GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
Article 1. Applicability
1. The company Tristar Europe B.V. shall be referred to as “we”, “us”, “our” or “ourselves” in their capacity as users of these general terms and conditions, whereas the other party with whom we establish an agreement, shall be referred to as “Buyer”, regardless of the nature of the agreement;
2. Any general terms and conditions used by the Buyer shall hereby be expressly rejected, unless it has been explicitly agreed to the contrary;
3. Any potential changes to these general terms and conditions of sale and delivery, agreed upon between ourselves and the Buyer shall be unique and no rights may be derived from such changes as regards to transactions entered into at a later date;
4. At the moment of concluding a contract on the basis of the current general terms and conditions of sale and delivery, the Buyer is deemed to have agreed to the applicability of these general terms and conditions. The Buyer is deemed to silently agree that the same applies to potential further orders placed by the Buyer, whether verbally, by telephone, telex or fax, regardless of whether written confirmation of this order is supplied;
5. These general terms and conditions shall apply to all our offers of goods and services and to all contracts that shall be established with us.
Article 2. Offers
1. All our offers shall remain valid for 30 days unless indicated otherwise and shall only be binding, if the notification of acceptance has been supplied within the stated period;
2. With regards to weights, measures, appearances and quantities of all goods, we shall reserve the right for the usual margins as indicated by the manufacturers, charged with the production, unless expressly agreed to the contrary.
Article 3. Delivery
1. The set delivery date shall not be a deadline, so that notice of default shall always be necessary. Any delay in delivery shall never give the Buyer the right to cancel the order, nor to claim compensation. Under these circumstances, the Buyer shall not have the right to refuse acceptance or payment of the goods;
2. For sales, for which delivery specifications should be further determined or for which delivery on call shall take place, we shall reserve the right to cancel that part of the order that is not placed on time, remains unspecified or called without judicial intervention and we shall retain the right for compensation of the suffered damage. If the agreed quantity, or the kinds or parts of a specific kind, established in the agreement is exceeded because of the Buyer’s specification, we shall be authorized to charge these upon delivery according to our daily rate;
3. If delivery in several parts over a period of several weeks or months is agreed upon, it means that the delivery shall take place in equal parts within these weeks or months;
4. Insofar as is necessary or required, we shall supply the Buyer with guidelines, instructions and/or a manual relating to the purpose and use of the delivered machines and devices, which the Buyer is required to observe, upon their delivery.
Article 4. Transport
1. The goods shall be expedited by us in the way and by the means of transport we consider to be best suited, unless agreed to the contrary;
2. Incoterms apply to our transports: regular transport is ‘CPT’, unless agreed to the contrary. In this case, transport shall be ‘FOB’;
3. If we have expressly stated to the expediter that any damage during transport shall remain at the expense of the sender, we shall not be obliged to submit the relevant insurance documents, irrespective of whether or not the goods travel under our name;
4. A minimum order amount of € 750 shall be required for orders within the Netherlands. For orders below € 750 an additional charge of € 20 shall apply;
5. A higher minimum order amount shall be required for orders outside of the Netherlands and the costs shall differ from the additional costs, named in paragraph 4 of this article;
6. We may annually modify the minimum order amounts named in paragraphs 4 and 5 of this article.
Article 5. Complaints
1. Upon receipt the Buyer is deemed to immediately inspect the goods, delivered by us. Complaints about the quality of the goods we have supplied, shall be lodged with us in writing within no later than eight days after the delivery. If we consider a complaint to be well-found, the goods shall be credited or replaced – as we see fit;
2. The Buyer shall enable us to determine the nature, size and justness of the complaint on-site;
3. We shall never be obliged to compensate any damage that may be the direct or indirect result from the faultiness of the goods. The Buyer shall be compelled to indemnify us against claims from his Buyers, brought to us on the grounds of the above faultiness. The right to compensation or replacement expires if the goods have already been used or processed;
4. We shall only deal with complaints relating to weights, measures, appearances or quantities of delivered goods if the fault has immediately been noted on the relevant transport document – except for the cases in art. 2. The same applies if the packaging of the goods turns out to be damaged upon arrival. If such a note on the transport document is missing, we shall only deal with the complaints, referred to in this article, if the Buyer immediately submits the entire unused relevant party for inspection in the condition it was delivered in by us. All the goods the Buyer returns to Tristar within three working days after receipt shall be declared.
Article 6. Risk
1. The risk of mistakes and/or inaccuracies in case of orders that have not been confirmed in writing, is entirely at the expense of the Buyer.
Article 7. Packaging
1. We shall reserve the right to charge the Buyer for the packaging we have used;
2. Europallets shall be exchanged and in case the Buyer does not deliver any europallets, the costs for europallets shall be charged separately.
Article 8 . Payment
1. Payment shall be made without any deduction, setoff or suspension within a period designated by us;
2. If we do not designate a period for payment, payment shall be made within thirty days after the invoice date, in the absence of which the Buyer without formal notice shall be in default and, without prior notice, the legal statutory commercial interest on the invoice sum will be due until the payment date, according to art. 6:119a of the Civil Code;
3. We shall be entitled to claim full compensation on the basis of the law, without prejudice to the other right due to us.
Article 9. Extrajudicial collection costs
1. When we have made extrajudicial collection costs in the event of overdue payment, as described in article 9, that go beyond sending a single reminder or making a settlement proposal, collecting simple information or commonly composing a file, these costs shall be charged to the Buyer;
2. These costs shall be determined at 15% of the total invoice sum, including interest;
3. In case we have been required to make costs for the collection of our claim that are reasonably higher than the percentage mentioned above, they will be charged to the Buyer.
