GENERAL DELIVERY CONDITIONS OF TBK GROUP B.V.
1 APPLICATION OF GENERAL DELIVERY CONDITIONS
- In these general conditions, the following terms have the stated meaning, unless explicitly indicated otherwise.
TBK: TBK Group B.V., with its registered office in Renswoude and listed in the Trade Register of the Chamber of Commerce under number 30029398, and all its operating companies
- Agreement: all arrangements between TBK and the Client concerning the delivery of goods
- Client: TBK’s client
- These general conditions apply to all offers made by TBK and to all agreements between TBK and the Client. Deviations from these general conditions must be expressly agreed between the Parties in writing.
- All quotations are valid for a period of [three] months.
- Although all price lists, brochures, and other information provided with an offer are stated as accurately as possible, no rights can be derived from them.
- For combined prices, there is no obligation to deliver part of an order at the corresponding portion of the price quoted for the whole.
- Offers and quotations do not also apply to repeat orders.
- Any additional arrangements or amendments made at a later date will be binding on TBK only if it has confirmed them in writing.
- If no quotation or order confirmation is sent for supplies and/or services due to their nature and scope, the invoice will also be considered an order confirmation. TBK’s records will serve as conclusive evidence of arrangements and orders that are not confirmed in writing.
- Upon or after entering into the agreement, TBK may require security from the Client for compliance with the agreement before proceeding with its performance.
- Changes in the work will always result in contract variations if:
- there is a change in the design, specifications, or contract documents
- the information provided by the Client does not correspond to reality
- Contract extras are calculated based on the price determinants that apply when these extras are performed. Contract reductions are settled based on the price determinants that applied when the agreement was concluded.
- The Client must pay the price of the contract extras referred to in paragraph 4 of this article at one of these times, at TBK’s discretion:
- when the contract extras occur
- with payment of the principal sum
- with the next agreed instalment
- The prices mentioned in the offer are based on delivery ex works, Renswoude, in accordance with Incoterms 2020.
- If TBK has agreed a fixed selling price with the Client, TBK may nevertheless increase the price in the cases referred to below.
- TBK may pass on price increases if it can demonstrate that significant price changes have occurred between the time of its offer and performing the agreement, for example with regard to currency exchange rates, wages, raw materials, semi-finished products, or packaging materials.
- If the price increase exceeds 10%, the Client may terminate the agreement, unless this price increase results from an amendment to the agreement or a legal entitlement to amend it.
- Unless stated otherwise, TBK’s prices exclude VAT and any levies, and any costs incurred for the purpose of the agreement, including forwarding and administration costs.
5 ADVICE AND INFORMATION
- The Client cannot derive any rights from advice and information obtained from TBK if these do not relate to the order.
- The Client indemnifies TBK against any third-party claims relating to the use of advice, drawings, calculations, designs, materials, samples, models, etc. provided by or on behalf of the Client.
6 PERFORMANCE OF THE AGREEMENT
- The Client must ensure that all permits, exemptions, and other decisions needed to perform the work are obtained in good time. The Client must send a copy of these documents to TBK immediately on TBK’s request.
- TBK will perform the agreement to the best of its knowledge and ability and in accordance with high standards based on the current state of the art.
- If and insofar as required for properly performing the agreement, TBK may have certain work performed by third parties.
- When determining the delivery and/or execution period, TBK assumes that it can execute the order under the circumstances known to it at that time.
- The delivery and/or execution period commences only when consensus has been reached on all commercial and technical details, all necessary data, final, and approved drawings, etc. are in TBK’s possession, the agreed payment or instalment has been received, and the necessary conditions for executing the order have been met.
- If there are contract extras, the delivery and/or execution period will be extended by the time TBK requires to deliver, or have a third party deliver, the materials and components and to perform the contract extras.
- If TBK suspends its obligations, the delivery and/or execution period will be extended by the duration of the suspension.
- If it is impossible to work because of weather conditions, the delivery and/or execution period will be extended by the resultant delay.
- If there is no time in TBK’s schedule for changes to the delivery or execution period because of provisions of this agreement, this will be done as soon as its schedule permits.
- The Client must pay all costs that TBK incurs because of a delay in the delivery and/or execution period as referred to in paragraph 4 of this article.
