GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY FOR NON- CONSUMERS
Article 1 Definitions
In these General Terms and Conditions (hereinafter: “GTC”), the terms hereafter are used in the following meaning, unless explicitly stated differently:
(a) TransPart: TransPart B.V., statutory having its seat in Terneuzen and holding its offices in (4538 AZ) Terneuzen, the Netherlands, at Lange Reksestraat 19B, as well as its legal successors under general or special title and/or (new) companies that shall be incorporated or be taken over by TransPart B.V.;
(b) Principal: each natural or legal person, that acts in the exercise of a profession or enterprise; counterparty of TransPart with whom TransPart concludes an Agreement or with whom TransPart is in discussion or negotiation about the conclusion of a (purchase) agreement;
(c) Agreement: each agreement to delivery of Products that between is concluded TransPart and Principal, each change thereof or addition thereto, as well as all (legal) acts for the preparation and for the execution of that agreement;
(d) Products: all goods, including among others truck sensors, ship sensors, measurement instruments, level sensors, rudder sensors, leakage-alarm system for ships, operation for navigation lighting, multiple tank indication panels, accessories for the truck and shipping industry and accessories that are the subject of an agreement;
(e) Order: each commission of Principal;
(f) Parties: TransPart and Principal jointly.
Article 2 Applicability
1. Except for insofar by Parties is not deviated from the GTC explicitly and in writing, or when, also in view of the nature of the performances agreed or to be agreed, other general terms and conditions of TransPart are applicable, then these GTC apply for all Agreements and for all acts, offers and other legal acts between TransPart and Principal.
2. The applicability of own general terms and conditions of Principal is explicitly rejected by TransPart.
3. The involvement of third parties by TransPart leaves the applicability of the GTC unaffected.
Article 3 Offers, designated offers, conclusion of Agreements and statements designations of Products
1. The offers made or designated offers issued by TransPart are valid during 30 days, unless stated differently. TransPart shall, within 14 days after the acceptation by the Principal, confirm this acceptation in writing to Principal.
2. An Agreement is only concluded after the acceptation by Principal, described in section 1, or after the explicit written acceptation by TransPart of an order placed by Principal. For salesdeliveries from the warehouse stock of TransPart, the invoice applies as proof in writing of the order of Principal and the acceptation thereof by TransPart.
3. If TransPart performs, upon request, any performance before full agreement has been reached about the price and payment conditions for that performance, Principal shall pay TransPart for that, in compliance with the stipulations in articles 5 and 6, in accordance with the rates then applicable at TransPart. An acceptation of the offer by Principal concerns the entire offer or designated offer as such. Changes introduced by Principal at the acceptation in the offer or designated offer shall render no effect.
4. In case of a composed price statement, there is no obligation for TransPart to deliver a part of the goods included in the offer against a proportional part of the stated price, or the designated offer shall apply automatically for after orders.
5. All statements by TransPart of numbers, measures, weights and/or other (technical) designations of the Products have been made with care, but TransPart cannot warrant that in that regard no deviations shall occur. Displayed or provided documentation materials, samples, drawings or models are only indications of the concerned Products.
6. All technical requirements that are set by Principal to the Products to be delivered and that deviate from the normally applicable requirements, must be made known explicitly before the conclusion of the Agreement by Principal to TransPart.
Article 4 Agency and distribution agreements
The GTC are also applicable if and insofar Principal acts as (trade) agent or distributor of TransPart and Parties have concluded for that a written agency and/or distribution agreement.
Article 5 Prices
1. All prices of TransPart are expressed in Euros and exclusive of turnover tax, the one and the other unless stated differently. Unless stated otherwise or unless explicitly agreed otherwise, shall come separately for the account of
Principal the extra packing and preparation costs in connection with the transport over sea, the costs of import and export duties and customs as well as all (other) levies or taxes imposed or levied concerning any performance.
2. Each change of the factors that is of influence on the price and on the extra costs of TransPart mentioned in section 1, including purchase prices exchange rates, import and export duties, and other levies due upon import or export, insurance rates, freight rates and other levies or taxes, TransPart can charge onward to Principal.
3. Principal safeguards TransPart for all costs and damage that for TransPart might derive from the fact:
(a) that Principal is not properly registered for the turnover tax or a similar tax in a relevant EG-member state; and/or
(b) that Principal provides incorrect or untimely data to TransPart and/or the authority in the field of turnover tax or a similar tax in a relevant EG-member state.