Article 10 . Retention of title
1. All products delivered to the Buyer by us shall remain our property, until the Buyer has fulfilled all his obligations towards us in respect of the present, previous and future similar deliveries, the additional activities we have fulfilled or are to fulfill, and the fulfillment of our claims on the Buyer following his failure to fulfill his obligation towards us. Until that moment, the Buyer will retain the products for us;
2. Until that moment, the Buyer shall only be authorized to dispose of or process the goods in a way that corresponds to the normal and usual conduct of his business;
3. If the Buyer creates a new object on the (partial) basis of the products referred to in this article, if the object becomes immovable by incorporation or is mixed with any other movable object, it shall be an object the Buyer will hold for us as owner, which shall be at the risk of the Buyer until he has fulfilled all obligations, referred to in this article;
4. The Buyer shall be obliged to immediately notify us in case third parties have any rights on products that have been delivered by us and are subject to retention of title or if he knows that third parties wish to have any rights on the relevant products;
5. All products and packaging that have been supplied by us and are in the Buyer’s possession, shall always be assumed to be identical to those included in the unpaid invoices, insofar as the product quantity in the Buyer’s possession does not exceed in nature and composition the quantities mentioned in the unpaid invoices;
6. As long as the goods have not become the Buyer’s property, he shall be obliged to insure the goods on our behalf against the usual risks;
7. If a situation occurs, such as the one described in paragraph eight of this article, we shall at all times be entitled to recover these products without prior notice. The Buyer shall authorize us to act accordingly, and this shall include the right to access the location of the goods and to remove the products from this location. The Buyer shall also grant us the irrevocable authority to determine – at our discretion – which products have and have not been paid by the Buyer. All costs related to the recovery of the products shall be at the expense of the Buyer. Furthermore, we shall reserve the right to recover any potential damage to the products from the Buyer or to charge any potential product depreciation to the Buyer.
8. Without prejudice to the provisions in the above articles, we shall also reserve the right to cancel a contract entirely or insofar as it has not yet been fulfilled without prior notice – and such by a simple notification to the Buyer without judicial intervention – if the Buyer does not make payment at the due date, liquidates, applies for court protection from creditors, is declared in a state of bankruptcy, or is placed under the control or receivership to the other party. Without prejudice to the other rights due to us, we shall reserve the right to claim compensation for the damage we suffer as a consequence.
Article 11. Liability and indemnity
1. Our liability shall be limited to the damage to material objects that is a direct consequence of the damaging fact, irrespective of the reason, such as an accountable failure or illicit act and consequently also in case of gross negligence or intent of our employees or third parties employed by us for the execution of the contract. We are not liable for damage resulting from injury or death of persons, immaterial loss or consequential damage, such as lost profit, suffered loss and costs, lost jobs and savings, damage due to interruptions in production or business and/or company stagnation;
2. Our liability for damages, described in the previous paragraph, shall be further limited to the insured sum, with respect to the current damage. If, in the current case and for any reason, there is no insurance coverage, our liability shall be limited to the invoice sum of the delivery the damaging product belonged to;
3. If the loss is partially due to a third party or the Buyer, our liability is limited to its proportion: joint and several liability shall always be excluded;
4. The Buyer shall indemnify us against claims from third parties for the compensation of damages vis-a-vis the Buyer, we are or would not be liable for on the grounds of the provisions in the previous paragraphs of this article;
5. The limitations of our liability as stated in the previous paragraphs in this article do not apply when the damage results from gross negligence or intent of Tristar Europe B.V. and/or Campart B.V. or its senior employees;
6. We are not liable for any damage, resulting from or caused by the inappropriate use of the supplied product;
7. We are not liable for the consequences of modifications in models or materials that have been commissioned by the Buyer (for third parties), or for (the consequences of) difficulties in the use, fitting or replacement of the goods supplied by us, in accordance with the test or tests, approved by the Buyer or with the indications supplied by the Buyer.
Article 12. Force majeur
1. Force majeur shall refer to any circumstance or event we cannot be held accountable for, including force majeur from the supplier we have ordered the goods, sold by us, with and because of which we cannot reasonably be required to fulfill an obligation, insofar as this does not yet include mobilization, war, threat of war, export bans, quota restrictions or other government measures, strike action, domestic unrest, transport problems, lack of transport means by land, air or water, fire, flood, earthquake, lightning or other natural disasters, nuclear disaster, crop failure, company disturbance, IT and/or other computer disturbance, accumulation of orders and, in general, all circumstances that may disturb our regular supply, including everything designated as force majeur according to Dutch law;
2. When goods cannot be delivered or can only be partially delivered within the agreed delivery period because of force majeur, we shall be unconditionally entitled to partially or entirely cancel the contract with the Buyer, through a simple statement to the Buyer and without judicial intervention;
3. We shall also be entitled to cancel any contract in such a way, if and insofar we are not able to deliver within the agreed delivery period because of the force majeur, described above. If the intended suppliers raise their prices and/or charge an additional sum for expedition, insurance premium, etc. on the basis of the exceptional circumstances intended in this article, we shall be entitled to modify our prices accordingly, resp. claim an equal compensation from our Buyers. However, they will have the right to cancel those contracts insofar as they have not yet been executed, provided they notify us immediately in writing and, if this should be the case, only if and insofar as we are not required to accept the goods.
Article 13. Applicable law
1. All disputes, arising from or because of contracts established by us, shall be brought exclusively before the court in Breda;
2. Dutch law shall apply to all contracts.
Article 14. Legal provisions
1. Business shall comply with the applicable legal provisions relating to service, transport and security in the Netherlands at the date of the establishment of the agreement;
2. If modified legal provisions take effect between the date of the establishment of the agreement and the delivery, resp. operation, of which it is known that they shall apply before the delivery, the concerned goods shall possibly be modified according to these new provisions. Any potential cost that may be related to this, shall be at the expense of the Buyer.