- Exceeding the delivery and/or execution period never gives the right to compensation or termination of the agreement. TBK is not liable for damage of any nature resulting from its reliance on inaccurate and/or incomplete information provided by the Client, unless TBK should have been aware of such inaccuracy or incompleteness.
- If the agreement is performed in phases, TBK may suspend performing those parts belonging to a subsequent phase until the Client has approved the results of the preceding phase in writing.
- If TBK or third parties that it hires perform work as part of the agreement at the Client’s location or at a location designated by the Client, the Client must provide the facilities reasonably required by those workers free of charge.
- The Client bears the risk of and is liable for claims relating to loss, theft, burning, and damage to goods of TBK, the Client, and third parties, such as tools, materials intended for the work, or materials used in the work, located at the place where the work is to be performed or at another agreed location.
- The Client must take out adequate insurance against the risks referred to in paragraph 14 of this article. The Client must send TBK a copy of the relevant insurance policies and proof that the premium has been paid immediately on TBK’s request. If damage occurs, the Client must report this immediately to its insurer for further handling and settlement.
- If the Client fails to meet its obligations as described in the preceding paragraphs of this article and this causes delays in performing the work, the work will be performed as soon as the Client meets all its obligations and TBK’s schedule allows for it. The Client is liable for all damage TBK suffers because of the delay.
- Delivery is made ex works, at TBK’s place of business, in accordance with Incoterms 2010. Risk in an item passes when TBK makes it available to the Client.
- The Client must inspect goods immediately upon delivery for any shortcomings or visible damage.
- Notwithstanding the provisions of paragraph 1 of this article, the Client and TBK may agree that TBK will arrange the transport. In that case, the risk of storage, loading, transport, and unloading rests with the Client. The Client may take out insurance against these risks.
- Work is considered completed in these cases:
- if the Client has approved the work
- if the Client has put the work into use. If the Client puts part of the work into use, that part will be regarded as completed
- if TBK has notified the Client in writing that the work has been completed and the Client has not confirmed in writing within 14 days of the notice whether the work has been approved
- if the Client does not approve the work because of minor defects or missing parts that can be repaired or supplied within 30 days and that do not prevent the work from being put into use
- If the Client does not approve the delivery, it must notify TBK of this in writing, stating its reasons. The Client must give TBK the opportunity to still deliver the goods.
- The Client must take delivery of the goods when they are made available to it in accordance with the agreement.
- The Client must provide all cooperation that can reasonably be expected of it to enable TBK to make delivery.
- Uncollected goods will be stored at the Client’s expense and risk.
8 CLIENT’S PROPERTY
- TBK must apply the same care in respect of the storage and use, treatment, and processing of goods entrusted to it by or on behalf of the Client as it applies in respect of its own goods.
- Notwithstanding the provisions of the previous paragraph and elsewhere in these conditions, the Client bears the risk for these goods. If the Client wants to be covered for this risk, it must arrange insurance at its own expense.
- Payment must be made, without deduction, discount, or setoff, within 30 days of the invoice date. Objections to an invoice amount, or complaints within the meaning of Article 12, do not suspend the Client’s payment obligation.
- If the Client fails to pay within 30 days, it will be in default by operation of law. The Client will then owe interest of 1% per month, unless the statutory rate is higher, in which case the statutory rate will apply. Interest on the due amount will be calculated as from the date the Client is in default until the date of payment of that amount in full.
- If the Client is put into liquidation, declared bankrupt, has its assets attached, or is granted a moratorium on the payment of its debts, all amounts that the Client owes to TBK will also become immediately due and payable.
- TBK may allocate the Client’s payments first in reduction of the costs, then in reduction of the outstanding interest, and last in reduction of the principal sum and current interest.
- TBK may refuse full repayment of the principal sum, if the outstanding and current interest and the costs are not paid simultaneously.
- The Client’s right to set off or suspend its claims against TBK is excluded, unless TBK is put into liquidation.
- TBK may set off its debts to the Client against claims that its affiliated companies have against the Client. TBK may also set off its claims against the Client against debts that its affiliated companies owe to the Client. TBK may further set off its debts to the Client against claims it has against the Client’s affiliated companies. Affiliated companies means those companies belonging to the same group, within the meaning of Book 2, Article 24b of the Dutch Civil Code, and a participating interest within the meaning of Book 2, Article 24c of the Dutch Civil Code.
