GENERAL TERMS AND CONDITIONS OF SALE of Truckbandenmarkt B.V. (KvK no. : 91719658)
PART 1 GENERAL
1.1 In these General Conditions of Sale ("Conditions"), the following definitions shall apply:
2. Applicability
2.1 These Terms apply to all offers (and other legal acts) of TBM and to all agreements to be entered into by TBM with Buyer.
2.2 The applicability of any general condition(s) of buyer is expressly rejected by TBM.
2.3 Amendments and supplements to any provision in the Agreement and/or the Conditions may only be agreed in writing.
2.4 If an amendment and/or addition as referred to in the previous paragraph is agreed upon, this amendment and/or addition shall only apply to the Agreement in question.
2.5 Accepting an offer or placing an order implies that the buyer accepts the applicability of these Terms in full and without reservation.
2.6 The provisions of these Conditions may be deviated from only in writing, in which case the remaining provisions shall remain in full force and effect.
3.1 All offers are without obligation. TBM shall not be bound until TBM has accepted an order in writing or has otherwise confirmed for approval. TBM is entitled to refuse orders or to attach certain conditions to the delivery, unless explicitly stipulated otherwise.
3.2 If no prior written acceptance of an order has taken place, for example in the case of sale from stock, the (purchase) contract is concluded by TBM complying in full or in part with a request for delivery from the buyer, or by TBM sending an invoice to a buyer requesting delivery.
3.3 All statements by TBM of numbers, dimensions, weight and/or other indications of the products are made with care, but TBM cannot guarantee that no deviations will occur in that respect. Any drawings or models shown or provided are merely indications of the products concerned. If Buyer proves that the products delivered or made available deviate from TBM's specifications or from the drawings or models to such an extent that Buyer can no longer reasonably be required to take delivery thereof, Buyer shall be entitled to terminate the Contract, but only to the extent such termination is reasonably necessary.
3.4 Images, drawings and the like provided by TBM remain his property and may not be copied or multiplied or made available to third parties without his express permission.
4.1 All prices of TBM are expressed in Euros and exclusive of sales tax, as well as exclusive of any handling, shipping or transport costs, taxes or other levies, unless otherwise agreed in writing. Prices and additional information in all TBM's documents are subject to errors and changes.
4.2 The (sales) price quoted by TBM is based on its (purchase) price and other cost factors. If any of these cost price components is increased after confirmation of the order but before (delivery) of the products, TBM is entitled to pass on the increases to the buyer.
4.3 Without prejudice to the general applicability of the previous paragraph, it applies in particular to a change in import and/or export duties or other duties or taxes occurring after the sending of the order confirmation and to change in the exchange rate of the Euro against the foreign currency, in which TBM purchased the products.
4.4 Buyer shall indemnify TBM against all costs and damages that may arise for TBM as a result of the fact:
That the buyer is not properly registered for sales tax or an equivalent tax in a relevant EC member state; and/or
That Buyer provided incorrect or untimely information to TBM and/or the sales tax or similar tax authorities in a relevant EC Member State.
5. Payment Terms
5.1 Every Agreement is entered into by TBM under the condition precedent, that the buyer proves to be sufficiently creditworthy based on information to be obtained by TBM.
5.2 During the performance of the Agreement TBM shall be entitled to suspend the performance of its obligations until Buyer, upon request and to the satisfaction of TBM, has provided security for the performance of all its obligations under the Agreement.
5.3 Unless otherwise agreed in writing, payment for delivery must be made by bank: Rabobank, IBAN/account number: NL865748755B01, taking into account the applicable payment conditions of TBM, as stated on offer. Payment by buyer must always take place within fourteen (14) days after invoice date. TBM is entitled to require an advance payment representing at least 50% of the total payment obligation.
5.4 Buyer is not entitled to set off any claim on its part against any claim of TBM, unless it is permitted to do so on the basis of a final judicial or arbitral decision. TBM does not accept any general terms and conditions of Buyer.
5.5 As long as the buyer has not paid the (purchase) sum C.q. consideration owed by him, insofar as due and payable, the TBM is entitled to suspend the performance of its obligations.
5.6 Buyer shall not be entitled to suspend its obligations unless Buyer submits the dispute to a competent Dutch court within thirty (30) days after the relevant obligations become due and payable.
5.7 The Buyer shall be liable, without further notice of default, for interest equal to the then current statutory commercial interest rate in the Netherlands on all amounts not paid by the last day of the payment period. At the end of each month, the amount on which the interest is calculated shall be increased by the interest due over that month.
