General terms and conditions
GENERAL SALES AND DELIVERY CONDITIONS TRICORP BV
Filed on June 6, 2018 with the Chamber of Commerce under number 18083823.
GENERAL
The user of these general terms and conditions of sale and delivery (hereinafter also referred to as: “these general terms and conditions”) is Tricorp BV, with offices at 5126 RK GILZE, Hercules 22, its legal successor(s) under universal title and all companies and enterprises affiliated or associated with Tricorp or these legal successor(s). In these general terms and conditions, “the other party” means any (legal) person who is registered with the trade register of the Chamber of Commerce in the Netherlands or a foreign Trade Register and who has a business account created with Tricorp and/or with whom Tricorp enters into an agreement or to whom Tricorp makes an offer to provide a service or deliver goods. Unless expressly agreed otherwise in writing, our quotations and obligations between us and the other party are governed exclusively by these general terms and conditions. The applicability of any general purchasing and/or other conditions used by the other party, under whatever name, is hereby expressly rejected.
1. OFFERS AND AGREEMENTS
1.1. All quotations, offers, prices and conditions provided by us are always made without obligation and expire after 30 days.
1.2. Every quotation is based on the information provided by the other party. The Other Party guarantees the accuracy and completeness of this information.
1.3. Obvious mistakes or errors in the offer do not bind Tricorp.
1.4. All statements by Tricorp of dimensions, drawings, images, weights, compositions and/or other indications of the products have been made with care, but Tricorp cannot guarantee that no deviations will occur in this regard. Samples shown or provided are only indications of the products in question. Deviations in dimensions and/or weight are possible and are accepted by the other party. If the other party demonstrates that the delivered products deviate from Tricorp's specifications or the samples to such an extent that it can no longer reasonably be obliged to purchase them, the other party has the right to terminate the agreement, but only for the part for which such termination is reasonably necessary, and not after the other party has given notice of default to Tricorp and has granted Tricorp a period of at least 14 days to remove the reason for (partial) dissolution.
1.5. All drawings, images, measurements and weights provided by us, as well as all other information provided by us to the other party in the context of the agreement, remain our property, subject to the express reservation of copyright and model and patent rights, even if costs have been charged for this. Except with our prior express written permission, the other party is not permitted to copy these documents or to provide them for inspection or to make them available to third parties.
1.6. Information and advice from us are of a general nature and without obligation. The other party is responsible for the implementation of our advice.
1.7. A quotation will lapse if the product to which the quotation relates is no longer available in the meantime.
1.8. Orders and changes thereto are only binding on us if they have been accepted or confirmed by us in writing, or if delivery has commenced.
1.9. Tricorp's confirmation of the order is deemed to be correct, unless the other party has protested in writing within 8 days of the order confirmation date.
1.10. Agreements with or commitments by our representatives or other employees are not binding on us, unless these agreements or commitments have been confirmed by us in writing.
1.11. Termination and cancellation of the agreement by the other party is only possible if we consent to this. The other party is then obliged to compensate us for the costs incurred by us in preparation and - partial - implementation, as well as to compensate us for the adverse financial consequences for us due to non-execution of the agreement. These fees together will amount to at least 10% of the agreed contract value.
1.12. The other party guarantees that all legal regulations regarding the data to be processed, including in particular the regulations laid down in or pursuant to the then applicable privacy legislation, have been and will be strictly observed and that all prescribed registrations and other formalities have been carried out and the required permission from its staff has been provided. The other party will immediately provide Tricorp with all requested information in writing.
1.13. The other party indemnifies Tricorp against claims from persons whose personal data have been registered or is processed in the context of a personal registration kept by the other party or for which the other party is otherwise responsible under European and/or Dutch law, or against claims from third parties, whether or not on the basis of compensation, fines, settlements, criminal transaction proposals or otherwise, and will fully indemnify Tricorp for this.