Article 6 Payment conditions
1. Principal is obliged to pay the amounts brought into account to him, effective in the currency stated on the invoice, within 14 days after date of the invoice to TransPart, unless agreed otherwise in writing. The agreed payment term has a fatal character. All payments shall be made into a bank account to be designated by TransPart.
2. Possible objections against invoices, specifications, descriptions and prices must be brought within 7 days in writing to the knowledge of TransPart, in the absence of which the invoices, specifications, descriptions and prices will be regarded as established between Parties.
3. All amounts brought into account to Principal must be paid without discount or withholdings.
4. Principal is not authorised to set-off of a claim from his side with a claim of TransPart, neither is he authorised to suspending his obligations.
5. If on any moment with TransPart well-founded doubt exists and can exist concerning the creditworthiness of Principal, and/or in the case Principal repeatedly does not pay correct or not timely pays, and he is summoned by TransPart at least once, then TransPart is authorised to suspend its obligations (further), including the obligations on the basis of other Agreements. TransPart is also authorised to require of Principal that advance payment of the purchase sum of the Products takes place or that he provides a proper surety, for the height of the amount that TransPart might have to claim under the Agreement from Principal.
6. With regard to all payments and sureties by means of documentary credit and/or bank guarantees, Principal shall warrant that such shall take place each time by means of a Dutch banking institution, to be designated, by TransPart, which has a good reputation and name.
7. Principal is liable to pay, without further notification of default, over all amounts that have not been paid no later than on the last day of the payment term, from that day a daily interest equal to the lawful (trade) interest then applicable in the Netherlands. Each time after expiry of a month, the amount over which the interest will be calculated, increased with the interest due over that month.
8. If Principal also after the expiry of a further payment term set by registered letter has not paid the due amount and interest, then Principal is obliged to compensate TransPart for all out-of-court and in-court costs, inclusive of 15% administration costs on the outstanding amount with a minimum of € 15 and inclusive of the costs for legal assistance in or outside a procedure.
9. If by TransPart, on the basis of leniency or otherwise, to Principal extension for the execution of any performance is given, then the new term has each time a fatal character.
10. Payments made by Principal serve each time for the Redemption in the first place of all due interest and costs, and in the second place of invoices payable upon demand that stand open the longest, even when the Principal states, that the payment concerns a later invoice.
Article 7 Delivery term
1. The Delivery term for the Products stated by TransPart is based on the circumstances applicable at the time of the conclusion of the Agreement for TransPart and, insofar depending on performances of third parties, on the data provided by those third parties to TransPart. The Delivery term shall be observed by TransPart as much as possible. The Delivery terms stated by TransPart are each time by approximation and are never fatal terms.
2. Mentioned terms start on the date of the conclusion of the Agreement. If TransPart for the execution of the Agreement requires data or aids that must be provided by Principal, the terms start on the day that all required data or aids are in the possession of TransPart, insofar this day lies after the date of the conclusion of the Agreement.
3. Upon exceeding of any term, Principal has no right to compensation of damage in that regard. Principal has in that case neither a right to dissolution or cancellation of the Agreement.
Article 8 Delivery and risk
1. The delivery and the risk-transfer of the Products and the packaging thereof takes place each time Ex-Factory. TransPart shall notify Principal as soon as possible of the abovementioned moment in time and place and Principal shall take-off the Products as soon as possible, but no later than within 30 days after the notification.
2. Principal ensures that from his side nothing stands in the way of reaching certain terms, including delivery, take-off and installation times.
3. Should Principal not or not timely take-off the Products for a non-legally valid reason, then he shall be in default without a notification of default. TransPart is then authorised to store the Products for the account and risk of Principal or to sell these to a third party. Principal remains liable to pay the purchase sum, increased with the interest and costs as of compensation of damages, however in a prevalent case decreased with the net receipts of the sale to that third party.
4. TransPart has at all times the right to deliver in parts. If delivery takes place in parts, then TransPart is authorised to invoice each partial delivery separately.
