Terms and Conditions
Definitions
Supplier: the legal entity, hereinafter referred to as TFD, that has accepted the order referred to in (a) or has submitted a quotation or offer in connection with a potential order.
1. General
1.1 These terms and conditions apply to all agreements entered into by TFD under which TFD undertakes to supply goods {and/or services}. It is agreed between TFD and the client that once a contract is entered into under the terms of these conditions, they shall continue to apply in full to any subsequent transactions.
1.2 The client’s general terms and conditions, regardless of their title, do not apply and are expressly rejected by TFD, unless TFD accepts them in writing.
1.3 In deze voorwaarden wordt onder ‘opdrachtgever’ verstaan’ de natuurlijke persoon of rechtspersoon die aan de leverancier opdracht heeft gegeven tot (ver)koop en/of levering van zaken {of tot het verrichten van werkzaamheden en/of diensten}’;
1.4 These terms and conditions do not apply to natural persons who are not acting in the course of a profession or business (consumers).
2. Agreement
2.1 Quotes, price lists, and other communications from TFD are not binding on TFD. If an offer from TFD is accepted, TFD has the right to revoke that offer within three business days of receiving the acceptance.
2.2 Verbal commitments and agreements made with TFD employees are not binding on TFD until and unless they have been expressly confirmed by them in writing.
2.3 In the event of a discrepancy between the client’s order and TFD’s confirmation, only TFD’s confirmation shall be binding. The client is therefore expected to take due note of TFD’s confirmation and to contact TFD immediately in the event of any inaccuracies.
2.4 TFD is authorized to require an advance payment or security and, pending receipt thereof, to suspend the performance of the agreement in whole or in part. If such advance payment is not made or such security is not provided in accordance with TFD’s reasonable request, TFD is entitled to terminate the agreement out of court, without prejudice to TFD’s right to compensation.
2.5 If, as a result of a force majeure event, TFD cannot reasonably be expected to fulfill its delivery obligation, TFD is entitled to suspend the delivery. Should these circumstances persist for more than two months, both parties shall be entitled to terminate the agreement with respect to the goods affected by the force majeure event by means of a single written notice, effective for the future.
2.6 Force majeure includes, but is not limited to, the following:
a) Business disruption or interruption of any kind, regardless of how it arises;
b) Delayed or late delivery by (including the vessels of) TFD’s suppliers or any of them, or by third party(ies);
c) Transportation difficulties or obstacles of any kind that hinder or impede transportation to TFD’s premises or from TFD’s premises to the client;
d) Import and export restrictions of any kind.
2.7 Any additions, amendments, and further agreements to the contract are valid only if they have been agreed upon in writing.
2.8 The goods are sold and delivered subject to the customary tolerances for dimensions, quantities, and weights, unless expressly agreed otherwise.
2.9 TFD is not liable for errors of any kind in images, dimensions, weights, qualities, and/or prices (or price lists).
2.10 If the client cancels a concluded agreement, the client shall owe TFD 20% of the invoice amount if TFD has not yet notified the client that the goods are ready for pickup or can be delivered. If the cancellation occurs after such notification, the client shall owe TFD 50% of the invoice amount.
3. Delivery Time
3.1 The agreed delivery times are always approximate and subject to unforeseen circumstances, including, but not limited to, delays in transportation by a TFD supplier.
3.2 If the delivery time is exceeded, TFD will not be in default until the client has given it written notice of default, setting a reasonable period within which TFD must still fulfill the agreement.
3.3 TFD is entitled at all times to make partial deliveries. In that case, the provisions of the preceding paragraphs of this article apply to each partial delivery.
3.4 Exceeding the delivery time does not entitle the client to terminate the agreement and/or claim damages, unless the client proves that TFD acted with intent or gross negligence.
4. Complaints
4.1 If damage is discovered upon delivery of the goods, the client must note the damage on the delivery receipt. If it is not possible to detect any damage to the delivered goods at the time of delivery, the client must state this on the delivery receipt. If no note is made on the receipt, the goods shall be deemed to have been delivered undamaged.
4.2 In the event described in Section 4.1, any complaints must be submitted to TFD in writing within 7 (seven) business days of the delivery date.
4.3 Any other complaints must be reported to TFD in writing within a reasonable time, but in any event within two months after the defect is discovered or could reasonably have been discovered.
4.4 Any legal claims must be filed no later than one year after the complaint was filed in a timely manner, or they will be barred.
5. Liability
5.1 TFD’s liability is limited to the claims set forth in the warranty statement. To the extent that the warranty statement differs from these terms and conditions, these terms and conditions shall prevail.
5.2 If the purchased goods are (intended to be) resold to a third party, the client agrees to immediately forward any complaints from a third party regarding the sold goods to TFD. Failure to do so will result in the client being unable to claim reimbursement from TFD for any costs and damages that may be (or are to be) reimbursed to the third party.
5.3 TFD’s liability for all direct costs and damages, in any way related to or caused by an error or failure on the part of TFD, shall at all times be limited to repair or replacement, or to a refund of the (proportional) invoice amount.