2. THE AGREEMENT
2.1. The agreement is concluded, subject to the provisions of Article 2.2, at the time of acceptance by the other party of the offer and compliance with the conditions set.
2.2. If the acceptance deviates (whether or not on minor points) from the offer included in the quotation, Tricorp is not bound by this. The agreement will then not be concluded in accordance with this deviating acceptance, unless Tricorp indicates otherwise.
2.3. If the other party has accepted the offer electronically, Tricorp will immediately confirm receipt of the acceptance of the offer electronically.
2.4. Tricorp can - within legal frameworks - inform itself whether the other party can meet its payment obligations, as well as all those facts and factors that are important for a responsible conclusion of the distance contract. If, based on this investigation, Tricorp has good reasons not to enter into the agreement, it is entitled to refuse an order or request or to attach special conditions to the execution. Tricorp is at all times entitled to require advance payment or the provision of security by the other party.
2.5. Every agreement is entered into under the suspensive condition of sufficient availability of the relevant products and/or services.
2.6. Changes and additions to any provision in an agreement and/or these conditions can only be agreed in writing.
2.7. If a change and/or addition as referred to in Article 4.7 is agreed, this change or addition only applies to the agreement in question.
3. PRICING
3.1. Our prices are expressed in Euro and are exclusive of sales tax and levies imposed by government and/or semi-governmental institutions. They apply to delivery ex works (Ex Works Incoterms 2010), unless otherwise agreed.
3.2. Unless expressly agreed otherwise, the costs of packaging and shipping, import and export duties and excise duties, as well as all other levies or taxes imposed or levied in respect of the products and their transport, will be borne by the other party.
3.3. Every quotation is based on the information provided by the other party. The other party guarantees the accuracy and completeness of this information.
4. COST INCREASING FACTORS
4.1. Unless expressly agreed otherwise, Tricorp can pass on to the other party any change in factors that influence the price and Tricorp's costs referred to in Article 3, including purchase prices, exchange rates, import and export duties and other levies due on import or export, insurance rates, freight rates and other levies or taxes, insofar as any mandatory legal provision does not prevent this. The delivery date is decisive for the pricing referred to in Article 3. In any case, Tricorp will be allowed to pass on the aforementioned price changes if at least 3 months have passed between the agreement and the price increase, without the agreement being able to be dissolved.
4.2. When a counterparty from EU countries purchases a product from Tricorp with his business account, 0% VAT is charged in connection with intra-Community deliveries based on: Article 138 EU VAT Directive 2006/112/EC.
5. DELIVERY AND RISK
5.1. The products are delivered in accordance with the provisions regarding the costs of delivery and transfer of risk in accordance with the conditions customary in international trade (Incoterms 2010) or the subsequent version(s) thereof applicable at the time of the order.
5.2. Unless otherwise agreed, deliveries are made ex works at Tricorp's location and the delivery and transfer of risk of the products always take place at the place and time at which the products are ready for shipment to the other party.
5.3. The delivery period stated by Tricorp is based on the circumstances applicable to the supplier at the time the agreement was concluded and, insofar as it depends on the performance of third parties, on the information provided to Tricorp by those third parties. An agreed delivery time is not a strict deadline, unless expressly agreed otherwise.
5.4. In the event of late delivery, the other party must give us prior written notice of default if there is to be any default on our part.
5.5. In the event of late delivery, the other party is not entitled to compensation or the option of dissolution or termination of the agreement, nor may receipt and payment be suspended, except in the case of intent or gross negligence on our part, unless the delivery period is exceeded to such an extent that the other party cannot reasonably be expected to maintain the relevant part of the agreement. The other party is then entitled to dissolve or cancel the agreement for that part for which this is strictly necessary, provided that it notifies Tricorp in writing and without prejudice to Tricorp's right to deliver the relevant products to the other party within 14 days after receipt of the notification.
