THE GENERAL TERMS AND CONDITIONS OF PAYMENT AND DELIVERY
Article 1 - Definitions/General
a) In these General Terms and Conditions of Payment and Delivery, the following definitions shall apply:
b) The Conditions shall be applicable to the inception, contents and observance of any and all contracts concluded between a “TGM” Supplier and the Customer in respect of the delivery of goods and/or the provision of services. These Conditions shall not apply to any other parties, being natural persons, who are not acting in a professional capacity or in the course of their business. To them, the “TGM” Terms and Conditions for Consumers shall apply.
c) Any general (purchasing) conditions of the Customer shall only apply if it has been explicitly
agreed upon in writing that the same shall be applicable to a specific contract between the parties,
to the exclusion of these Conditions.
Article 2 - Offers/Prices
a) Unless explicitly stated otherwise therein, all offers shall be free of obligation. Any offer provided by a “TGM” Supplier can only be accepted unaltered.
b) The prices quoted by the “TGM” Supplier shall apply for delivery ex warehouse or place of business of the “TGM” Supplier, unless otherwise agreed upon in writing. Quoted prices shall be exclusive of Value Added Tax and any other government levies, unless otherwise indicated in writing. Additional costs of packaging, etc., shall be charged separately by the “TGM” Supplier.
Article 3 - Delivery and Term of Delivery
a) Unless otherwise explicitly agreed upon in writing, no terms or dates of delivery or other dates specified by the “TGM” Supplier shall be regarded as deadlines. In the event of late delivery, the “TGM” Supplier must be given written notice of default by registered post. Said notice shall specify a reasonable period for the “TGM” Supplier to remedy the breach. A period of two months after expiry of the original term of delivery shall be regarded as a reasonable period.
b) Goods shall be deemed delivered and services shall be considered rendered as soon as either the relevant goods have been made available for delivery or collection at the “TGM” Supplier’s premises, or the activities to be performed as part of the services to be rendered have been completed.
c) The Customer shall undertake to accept any deliveries made earlier than specified by the “TGM” Supplier. Goods sold by the “TGM” Supplier may be delivered and invoiced by the same in separate consignments.
Article 4 - Force Majeure
a) Force majeure shall be understood to mean any circumstance beyond the control of the “TGM” Supplier that prevents the regular performance of an obligation. Such circumstances (if and in so far as they render performance impossible or unreasonably difficult) shall at any rate include: strikes; general lack of requisite raw materials; unforeseeable delays at suppliers or other third parties that the “TGM” Supplier depends on; government measures; all manner of power supply failures; general transport problems, etc.
b) The “TGM” Supplier may also plead force majeure if the circumstance preventing (continued) performance commences after the “TGM” Supplier should have fulfilled its obligation.
c) All the “TGM” Supplier’s delivery and other obligations shall be suspended without judicial intervention for the duration of the force majeure situation. If the period during which the “TGM” Supplier is prevented from fulfilling its obligations due to force majeure continues for more than three months, either party shall be entitled to dissolve the contract with due regard for the provisions set forth below in paragraph d), in which case no obligation to pay damages shall exist.
d) In the event that the “TGM” Supplier has already fulfilled part of its obligations, or if the same is only capable of performing its obligations partially, the “TGM” Supplier may separately invoice the portion already delivered or, as the case may be, deliver the relevant portion and send an invoice for it. The preceding provision shall be inapplicable if the portion already delivered or yet to be delivered has no independent value.
Article 5 - Transfer of Risk and Ownership
a) The Customer shall bear the risk for any and all damage sustained or caused by the goods and/or services delivered as from the moment of delivery. The party responsible for organizing transport shall bear said risk as from the moment at which the transport commences, and shall undertake to take out adequate insurance for said risk.
b) The Customer shall be obligated to insure the goods delivered against the customary risks under standard conditions with a reputable insurance company, and to keep them so insured from the moment of delivery to the time of full payment.
c) Any delivery of goods by the “TGM” Supplier to the Customer shall be effected under retention of title. The ownership of the goods shall not pass to the Customer until the same has complied with all his obligations under the contract, including payment of interest and expenses as referred to in Section 92, subsection 2, of Book 3 of the Netherlands Civil Code.
d) If the Customer fails to duly comply with his payment obligations, the “TGM” Supplier shall be entitled, without notice of default or judicial intervention being required, to dissolve the purchase contract and repossess the goods delivered, in which case the “TGM” Supplier shall not be liable to pay any damages whatsoever. The Customer shall then allow the “TGM” Supplier free access to the goods delivered.
e) As long as the ownership of the goods delivered has not passed to the Customer, the latter may not pledge the goods or grant any other rights thereon to any third party, except in the event that such should be part of the Customer’s normal business.
