GENERAL CONDITIONS OF SALE AND DELIVERY FOR Thermimport B.V.,
T/A T.Q.C. – Thermimport Quality Control in Capelle aan den IJssel (Ch. of Comm. Rotterdam no. 29042770)
Article 1: General
1.1 T.Q.C. is the private limited company Thermimport B.V. with commercial name T.Q.C.-Thermimport Quality Control in Capelle aan den IJssel.
1.2 Buyer is each individual or corporate entity to whom an offer or order confirmation has been sent by T.Q.C., or with whom any agreement is concluded. Unless otherwise agreed in writing subject general conditions apply to all offers, contracts, agreements and legal relationships including the performance thereof, of whatever name, between T.Q.C. and third parties.
1.3 The provisions laid down in these general conditions shall not be deviated from unless explicitly agreed in writing with T.Q.C.. Buyer can never rely on different habits or practice.
1.4 If buyer refers to its own (purchase) conditions, these conditions shall not apply unless explicitly accepted by T.Q.C. in writing and in so far as these conditions are not contrary to the provisions of the T.Q.C. general conditions. Latter conditions shall prevail at all times. Any other provision in the conditions of buyer shall not affect aforementioned.
1.5 In subject general conditions the term delivery also includes the performance of services and operations of whatever nature.
Article 2: Offers, formation of the agreement
2.1 All offers made by T.Q.C. in whatever form and the data mentioned in T.Q.C. publications, are free of obligation and revocable. T.Q.C. shall never be bound by any single offer in any way unless the offer in question provides otherwise explicitly and in writing. Offers can be changed by T.Q.C. at all times, as long as they have not been accepted and shall bind T.Q.C. for longer than 14 days, provided earlier acceptance.
2.2 Except for the provisions in article 2.3 hereafter concerning electronic transactions, an agreement with T.Q.C. is not formed until confirmed in writing by T.Q.C. (order confirmation). In the absence of an order confirmation by T.Q.C. the delivery note in combination with the invoice is considered as order confirmation under the T.Q.C. general conditions of delivery. Any deviations thereof shall be explicitly accepted by T.Q.C. Prior to an order confirmation offers can be revoked or altered at all times by T.Q.C. and in any case, subject to earlier acceptance, obtain a free of obligation status ipso jure on the 21st (twenty-first) day after the offer was made, unless provided otherwise in the offer.
2.3 An electronic agreement with T.Q.C. shall not be formed until confirmed electronically or by email by T.Q.C.. The (intellectual property) rights of drawings, calculations, models, samples, descriptions, images, dimension lists and such forming part of an offer or publication shall (will) stay in T.Q.C.’s possession at all times.
2.4 The order confirmation sent to buyer by T.Q.C. is assumed to contain a correct and complete description of the contents of the agreement concluded. Buyer is assumed to agree with the content of the agreement unless buyer informs T.Q.C. in writing not to agree with the content of the agreement within 7 days after the date of the order confirmation.
2.5 Each offer is based on the data and specifications made available by buyer unless the offer itself explicitly mentions otherwise.
2.6 Terms and time indications mentioned in an offer, applicable to T.Q.C., are target dates and shall never be considered fatal.
2.7 If an offer by T.Q.C. does not result in an agreement within 3 months after its date, T.Q.C. has the right to charge buyer for the costs made to make the offer.
Article 3: Prices, payment, deliveries
3.1 The indicated or agreed prices are “ex warehouse” exclusive of value added tax and packaging unless explicitly agreed otherwise in writing. If contrary to the above it is agreed that T.Q.C. arranges (any part of) transportation, T.Q.C. is free to choose the transport method and haulier. The freight charges can be charged to buyer by T.Q.C. Delivery shall only take place on surfaced roads and to addresses accessible by trailers. Buyer is obligated to provide sufficient staff and material to unload the purchased goods.
3.2 The prices mentioned in offers, contracts and order confirmation are based on the cost factors applicable at the time of formation of the agreement such as currency rates, manufacturer’s prices, commodity and raw material prices, salary and transport costs, insurance premiums, taxes, import duties and other government levies.
3.3 T.Q.C. reserves the right to charge these increases to buyer if after the date of the offer or after the date on which the agreement is concluded, but before the day of delivery increases occur in one or more cost factors mentioned in among others paragraph 2.