10 SECURITIES AND RETENTION OF TITLE
- Ownership of the goods supplied by TBK does not pass to the Client until the Client has fully complied with its obligations towards TBK under any agreement of whatever nature between them. If the Client unexpectedly fails to comply with one of its obligations or fails to do so on time, TBK may claim all or part of the goods that it has delivered to the Client for the transaction concerned as its property. TBK may also do this insofar as the goods are located at third parties (other than consumers) because of the onward supply as referred to above, on the understanding that TBK will limit itself to claiming goods in respect of which it has not received full payment. With a view to repossessing the goods as referred to above, TBK will credit the Client with the value that TBK believes must be attributed to those goods, less all costs incurred in repossessing them, notwithstanding TBK’s right to compensation for resultant damage arising and yet to arise for it. The Client may never pledge the unpaid goods as security for a third party or otherwise encumber them with any right in favour of a third party.
- The Client undertakes to insure the goods supplied subject to retention of title and to keep them insured against fire, explosion and water damage, as well as theft, and to allow TBK to inspect this insurance policy immediately on request.
- If TBK wishes to exercise its proprietary rights referred to in this article, the Client gives its unconditional and irrevocable consent in advance to TBK, and to third parties designated by TBK, to enter all those places where TBK’s property is located and repossess it.
- TBK has a pledge and a right of retention on all goods that it has or will have in its possession for whatever reason and on all claims that it has or may have against the Client in respect of anyone who demands their surrender.
- If the Client has complied with its obligations after TBK has delivered the goods to it under the agreement, the retention of title in respect of these goods will revive if the Client does not comply with its obligations under a subsequent agreement.
- TBK guarantees the soundness and quality of the goods it delivers for a period specified in the quotation. If no warranty period is specified, the warranty applies for a maximum of twelve months after the goods are put into use, subject to a maximum of eighteen months after delivery.
- If the agreed work has not been performed properly, TBK will decide whether to still perform it properly or to credit the Client for a proportional part of the invoice. If TBK chooses to perform the work properly, it will determine the manner and time of performance.
- The Client must always offer TBK the opportunity to repair any defect or to perform the processing again.
- No warranty is given on:
- supplied goods that were not new at the time of delivery
- the inspection and repair of the Client’s goods
- No warranty is given if defects result from:
- normal wear and tear
- improper use
- maintenance that has not been performed or has not been performed properly
- improper installation, assembly, modification, or repairs of the supplied goods by the Client or third parties, including without training or without following the applicable assembly instructions
- defects in or unsuitability of goods originating from or prescribed by the Client
- TBK deals with complaints only if they are received in writing within 14 days of delivery of the goods in question, precisely stating the nature and basis for the complaints. A period of fourteen days after discovery applies to hidden defects, although this must not be later than six months after delivery.
- Complaints about invoices must be submitted to TBK in writing within eight days of the date on which the invoice was sent.
- Goods may be returned only with TBK’s prior written consent and under the conditions set by TBK.
13 NO TAKEOVER OF PERSONNEL
During the term of the agreement and for one year after its termination, the Client may not, in any way, except after proper business consultation with TBK, hire employees of TBK or of companies TBK has used in performing this agreement and who are or were involved in performing the agreement, or otherwise have these employees work for it, directly or indirectly.
14 FORCE MAJEURE
- TBK need not comply with any obligation towards the Client if it is prevented from doing so because of a circumstance that cannot be attributed to it and for which it is not accountable by law, a legal act, or generally accepted practice.
- Besides what is understood by force majeure in statute and case law, force majeure in these general conditions means all external causes, whether foreseen or unforeseen, over which TBK has no control, but which prevent TBK from complying with its obligations, in any case including strikes in TBK’s business, excessive absenteeism due to illness, transport difficulties, fire, government measures, including import and export bans, operational disruptions at TBK or its suppliers, natural disasters, defects in the raw materials to be processed, riots, war and mobilization, water damage or floods.
- TBK may also rely on force majeure if the circumstance preventing performance, or further performance, of the agreement occurs after TBK should have complied with its obligation.
- TBK may suspend the obligations under the agreement during the force majeure period. If this period lasts longer than two months, either Party may terminate the agreement, without any obligation to pay compensation to the other Party.
