual property rights to such manufacturing methods and processes, manufacturing tools, manufacturing studies, research or patents. Any information relating to such items, manufacturing methods and processes, manufacturing tools, manufacturing studies, research or patents shall be Confidential Information of L&J. The customer explicitly agrees that, after any agreement with L&J is established, they will not attempt to duplicate one of these mentioned intellectual property rights, in full or partly, themselves nor by providing information to third parties.
A party (“recipient party”) shall not disclose to third parties nor use for any purpose other than for the proper fulfilment of the Agreement any information of confidential nature, such as specifications, drawings and other technical documents, commercial information and know-how, pricing information, costs, volumes, administrative and operational information (“Confidential Information”) received from the other party (“disclosing party”) in whatever form under or in connection with the Agreement without the prior written permission of the disclosing party except information which was:
(a) already known to it without any obligation of confidence prior to its receipt thereof from the disclosing party; or
(b) subsequently disclosed to it lawfully by a third party who did not obtain the same (whether directly or indirectly) from the disclosing party;
(c) in the public domain at the time of receipt by the recipient party; or
(d) subsequently entered into the public domain other than by reason of the breach of the provisions of this Section or any obligations of confidence owed by the recipient party to the disclosing party; or
(e) required to be disclosed by law, regulation, order or regulators.
Each party shall ensure that any subcontractor or other third party sharing Confidential Information shall comply with the confidentiality obligations set forth above.
All specifications, drawings and other technical documents relating to the Item or the manufacturing thereof, which have been furnished by one party to the other, prior to the entering into of the Agreement or thereafter, remain the property of the furnishing party. A party receiving any such specifications, drawings or other technical documents may only use the said documents for the purpose for which they were provided. Neither the said documents nor the information contained therein may be reproduced, copied or in any other way assigned to or brought to the knowledge of a third party.
6. Ownership and storage
Unless otherwise agreed, any item made by L&J at the request of the Customer, shall become the property of the Customer directly after production, provided that they have been duly paid for by the Customer. The item shall remain stored at L&J for a period of maximum one (1) month following the end of such production at the risk of the Customer. The Customer shall ensure that the items are appropriately insured at its own cost. L&J will, after a period of one (1) month, charge from the Customer a warehousing fee as determined by L&J. Items stored at L&J shall be returned at the cost and risk of the Customer, either at its own or L&J’ request, in a condition taking into account normal wear and tear. Unless otherwise agreed the cost of replacing or maintaining them shall be borne by the Customer and charged independently of the Items supplied.
7. Acceptance and Continuation
Unless the parties have agreed otherwise, acceptance shall be carried out at the Customer’s site following delivery and at the Customer’s expense and issued in writing to L&J, as soon as possible for acceptance. The item is deemed accepted by the Customer if the Customer has not objected thereto within two (3) days from the delivery of the items. A Return Authorization Number (RAN) from L&J must be obtained before goods can be returned. If L&J accepts items to be returned and issues a RAN; L&J can still charge the customer a minimum of 25% restocking charge. Orders older than 30 day’s of receipt of shipment are not eligible for return. L&J is never obliged to continue manufacture or sales of any Items.