3.4 All prices mentioned in T.Q.C. offers are subject to approval.
3.5 Payment shall be made without discount, suspension or settlement within the term indicated by T.Q.C. starting on the invoice date. At all times T.Q.C. is entitled to request additional security for the payment of the agreed price from buyer without having to mention any reason.
3.6 In the case of exceeding of the applicable payment term, buyer as from the due date, owes T.Q.C. a default interest of 2% per month or part thereof on the unpaid part of the invoice amount, unless the legal interest rate exceeds the percentage mentioned here in which case the legal interest rates is due. Article 6:119 Civil Code applies mutatis mutandis.
3.7 In the case buyer fails to perform this agreement or fails to perform it by the stipulated date, buyer owes T.Q.C. the extrajudicial costs if and as soon as T.Q.C. considers itself obligated to hire a third party to treat the case. The costs shall be calculated in conformity with the Standardization Collection Costs Act with a minimum of 250,00 euros, without prejudice to T.Q.C.’s right to claim the actual costs if these costs appear to be higher, if there is no question of consumer sale.
3.8 In the case of application for a moratorium, liquidation, debt rescheduling or in the case of liquidation of buyer’s company, or if prejudgment garnishment or executory seizure is imposed on buyer’s goods or property, T.Q.C. has the right to cancel the agreement or that part thereof which has not yet been performed on the concerned date, without court intervention and without owing any compensation, and to reclaim any unpaid goods without prejudice to its right to compensation. In the abovementioned cases any claim of T.Q.C. on buyer is also immediately due and payable.
Article 4: Delivery
4.1 Any explicitly stated contractual penalty different from the term of delivery is not owed by T.Q.C. if the difference/exceeding is force majeure as referred to in article 9 of these general conditions.
4.2 If delivery occurs in parts T.Q.C. has the right to consider each delivery as an individual transaction.
Article 5: (Extensive) retention of title
5.1 All goods delivered or to be delivered by T.Q.C. shall remain the sole property of T.Q.C. until all claims T.Q.C. has or will have on buyer including in any case the claims mentioned in article 3:92 paragraph 2 Civil Code, have been fully paid.
5.2 As long as ownership of the goods has not passed to buyer, latter shall not pledge or surrender any other right thereof to third parties unless by means of his regular business performance. At the first request of T.Q.C. buyer undertakes to cooperate in the establishment of a pledge on the claims that buyer receives or shall receive from the onward supply of good from his buyers.
5.3 T.Q.C. has the right to take back the goods delivered under retention of title and still present with buyer, if buyer fails to fulfil his obligation to pay, has payment problems or will probably get in payment problems. At all times buyer shall provide T.Q.C. free access to his premises or buildings to inspect the goods or perform the T.Q.C. rights referred to in this article.
Article 6: Guarantees
6.1 Exclusively in the case the guarantee obligations concerning the goods delivered by T.Q.C. have not passed to third parties (such as manufacturers), buyer can make (guarantee) claims on T.Q.C. In that case, T.Q.C.’s liability is limited to failures caused by material or construction faults.
6.2 All goods delivered by T.Q.C. shall be used according to T.Q.C.’s instructions or operation manuals. Failure to meet this provision shall lapse T.Q.C.’s obligations under the guarantee.
6.3 In accordance with the following restrictions T.Q.C. guarantees the reliability and quality of T.Q.C. goods delivered, materials used and the proper performance of operations or services during a period of no more than 6 months after delivery “ex warehouse” or after performance of the operations or services. Goods not manufactured by T.Q.C. are subject to the guarantees of the manufacturers in question.
6.4 The guarantee does not include the consequences of normal wear and tear or improper or incorrect use. Any guarantee shall lapse on the time on which, other than by T.Q.C.’s initiative or with T.Q.C.’s written permission, repairs are performed or changes are made to goods delivered by T.Q.C. Defects resulting from faults attributable to buyer or a third party including incorrect installation or assembly are not covered by the guarantee.
Article 7: Inspection and complaints
7.1 Buyer undertakes to inspect the delivered goods or performed operations/services immediately upon delivery.
7.2 Complaints shall be reported to T.Q.C. in writing and as soon as possible though no later than 7 days after delivery of the goods or performance of the operations/services or in the event of hidden defects within 7 days after the defects were noted or could reasonably be noted. Reporting shall occur by registered mail with a clear and accurate description of the complaint stating the invoice number under which the goods concerned were invoiced.