5.6. Unless otherwise agreed, the items in the order will be delivered to one address.
6. FORCE MAJEURE
6.1. Tricorp is not obliged to fulfill any obligation towards the other party if it is prevented from doing so as a result of a circumstance that is not attributable to its fault and is not its responsibility under the law, a legal act or generally accepted views. During force majeure, delivery obligations are suspended. If this period lasts longer than 3 months, each party is entitled to terminate the agreement. In the event of force majeure, the other party is not entitled to any (damage) compensation, even if Tricorp may have any advantage as a result of the force majeure.
6.2. If, when the force majeure occurs, we have partially fulfilled our obligations, or can only partially fulfill our obligations, we are entitled to invoice the part already delivered or the deliverable part separately and the other party is obliged to pay this invoice as if it were a separate contract.
6.3. Force majeure factors between the parties include fire, theft, molestation, riot, strike, business occupation, business disruption, war, severe weather, delay or cessation of the supply of materials or tools and/or services or other problems in production by Tricorp or its suppliers, interference by government or supervisory authorities, legal regulations that impede the use of the delivered goods, and in general any cause that is beyond our control, foreseen or unforeseen, as a result of which the execution of the agreement is made more difficult for us.
6.4. Tricorp also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment of the agreement occurs after Tricorp should have fulfilled its obligation.
7. PAYMENTS
7.1. Every payment by the other party is primarily intended to settle the interest owed by the other party and the collection costs incurred by us and subsequently to settle the oldest outstanding claims, even if the other party states that payment relates to a later invoice.
7.2. Payments must be made without discount, suspension or settlement to a bank account designated by us, no later than thirty (30) days after the invoice date. Any corrections required by the other party as a result of price and quantity differences will be assessed by Tricorp and credited if necessary. This does not affect the obligation of the other party to pay the initial amount charged to Tricorp within the period set for this purpose. Objections to the amount of an invoice do not suspend the payment obligation.
7.3. However, we have the right, at our discretion, to deliver only under the condition of advance payment or against security and/or deviating provisions to be provided by the other party, including the usual conditions of documentary credit in trade, such as irrevocable letters of credits, cash against documents or cash against delivery, failing which Tricorp will not proceed with delivery. With such an advance payment, the delivery time will commence from the moment payment is received by Tricorp.
7.4. Tricorp can jointly invoice the other party on the last day of the month for all purchases made in the month in question. Tricorp is entitled to set a maximum on the total amount of the monthly payment in arrears.
8. INTEREST AND COSTS
8.1. The payment terms mentioned in Article 7 are strict deadlines. The other party is therefore in default without notice of default upon expiry of the agreed payment term.
8.2. From the moment of default until the day of full payment, the other party owes 1% default interest per month on the outstanding amount, unless the statutory commercial interest is higher, in which case the statutory commercial interest is due on the outstanding amount. The interest on the amount due will be calculated from the moment that the other party is in default until the moment of payment of the full amount due.
8.3. All judicial and extrajudicial costs incurred by us, including the costs of legal assistance as well as the costs that are not liquidated by judgment, will be borne by the other party. The extrajudicial costs are set at at least fifteen percent of the principal sum, with a minimum of €500 excluding VAT. At our option, the other party may also be charged for the actual costs. The legal costs are determined at the costs actually incurred by us.
9. PARTIAL DELIVERIES
9.1. When part of an order is ready, we can, at our discretion, deliver this part or wait until everything ordered is ready. When orders are delivered in parts in accordance with the above, as well as when deliveries of successive parts of an order are made pursuant to an agreement, each delivery will be deemed to form a separate agreement, which cannot be reversed after acceptance of the delivered goods by the other party.
10. STORAGE
10.1. If for whatever reason the other party is unable to receive the goods at the agreed time and they are ready for shipment, the other party will be in default without notice of default. Tricorp is then entitled, if our storage facilities allow this, to store the goods at the expense and risk of the other party for a period of up to six months or to sell them to a third party.