5.8 If the buyer has not paid the amount and interest due even after the expiration of a further payment term set by registered letter, the buyer is obliged to reimburse TBM for all extrajudicial and judicial costs, including reasonable costs for legal assistance in or out of court.
In any case, in the case of a monetary claim, the buyer owes:
interest costs equal to the European Central Bank deposit rate plus 6.75%. Any extrajudicial collection costs to be incurred by TBM shall be calculated in accordance with the Dutch Extrajudicial Collection Costs Decree 2012. If TBM proves to have incurred higher costs which were reasonably necessary, such costs shall also qualify for compensation.
5.9 If TBM, for reasons of leniency or otherwise, grants buyer an extension of time to perform any performance, the new deadline shall always be of a fatal nature.
6.1 The delivery time stated by TBM for products is based on the circumstances applicable to TBM at the time of the conclusion of the Agreement and, to the extent dependent on performance by third parties, on the information provided to TBM by such third parties. The delivery and/or performance period will be observed by TBM as much as possible, however these (delivery) times stated by TBM are indicative only. TBM is entitled to discontinue delivery of items which are out of stock or no longer available.
6.2 Said periods shall commence on the date of written order confirmation or confirmation otherwise by TBM. If TBM requires data or resources to be provided by Buyer for the performance of the Agreement, the time periods shall commence on the day all required data or resources are in TBM's possession, but not earlier than the date of the order confirmation.
6.3 If any term is exceeded, the Buyer will not be entitled to any compensation or damages in this respect. Nor is the Buyer in that case entitled to rescind or terminate the Agreement, unless the exceeding of the term is such that the Buyer cannot reasonably be required to maintain (the relevant part of) the Agreement. The Buyer shall then be entitled, after notice of default containing a reasonable further term for performance, to dissolve or cancel the Agreement by registered letter, but only insofar as this is strictly necessary.
6.4 TBM is at all times entitled to (deliver) the products in parts.
7.1 If TBM cannot fulfill its obligations to Buyer due to a non-attributable failure ("force majeure"), such obligations shall be suspended for the duration of the force majeure condition.
7.2 If the force majeure condition has lasted for three months, both parties have the right to dissolve the agreement in writing in whole or in part.
7.3 Force majeure of TBM shall mean any circumstance beyond the control of TBM, as a result of which the performance of (the relevant part of) its obligations to Buyer is prevented, delayed or rendered uneconomical or as a result of which the performance of these obligations cannot reasonably be required of TBM.
7.4 Force majeure includes all circumstances which must reasonably be deemed to prevent delivery or timely delivery of the goods sold, respectively (timely) collection or delivery, such as non-delivery or late delivery to TBM by its supplier, in which cases TBM has the option to postpone the delivery or dissolve the (purchase) agreement.
7.5 The parties shall inform each other as soon as possible of a (possible) force majeure situation.
8.1 Ownership of the products, notwithstanding the actual completion or delivery, shall only pass to Buyer after Buyer has paid TBM in full all that it owes or will owe TBM in respect of products (or services) delivered or to be delivered pursuant to the Agreement, including the purchase price, any surcharges, interest, taxes and costs owed pursuant to these Terms and Conditions or the Agreement, as well as any work performed or to be performed pursuant to such Agreement.
8.2 Any amount received from Buyer shall first be applied to settle any claims which TBM may have against Buyer in respect of which TBM has not made a retention of title. Thereafter, any amount received from Buyer shall first serve to pay any interest and costs due as referred to in Article 5.8.
8.3 Before ownership of the products has passed to Buyer, Buyer shall not be entitled to lease or give the products in use to third parties, pledge them to third parties, or otherwise encumber them for the benefit of third parties. Buyer is only entitled to sell or deliver the products, of which TBM is the owner, to third parties to the extent this is necessary in the context of Buyer's normal business operations.
8.4 Buyer is bound to keep the products delivered under retention of title carefully and as recognizable property of TBM and to insure them against risks such as fire, explosion, damage and theft. Upon TBM's first request, Buyer shall assign all rights to the relevant insurers in this regard to TBM.
8.5 If and so long as TBM is the owner of the products, Buyer shall promptly notify TBM in writing if any part of the products is lost or damaged, or the products are seized and/or otherwise claimed to be (any part of) the products. Furthermore, Buyer shall notify TBM at TBM's first request where the products, of which TBM is the owner, are located.
8.6 In the event of attachment, (provisional) suspension of payment or bankruptcy, Buyer shall immediately inform the attaching bailiff, administrator or receiver of TBM's (ownership) rights.