Article 9 Force Majeure
1. Under Force Majeure will be understood, in addition to what in the law and jurisprudence is understood thereunder, all external causes, foreseen or not foreseen, on which TransPart can exercise no influence, including the circumstance that suppliers and/or subcontractors of TransPart do not or not timely comply with their obligations, weather conditions, earthquakes, fire, loss or theft of tools, the demise of materials to be processed, road blocks, strikes or work interruptions and import or trade limitations, because of which TransPart is not (temporarily) able to comply with its obligations (in whole or in part).
2. TransPart has also the right to claim Force Majeure, if the circumstance that impedes (further) compliance emerges after TransPart should have complied with its legal obligation.
3. During Force Majeure, the delivery and other obligations of TransPart will be suspended. If the period in which by Force Majeure compliance with the obligations by TransPart is not possible, lasts longer than 3 months, then both Parties are authorised to dissolve the agreement, without that in that case an obligation to compensation of damages exists.
4. If TransPart upon the emergence of the Force Majeure has already partially complied with its obligations, or can only partially comply with its obligations, then it is authorised to invoice the already delivered or the deliverable part separately and Principal is required to pay this invoice as if it concerned a separate contract. This does not however apply if the already delivered or deliverable part has no independent value, or is connected in such a manner with the not-delivered part, that it cannot be applied as an independent good.
Article 10 Retention of title
1. The property of the Products shall, notwithstanding the actual delivery, only be delivered to Principal after he has fully paid all that he is or shall be liable to pay to TransPart in connection with Products delivered or to be delivered on the basis of the Agreement, including the contract sum, possible surcharges, interest, taxes and costs due as a consequence of these GTC or the Agreement due, as well as possible activities executed or to be executed on the basis of such Agreement.
2. Each amount that will be received from Principal shall firstly serve for the payment of those claims that TransPart might have on Principal, with regard to which TransPart has not made a retention of title in section 1.
3. As long as the property of the Products on Principal has not been transferred, Principal is not authorised to lease or give in use the Products to third parties, to give a lien thereon to third parties, or to encumber otherwise for the benefit of third parties. Principal is only authorised to sell or deliver the Products, of which TransPart is owner, to third parties, insofar this is necessary in the framework of Principals’ normal conduct of enterprise.
4. Principal is required to keep the Products delivered under retention of title carefully and as recognisable property of TransPart, and to insure these against risks as for explosion, damage and theft. Upon first request of TransPart thereto, Principal shall assign all rights towards the concerned insurers in connection herewith to TransPart.
5. If and as long as TransPart is owner of the Products, Principal shall notify TransPart without delay in writing when any part of the Products has been lost or damaged, or the Products have been taken in attachment and/or otherwise a claim is made to (any part of) the Products. Furthermore, Principal shall inform TransPart upon its first request, where the Products, with regard to which TransPart has made a retention of title, are located.
6. Principal grants already now for then unconditionally and irrevocably permission and grants all cooperation to TransPart or to third party to be designated it, to access, in all instances in which TransPart wishes to exercise its property rights, all of those places where the properties of TransPart then shall be located and take those goods there along. If and insofar TransPart wishes to exercise its property rights, Principal shall TransPart grant all cooperation that is then required for TransPart to access all those places where the properties of TransPart are then located and to take those goods there along.
7. In case of attachment, (provisional) suspension of payment or bankruptcy, Principal shall immediately point the bailiff placing the attachment, the supervisor or the curator at the (property) rights of TransPart.
Article 11 Intellectual property
1. TransPart retains all rights of intellectual property on the offers issued by it, provided designs, images, drawings, (test) models, programs etc., unless explicitly agreed otherwise.
2. The rights on the data mentioned in section 1 remain property of TransPart irrespective of whether costs have been brought into account to Principal for the manufacturing thereof. Principal warrants to make no infringement (neither to allow third parties such or make possible) on intellectual property rights of TransPart, or its suppliers, with regard to the Products, for instance by copying, treating or reproducing the Products.
Article 12 Testing and reclamation
Principal is obliged (let) inspect the Products meticulously immediately after arrival on the place of destination or, if this is sooner, after receipt by himself or by a third party acting upon his commission. Possible reclamation about visible defects to the Products on the moment of delivery must be communicated no later than within 14 days after arrival of the Products in writing to TransPart.