10.2. Where appropriate, the other party is obliged to reimburse the costs of storage and safekeeping according to reasonable standards over the period from the delivery time provided for in the agreement to the date of final delivery. The other party remains liable for the purchase price, plus interest and costs (by way of compensation), reduced, where appropriate, by the net proceeds from the sale to that third party.
11. SECURITY, LIEN AND RESERVATION OF OWNERSHIP
11.1. If, in our opinion, there is reason to do so, we are at all times entitled to demand that the other party provide proper, additional or otherwise, security for payment for the goods purchased by it. Failing to provide such security, we have the right to suspend the execution of the concluded agreement or to dissolve the agreement without judicial intervention by simple written notice and, if desired, to claim damages.
11.2. All items that we hold for the other party are deemed to be pledged to us for all amounts that the other party owes or will owe to us for whatever reason.
11.3. All goods delivered by us and located with or under the other party or under its holder remain our property until the other party has paid our claims regarding the consideration - which includes not only the purchase price, but also the claims we have on him due to failure to comply with the above-mentioned agreements, including our claims regarding fines, interest and costs - for the goods to be delivered or delivered by us to the other party under the agreement, or work to be carried out or carried out.
11.4. The other party must always do everything that can reasonably be expected of it to safeguard Tricorp's ownership rights if and as soon as the other party fails to fulfill one or more of its obligations or acts contrary to the provisions here, we are entitled to recover the delivered goods, as referred to in this article, as our property without judicial intervention. The other party gives unconditional and revocable permission in advance to Tricorp and third parties to be designated by Tricorp to enter all places where Tricorp's property is located and to take back those items and the other party will cooperate in this. All costs of retrieving the goods subject to retention of title will be borne by the other party.
11.5. As long as the other party has not paid the aforementioned claims, he is not entitled to resell the goods delivered by us and may never be used as a means of payment, nor can they be encumbered with a right of lien [whether or not without possession] or in any other way. This alienation, pledging and encumbrance prohibition has an express effect under property law. It is therefore not possible under property law to transfer ownership of the goods, to pledge them or otherwise encumber them.
11.6. The other party undertakes to declare to third parties who wish to establish such a right that it is not authorized to do so.
11.7. When the other party has fulfilled all its payment obligations under the above-mentioned claims, we will provide ownership of the delivered goods subject to a right of pledge from us as additional security for other claims we have on the other party. The other party will cooperate with all actions required in this context at our first request.
11.8. In the event of a petition for bankruptcy, a request for a (provisional) suspension of payments or in the event that conservatory measures are taken with regard to the other party's assets or third parties wish to establish or enforce rights thereon, the other party is obliged to inform us of this immediately and to immediately inform the seizing bailiff, the administrator or the curator of Tricorp's ownership rights.
11.9. If the other party refuses to cooperate in the recovery of the delivered goods despite a written reminder, the other party will be in default in this regard and will forfeit an immediately payable fine of €500 per day that it is/remains in default.
11.10. The other party is liable to us for all damage that occurs to the goods before the transfer of ownership has taken place as referred to in paragraph 3. Dissolution and repossession do not affect our rights to compensation for damage and loss. In these cases, any claim we have against the other party will be immediately and fully due and payable.
12. WARRANTY AND RECOMMENDATIONS
12.1. We guarantee the good quality of the goods we supply and guarantee for 1 year after delivery that our goods can be used for the purpose for which they were manufactured, that the parts used meet the standards drawn up for this purpose and are in accordance with the specifications provided in the agreement. If unacceptable deviations, damage, shortcomings and/or other imperfections are demonstrated by the other party, we are prepared, at our option, to either repair and/or replace free of charge upon return of the products that have proven to be defective, or to credit the value of the goods delivered by us as defective, under the following conditions and stipulations.
