Terms and Conditions
Article 1. Applicability
1.1. These general terms and conditions apply to all offers, quotations and all agreements between Timyo BV, (hereinafter referred to as: “seller”) and a counterparty (hereinafter referred to as: “buyer”). These general terms and conditions also apply to all non-contractual relationships between the parties, such as tort.
1.2. The present terms and conditions also apply to agreements with the seller, for the implementation of which third parties must be involved by the seller.
1.3. Changes or deviations from these general terms and conditions are only effective if they have been expressly agreed in writing between the seller and the buyer. They apply only to the agreement under which they are made; for the rest, these general terms and conditions remain in force.
1.4. In the event of a conflict between these general terms and conditions and those of the buyer, these general terms and conditions apply with the express exclusion of the seller's terms and conditions.
1.5. The buyer, with whom a contract has been concluded on the basis of these terms and conditions, agrees to the applicability of these terms and conditions to subsequent agreements between him and the seller.
1.6. If one or more provisions in these general terms and conditions are at any time wholly or partially null and void or should be annulled, the other provisions of these general terms and conditions will remain fully applicable. The seller and the buyer will then enter into consultations in order to agree on new provisions to replace the void or voided provisions, whereby the purpose and purport of the original provisions will be taken into account as much as possible.
1.7. Insofar as these general terms and conditions have also been drawn up in a language other than Dutch, the Dutch text is always decisive in the event of differences.
Article 2. Definitions
2.1. For the purposes of these Terms of Business:
a. “Terms” means the standard terms and conditions of sale set out herein and (unless the context otherwise requires) special agreed terms and conditions agreed in writing between the Buyer and the Seller;
b. 'agreement' means the agreement regarding the purchase and sale of goods;
c. “goods” means the goods (including any part of the goods) which the seller must deliver in accordance with these terms and conditions;
d. “hidden defect”: a defect that can only reasonably be discovered by the buyer after the end of the advertising period applicable to non-hidden defects;
e. “working day”: any day of the week other than a Saturday, Sunday or public holiday;
f. “in writing”: by letter, by e-mail or via the website www.timyocycle.com
Article 3. Orders and Specifications
3.1. Buyer is responsible to Seller for ensuring the accuracy of the terms of each order (including any specifications) provided by Buyer, and for providing Seller with the necessary information in a timely manner to enable Seller to perform the contract in accordance with the conditions set by the buyer.
3.2. The quantity, quality and description of each specification for the Goods are those in Seller's quotation or Buyer's order (if accepted by Seller).
3.3. If the goods are to be manufactured or any process applied to the goods by seller in accordance with a specification submitted by buyer, buyer shall indemnify seller against all losses, damages, costs (howsoever named) and expenses attributed to or incurred by seller in the settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person resulting from seller's use of buyer's specified specifications.
3.4. Seller reserves the right to make changes to the specifications of the goods that are required to comply with any applicable legal or EC requirements or, where the goods are to be delivered in accordance with the seller's specifications, that affect the quality or performance not materially affect.
3.5. No order accepted by Seller may be canceled by Buyer except with Seller's written agreement and provided Buyer shall fully indemnify Seller against all losses (including loss of profits), costs (including the cost of all labor and materials used ), damages, costs and expenses incurred by the seller as a result of a cancellation.
3.6. Notwithstanding anything to the contrary in these terms and conditions, all intellectual property rights to the goods and all information therein, of whatever nature and whether or not registrable (unless the goods are manufactured according to the buyer's specifications), shall become and remain the property of the seller and, as a result, the buyer shall keep all such matters confidential at all times and may not use them for any purpose without Seller's written consent.
3.7. Notwithstanding anything to the contrary in these terms and conditions, the goods shall be delivered in accordance with the normal tolerances applicable from time to time.
Article 4. Agreement
4.1. All offers and quotations made by the seller are without obligation for the seller, even if they contain a term for acceptance. All offers are made subject to interim sale to a third party and subject to growth of the goods to be sold.
4.2. An agreement is only concluded when the seller has confirmed the order in writing and when any agreed payment security, including an irrevocable (confirmed) letter of credit (or advance payment), has been accepted by the seller in writing (the advance payment has been received). Each agreement is entered into by the seller under the resolutive condition that the buyer, at the sole discretion of (the credit insurer of) the seller, proves to be sufficiently creditworthy for the financial fulfillment of the agreement.
4.3. Any additional agreements or amendments made later, as well as oral promises made by staff of the seller or made on his behalf by its agents or other representatives working for it, only bind the seller from the moment they have been confirmed by it in writing.