Article 13 Warranty
1. Unless stipulated explicitly differently in the Agreement, TransPart warrants from the moment that the Products are ready at TransPart during 6 months the good and safe working of the Products in accordance with the specifications such as included in the Agreement. The agreed warranty applies not for the parts of the Products that, in the opinion of TransPart, are subject to normal wear and tear, as well as in case the Products have not been applied for the envisaged use by Principal or if the user instructions have not been followed (in whole or in part) in the correct manner by Principal.
2. Principal must report visible defects within 14 days after delivery of the Products in writing to TransPart, at the peril of forfeit of all liability of TransPart.
3. Principal must report non-visible defects within 3 days after discovery, but no later than within 6 months after delivery in writing to TransPart, at the peril of forfeit of all liability of TransPart.
4. After the discovery of any defect, Principal is obliged to cease the use, the treatment, processing or installation of the concerned Products without delay.
5. Principal shall grant all cooperation desired by TransPart for examination of the defects, among others by enabling TransPart to (let) execute on the location an examination into the circumstances of treatment, processing, installation and/or use.
6. Principal has no right to warranty with regard to Products where by TransPart no verification of the defects can take place.
7. The Principal is not at liberty to return the Products, before TransPart has consented therewith in writing. The costs of returning are for the account of Principal and the Products remain for his risk.
8. If during the warranty period timely, correct and in accordance with the stipulations in section 3 to 7 of this article, a reclamation has been made and to the reasonable opinion of TransPart, it has been sufficiently demonstrated that the Products do not function properly, then TransPart shall, at its discretion, either replace free of charge the Products proven not proper against returning of the Products proven not proper, or repair the concerned Products, or grant Principal a discount on the purchase price to be established after all a in mutual consultation.
9. If TransPart delivers Products to the Principal which TransPart has acquired from its supplier(s), then TransPart is never required to a further going warranty or liability with regard to Principal then to which TransPart can make a claim towards its supplier(s).
10. TransPart explicitly does not warrant its recommendations or advice regarding the installation or the use of the Products, or warrants such advice or instructions by Principal to his buyers.
11. The Products remain fully for the risk of Principal in the case by TransPart repair activities will be executed to the Products, unless the repair is the consequence of a defective performance of TransPart and it cannot be expected in reasonableness of Principal that he insures the Products for the risk above.
12. If and insofar Principal, during the agreed warranty period without prior explicit written permission of TransPart, let repair the Products by a third party or by himself, or introduces changes to the Products or has not complied with his payment obligation deriving from the Agreement in its entirety of for the largest part, then the warranty as described in this article will be forfeit.
Article 14 Liability and safeguard
1. Except for if and insofar from stipulations of mandatory law regarding (product) liability it might derive differently, then TransPart is not required to any compensation of damage, of whichever nature, to any movable or immovable good or to any person, direct and indirect enterprise damage therein included, at Principal or any third party, which damage directly or indirectly is caused by or relates with any Products delivered by or on behalf of TransPart or directly or indirectly is caused by or relates with any use or application or treatment of such Products or information provided by TransPart concerning the Products.
2. If the Products to be delivered in the Netherlands are used outside the Netherlands, then TransPart is neither liable for any damage deriving from the fact that these Products do not comply with the technical requirements, norms and/or prescriptions that are set by laws or stipulations of the countries where the Products must be used.
3. The liability of TransPart towards Principal is in any case limited per event (whereby a related series of events is regarded as one event) to the lowest amount of either the concerned contract sum (exclusive of turnover tax) or the amount that TransPart receives in that regard from his enterprise liability insurer.
4. The limitations of liability in sections 1 and 2 remain non-applicable insofar the concerned damage is caused by wilful intent or gross fault of TransPart.
5. Except for in case of gross fault or wilful intent of TransPart, Principal shall safeguard TransPart from all claims of third parties, on whichever basis, regarding compensation of damage, costs and/or interest, connected with the Products, or deriving from the use of the Products, unless Principal can reasonably be made no reproach whatsoever with regard to the damage.
6. If and insofar in the Agreement is included that TransPart for the agreed purchase price also shall arrange for the installation, assembly and putting into operation of the Products, TransPart shall in any case not be liable for improper working of the Products, in case of the following circumstances:
a. the assembly and putting into operation has not been able to take place according to the directions and under management and supervision of TransPart or a third party involved by TransPart;
b. the areas in which the activities should have taken place, exercise by their nature and design an impeding influence on the installation, assembly and putting into operation of the Products;
c. the foundations on which the Products must be set-up, before the start of the activities, have been applied improperly and in an incorrect manner;
d. Principal does not or not strictly follow up all advises provided by TransPart or a third party involved by TransPart.