12.2. The warranty does not cover defects in the products that have arisen as a result of normal wear and tear, incorrect or careless use and/or damage resulting from circumstances over which Tricorp has no influence, including weather conditions, processing by the other party or end users, sun and light influences and/or damage arising during storage or transport by the other party.
12.3. The other party is obliged to inspect the delivered goods within three (3) days after the goods have been made available to him for defects and whether quality and quantity correspond to what was agreed and to complain in writing in the event of any deviations found.
12.4. Complaints regarding immediately noticeable deviations in delivered quantities and/or immediately visible defects, non-delivery in accordance with the sample, defects and damage to a shipment received by the other party must be noted on the consignment note, failing which any right of complaint in this regard will lapse. Complaints about invoices must be received in writing within fourteen (14) days of the date of the invoice, under penalty of forfeiture of rights.
12.5. During this period, the other party will handle the products and packaging with care. The other party will only unpack or use the product to the extent necessary to assess whether it wishes to keep the product. The goods to which the complaint relates must be made available to us.
12.6. If we respond to a complaint after the stated period, whether or not in part, this will be done entirely without obligation and without the other party being able to derive any rights from it.
12.7. The reported complaints are assessed by us. If they are declared justified, we will repair or repair the products classified as defective as far as possible. In the event of repair or replacement of goods, this will take place at our location or, if we wish, at the location where the goods are actually located.
12.8. If this is not possible, we will in principle supply new products after returning the products that have proven to be defective.
12.9. If repair, subsequent delivery or additional delivery is not possible, or such subsequent delivery or additional delivery does not meet the original specifications, we will credit the counter value of the delivered goods. We are in no way obliged to compensate more than the value of the goods that we classify as defective.
12.10. If the complaints prove to be unfounded, the costs of the investigation will be borne by the other party, subject to the obligation to take back the complained of goods.
12.11. Complaints do not give the other party the right to suspend payment, and settlement is expressly excluded. Complaints regarding part of the order do not give the other party the right to reject or refuse the entire order.
12.12. By fulfilling one of the aforementioned performances, Tricorp will be fully discharged of its warranty obligations and Tricorp will not be obliged to pay any further (damage) compensation.
13. RETURNS
13.1. Unless otherwise agreed, returns can only take place in accordance with the returns procedure used by Tricorp.
13.2. Returns by the other party are only possible after prior electronic request for a return at info@tricorp.com, stating: the item number, the color, size and quantity of the items to be returned and the Tricorp sales order number, or the purchase number of the other party and after receipt of the return number assigned by Tricorp on the return request.
13.3. After receipt of the return number, the registered items can only be returned to Tricorp in their original, unused and undamaged condition and in the original packaging, stating the assigned return number and taking into account the reasonable and clear return instructions provided by Tricorp. Unless otherwise agreed, returns are at the expense and risk of the other party.
13.4. For items returned within one month of purchase, 100% of the purchase price (excluding shipping costs) will be refunded. Thereafter, a reimbursement of 75% applies for returns within 2 months and a reimbursement of 50% for returns within 3 months. Items returned after 3 months will not be refunded.
13.5. Only unused and undamaged items in the original packaging will be accepted. If items need to be repackaged, we will charge €1 per item. Fit or size series are only accepted after consultation.
13.6. Because the processing of items that have not been registered in accordance with the returns procedure takes more time, we are forced to charge handling costs for this. We reserve the right to destroy returned products that are older than 3 months, with or without consultation.
13.7. Returns in accordance with the provisions of 13.1 to 13.6 are possible for standard stock products. Specials cannot be returned due to the unique design commissioned by the other party.
14. SETTLEMENT
14.1. We are entitled to offset amounts owed to us by the other party and unpaid interest against any turnover bonuses and promotional payments promised by us to the other party.
15. LIABILITY
15.1. We are not liable for any damage, both direct and indirect, due to any cause whatsoever on the part of the other party or third party in connection with goods or services supplied by us, unless the damage occurred as a result of intent or gross negligence on the part of our managerial subordinates.
