GENERAL DELIVERY TERMS
TRADITEC B.V.
Filed with the Chamber of Commerce Southwest Netherlands
GENERAL
1.1 These conditions apply to all our deliveries and all agreements concluded with us. To the extent that these terms and conditions conflict with written terms and conditions of the buyer, these terms and conditions shall prevail, except in those cases where the buyer’s terms and conditions have been accepted by us in writing.
1.2 In these General Terms of Delivery, the following terms shall have the following meanings:
We/us: Traditec B.V., the user of these general terms of delivery;
Buyer/Client: the person to whom we make an offer and/or with whom we enter into an agreement
- QUOTATIONS AND OFFERS
2.1 All quotations and offers, and data in leaflets and price lists, are without obligation, except in the event that we expressly state otherwise in our quotation.
2.2 If an order is given without a request for quotation, then, regardless of any offer made in the past, this order will be confirmed and executed by us at a then current market price.
2.3 Samples shown or provided are only for indication of the material without the matter having to correspond to it.
- AGREEMENTS
3.1 Agreements are established when an order is accepted by us by means of an order confirmation. Changes and/or accepted cancellations of concluded agreements are valid only if and insofar as they have been confirmed by us in writing.
- PRICES
4.1 Unless otherwise expressly agreed, our prices are for delivery ex our company and our prices do not include the costs of transportation, insurance, etc. In case of increase of one or more cost price factors, after the conclusion of the agreement entered into with us (for example, due to increase of import duties/taxes, change in currency, price increases of raw materials, etc.), we are entitled to increase the order price accordingly, on the understanding that all known future price increases must be stated in the order confirmation. However, the buyer/customer shall be entitled to cancel the purchase agreement in the event of a price increase of more than 10%, without entitlement to compensation.
4.2 Prices are per specified unit (for example, per number, per meter or per pallet) and are exclusive of sales tax, unless otherwise stated.
- DELIVERY
5.1 Delivery takes place EXW factory (ex works, ex factory), Incoterms valid version at the time of entering into the agreement, unless otherwise specified by us. If we organize shipment or transportation, insurance or export, we act at the expense and risk of the buyer and the moment of transfer of risk of the goods is not affected. If for any reason EXW is not applicable, CPT delivery address of buyer/customer (carriage paid to) applies. Even then, if we organize shipment or transportation, insurance or export, we act at the expense and risk of the buyer/customer and the moment of transfer of risk of the goods is not affected.
5.2 The delivery time agreed between us and the buyer/customer will be stated by us as accurately as possible and will commence on the day the agreement is concluded, any agreed down payment has been received by the buyer/customer and/or any agreed payment securities have been provided by the buyer/customer. The agreed delivery time is not a deadline but is indicative. We make every effort to perform within the specified time.
5.3 If the goods have not been collected by the buyer/customer after the delivery time has expired, they will be stored at his expense and risk and at his disposal. We are then entitled to charge storage fees, among other things. We also reserve the right to dissolve the agreement at that time.
5.4 In the case of call-off orders, the dates of acceptance must be communicated no later than 2 weeks after our acceptance of the order, and the entire order must be accepted within 2 months, failing which we shall keep the goods at the disposal of the buyer/customer for the account and risk of the buyer/customer. We shall also be entitled to charge storage costs from that time onwards.Buyer/Client shall then remain obliged to fulfill its payment obligations. We also reserve the right to then rescind the call-off agreement.
5.5 The buyer/customer is not entitled to any compensation in any form whatsoever in the event of any exceeding of the specified delivery time, unless expressly agreed, or if the exceeding is the direct and immediate result of our gross fault or intent.
5.6 The buyer/customer is liable for the purchase price, our costs and our damages if the buyer/customer fails to perform the act by which he or she is required to cooperate in delivery.
5.7 In case of delivery carriage paid work unloaded, we need not transport the materials further than to where the vehicle can reach over a properly passable/navigable and made safe terrain. This at our discretion or at the discretion of the auxiliary persons engaged by us. Buyer/Client is required to take delivery of the materials there.