7. Principal must for his own account arrange for sufficient manpower and aids for the benefit of the installation, assembly and putting into operation of the Products described in the previous section.
8. If Principal falls short in the compliance with the obligations resting on him on the basis of section 5 and 6 of this article and because of it for TransPart damage has emerged, then is Principal obliged to compensate TransPart for this damage.
Article 15 Other obligations and responsibilities Principal
1. Principal shall make each time timely available to TransPart all data required for the execution of TransPart’s activities and warrants the correctness and completeness thereof.
2. Principal shall not remove in whole or in part or make invisible the brand and/or recognition signs and/or CE-markings applied on the Products.
Article 16 Dissolution
1. If Principal is declared in a state of bankruptcy or the bankruptcy has been applied for, or Principal has filed for suspension of payment or if this is granted to him, if Principal has ceased or liquidated his enterprise, or an attachment is put on a considerable part of the capital of Principal or Principal transfers his enterprise to third parties, then all Agreements with Principal shall be dissolved by law, unless TransPart informs Principal within reasonable time (in prevalent instances upon request of the supervisor or the receiver) to request compliance with (a part of) the concerned Agreement and, in which case TransPart without notification of default is authorised:
a. to suspend the execution of the Agreement until payment has been secured sufficiently; and/or
b. to suspend all its possible obligations with regard to Principal;
without that TransPart is required to any compensation of damages, the one and the other notwithstanding TransPart’s other rights from other agreements with Principal and without that TransPart is required to any compensation of damages.
2. If Principal does not properly or not within a term set in advance or otherwise not timely comply with any obligation that might derive for him from any Agreement, then Principal is in default and TransPart is authorised without notification of default or intervention of the courts:
a. To suspend the execution of that Agreement and Agreements directly related therewith, until payment has sufficiently been secured; and/or
b. to dissolve that Agreement and Agreements directly related therewith in whole or in part;
without that TransPart is required to any compensation of damages, the one and the other notwithstanding TransPart’s other rights under whichever Agreement with Principal and without that TransPart is required to any compensation of damages.
3. In case an event occurs as referred to section 1 or section 2, then respectively all claims of TransPart on Principal and the claims referred to on the basis of the concerned Agreement(s) will immediately and entirely be payable upon demand and TransPart is authorised to take back the concerned Products immediately. In that case TransPart shall and its attorney(s)-in-fact shall be authorised to access the terrains and buildings of Principal, whereby Principal shall enable TransPart to take the Products in possession Principal is obliged to take the necessary measures in order to enable TransPart to put his rights into effect.
Article 17 Transfer of rights and obligations
1. TransPart is permitted to transfer the rights and obligations described in any Agreement with Principal to third parties. In case obligations of TransPart will be transferred, TransPart must notify Principal hereof in advance and Principal has the right to dissolve the Agreement.
2. Principal is not authorised to transfer his rights and/or obligations from an Agreement to any third parties, without the prior written permission of TransPart.
Article 18 Changes and additions
TransPart is authorised to change or add to the GTC. TransPart shall notify Principal thereof in writing.
Article 19 Applicable law, competent court
1. The Laws of the Netherlands are applicable to the GTC, as well as to all Agreements.
2. All disputes, including those which are only regarded by one of the Parties as such, deriving from or connected with the Agreement or these GTC self and their interpretation or execution, shall be resolved by the competent court in the court district where TransPart has its statutory seat.
3. The applicability of:
(a) the Treaty concerning a Uniform Law regarding the Conclusion of International Purchase Agreements concerning Movable Bodily Goods of 1 July 1964;
(b) the Treaty concerning a Uniform Law regarding the International Purchase of Movable Bodily Goods of 1 July 1964;
(c) all (uniform) legislation composed on basis of these treaties in any country; and
(d) the Vienna Purchase Treaty 1980 (CISG);
is explicitly excluded.
Article 20 Filing GTC
1. The GTC have been filed at the offices of the Chamber of Commerce Zeeland in Terneuzen, the Netherlands.
2. Applicable is each time the latest filed version or the version such as was applicable at the time of the conclusion of the present transaction.