15.2. Direct damage exclusively means the reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred to ensure that Tricorp's defective performance meets the agreement, insofar as these can be attributed to Tricorp and reasonable costs incurred to prevent or limit direct damage as referred to in these general terms and conditions.
15.3. Without prejudice to the foregoing, we are never liable for:
A consequential and/or indirect damage such as business stagnation and lost profits, losses suffered, missed savings and other consequential damage.
B damage caused by auxiliary persons;
C damage caused to third party goods.
15.4. If, despite the provisions of this article, for whatever reason we are obliged to pay compensation for any damage, then per event (where a related series of events counts as one event) only the amount of the net invoice value of the delivery in question or, if that amount is higher, the amount of the payment to be provided by the insurer in the case in question, will be eligible for compensation.
15.5. If the ratio of the performance to be delivered by the other party to the extent of the damage suffered by the other party gives reason to do so, the damage to be compensated by us will be moderated.
15.6. Except in the event of gross negligence or intent on the part of Tricorp or its managerial subordinates, the other party will indemnify us against all claims from third parties, on whatever grounds, with regard to compensation for damage, costs or interest relating to delivered goods and/or services, respectively arising from the use of the delivered goods or arising from the agreement concluded with the other party.
15.7. We are never liable for the content of the data that has been or will be added to our products, whether or not through our intervention (image, sound or data). Tricorp is not liable for damage of any nature whatsoever caused by Tricorp relying on incorrect and/or incomplete information provided by or on behalf of the other party.
15.8. All rights of action against Tricorp expire 1 year after delivery.
16. SUSPENSION AND DISSOLUTION
16.1. If the other party does not properly or within the set period or otherwise timely comply with any obligation that may arise for it from any agreement, when a conservatorship or executory attachment is imposed on the other party, (provisional) suspension of payments is granted or bankruptcy is filed for, closure or liquidation of the other party's company, the other party is in default and Tricorp is entitled without notice of default or judicial intervention:
16.2. to suspend the execution of that agreement and directly related agreements until payment has been sufficiently secured; and/or
16.3. the other party to dissolve that agreement and directly related agreements in whole or in part;
16.4. all this without prejudice to Tricorp's other rights under any agreement with the other party and without Tricorp being obliged to pay any compensation.
16.5. If an event occurs as referred to in art. 16.1 all claims of Tricorp against the other party are immediately due and payable in full and Tricorp is entitled to take back the relevant products. In that case, Tricorp and its authorized representative(s) will be entitled to enter the grounds and buildings of the other party in order to take possession of the products. the other party is obliged to take the necessary measures to give Tricorp the opportunity to enforce its rights.
17. MISCELLANEOUS TOPICS
17.1. The text of the Dutch version of these general terms and conditions is decisive in the event of any clarity in a translated version.
17.2. If any provision of these general terms and conditions is void or voided, the other provisions of these general terms and conditions will remain fully in force and we will consult with the other party in order to agree on a new provision to replace the void or voided provision, taking into account as much as possible the purpose and scope of the void or voided provision.
17.3. We have the right to unilaterally change these general terms and conditions. Changes also apply to agreements already concluded. Changes will take effect one month after announcement by means of a written notification to the other party, including sending the amended general terms and conditions. If the other party does not wish to accept the changes to the general terms and conditions, it has the right to refuse these changes by registered letter until the changes come into effect. If the other party does not do this, the other party will be deemed to have accepted the changes after the time they come into effect.
18. APPLICABLE LAW AND DISPUTES
18.1. The agreement between us and the other party and the obligations arising from it are exclusively governed by Dutch law, with the exclusion of the provisions of the Vienna Sales Convention.
18.2. All disputes arising from offers, agreements and other legal relationships between us and the other party will be settled exclusively by the competent court of the Zeeland-West Brabant District Court, Breda location.