From: Thermologistics Operations b.v., registered at Alpen aan den Rijn, Jac.P. Thijsseweg 7 , 2408 ER Alphen aan den Rijn, The Netherlands.
1.1. At all above Enterprise – hereinafter referred to as “the seller” – related quotations, closed (sale) agreements, including payments to the seller, these General Conditions are applicable. The other party in relation to the described above is described as “the buyer”.
1.2. Deviating terms, also in the form of applicable by the buyer stated in and/or terms and conditions of sale, apply only to the extent that for each agreement in writing by the seller to the buyer is confirmed.
Conclusion of agreement:
2.1. All offers are without obligation, unless otherwise explicitly agreed upon in writing.
2.2. An (buy) agreement is valid by sending an order confirmation from the seller to the buyer, after receiving an order made by the buyer by letter, telephone, e-mail or other means of communication.
Only the contents of that order confirmation is binding for the parties. Mistakes and errors caused by the buyer are entirely at the expense and risk of the buyer.
Description and quality:
3.1. The deliveries take place in accordance with the agreed and allowed deviations/tolerances on the dimensions, weights, quantities and qualities.
3.2. Unless explicitly stated in writing, the seller cannot guarantee that the goods delivered are appropriate for the purpose for which the buyer wants to use these. The seller cannot warrant that these goods for that purpose are suitable, even if that purpose is known to the seller and/or has been advised to the buyer.
Delivery, packaging and shipment:
4.1. The seller shall properly pack the goods which are sold to the buyer. The buyer is not allowed to change or replace the packaging.
Price and price changes:
5.1. The prices charged by the seller are excluding VAT and including the costs of packaging.
The transport costs shall be separately stated in the quotation and is therefore not included in the pricing.
5.2. The seller is entitled to change the defined cost components in article 5.1. to the buyer after recalculation.
5.3. If the in article 7.1. defined force majeure at the suppliers of products, affecting all used materials and other services to the seller, meaning that the price of the goods by the seller and/or services increase, the seller is entitled to pass on these price increases to the buyer. The buyer has in that case, right, during 48 hours after receipt of the notice of price increase by registered letter, notified to the seller, to dissolve the purchase contract without judicial intervention. Parties may in that case not claim any compensation at each other.
5.4. The seller is entitled changes at variation of currencies against the EURO, in which the price of the goods are sold by the seller, to pass on to the buyer.
6.1. The delivery moments indicated by the seller cannot be understood as a deadline. Seller shall in no event be liable for the consequences of delay in delivery, expressly included all (in)direct damage which purchaser suffers. Buyer shall not be entitled at such delay, to suspend its obligations or otherwise.
In the event that-notwithstanding the above-in the individual agreements expressly a fine is identified for late deliveries, are not applicable for late deliveries due to the conditions mentioned in article 7 of these general terms in cases of force majeure.
6.2. Unless the order confirmation stated different, delivery of goods shall be ex works as defined in the Incoterms 2000. The costs of transport, loading and unloading, insurance (mandatory) quality control inspections and investigations will be at the expense for the buyer. Foreign buyers will be delivered, if not otherwise agreed, ex works. Export and customs clearance is provided by the seller, but at costs of the buyer.
6.3. If the buyer does not arrange the freight by itself, an appropriate forwarder will be arrange by seller to send the goods for the account and risk of the buyer.
6.4. In case a buyer requires a different way of delivery, other than the usual way, then the associated costs will be charged to the buyer.
6.5. If the delivery shall be made in portions, seller has the right to consider every delivery as a separate transaction.
6.6. In the event that the buyer at the agreed time of receipt, for any reason, do not accept the delivery, the seller will be entitled the goods for and on behalf of the buyer or to sell and deliver these to third parties, at the seller’s option. Delivery to the seller is then deemed to have taken place. Buyer will at all times be obliged to cover all costs, which the seller encounters, at seller’s first request. The cost herewith is explicitly understood the amount that the seller receives less for the goods after a sale to third parties. If the seller chooses to conserve the goods on behalf of the customer, all costs related to this are entirely at the risk of the buyer. The foregoing shall not affect the payment obligation of the buyer.
6.7. If the delay or hindrance of a delivery, for whatever reason, the buyer is obliged at the first request of seller, to remunerate all related costs, unless the delay or hindrance is the result of gross negligence of the seller.
6.8. If for any reason the supply of an ordered good is not possible, the seller has the right at all times to deliver comparable goods or to cancel the delivery without having the liability for damages, all in order to exclusive choice of the seller. Delivery of a substituted good will never change the payment obligation of buyer.
7.1. The seller is at no time liable for the non (timely) or improper fulfilment of its obligations to the buyer in case of force majeure at the side of the seller. A force majeure occasion at the side of the seller is valid in case where the seller has concluded, after closing the agreement that it is prevented to fulfil its obligations under that agreement as a result of war, danger of war, riots, molest, barriers, Government measures, machinery malfunctions, failures in the supply of energy, at the side of the seller itself or at a third parties from whom the seller for the execution of the purchase agreement is dependent on.
7.2. The agreed delivery period will be suspended for the duration of the force majeure.
7.3. In case of force majeure, the seller has the right to dissolve the purchase agreement in whole or in part, without judicial intervention is required. Parties may in that case can’t claim at each other for any compensation.
8.1. Payment must, even in case of partial deliveries, at the latest take place within 30 days after the invoice date, without discount and/or set-off.
8.2. In case of doubt concerning the liquidity of the buyer, at the seller’s sole discretion, the seller is entitled, to require payment before delivery of the goods.