4.4. Any advice or recommendation given by the seller or its employees or agents to the buyer or its employees or agents regarding the storage, application or use of the goods, which is not confirmed in writing by the seller, is at the buyer's expense and risk, and accordingly is Seller shall not be liable for any such oral advice or recommendation by Buyer being followed.
4.5. Any typographical, clerical or other error or omission in sales literature, quotation, acceptance of an offer, invoice or other document or information issued by Seller may be corrected without any liability of Seller.
Article 5. Prices
5.1. All prices for the goods are determined in the agreed currency (if no currency has been agreed: in Euro), excluding VAT, import duties and other taxes, levies and/or duties.
5.2. If one or more of the cost-determining factors undergo a change after the order confirmation but before delivery of the goods, the seller reserves the right to adjust the agreed prices accordingly.
5.3. Seller reserves the right, by giving Buyer notice at any time prior to delivery, to increase the price of the Goods to take account of any increase in Seller's costs resulting from a change in delivery date, quantities or specifications for the Goods, or any delay caused by Buyer's instructions or Buyer's failure to provide Seller with sufficient information or instructions.
5.4. All costs relating to transport, packaging, insurance and inspection (for example by customs) are for the buyer's account. All (foreign) import duties, levies and/or taxes that are or will become due on account of the agreement concluded by the seller with the buyer, both directly and indirectly, are solely and fully for the account of the buyer and may not be added to the amounts owed to the seller. be deducted.
5.5. If the seller and the buyer agree that the price is in a currency other than the Euro, the exchange rate of the Euro on the date of the order confirmation will apply. 5.6. In the event of an unforeseeable increase in the cost price, the seller is entitled to increase the price accordingly, on the understanding that the buyer has the right to dissolve the agreement in the event of a price increase of more than 10%.
Article 6. Delivery
6.1. The delivery of the goods takes place by the seller, who delivers the goods to the buyer at a place that has been agreed in writing by the parties. Unless stipulated otherwise in writing, deliveries will take place Ex Works in Roosendaal, even if the Seller organizes the transport. If the goods have not been accepted by the buyer after the delivery period has expired, they will be at his disposal and will be stored at his expense and risk. Costs related to storage will be charged to the buyer.
6.2. If the seller and the buyer have agreed on carriage paid delivery in writing, the following shall apply: - goods are transported by the seller to the agreed place on the basis of full loads;- if the quantity of goods ordered by the buyer is estimated by the seller to be less than a full load, the relevant delivery can only be scheduled in a combination shipment. This means that the delivery date and time can be planned less flexibly and are determined by the seller.
6.3. Deliveries in which the seller is responsible for the transport of the goods are made by means of full loads. If the buyer only partially calls off his orders, resulting in a partial load, the seller is entitled to pass on the resulting additional costs to the buyer. Orders that are not full loads will be delivered when the combination option, in the opinion of the seller, arises.
6.4. In the case of deliveries arranged by the seller, the buyer is responsible for unloading in a professional manner, unless agreed otherwise in writing.
6.5. If the seller delivers carriage paid, the maximum unloading time for a full load is 2 hours, unless expressly agreed otherwise in writing. The unloading time for partial deliveries is calculated in proportion to the number of loading meters. If this unloading time is exceeded or additional unloading addresses are added, the seller is entitled to charge the extra unloading/waiting hours at cost price. These extra hours will be charged additionally per hour, whereby part of an hour counts for the entire hour.
6.6. Packaging material is charged to the buyer.
6.7. Although the specified delivery time will be observed as much as possible, this delivery time is only an approximation and can never be regarded as a strict deadline. The seller is not in default with regard to the delivery time until he has been given written notice of default by the buyer, who has given him the opportunity to deliver within a reasonable period and the seller has failed to comply with this.
6.8. The agreed delivery period commences as soon as an agreement has been concluded in accordance with Article 4.2.
6.9. The seller is not liable for damage as a result of late delivery.
6.10. The non-compliance (on time) with any payment obligation by the buyer suspends the delivery obligation of the seller.
6.11. The seller reserves the right to deliver the goods in parts, in which case the (payment) conditions described in Article 8 also apply to each partial delivery. If the goods are to be delivered in parts, each delivery constitutes a separate contract. The buyer is not entitled to treat the agreement as a whole in the event that the seller does not imputably comply with a partial delivery on the basis of these terms and conditions.
6.12. Seller reserves the right to deliver up to ten percent more or ten percent less than the quantity actually ordered and the quantity delivered shall be deemed to be the quantity ordered, it being understood that the price paid for the goods shall be adjusted pro rata to correspond to the actual quantity delivered.
