1        Definitions and Interpretation

In these terms:

Authorised Partner Brand Guidelines means the brand guidelines available within the Authorised Partner Portal

Authorised Partner Portal means the portal available at https://fliteboard.au.auth0.com/u/login

Default Rate means 15%

Fliteboard Intellectual Property has the meaning given in clause 14

Incoterms means Incoterms 2020 as published by the International Chamber of Commerce

Insolvency Event means, a person is: unable to pay their debts, as and when they fall due; an application for winding up of the person is made and not stayed within 14 days, or a resolution for winding up of the person is passed; a winding up order is made in respect of the person; a controller, administrator, receiver and/or manager, statutory manager, provisional liquidator or liquidator is appointed to the person; a mortgagee enters the possession of any of the person’s property; notice is given of a meeting of creditors of the person for the purposes of a deed or scheme of arrangement; or any similar actions are taken

Invoice means an invoice We issue to You

Order means any order for Products placed by You with Us

Order Confirmation means our confirmation of your Order

Price means the price payable for Products

Products means any item We sell to You as described in our invoice

Terms means these Trading Terms

VAT means any tax imposed in accordance with EC Directive 2006/112, its replacement, or any other tax which might be chargeable in connection with the supply of the Products

‘We’, ‘Us’ or ‘Our’ means Fliteboard Europe B.V.

Wholesale Store means the store available in the Authorised Partner Portal

‘You’ or ‘Your’ means the customer specified on an Order for Products purchased under these Terms.

2        Supply of Products

2.1     General

(a)      Our supply of Products to You is subject to these Terms.  We may update these Terms from time to time and provided we have published the updated terms the provision of any further Orders constitutes your agreement.

(b)      These Terms prevail over any of Your general terms and conditions of purchase regardless of whether or when You have submitted an Order or such terms. Fulfilment of Your Order does not constitute acceptance of any of Your terms and conditions and does not serve to modify or amend these Terms. These Terms may only be modified or amended in writing, signed by Us.

(c)      Notwithstanding anything herein to the contrary, if a written contract or credit application signed by both parties is in existence covering the sale of Products, it shall prevail over these Terms to the extent of any inconsistency.

2.2     Orders

An Order must specify:

(a)      the quantity of Products to be provided by Us;

(b)      a desired delivery date; and

(c)      a desired delivery location.

2.3     Obligation to supply Products

(a)      We may accept or reject your Order, or vary it with Your agreement. 

(b)      Once accepted by Us an Order is binding and these Terms apply to the Products subject to the Order (and prevail over any inconsistent terms or any terms in any document You provide).

2.4     Price and Payment

(a)      The Price for Products will be as per Our Wholesale Store, or as agreed between Us and You in writing.

(b)      Product Pricing is exclusive of VAT and shipping (unless stated otherwise). You shall be responsible for all costs, taxes and any other charges of any kind imposed by any government authority on any amounts payable by You under this Agreement.

(c)      With every supply of Products, We will deliver to You an invoice setting out a description of the Products, delivered quantity, Price, payment method and anything else required for a valid tax invoice.

(d)      Once an Order has been received by Us, We may request You to pay a deposit to Us to accept Your Order. Unless otherwise agreed in writing, You must pay the remaining balance for Products prior to delivery and we are not obliged to deliver until payment in cleared funds has been received.

(e)      We may update Our accepted payment methods from time to time.

(f)       You shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Us.

3        Cancellation of orders

(a)      Orders accepted by Us are binding and You may not cancel without Our prior written consent.

(b)      If We consent to the cancellation of an Order then We are released from all obligations to deliver the Products, and to the extent that any Products have been delivered, You must pay for the Products.  Any deposit You have paid to Us is forfeited and is retained by Us as a cancellation fee to cover Our costs.

(c)      Any variation to an Order is only valid if agreed by Us in writing.