5.4 Under no circumstances shall TFD be liable for indirect damages, such as business losses, consequential damages, or damages resulting from delays, that the client or any third party to whom the goods have been resold may suffer—whether directly or indirectly, or in any way related to the agreement—in the performance of the agreement entered into with the supplier.
5.5 TFD has taken out product liability insurance. Any product liability is, to the extent permitted by law, limited to the amount paid out under the product liability insurance in the relevant case, plus the deductible under that insurance.
6. Intellectual Property
6.1 Unless otherwise agreed with the client, TFD retains the copyrights and all industrial property rights to the models, data, drawings, designs, etc., provided by it.
6.2 The rights to the data referred to in Article 6.1 remain the property of TFD, regardless of whether the client was charged for their production. This data may not be reproduced, copied, used, or disclosed to third parties without the express permission of TFD, under penalty of an immediately payable fine of EUR 50,000, without prejudice to TFD’s right to claim damages under the law.
6.3 The Client must return the information provided to it as referred to in Article 6.1 upon first request and within the time limit set by TFD. If the Client fails to do so, the Client shall owe TFD an immediately payable penalty of EUR 1,000 per day, without prejudice to TFD’s right to claim damages under the law.
6.4 In the event of production based on models, data, drawings, or designs provided by the client, the client is solely responsible for ensuring compliance with any third-party rights, including copyrights. The client must indemnify TFD against any claims arising in this regard.
7. Transportation
7.1 If the goods, regardless of the agreed method of transport, are ready for pickup by the client or have been (or can be) delivered to the client’s location, and TFD has notified the client thereof, the client is obligated to take delivery immediately. Failure to comply with this obligation entitles TFD either to store the goods at the client’s expense and risk, or to continue storing them and to invoice the client without the client subsequently being able to refuse payment on the grounds that acceptance has not yet taken place, or to terminate the agreement without judicial intervention, without prejudice to TFD’s right to compensation for damages and costs.
7.2 Goods to be delivered by TFD shall be transported at TFD’s expense and risk, subject to Section 7.3, unless expressly agreed otherwise. In the absence of further agreements, TFD shall select the means of transport and the route.
7.3 TFD delivers orders with a value exceeding EUR 1,000, excluding VAT, within the Netherlands (excluding the Wadden Islands), carriage paid. In other cases, shipping and handling charges will be passed on to the buyer. Shipping and handling charges are provided upon request.
8. Price and Payment
8.1 The prices quoted by TFD—whether provided verbally, in writing in a special quotation, or otherwise—are based on any information provided at the time of the request and do not include sales tax or any other government taxes or fees applicable to the sale and delivery.
8.2 TFD is entitled to adjust the agreed price if one or more of the following circumstances arise after the offer is made and/or the agreement is concluded: exchange rate fluctuations, increases in the costs of materials, semi-finished products, or services necessary for the performance of the agreement—including government levies—or, in general, circumstances comparable to the foregoing.
8.3 All payments must be made within 14 (fourteen) days of the invoice date, and the client is not entitled to any discount or setoff. The client shall be in default immediately upon the expiration of this period. The client is not entitled to set off any claims it may have against TFD or to suspend its payment obligation.
8.4 If the client is in default, it shall owe statutory commercial interest pursuant to Article 6:119a of the Dutch Civil Code.
8.5 If TFD is required to take (extra)judicial measures in connection with late payment, all resulting costs shall be borne by the client, which shall amount to at least 15% of the outstanding amount, with a minimum of EUR 150, without prejudice to the right to full compensation.
8.6 TFD is entitled to suspend the delivery of goods if and for as long as the client fails to fulfill, or fails to fully, properly, or timely fulfill, any obligations toward TFD arising from the agreement. If, despite a demand by TFD to do so, the client fails to immediately remedy its failure to perform the agreement, TFD is entitled to terminate the agreement out of court without being obligated to compensate the client for any damages.
9. Retention of Title
9.1 All goods delivered shall remain the exclusive property of TFD until the client has fulfilled all obligations—arising from or in connection with agreements under which TFD has undertaken to make such deliveries, including claims for penalties, interest, and costs.
9.2 If the Client fails to fulfill any obligation toward TFD under paragraph 1 of this article, or if there is reasonable cause to fear that the Client will not fulfill the aforementioned obligations, TFD shall be entitled, without notice of default, to immediately reclaim the delivered goods, wherever they may be located; the costs of such reclaiming shall be borne by the Client.
9.3 Until the above claims have been satisfied, the Client is not entitled to dispose of the relevant goods {outside the normal course of business} or to create a security interest or non-possessory security interest in the relevant goods.
10. Disputes
10.1 All agreements entered into by TFD are governed by Dutch law. The Vienna Convention on Contracts for the International Sale of Goods does not apply, nor does any other international regulation that may be excluded.
10.2 The court in Zwolle shall have exclusive jurisdiction over all disputes arising from this agreement or from any further agreements entered into to implement it. However, TFD retains the right to bring legal action against the client before the court having jurisdiction under the law.