6.13. Buyer is responsible for complying with all laws and regulations applicable to the importation of the goods into the country of final destination and for payment of all duties due.
Article 7. Risk Transfer
7.1. The goods are at the seller's risk until the moment of delivery to the buyer, with due observance of the provisions of paragraph 2.
7.2. The risk for the item sold is transferred to the buyer:
- from the moment of receipt by the buyer at the location of the seller (the Netherlands);
- from the moment of delivery to the buyer's company, if it has been agreed that the seller will arrange the transport;
- from the moment of delivery to the buyer on the means of transport, if it has been agreed that the buyer will take care of the transport of the purchased goods;
- If the seller delivers goods to a transhipment site at the request of the buyer, the goods on this site are at the risk of the buyer;
- or, if the buyer wrongfully fails to take receipt of the goods, the time at which the seller has offered delivery of the goods.
Article 8. Payment
8.1. Unless the parties have agreed otherwise in writing, payment for the goods sold by the seller must be made within 30 days after shipment in the agreed currency.
8.2. The date of payment is the date on which the seller has received payment. Cash payments can only be made with the seller's permission to a person authorized to represent in accordance with the Trade Register. Only the seller's receipt serves as proof of these cash payments.
8.3. The buyer is not entitled to any deduction, suspension or payment discount on the grounds of allegedly defective delivery or on the grounds that the delivery is not yet complete or on account of any other claim or entitlement alleged by the buyer, and reliance on set-off is also expressly excluded. unless agreed otherwise in writing between the parties.
8.4. If the payment term is exceeded, the buyer will be in default by operation of law from the expiry of the payment term, without any prior notice of default being necessary. The seller is entitled to charge the statutory interest for commercial transactions (Article 6:119a of the Dutch Civil Code) from the due date, while all costs related to the collection are also for the account of the buyer, both judicial and extrajudicial, the latter at 20% of the amount to be collected with a minimum of € 1,500.00 [one thousand five hundred euros]. Extrajudicial costs include all costs related to the recovery investigation, the summons and notice of default, the activities for reaching an (amicable) settlement, in addition to the disbursements and the fee of the person charged with the collection by the seller. If the bankruptcy of the buyer is requested, he will also owe the costs of the bankruptcy application, in addition to the principal sum and the extrajudicial costs and the contractual interest.
8.5. In the event that an order is executed in parts, the seller is entitled to demand payment for the partial deliveries before making the other partial deliveries.
8.6. Discharging cannot be paid to persons employed by the seller who do not have an express authorization to do so.
8.7. At or after entering into the agreement, before (further) performance, the seller is entitled to demand security from the buyer that both payment and other obligations under the purchase agreement are met. The seller has the right to demand an advance or advance payment from the buyer. The buyer's refusal to pay the advance or to make advance payment or to provide the required security, entitles the seller to suspend its obligations and entitles it to dissolve the agreement in whole or in part without notice of default or judicial intervention, without prejudice to its right for compensation for damage suffered by it.
8.8. The seller has the right, despite a different destination of the payment by the buyer, to set off payments against older debts first. If costs and interest have already arisen, the (extrajudicial) costs will be settled first with the payment, then the interest and only then the principal sum.
Article 9. Cancellation
9.1. The seller has the right to cancel an order if, at the time of delivery, the buyer has not yet fulfilled his previous payment obligations towards the seller or towards other creditors in time. The seller can also make use of this right if the information regarding the creditworthiness of the buyer is considered insufficient by the seller or if the advance has not been paid or the advance payment has not been made. In the event of cancellation, the seller will not be liable to the buyer, on any basis and for any damage whatsoever.
9.2. Cancellation of an order by the buyer is not possible. If the buyer nevertheless cancels an order in whole or in part, for whatever reason, the seller will only have to accept this if the goods have not yet been handed over to the carrier for shipment and provided that the buyer pays a cancellation fee equal to to 50% of the invoice value of the canceled goods plus VAT. In that case, the seller is also entitled to charge all costs incurred and to be incurred up to that time (including costs of preparation, care, (aborted) transport, storage, etc.), without prejudice to the seller's right to compensation for loss of profit and other damage.
9.3. The buyer is obliged to take delivery of the purchased goods at the time when they are made available to him. If the buyer refuses to accept them, the seller will be entitled to sell these goods elsewhere and the buyer will be liable for the price difference as well as for all other costs ensuing from this for the seller, including storage costs, transport costs and other ensuing costs.