8.3. In case payment of the amount has not taken place in the agreed timeframe, the buyer has over the outstanding invoice amount, without summons, notice or judicial intervention, the obligation to the seller to pay an invoice increase at the rate of 2% per month or part thereof from the due date of the invoice until the day of full payment. The seller is also entitled in this case to suspend future deliveries or will continue as in article 8.2. defined conditions for further deliveries. In addition, in this case, all other receivables of the buyer to the seller will be immediately due and payable.
9.1. The goods supplied by the seller to the buyer remain the property of the seller until the buyer has fulfilled all his payment obligations. As long as the property restriction is valid, the seller is irrevocably entitled and authorised to take back the goods referred to no judicial intervention, regardless of further actions against buyer. The aforementioned shall not affect any other item in these terms and conditions, in particular with regard to the transfer of risk.
9.2. As long as the buyer in accordance with 9.1. has goods in his possession, he shall assure the goods against the usual risks. The buyer is only entitled to use the goods for its normal course. The buyer is expressly prohibited to use these goods as a security for third parties.
Inspection and complaints:
10.1. The buyer is obliged inspect the delivered goods immediately upon receipt.
10.2. Complaints concerning the quality, the weights and measures etc. of the delivered goods and/or packaging must be in writing within 8 days after receipt of the goods, containing a clear and accurate description of the complaint to the seller.
10.3. Any claim by the buyer against seller related to defects at the supplied goods, shall expire if;
10.3.1. The buyer has not treated, used, saved, or maintained the delivered goods properly or has used or treated the goods at a conditions other than purposed by the seller;
10.3.2. The application of the use of the goods with respect to which the complaints are related is continued;
10.3.3. The buyer offers no or insufficient cooperates to the seller to adequate investigations the merits of the complaints;
11.1. With regards to the provisions of article 10, is the seller in case of delivery of defective goods, entitled to – on return of the delivered goods – either repay the purchase price to the buyer, either that goods by similar goods will be replaced.
11.2. The seller is only liable for direct damage. Direct damage shall be understood to be exclusively the reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to the damage within the meaning of these terms and conditions and the reasonable costs incurred to prevent or limit the damage, as far as the buyer shows that these costs have led to the limitation of direct damage as meant in these terms and conditions. Seller shall in no event be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business interruption, loss of reputation, loss of goodwill, damage payments, whether or not such damages are based on tort, warranty, contractual relationship or any other legal basis and even if the seller is informed or is aware of the possibility of such damages (fees).
11.3. Any liability of seller for acts or omissions by supporting persons is excluded
11.4. In any event, the seller’s liability is limited to the amount equal to half of the purchase price of the goods delivered to the buyer.
11.5. The limitations of liability as referred to in the previous articles shall not apply in the case of intent or gross negligence on the part of the seller.
11.6. A claim to compensation shall, not later than within 1 month after the buyer has discovered or reasonably can discover the damage shall be received in writing from the buyer and in the absence of which the right to compensation is due.
Dissolution, extrajudicial costs:
12.1. Without prejudice to the rights of the seller on the basis of the Dutch law article 6:265 BW e.v. and without prejudice to the otherwise in these terms and conditions, the seller is entitled to dissolve the sales contract , if the buyer within 10 days following the dispatch of a letter of formal notice by the seller, replies to one or more of its obligations under any purchase agreement and/or these general terms and conditions, without judicial intervention, and summons and/or notice will be necessary without any liability of any kind for seller, if the purchaser:-suspension of payments; -is declared bankrupt;
-in liquidation occurs; -is affected by a seizure of (part of) its goods; or-otherwise the disposition over his assets or a portion thereof loses power.
The seller is entitled to a compensation of the buyer in case seller is suffering damage by the dissolution.
12.2. The aims set out in article 12.1. shall not affect the right of the seller to the buyer’s compliance with the agreement, all with or without damages, to be recovered.
12.3. If the seller as a result of the non-compliance by the purchaser of any obligation, which on the basis of the agreement, cost of legal aid, in or out of Court is the buyer required to reimburse those costs fully to the seller. In case of non-payment the extrajudicial costs incurred by Parties at 10% of the amount due with a minimum of € 300,=.
Intellectual property rights:
13.1. All intellectual rights on all matters that are delivered by the seller to the buyer or in any way be made available, remains solely with the seller and never go over to the buyer. Unless agreed different in writing at the supply or disposition of the goods to the buyer no transfer of intellectual property rights takes place.
14.1. The seller is at all times entitled to transfer its rights and/or obligations towards the buyer to a third party in whole or in part, which then will be the contractor. The buyer already provides irrevocable and unconditional consent to this contract purchase to transfer this contract. The purchase contract transfers as soon as the seller, also on behalf of the party who takes over the respective rights and obligations, informs the buyer in writing.
Applicable law and competent court:
12.1. On the (sale) agreements is only the Dutch law applicable. The applicability of the Vienna Sales Convention is expressly excluded.
12.2. The competent Dutch court is at the exclusion of all other bodies, authorised to take note of all disputes arising under the agreement between the buyer and the seller may arise. Disputes inline of the competence of a District Court, the President thereof, respectively, will exclusive be settled by the District Court in Rotterdam, respectively the President of this Court.
16.1. If any provision of these terms and conditions, in whole or in part, for any reason is invalid, then the remaining terms and conditions will be in full force and effect, while parties with regard to the invalid provision shall be deemed to have agreed to be legally valid, that both parties shall follow the intention of the invalid provision.