- PAYMENTS
6.1 Unless otherwise agreed in writing, payment must be made within a due date set by us. Payment must be made effectively in the agreed currency and without setoff and/or suspension. Unless expressly agreed otherwise, payment must be made before the goods are delivered.
6.2 A payment is deemed to have been made when it is received by us in cash or credited to our bank account.
6.3 If buyer/customer does not, does not properly, or does not timely fulfill its payment obligations, or its possible obligation to provide security, as well as in case of bankruptcy, (provisional) suspension of payment (or a similar situation in the country where buyer has its office), shutdown or liquidation of its business, we are entitled to immediately claim all amounts due.
6.4 In the event of late payment, the buyer/customer shall owe interest at the rate of 1% per month from 30 days after the invoice date. All costs, including the extrajudicial costs and the costs of legal assistance, the costs of bills of exchange, bills of exchange, receipts et cetera, caused by or related to late payment, shall be borne by the buyer/customer. The extrajudicial costs are calculated using a table where the percentages over the principal amount are between 15 and 0.5. The minimum amount is €40 and the maximum amount is €6,775. In the event of late payment, we are entitled to suspend the delivery of other goods, or to dissolve any agreement entered into with the buyer/customer, or parts thereof, without notice of default or judicial intervention, and to claim full damages from the buyer/customer.
- TESTING, INSPECTION AND ADVERTISING
7.1 The buyer/customer shall immediately upon delivery and prior to processing, perform industry-standard inspections of the goods. Any visible defects and deficiencies shall on penalty of forfeiture of the right to claim these damages by the buyer/customer or the purchaser both upon collection and delivery:
– should be reported immediately in writing with specified details of nature and number of
of the damages
– this notification should always be noted on the freight receipt or delivery note.
7.2 Any transport damage upon delivery carriage paid and/or deviation from the quantity of materials shall be on pain of forfeiture of the right to claim such damage:
– should always be noted on the freight receipt or delivery note and
– must be reported to us in writing within 24 hours of delivery with an itemized specification of the nature and number of the damages and/or deviations. In the event that no authorized person on the part of the buyer/recipient is present at the agreed time and place to take delivery of the goods, the goods will not be surrendered but returned. The costs of the relevant transport shall then be borne by the buyer/customer. We will then hold the goods at the buyer/customer’s expense and risk. Also, we are entitled to charge storage fees from that time on. Buyer/customer then remains obliged to fulfill its payment obligations. We also reserve the right to dissolve the agreement at that time.
7.3 Other damage not visible at the time of transport and/or delivery must be reported in writing within 48 hours of discovery, and in any case within 48 hours after discovery could reasonably have taken place, with an itemized specification of the nature and number of the damage.
7.4 Deviations from the quantity ordered are permissible up to 10% more or less. When selling by weight or by size, no right to advertise applies:
(a) a weight difference not exceeding 0.5%;
(b) a size difference not exceeding 2% on the entire lot;
7.5 We must be given the opportunity to inspect the delivered goods, without which any claim shall lapse.
7.6 Materials shall be processed competently and shall always be checked and approved in advance by the processing party before processing. After processing the delivered items, any right to complain shall lapse.
7.7 If any claim is acknowledged by Us, we shall be entitled, at our option, to either replace the delivered goods or credit the Customer for the delivery or part of the delivery in question. In the latter case, we shall be entitled to take back or cause to be taken back the items in question.
7.8 Since roof tiles, frostings and/or (associated) fittings are a natural product, in the event of minor deviations in size, weight and/or color or in surface structure, the buyer/customer does not have the right to reject them unless these deviations clearly impair the functionality of the delivered
With used roof tiles, forks and/or (associated) fittings, the following should be taken into account:
– the roof tiles, forks and/or (associated) fittings delivered in one batch may differ in size and contain a color nuance between them due to the old firing process;
– the roof tiles, frostings and/or (associated) fittings may contain deposits of lead streaks, soot, algae and mosses;
– the roof tiles, forks and/or (associated) fittings may have visible damage which, however, does not affect quality/functionality;
– the roof tiles, forks and/or (associated) fittings supplied in one batch may come from different roofs and also from different manufacturers. Here, the years in which the materials were produced may also be different;
– for processing, it is advisable to mix the materials delivered, which are on different pallets, and determine the batten spacing on the total lot delivered;
– due to varying availability of materials, delivery times for follow-up orders (e.g., backorders or breakage) may be longer than the initial delivery. In doing so, we are not liable for any (additional) costs to be incurred by you, in this regard.