- If and insofar as TBK has already partially fulfilled its obligations under the agreement when force majeure occurs or will be able to fulfil them, and the part already fulfilled or still to be fulfilled has independent value, TBK may invoice the part already fulfilled or still to be fulfilled separately. The Client must pay this invoice as though it were for a separate agreement.
- If goods supplied by TBK are defective, its liability towards the Client will be limited to the provisions of ‘Warranties’ in these conditions.
- If TBK is liable, it will be liable for direct damage only. Direct damage exclusively means:
- the reasonable costs incurred to determine the cause and extent of the damage, insofar as that determination relates to damage within the meaning of these conditions
- any reasonable costs incurred to have TBK’s defective performance conform to the agreement, unless this defect cannot be attributed to TBK
- reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have limited direct damage as referred to in these general conditions
- TBK is never liable for indirect damage, including consequential damage such as loss of profits or savings, business interruption losses, damage caused by the intent or wilful recklessness of auxiliary persons, and damage to property in the care, custody, or control of, but not owned by TBK. The latter includes damage caused by or during the performance of the work to goods located in the vicinity of the place where the work is being performed.
- TBK’s obligation to pay compensation on whatever legal basis is limited to the damage for which it is insured under insurance taken out by it or on its behalf, but never exceeds the amount paid by this insurance in the case concerned.
- If TBK may not invoke the limitation in paragraph 4 of this article for whatever reason, the obligation to pay compensation will be capped at the total order amount (excluding VAT).
- The Client indemnifies TBK against any claims from third parties who suffer damage because of the performance of the agreement that is attributable to the Client.
16 INTELLECTUAL PROPERTY
- TBK retains the copyrights and all industrial property rights to the offers it makes and the designs, illustrations, drawings, trial and other models, and software it provides.
- Any documents provided by TBK, such as designs, sketches, drawings, films, software, electronic and other files, etc., are intended exclusively for use by the Client and the Client may not reproduce, publish, or disclose them to third parties without TBK’s prior consent. The Client must pay an immediately due and payable penalty of €25,000.00 to TBK for each contravention of this provision. This penalty may be claimed in addition to compensation under the law.
- TBK reserves the right to use any knowledge gained through performing the work for other purposes, insofar as no confidential information is disclosed to third parties.
- The Client must keep all information of TBK relating to the agreement confidential and not disclose any of it without TBK’s prior written consent. The Client must impose the same duty of confidentiality on third parties that it hires and warrants they will comply with this duty of confidentiality.
- Information within the meaning of this article includes data relating to the nature and content of the agreement, as well as other product and company information.
- If this article is contravened, the Client must pay TBK an immediately due and payable penalty of €100,000.00 for each contravention, plus statutory interest from the date on which the contravention is established and communicated to the Client.
18 APPLICABLE LAW AND COMPETENT COURT
- All disputes arising from offers, deliveries, purchase/sale agreements, etc. will be subject to the judgment of the Central Netherlands District Court (Rechtbank Midden Nederland), unless the Subdistrict Court has jurisdiction in respect of such a dispute, in which case the ordinary rules of jurisdiction under Dutch law will apply.
- Dutch law applies to all transactions with TBK or to all acts by, with, or towards TBK.
- The Vienna Sales Convention (CISG) does not apply.
19 FINAL PROVISIONS
- TBK reserves the right to unilaterally amend these conditions. TBK will notify the Client of the amendment within a reasonable period of it becoming effective. The Client may terminate the agreement or have it terminated within two weeks of the above notice based solely on TBK’s amendments.
- If there is any difference in meaning between the Dutch text and the text in any other language, the Dutch text will prevail.
- If any provision of these conditions is fully or partially inconsistent with any provision of mandatory law, these conditions will otherwise remain in full force, while with regard to the provisions that are void, declared void, or nullified, TBK will, in consultation with the Client, determine new provisions that approximate the purport of the provisions that are void, declared void, or nullified as closely as possible.
- In all cases where these conditions refer to ‘written’ or ‘in writing’, this also includes all messages sent by e-mail, fax, or other electronic means, whether by analogue or digital transmission, and which have reached TBK or the Client.
- The Parties may approach the court only after they have made every effort to resolve their dispute by agreement.
- Dutch law applies to all transactions with TBK or to all acts by, with, or towards TBK.