9.1 The Buyer is obliged to carefully inspect the products (or have them inspected) immediately upon their arrival at their destination or by a third party acting on its instructions, whichever is earlier. Any claims regarding defects in the products which are due to material or manufacturing faults, as well as differences in quantity, weight, composition or quality between the delivered products and the description given for them on the order confirmation and/or invoice, must be notified to TBM in writing and in detail no later than eight days after arrival of the products.
Complaints regarding work performed must also be reported in writing and in detail to TBM by the buyer within eight days of discovery. Defects, which could not reasonably have been discovered within the above stated period, must be reported in writing to TBM immediately after discovery and no later than thirty (30) days after arrival of the products (or performance of services).
9.2 Upon discovery of any defect, Buyer shall be obligated to immediately discontinue the use, handling, processing or installation of the products in question.
9.3 Buyer shall render all cooperation required by TBM to investigate the claim, including by giving TBM the opportunity to conduct an on-site investigation (or have such an investigation conducted) into the conditions of treatment, processing, installation and/or use.
9.4 Buyer has no right to claim with respect to products for which TBM cannot verify the claim.
9.5 Buyer is not free to return the products until TBM has agreed to this in writing. The cost of return shall be borne by the buyer and the products shall remain at his risk.
9.6 Buyer cannot assert any claims with respect to defects in products against TBM as long as Buyer has not fulfilled any directly opposing obligation to TBM.
9.7 Complaints regarding products delivered (or work performed) cannot affect the rights and obligations of the parties regarding products (or work) previously delivered and products (or work) yet to be delivered, even if such products have been or will be delivered by performance of the same Agreement. Complaints regarding the performance of the Agreement by TBM shall never entitle Buyer to suspend its payment obligations towards TBM.
9.8 Claims on delivered used products shall, unless otherwise agreed in writing, not be considered by TBM and TBM shall not be liable in this respect for any reason whatsoever.
9.9 If Buyer submits a timely, correct and justified claim regarding defects in a product, TBM's resulting liability shall be limited to the obligations described in 10.1, depending on the nature of the claim and subject to the other provisions of Article 10 (Warranty).
9.10 Under no circumstances and at no time before or after final delivery (or performance) can the buyer claim damages or rescission of the Agreement with TBM, if the acquired products cannot be used for certain specific purpose(s), which has been shown, mentioned or stated by TBM. Nor shall TBM be liable in any form whatsoever for any violations and the financial and legal consequences thereof, resulting from the (un)lawful use or application of the goods sold or services provided by TBM to Buyer. Buyer furthermore has no right to complain insofar as the accompanying (assembly) instructions of the manufacturer have not been properly observed.
10.1 If a claim is made in a timely and correct manner and in accordance with the provisions of Article 9 and it has been sufficiently demonstrated in TBM's reasonable opinion that the products do not function properly (or that work has not been performed properly), TBM shall have the option either to re-deliver the products found to be defective free of charge against return of the products found to be defective to repair the relevant products properly (or perform the work again), or to grant buyer a mutually agreed upon discount on the (purchase) price, unless TBM and buyer have explicitly agreed otherwise in writing. By fulfilling one of the aforementioned performances TBM shall be fully discharged with regard to its warranty obligations and TBM shall not be liable for any further compensation or damages.
10.2 If TBM supplies any products to buyer which TBM has obtained from its suppliers, TBM shall never be obliged to provide any further warranty or liability to buyer than TBM can claim from its supplier. In case of sale of products which are sold under manufacturer's warranty or parts warranty, there is only warranty on any defective or faulty individual components or parts of the products delivered by TBM to buyer. Any necessary (de)assembly, adjustment and setting costs of the parts of/to the sold goods and additional costs of services or required materials (hours etc.) are fully for buyer's account. Also, all possible administration, shipping and delivery costs and all additional costs to negotiate this manufacturer's warranty, or parts warranty, with TBM's supplier shall be fully and unreservedly borne by Buyer. All shipping costs from buyer to TBM shall at all times be borne by buyer. There is a warranty on the products sold by TBM only if this is unambiguously and clearly stated on the orders, commissions, or invoices.
10.3 TBM expressly does not warrant any recommendation or advice regarding the installation or use of the products, nor does TBM warrant such advice or instructions from Buyer to its customers.
10.4 The products shall remain at the full risk of Buyer in the event repair activities are performed on the products by TBM, unless the repair is the result of a defective performance by TBM and Buyer cannot reasonably be expected to insure the products for the above risk.
10.5 Should Buyer make any repairs or changes without TBM's prior consent or have them made by others, TBM shall not be obligated to fulfill its warranty obligations. This also applies if unauthorized use of the goods by buyer or related parties has taken place, which includes all use for which the goods are not reasonably and according to the user manual intended.