4        Delivery and storage of Products

(a)      All quoted delivery or consignment dates in respect of the Products are estimates only. We are not obliged to meet such dates and will not be liable to You for any delay caused by any reason whatsoever (except for Our gross negligence or wilful misconduct).

(b)      Delivery of the Products takes place and is deemed to have occurred when we make the Products available at, or deliver them to, the location specified in Our Order Confirmation or Invoice in accordance with the applicable Incoterm.

(c)      Where Products are not collected or accepted for delivery, or a delay in delivery is caused by any force majeure (as specified in clause 12), We may (at Our option and without limiting Our other rights and remedies) arrange suitable storage of the Products, whether at Our premises or elsewhere and You must pay or reimburse all reasonable costs and expenses of storage, insurance, demurrage, handling and any other associated storage charges.

5        Return of Products

(a)      To the extent permitted by law, You are deemed to have accepted all Products delivered by Fliteboard unless You make a claim in writing in accordance with this clause 5.

(b)      You may claim the right to reject any Products which are wrongly supplied or oversupplied by Us, or which are not in accordance with any express representations or these Terms, by notifying Us in writing of the claim and providing full particulars of the claim in writing.

(c)      We may dispute any claim made under clause 5(b).

(d)      To the extent permitted by law, You must not return any Products to Us unless You have complied with clause 5(b) and have done all things reasonably necessary to permit Us to examine the delivered Products to Our satisfaction within 5 days of the You lodging a claim under clause 5(b).

(e)      If We agree that the Products may be returned and any shortcoming was not caused by You or Your customers, then:

(i)          You must return the Products to Our designated warehouse by prior arrangement and with Our written approval within agreed timelines, with such reasonable cost of return to be borne by Us;

(ii)         You must provide a dispatch notice stating Our original invoice number and reason for return of the Products; and

(iii)        You must ensure that the Products are returned in an unsoiled, undamaged and resaleable condition, in their original packing.

(f)       We will repair or provide a credit within a reasonable time for Products We have agreed to accept the return of.

6        Risk and Title

6.1     Risk

Risk in the Products passes to You in accordance with the applicable Incoterm specified in Our Order Confirmation.

6.2     Title

Title in the Products passes to You when you have paid Us all amounts owing in respect of the Products and met all Your other obligations set out in these Terms (or any other arrangements).

7        Retention of title

(a)      If You fail to pay any amount owing to Us by the due date, without limiting any other rights, We may retain any deposit and recover and resell any Products which have not been paid for. You authorise Us to enter where Products are kept to take possession, and You indemnify Us for our reasonable costs or liability incurred in doing so. We may retain, repossess and resell only to satisfy unpaid liabilities, the costs of recovery and resale and any other costs or expenses recoverable under these Terms. Any excess recovered will be accounted for to You.

(b)      You grant Us a security interest in any Products supplied to You prior to payment to secure all amounts owing to Us. The security interest extends to and continues in all proceeds.  You agree We may register a security interest to secure Your performance of these Terms.

8        Limitation of liability

(a)      To the fullest extent permitted by law:

(i)          except as expressly agreed in writing or set out in these terms, We exclude all conditions, warranties, representations, statutory guarantees and liability for defective Products manufactured and/or sold by Us arising from faulty design, materials, workmanship or from fair wear and tear except to the extent We have been grossly negligent or engaged in wilful misconduct;

(ii)         unless a purpose has been agreed in writing prior to the date of entry into these Terms or any other agreement, We make no representation as to the fitness of Products supplied for any purpose;

(iii)        we exclude all claims of third parties made against You in relation to the Products;

(iv)        Our liability for any condition, warranty, representation or statutory guarantee implied or provided by law that cannot be lawfully excluded, is limited, at Our option:

(A)     to the repair or replacement the Product; or

(B)     to the payment of the cost of replacing the Product or of acquiring an equivalent product or payment of the cost of having the Product repaired.

(b)      This clause 8 does not exclude any implied warranty or statutory guarantee that cannot be excluded at law.