Article 10. Retention of Title
10.1. Ownership of the goods delivered by the seller does not transfer to the buyer until full payment of all amounts invoiced by the seller (including the costs referred to in Article 5.4.), including any interest, penalty and costs, as well as all claims for failure to comply of the buyer's obligations under the purchase agreement or other agreements, including in any case the claims as referred to in Article 3:92 paragraph 2 of the Dutch Civil Code.
10.2. Until ownership of the goods passes to buyer, buyer shall hold the goods as seller's fiduciary and custodian and shall keep the goods segregated from those of buyer and third parties and properly stored, protected and insured and identified as originating from seller . Until then, the buyer has the right to resell or use the goods in the ordinary course of its business, but must account to the seller for the proceeds from the sale or otherwise of the goods, tangible or intangible, including insurance proceeds, and Buyer shall keep all such proceeds segregated from funds or property of Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
10.3 If the buyer forms a new good from goods delivered by the seller, which fall under the retention of title, the buyer will act on behalf of the seller and the buyer will keep the new goods for her. The buyer only becomes the owner when the retention of title expires.
10.4. At the seller's first request, the buyer undertakes to cooperate in establishing a right of pledge on the claims that the buyer acquires or will acquire by virtue of the resale of goods to its customers. Insofar as the seller has claims against the buyer other than those referred to in Article 10.1 and the seller has delivered goods to the buyer that do not fall under the retention of title, the buyer provides security for the fulfillment of its obligations in favor of the seller by establishing a non-possessory right of pledge on this goods. In all the aforementioned cases, the buyer will sign a deed of pledge at the seller's first request. The buyer warrants that it is authorized to pledge the goods and that the goods, other than the rights of the seller, have no pledge and/or restricted rights.
10.5. Until the goods are transferred to the buyer (and provided that the goods still exist and have not been resold), the seller is at all times entitled to require the buyer to deliver the goods to the seller and, if the buyer does not do so immediately, to enter the buyer or a third party where the goods are stored and take back the goods.
10.6. Buyer shall not be entitled to pledge the goods remaining in Seller's property as security for any indebtedness, but if Buyer does so, all monies owed by Buyer to Seller (without prejudice to any other right or remedy of Seller) shall become immediately due and payable.
Article 11. Dissolution and Suspension
11.1. In the event that the buyer does not, or does not timely or properly, fulfill the obligations arising for him from the agreement concluded, or if there is a well-founded fear of this, as well as in the event of a request for suspension of payments, bankruptcy or liquidation of the buyer's affairs, as well as in the event of dissolution or termination of the business of the buyer, if it is a company, or when a change occurs in its form of business or in the management of the company or in the contribution of the company's activities, the seller has the right, without notice of default and without to suspend the agreement with a reasonable term or to dissolve the agreement without any obligation to pay compensation to the buyer without judicial intervention.
11.2. The seller's claim with regard to the already performed part of the agreement, as well as the damage resulting from the suspension or dissolution, including lost profit, is immediately due and payable without prior notice of default being required.
Article 12. Force Majeure
12.1 In the event of force majeure - as such, including riots, war (threats), mobilization, strikes, weather conditions, negligence on the part of the vendor's suppliers, cultivation failure, phytosanitary restrictions, viruses, natural disaster, strike, fire, import and export restrictions - then however, in the event of other circumstances, as a result of which fulfillment of the agreement cannot be demanded from the seller or not in time, the seller has the right, at its option, without judicial intervention and without being obliged to pay any compensation to the buyer, by written notification either the to terminate the agreement in whole or in part, or to suspend the performance of this agreement until the moment that the force majeure situation has come to an end.
12.2. If the agreement has already been partially performed by the seller, the buyer will pay the sales price of the delivered goods and the related costs (see article 5.4.).
12.3. Insofar as the suspended period (pursuant to paragraph 1) lasts longer than two months, the buyer has the right to dissolve the agreement, insofar as the seller has not yet performed, after the buyer has set a reasonable written term for delivery and the seller has not complied with this. datum. In such a case, the buyer is never entitled to any form of (damage) compensation.
Article 13. Complaints
13.1. The buyer is obliged to examine the goods immediately upon delivery for visible and/or immediately observable defects. All defects are regarded as such which can be detected by means of normal sensory perception or a simple random check. Furthermore, the buyer is obliged to check whether the delivered goods are also in accordance with the order on other points. If, according to the buyer, there is a defect or non-conformity, the buyer will immediately notify the carrier and the seller in writing within 8 days (after delivery) (see further paragraph 3). By failing to comply with the duty of inspection and notification, the buyer loses all claims against the seller. Defects that cannot reasonably be observed on delivery,
13.2. The right to complain lapses in the event of - in the opinion of the Seller - faulty assembly, maintenance and/or processing of the goods, whereby the Buyer will fully indemnify the Seller against all third-party claims that are caused by this.