The following should be taken into account for reproductions:
– the (smaller scale) production process makes it more difficult to determine, when commissioning, the exact numbers of reproductions, the correct (quality) design and the exact time of delivery;
– after receipt of the reproductions by us, the exact numbers of the appropriate reproductions and the time of delivery can be coordinated with buyer/client;
– in connection with the (smaller scale) production process, delivery times for follow-up orders (e.g. backorders or breakage) may be longer than for the first delivery. In doing so, we are not liable for any (additional) costs to be incurred by you, in this regard.
Slight damages and deviations in size, weight and/or color or in surface structure will never entitle the buyer/customer to reject these unless these deviations clearly impair the functionality of the delivered goods. The tolerance on these points is determined by us. Buyer/client has the right and will always be given the opportunity to inspect these goods with us before shipment.
7.9 The submission of a claim shall never release the buyer/customer from its payment obligations to us.
- RETENTION OF TITLE
8.1 We retain ownership of all goods sold by us until complete payment including any interest and costs has been made. Before complete payment for the goods has been made, buyer/customer is not authorized to pledge the goods to third parties, or to transfer ownership thereof.
8.2 In the event that buyer/customer has not yet paid us the agreed consideration and he has resold the goods in question to a third party, he hereby grants us an irrevocable power of attorney for that case to establish a lien on that claim against that third party. The buyer/customer must also provide us with all necessary information, such as the relevant data regarding the third-party buyer and terms and conditions of sale (prices), as well as cooperate with necessary formal requirements for the purpose of establishing the lien, under penalty of a fine of at least the invoice amount. If the buyer/customer does not punctually fulfill its (payment) obligations to us, we are entitled to notify the third-party buyer of the lien, after which the third-party buyer can only pay to us in full discharge.
- LIABILITY
9.1 We shall not be liable for any direct or indirect damage, including trading loss and consequential damage, damage to goods or persons caused by goods supplied, or by advice and/or explanations given, or any damage caused by the defectiveness of the goods supplied, unless all this is the result of our wilful misconduct, gross fault and/or gross negligence.
9.2 After delivery – as far as the obligation to fulfill the contract is concerned – our liability is limited to claims arising from the right of complaint ex Article 7 of these General Terms of Delivery.
9.3 We accept no liability of any kind for damages consisting of, relating to, or connected with:
– loss of profits;
– reduction in sales;
– loss of sales or production;
– damage caused by the use/processing of the delivered item;
– the deliverable is processed into/in a (final) product for which the deliverable is and/or appears to be unsuitable;
– total or partial damage to or loss of the goods supplied by us or on our behalf
goods and/or items, which are produced, processed and/or treated with the goods delivered by or on behalf of buyer/customer;
– retrieval of goods;
– delivery of goods, for which we receive no consideration;
– downtime or delay in the production process;
– pure property damage;
and regardless of whether the damage occurred to the buyer or a third party. The above exclusion of liability does not apply if and insofar as a person, who is entrusted with the management of the company by us, can be blamed for intent or conscious recklessness in causing the damage.
9.4 A claim for compensation shall lapse if the buyer/customer does not notify us in writing, stating all relevant details, within one month after the facts have occurred which give or could give grounds for compensation.
If the buyer/customer has notified us and held us liable with due observance of the provisions of the previous sentence, the claim for damages shall nevertheless lapse if the buyer/customer does not take legal action against us before the competent authority within six months of the notification.
9.5 The limitations of liability included in these General Terms of Delivery are deemed to have also been stipulated for the benefit of third parties involved in the delivery of the goods by buyer/customer.
9.6 Compensation, for whatever reason, shall always be limited to no more than the invoice value, excluding sales tax, of the goods delivered by us.