(c)      We are not liable to You for any indirect loss or damage that is not reasonably foreseeable from a failure in the Products and Our aggregate liability on any basis in connection with these terms and on any other legal basis will, subject to the extent permitted by law, not exceed the Price paid by the Buyer under these terms.

9        Representations by You

You agree that:

(a)      other than what We have told You in writing about the Products, or what is contained in any other agreement with Us, You cannot make any further representations or statements about the Products to any third party, and if You do, You indemnify Us against any third-party claims in respect of those further representations or statements;

(b)      all marketing and advertising activity in respect of the Products must be in accordance with the Authorised Partner Brand Guidelines;

(c)      You will comply with any other documentation provided in the Authorised Partner Portal (as updated from time to time);

(d)      You are not a consumer of these Products and are purchasing them for Your commercial purposes and not for Your own use; and

(e)      Title 1 Book 7 of the Dutch Civil Code is excluded from these Terms and all Our sales of Product to You.

10      Indemnity

To the extent permitted by law, You agree to fully indemnify Us from every liability, loss, damage, cost and/or expense incurred or suffered by Us in respect of any use of the Products by You, Your employees and agents or any third party, including without limitation, any on-selling or on-supply of the Products.

11      Default and Termination

11.1   Default

(a)      We may require immediate payment of all amounts outstanding under these terms (whether due and payable or not) where:

(i)          in Our reasonable opinion, Your creditworthiness is or becomes unsatisfactory;

(ii)         You fail to comply with any one or more of Your material obligations under these Terms; or

(iii)        one or more Insolvency Events occur.

(b)      If You have not paid Us in full any monies by the due date We may without giving notice terminate these Terms and seek to recover and resell or dispose of the Products without prejudice to any claims for damages We may have against You.

(c)      We may charge You our reasonable costs including the cost of any bank or dishonour fees, collection agency, or other legal or accounting costs incurred in the collection of overdue monies.

(d)      Without limiting any other rights, any monies owing under an Order Confirmation, Invoice or these Terms which are not paid when due will bear interest at the Default Rate, calculated daily and compounded monthly on and from the date such monies first become due.

11.2   Termination for Breach

Notwithstanding anything else in these terms, We may terminate the sale of Products under these terms by 30 days' written notice to You if You breach these Terms and fail to rectify a breach within 14 days of receipt of notice.

12      Force majeure

(a)      If a party’s ability to perform its obligations under these Terms is adversely affected by war, strike, trade dispute, damage to plant or machinery, shortage of any material or labour, or any cause beyond the party’s control that lasts for at least 30 days, either party may, if it chooses, end or suspend these Terms, of a part thereof, for up to 3 months by giving the other party written notice. The party which cancels or suspends will not be liable for any loss, damage or liability which the other party incurs in connection with such termination or suspension.

(b)      If We exercise our rights in accordance with clause 12(a), You must accept delivery of the Products notwithstanding any delay in delivery caused by any of the events specified in the previous clause.

13      Confidentiality

(a)      Each party agrees not to disclose information provided by another party that is not publicly available (including these Terms) except:

(i)          in connection with an exercise of rights or a dealing with rights or obligations under these Terms;

(ii)         to officers, employees, agents, contractors, related entities, legal and other advisers and auditors of any party to these Terms;

(iii)        with the consent (not to be unreasonably withheld) of the party who provided the information; or

(iv)        any disclosure the discloser reasonably believes is required by any law, stock exchange rules or rating agency.

(b)      Upon request of the disclosing party, the recipient must destroy or alter so as not to contain any confidential information, all documents and other material in the possession of the recipient which contains any confidential information of the disclosing party.