10.6 Unless otherwise expressly stated, there is no warranty on the goods and products offered by TBM.
11.1 TBM shall never be liable for any indirect damage of buyer or third parties, including consequential damage, immaterial damage, business or environmental damage.
11.2 TBM's liability to buyer for whatever reason per event (whereby a connected series of events counts as one event) is limited to the relevant invoice amount or, as the case may be, the purchase price (excluding VAT). If no purchase price or invoice amount can be designated, TBM's liability shall be limited to the amount received in this respect from its business liability insurer.
11.3 Except in the event of gross negligence or willful misconduct by TBM or its senior management, Buyer shall indemnify TBM against all claims by third parties, for whatever reason, for compensation of damages, costs or interest, related to the products (services), or arising from the use of the products, unless Buyer cannot reasonably be blamed for the damage.
11.4 The limitations of liability in the preceding paragraphs shall not apply to the extent that the damage in question was caused by intent or gross negligence on the part of TBM or its senior management or to the extent that TBM's liability arises from mandatory applicable product liability law.
11.5 If upon delivery of products (services) TBM provides buyer with instructions, regulations and/or directions for use with regard to the use of the products (services) and purposes, buyer shall be obligated to comply therewith. TBM may assume, unless otherwise notified in writing by Buyer, that Buyer and its personnel or the persons, who directly or indirectly allow Buyer to work or reside with the product, in the broadest sense of the word, have a sufficient command of the language in which such instructions or regulations are set forth to take note thereof and act accordingly, provided such language is Dutch, English or German. TBM is willing - to the extent possible - to make those instructions and regulations available to Buyer, upon written notice, in other languages. Buyer shall be obliged to pay the costs in this respect.
12.1 In the event of (provisional) suspension of payment, bankruptcy, cessation or liquidation of buyer's business, all agreements with buyer shall be terminated by operation of law, unless TBM notifies buyer within a reasonable time (as the case may be, at the request of the administrator or receiver) that it requires performance of (part of) the relevant agreement(s), in which case TBM shall be entitled to do so without notice of default:
12.2 If Buyer fails to properly fulfill any obligation that may arise for him under any contract or fails to do so within a specified period or otherwise in a timely manner, Buyer shall be in default and TBM shall be entitled without notice of default or judicial intervention:
12.3 In the event an event occurs as referred to in paragraph 1 or paragraph 2, respectively, all claims of TBM against Buyer and said claims under the relevant agreement(s) shall be immediately due and payable in full and TBM shall be entitled to repossess the relevant products. In such case TBM and its authorized representative(s) shall be entitled to enter the buyer's premises in order to take possession of the products. Buyer is obliged to take the necessary measures to enable TBM to enforce its rights.
13.1. Many of the products supplied bear registered trademarks. If these products are incorporated as parts in other items, installations or equipment, use of the respective trademarks is only permitted with the express permission of the owner. Delivery under trademark may not be regarded as permission to use this trademark for the manufactured products.
13.2.Insofar as permission to use a trademark is granted by the rightholder, the instructions and conditions thereby given, in particular the requirements imposed by him with respect to quality, must be complied with.
14.1 Dutch law applies to these Conditions, as well as to all agreements.
14.2 Third parties do not accede to any agreement between TBM and Buyer on the basis of a third party clause in these Terms or the Agreement. Article 6:254 paragraph 1BW shall thus not apply.
14.3 If these Terms apply in an international relationship with Buyer, Buyer shall always promptly inform TBM of any provisions of these Terms which are not enforceable in Buyer's country. Subject to TBM's prior approval, TBM shall then bear the reasonable costs of any investigation required for that purpose. To the extent Buyer is in default with the provisions of the first sentence of this paragraph, Buyer shall not invoke in or out of court the possible unenforceability of such provisions and shall indemnify TBM for any damages that may arise unless TBM has refused to meet the reasonable costs of the necessary investigation - as referred to above.
14.4 To the extent not otherwise required by national or international law, all disputes between the parties shall be submitted to the court in TBM's place of business.
15.1 If and to the extent that any provision in these Terms and Conditions cannot be invoked on the grounds of reasonableness and fairness or its unreasonably onerous nature, that provision shall be accorded a corresponding meaning as far as possible in terms of its content and purport, so that it can be invoked.
16.1 Should any provision of these Terms and Conditions be inapplicable or contrary to public policy or law, only the provision in question shall be deemed unwritten, but the remaining Terms and Conditions shall remain in full force and effect.
These Terms apply to all offers, quotations, invoices, orders, deliveries, services, and other activities of TBM. These Terms and Conditions will be sent free of charge upon first request. They will also be sent by e-mail along with your invoice.