- Returns
10.1 A return or exchange of materials will be accepted only if this has been agreed and a price – to be newly determined – has also been agreed. The materials in question must be delivered to us by the other party unless otherwise agreed in writing. Only after our approval and counting/recording of the materials handed in or returned will we make a credit note or invoice issued by supplier for the agreed price and quantity determined by us.
10.2 The packaging materials purchased by the buyer/customer, which by their nature are not to be considered useable packaging, such as containers, silos, pallets and the like may/must be returned to us undamaged, either immediately after completion of the agreed use or at our first request.
Included in the agreed sales price is an amount for these packaging materials, which amount less a fee for use, will be returned to the buyer upon return. The fee for the use of a pallet shall be agreed upon in writing.
11 Indemnification
11.1 The buyer/customer indemnifies us against any claim by a third party for compensation for damage that this third party suffers or claims to suffer (partly) as a result of the use or application of goods supplied by us or on our behalf. However, the buyer/customer is not bound to indemnify us if and insofar as he demonstrates that we would be liable to him for the damage if the buyer himself had sued us for compensation.
12 Dissolution
12.1 Without prejudice to the provisions of Article 13.4, the buyer/customer shall only be entitled to dissolve the agreement in whole or in part if, despite repeated notices of default in which a recovery period that is reasonable in view of the non-fulfilled obligation is always given, we remain in default of an essential obligation under the agreement and the buyer suffers demonstrable damage as a result of this non-fulfillment. The buyer/customer’s right to claim dissolution in or out of court expires six months after the facts have occurred which give or could give grounds for dissolution.
12.2 In the following cases, we are in any case authorized to dissolve the agreement without notice of default and without judicial intervention, or to demand immediate fulfillment of all obligations arising from the agreement from the buyer/customer:
– bankruptcy of buyer/customer or application for such, suspension of payment of buyer/customer or application for such;
– inaccurate or incomplete representation of facts concerning buyer/customer’s creditworthiness, or impaired or insufficient creditworthiness;
– Buyer/client dies or is placed in receivership;
– Buyer/client fails to fulfill one or more of its legal or with us agreed obligations.
Article 13 Force Majeure
13.1 Force majeure means all circumstances that prevent the fulfillment of the agreement, temporarily or otherwise, and are not attributable to the party claiming force majeure.
13.2 In any case, force majeure shall include: strikes, lockouts, unforeseen scarcity of raw materials, unforeseen transport difficulties, fire, measures taken by higher authorities, in particular import and export restrictions, quota restrictions and unforeseen business interruptions.
13.3 Force majeure as described in the preceding paragraph, arising at suppliers or other third parties we depend on, is also considered force majeure.
13.4 During force majeure, the delivery and other obligations of both parties shall be suspended. If the period of force majeure lasts longer than 6 months, each of the parties is authorized to dissolve the agreement in whole or in part without any obligation to pay damages. However, if the agreement concerns goods to be produced according to the specific wishes of the buyer/customer, each of the parties shall only be entitled to rescind the agreement in whole or in part after a force majeure period of 12 months without any obligation to pay compensation in that case.
13.5 If the force majeure shall be of a temporary nature, we shall be entitled to suspend the performance of the contract for such time as the circumstance causing the force majeure no longer occurs.
13.6 We are entitled to compensation for deliveries and performances already made in execution of the contract, before the circumstance of force majeure occurred.
13.7 We may also invoke force majeure if it has occurred after the original delivery time.
Article 14 Applicable Law and Disputes.
14.1 All offers made and/or agreements concluded by us, including related agreements and all disputes arising therefrom, shall be governed exclusively by Dutch law. The applicability of the Vienna Sales Convention (CISG) of April 11, 1980 (Official Gazette 1981, number 184 and 1986 number 61) is excluded.
14.2 Claims against us shall be settled exclusively by the competent Dutch court within our area of jurisdiction, unless we expressly waive this provision, all to the extent permitted by law. Claims against the buyer may, in addition to the court having jurisdiction under applicable private international law, also be settled by the Dutch court having jurisdiction within our area of business.
Ossendrecht, Municipality of Woensdrecht, January 2022