13.3. If the number, quantity and weight of the delivered goods differ by less than 10% from what has been agreed, the buyer will nevertheless be obliged to accept the delivered goods. For non-deliverable types, the seller has the right to supply comparable and/or equivalent types, or to higher or lower thicknesses and/or sizes, at a correspondingly higher or lower price. Such a delivery shall not be regarded as defective.
13.4. Complaints regarding the quality and quantity of the delivered goods must be submitted in writing and no later than eight calendar days after delivery. Complaints not properly submitted will not be processed. As soon as this term has been exceeded, the buyer is deemed to have approved the delivered goods and complaints will no longer be processed. The date of the postmark, fax or e-mail is decisive in determining whether a complaint has been submitted on time.
13.5. The buyer must store or plant the relevant goods separately from the other goods in order to continue to distinguish the goods from the seller. Furthermore, the buyer must handle and maintain the goods with sufficient care.
13.6. The complaint must contain a description of the defect and the seller must be given the opportunity to investigate the complaint upon first request. The buyer must allow the seller, at its request, to have an inspection of the goods in question carried out by an expert or an independent inspection body. If the complaint is declared well-founded by the expert, the costs of the inspection are for the seller. In the event of an unfounded declaration, the costs will be borne by the buyer.
13.7. The right of complaint can only be exercised by the seller's direct contracting party. The right of complaint is not transferable.
13.8. Any right of complaint lapses if the buyer has not treated and maintained the goods rejected by him with due care during the period that they are present with him.
13.9. If the buyer has submitted a timely and correct complaint to the seller and the latter has acknowledged the complaint, the seller is, at its option, only obliged to deliver the missing item, replace the delivered goods or refund a proportionate part of the purchase price. The seller must be allowed a reasonable period of time for replacement deliveries.
13.10. Submitting a complaint does not suspend the buyer's payment obligation, unless the seller has agreed to such a suspension in writing.
13.11. The return of the goods takes place at the expense and risk of the buyer and can only take place after the prior written permission of the seller.
Article 14. Liability
14.1. With the exception of legal liability under mandatory legal provisions and except in the event of intent or deliberate recklessness on the part of the seller's management, the seller is never liable for any direct damage suffered by the buyer.
14.2 Liability for indirect damage, consequential damage, immaterial damage, trading loss, environmental damage, damage due to lost profit or damage as a result of liability towards third parties is expressly excluded.
14.3. If and insofar as, despite the provisions of paragraphs 1 and 2, the seller has any liability, for whatever reason, then this liability is limited to an amount equal to the net invoice value of the relevant goods excluding VAT, on the understanding that seller will be liable at most and exclusively up to a total amount of maximum € 10,000.00 [ten thousand euros].
14.4. The buyer is obliged to inform his customers, if necessary, about the correct handling of the delivered goods. The buyer is obliged to inform his customers of the dangers associated with the goods as the occasion arises.
14.5. The buyer indemnifies the seller against third-party claims for compensation for damage for which the seller is not liable under these terms and conditions.
Article 15. Intellectual Property Rights
15.1. Seller reserves all intellectual property rights that Seller has in connection with goods supplied by Seller.
Article 16. General
16.1. The seller may transfer its rights and obligations under an agreement to a third party without the buyer's consent. The buyer cannot transfer its rights and obligations under an agreement to a third party without the written consent of the seller, who may attach conditions to this.
16.2. Notices by either party to the other party shall be given in writing to that other party at its principal place of business or principal place of business or such other address as may be notified at the relevant time under this provision to the giving party.
16.3. No waiver by Seller of any breach of the Agreement and or Terms by Buyer shall be deemed a waiver of any subsequent breach of the same or any other provision.
16.4. If any provision of these Terms is held by any competent authority to be invalid or unenforceable, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
16.5. Incoterms means the International Rules for the Interpretation of Trade Terms of the International Chamber of Commerce in force at the time the Agreement is entered into. Unless the context otherwise requires, any term or expression defined or given a particular meaning by the provisions of the Incoterms shall have the same meaning in the agreement, but if there is any conflict between the provisions of the Incoterms and these Terms, then only these conditions.
Article 17. Competent Court / Applicable Law
17.1. All disputes, even those that are only designated as such by one of the parties, will be settled exclusively by the competent court of the District Court of Zeeland-West-Brabant, Breda location.
17.2. Dutch law applies exclusively to all offers and quotations made by the seller, as well as to all agreements concluded between the buyer and the seller and the implementation thereof.
17.3. The applicability of the Vienna Sales Convention is excluded.