Article 6 - Payment
a) Unless otherwise agreed upon, all deliveries shall be made for cash or C.O.D. If the parties have agreed that a particular delivery is not to be made for cash or C.O.D., the Customer shall have to effect payment in the manner specified by the “TGM” Supplier within 14 days after the invoice date, unless the parties should have agreed upon a different term of payment. In all cases, payment is to be effected without any discount or set-off.
b) Payments made by the Customer shall first of all serve to settle any and all interest and expenses owed and, secondly, the longest outstanding invoices, even if the Customer should indicate that a certain payment concerns a more recent invoice.
c) As from the moment default commences, the Customer shall owe compensation for loss of interest totalling 1% a month on the exigible amount or, if the statutory interest rate should be higher than that, equalling the statutory interest. At the end of each year, the amount in respect of which interest is charged shall be augmented with the interest owed for the year in question.
d) If the Customer fails to fulfil one or more obligations, all reasonable expenses incurred for the purpose of effecting an extrajudicial settlement shall be charged to the Customer. The Customer shall at any rate owe the collection fee charged by the Netherlands Bar, with a minimum of € 68,-.
Article 7 - Complaints
a) The Customer shall undertake to examine as soon as possible after delivery whether the “TGM” Supplier has duly complied with the contract. The Customer shall further undertake to notify the “TGM” Supplier in writing forthwith if the latter’s performance should be found inadequate in any way. The Customer must conduct said examination and send said notification not later than within 14 days after delivery.
b) The contract shall be considered duly complied with if the Customer fails to conduct the examination or send the notification referred to above in Article 7a within the set term.
c) The “TGM” Supplier guarantees both the soundness of the goods delivered in relation to the price and the quality of the services provided, except in the event of:
d) If the “TGM” Supplier replaces any goods pursuant to the provisions of Article 7c, these items shall become its property. If the Customer has already put the items into use, the “TGM” Supplier shall be entitled to charge the Customer a fee therefor, which fee shall concern the period during which the items in question were used by the Customer or a third party and shall have the same proportionate relationship vis-à-vis the purchase price as the period of use vis-à-vis the normal life span of the items.
Article 8 - Liability
a) Liability on the part of the “TGM” Supplier shall be restricted to the fulfilment of the obligations specified in Article 7c.
b) The “TGM” Supplier shall not be liable for any direct or consequential damage sustained by persons, things or the Customer’s company and/or any third-party companies as a result of defects in the goods and/or services delivered by the “TGM” Supplier, unless such damage should be due to wilful intent or gross negligence on the part of the “TGM” Supplier. The “TGM” Supplier shall not be liable for any defects in the goods and/or services delivered by the “TGM” Supplier which are caused by wilful intent or gross negligence on the part of its own staff or personnel employed by third parties whose services it has engaged for the performance of the contract.
c) The “TGM” Supplier’s liability shall be limited to the amount paid by the insurance company in so far as such liability is covered by the insurance taken out. If the insurance should not provide the requisite cover or if the insurance company refuses to pay, the “TGM” Supplier’s liability shall be limited to the invoice value of the relevant item(s) and/or service(s).
d) In the event of any damage caused by a defect in an item delivered by the “TGM” Supplier which was neither produced nor imported into the European Union by the same, the “TGM” Supplier shall undertake to inform the Customer within a reasonable term of the address of the supplier, producer or importer.
e) If the “TGM” Supplier fails to fulfil the obligation set forth in Article 8d, or the “TGM” Supplier has itself produced the item or imported it into the European Union, the “TGM” Supplier’s liability shall not exceed its legal obligations under Sections 185 - 193 of Book 6 of the Netherlands Civil Code.
f) The “TGM” Supplier shall not be liable for any damage caused by the fact that the having in stock, trading, etc., of the item(s) delivered constitutes an infringement of any third-party intellectual property right.
Article 9 - Applicable Law and Disputes
a) The contract shall be governed by the law of the Netherlands.
b) Notwithstanding the statutory regulations in respect of the competence of civil courts, any and all disputes between the “TGM” Supplier and the Customer shall, provided that the District Court is competent to take cognizance thereof, be brought before the District Court in whose jurisdiction the “TGM” Supplier has its registered office.
c) If any disputes should arise in respect of the interpretation of these Conditions, the original Dutch text shall be binding.