7.3 In the event of a complaint considered justified by T.Q.C., T.Q.C.’s liability is at all times limited to repairs, or replacement or (re)delivery, or restitution of the purchase amount at the discretion of T.Q.C. T.Q.C. can never be held liable to compensate any loss except for the loss resulting from wilful misconduct or gross negligence.
7.4 Lodging of a complaint does not discharge buyer from his obligations towards T.Q.C., neither does buyer have the right to defer such obligations.
Article 8: Liability
8.1 At all times, T.Q.C. liability is limited to the liabilities it has assumed under subject general conditions.
8.2 In the case of complaints, T.Q.C., provided it establishes the merits of the complaint and to T.Q.C. liability as referred to in section 1 exists, is only obligated – at the discretion of T.Q.C. – to:
a. (free of charge) repair of the defects;
b. delivery of replacing goods or parts upon receiving back the defect goods or parts;
c. repayment of the received purchase price/crediting of the invoice sent to buyer, including termination without court intervention of the agreement concluded in so far as the purchase price, the invoice and the agreement relate to the delivered defective goods;
d. compensation to be paid in consultation with buyer in another form than aforementioned, which never exceeds the purchase price of the delivered goods.
8.3 Subject to any obligations by T.Q.C. by virtue of the above, T.Q.C. is under no obligation to pay any compensation to buyer and others unless there is question of wilful misconduct or gross negligence on the part of T.Q.C. (by those who held T.Q.C. liable with the legal means to prove). In particular, T.Q.C. is never liable for loss due to delay, consequential damage or trading loss, directly or indirectly, with whatever name – including loss of profits and loss owing to stoppage – suffered by buyer, his subordinates and third persons working in his service or hired to work for him or with him, caused by full or partial (re)delivery of goods, delayed or improper delivery or by failure to deliver goods or by the goods themselves. Nor is T.Q.C. liable for loss caused by the provision of inadequate assistance, information or materials by buyer or loss directly or indirectly caused by violation of third party intellectual property rights due to the use of or caused by data made available by buyer.
8.4 Buyer is not entitled to send back the goods that are not subject to unsubstantiated claims. In the event this happens without valid reasons all costs involved in reshipment are at the expense of buyer. In this case, T.Q.C. is free to store the goods with a third party at buyer’s expense and risk.
8.5 Buyer is obligated to indemnify T.Q.C. against all potential claims by third parties concerning the performance of the agreement. In particular, buyer shall indemnify T.Q.C. against claims by third parties based on industrial properties with regard to the manufacturing and delivery of a product manufactured by T.Q.C. on his instructions, or that T.Q.C. has had manufactured on his instructions.
Article 9: Force majeure
9.1 In the case T.Q.C. cannot, cannot properly, or timely meet its obligation to supply force majeure, T.Q.C. has the right to consider the agreement of the unfulfilled part thereof cancelled, or suspend it for a specified or unspecified period of time at its discretion. In the case of force majeure, buyer cannot order cancellation of the agreement itself and cannot order T.Q.C. to pay compensation.
9.2 Force majeure means any circumstance beyond T.Q.C.’s control of such nature that fulfilment of the agreement is impossible or cannot reasonably be expected (non-attributable breach of compliance). In any case force majeure includes: war, disturbances and hostility of whatever nature, blockage, boycott, natural disasters, epidemics, lack of raw material, hindering and interruption of means of transport, failures in T.Q.C.’s company, restriction or bans on imports and exports, hindrance caused by measures, acts or decisions made by international, national or regional (government) bodies, strikes.
Article 10: Time limitation and lapsing
Each right of claim against T.Q.C. is subject to time limitation and lapses after one year upon the existence of the claim. If there is question of a statutory shorter term this shorter term shall apply.
Article 11: Applicable law and disputes
11.1 All offers by T.Q.C. and all agreements between T.Q.C. and buyers, including any resulting and further agreements or agreements considered to be included, are subject to Dutch law.
11.2 All disputes resulting from or relating to subject conditions and the resulting legal relationships between parties, including those considered as such by only one of the parties shall exclusively be brought before the competent court in Rotterdam, in so far as the court is the relatively competent court, unless T.Q.C. prefers to refer to the competent court of the place of residence or establishment of buyer.