14      Intellectual Property

14.1   Acknowledgment

You acknowledge and agree that:

(a)      We own any intellectual property, copyright and design rights in and to the Products and any associated information, documents or material related to or connected with the Products (Fliteboard Intellectual Property);

(b)      all right, title and interest in and to the Fliteboard Intellectual Property remains Our property and you will not do anything inconsistent with Our proprietary interest in it;

(c)      any developments and improvements made by any party to the Products, or the Fliteboard Intellectual Property become the property of Fliteboard; and

(d)      You will not reproduce, reverse engineer, tamper with or make any unauthorised use of the Fliteboard Intellectual Property or the Products.

14.2   Licence

We grant You a non-exclusive licence to use Fliteboard Intellectual Property solely for the purpose of advertising, promoting, selling and supplying the Products.

14.3   Return of Intellectual Property

On written notice by Us, or on termination or expiry of these terms, You must return or destroy (at Our election) any and all Fliteboard Intellectual Property and cease to represent yourself as Our authorized reseller of Products, and shall otherwise cease all conduct that might lead the public to believe that You are authorized by Us to sell the Products.

15      VAT

If VAT is levied or imposed in respect of a supply made under these Terms the recipient of the supply must pay the supplier (or their representative) an additional amount necessary to ensure the supplier (after payment of any VAT) is in the same financial position it would have been in had the VAT not been imposed or levied.

16      No agency

The parties acknowledge and agree that their relationship under these Terms is one of independent contractors.  Nothing in these Terms shall be construed as creating a relationship of employer/employee, principal/agent, partnership or joint venture.

17      General conditions

17.1   Jurisdiction

These terms are governed by Dutch law and the parties submit to the exclusive jurisdiction of the courts of Amsterdam without regard to choice of law provisions.  The United Nations Convention on the International Sale of Goods shall not apply.

17.2   Assignment

Other than by Us to a related body corporate, neither party may assign their rights and obligations under these Terms without consent (not to be unreasonably withheld).

17.3   Privacy

You must comply with all applicable privacy laws.

17.4   Waiver and exercise of rights

(a)      The failure of a party to require performance of any obligation under these Terms is not a waiver of rights.

(b)      Any waiver under these Terms must be in writing and signed by the party granting the waiver.

(c)      No party is liable for any loss of another party caused or partly caused by any waiver, exercise or failure to exercise any right.

17.5   Disputes

(a)      Any dispute arising out of or in connection with these Terms must be resolved in accordance with this clause 17.5.

(b)      Within 5 business days of a notice from the other party a representative of each party must meet (including electronically) and attempt to resolve any dispute in good faith.  If within a further 10 business days the dispute is not resolved, a senior executive from each party must meet (including electronically) within 5 business days to attempt to resolve the dispute.  If the senior executives cannot resolve the dispute within 20 business days it must be referred to mediation (either to an agreed mediator, or failing agreement to one appointed by the Netherlands Arbitration Institute).  Mediation must be commenced within 20 business days of that nomination, will be conducted in private and must be confidential and non-binding (unless agreed otherwise).  If within 15 business days of mediation commencing the dispute is still not resolved, either party may commence proceedings.

(c)      Nothing in this clause 17.5 prevents a party from seeking urgent injunctive or declaratory relief or taking action to preserve its rights and/or recourse and each party must continue to perform its obligations under these Terms notwithstanding a dispute exists or any mediation or proceedings have commenced.

17.6   Notices

Any notice, approval, consent or other communication in relation to this agreement must be in writing and is given:

(a)      if posted, 7 business days after posting;

(b)      if sent by email, when the email is sent by the sender, unless the sender subsequently receives a delivery function notification indicating that the email has not been delivered,

other than where it is given after business hours or on a non-business day in the place of receipt, where it is taken to be given at the opening time on the next business day.

17.7   Severance

If any provision of these Terms is declared to be void, voidable, illegal or otherwise unenforceable, it shall be severed from these terms and have no further effect. In all other respects these Terms shall remain in full force and effect.

17.8   Survival

Clauses 6 to 11, 13, 14 and 17 survive the termination of these Terms.