Terms and conditions wholesale

GENERAL TERMS OF SALES AND DELIVERY OF Tenson B.V.

Section 1. Definition of concepts

In these General Terms shall be understood by:

Agreement:        shall mean either a contractual document signed by Seller and Buyer, specifying the terms and conditions of the Delivery, or, should such contractual document not exist, Seller's offer and Buyer's order, which Seller has accepted either by a separate confirmation or by delivering the Goods ordered by the Buyer;

Business Days: all calendar days except Saturdays, Sundays, 1 January, Easter Monday, Ascension Day Whit Monday Christmas Day and Boxing Day, the days which have been or will be proclaimed national holidays by the national government;

Buyer:                 shall mean the legal person contracting or intending to contract with the Seller;

days:                   all calendar days;

Goods:                shall mean the goods that are sold and delivered by the Seller;

Party:                  shall mean Seller or Buyer;

Seller:                  Company specified in the Agreement.

 

Section 2. Applicability and validity

2.1.      These General Terms shall exclusively apply, if the Seller, which has included these General Terms in an offer, order confirmation or Agreement, sells and delivers Goods of any nature to Buyer.

2.2.      Deviations from and modifications of these General Terms or the Agreement shall be valid only if the Seller has confirmed them explicitly in writing. Any purchase terms or other terms of the Buyer are only applicable if the Parties explicitly agree in writing that they apply to the Agreement to the exclusion of these general terms.

Section 3. Realization of Agreements

3.1.      All tenders, price quotations, etc. issued by the Seller shall be without engagement unless the opposite has been explicitly stated in writing.

3.2.      The Agreement is concluded if the Buyer has placed an order with the Seller and the Seller accepts this order and/or confirms it in writing.

Orders which the Buyer places by telephone, e-mail or any other remote means, are established through written confirmation by the Seller, unless the Buyer informs the Seller in writing within five Business Days of receipt of the written confirmation that the confirmation is not a correct description of what has been agreed.

3.3.      The Buyer and/or Seller are bound to Agreements made by the authorized individuals and by individuals whom the Seller and/or Buyer accepted as being authorized.

Section 4. Delivery and risk

4.1.      The Seller shall deliver the Goods at the agreed location or shall send them for delivery to the agreed location in the way it was specified in the order or any subsequent written Agreements.

4.2.      The transport of Goods shall take place at the expense of the Seller, unless the order amount for the Goods is lower than an amount to be set by the Seller, however not exceeding EUR 500 depending on the price level and volume, in which case the transport shall take place at the expense of the Buyer.

4.3.      The Buyer is obliged to receive the Goods at the agreed location/locations at the time when the Seller delivers them or has them delivered, or at the time when they are provided to him according to the Agreement. If the Buyer remains in default, the resulting costs shall be at his expense.

4.4.      The risk of Goods passes to the Buyer at the moment when they are legally and/or physically delivered and so are brought under the control of the Buyer or a third party indicated by the Buyer.

4.5.      The Seller is committed to package the Goods properly and conveniently.

4.6.      If the Goods’ transport occurs at Buyer's expense and the Buyer requests the Seller to arrange transport, the provisions of Article 4.4 remain in full force.

Section 5. Dates of delivery/ delivery on call

5.1.      The Seller shall deliver the Goods at the time/times specified in the order or immediately after the end of the delivery term/terms specified in the order. If a delivery term is agreed. it shall start on the date when the Buyer has placed his order. If a date of delivery is exceeded the Seller shall be entitled without being held to any indemnification, to deliver the goods within 30 days after the date of delivery. If the Seller has not delivered the Goods after the delivery term, the Buyer shall be entitled to terminate the Agreement without any proof of default or legal intervention.

The termination of the Agreement ls the only remedy available to the Buyer in case of a delay on the part of Seller. All other claims against Seller based on such delay shall be excluded, except where Seller has been guilty of gross negligence or intentional act.

Termination of the Agreement can only be done in writing.

5.2.      If Goods ordered are available for the Buyer, but are not accepted by the Buyer, the Seller shall be authorized either to deliver the Goods by means of a written notification by the Seller, in which case the Goods shall be stored al the Seller or at the carrier from the time of forwarding of that notification, this at the expense and risk, including the risk of quality deterioration, of the Buyer; or to entirely or partly terminate the Agreement with the Buyer in the manner specified in Section 9 below, and to sell and deliver the Goods to (a) third party (parties). In that case the Buyer, if the Seller suffers damage in any way as a result of the non-acceptance by the Buyer, shall be liable for the damages.

5.3.      If, in case of delivery on call, no dates have been set for the delivery, the Seller shall be entitled to payment in full three months after the order. If the Goods ordered have not been delivered (in full) within three months, the Seller shall be entitled to summon the Buyer in writing that the latter shall specify in writing a period within which the total amount shall be delivered, with which summons the Buyer shall comply within five Business Days, and the undelivered Goods shall be stored at the Seller or the carrier from the first day after that period of three months onwards, at the expense and risk, including the risk of quality deterioration, of the Buyer. The period to be specified by the Buyer after the summons shall not exceed a period of three months.

Section 6. Prices, invoicing and payment

6.1.      All prices agreed by the Seller and the Buyer shall be net prices and shall be exclusive of any tax, duties and official charges levied by authorities unless explicitly mentioned otherwise. Invoicing shall take place at the prices given in Seller's list or offer. The prices are valid for the time being, without obligation and subject to being unsold. Seller reserves the right to change the prices given in the price list without separate notice to Buyer.

6.2.      If the amount of invoice of a delivered Goods is lower than EUR 350 the Seller shall be entitled to charge a surcharge of a maximum of EUR 10 for administration costs.

6.3.      The payment shall be made within 30 days after the date of invoice, without prejudice to the Seller's right to stipulate an advance payment at the conclusion of the Agreement.

6.4.      Payment may also be demanded in case of partial deliveries.

6.5.      Subject to the provisions in Section 6.4 if the Buyer has not paid in full the amounts owed within the agreed upon period, he shall be in default of the Agreement and Buyer shall be liable, from the date on which the amount owed has become payable until the time or payment, to pay interest to any delayed payment, a the interest rate shall be 10 percentage points above the interest rate applied by the of the European Central Bank to its most recent main refinancing operation carried out before the first calendar day of each half year rounded up to the nearest half-percentage point, without prejudice to the Seller's other, rights.

Section 7. Force majeure

7.1.      By force majeure shall be understood any circumstance which the Seller, respectively Buyer, could not reasonably take into account and as a consequence of which the other party cannot reasonably insist on the normal exercise of this Agreement.

7.2.      If the Seller, respectively Buyer, is involved in an event of force majeure he shall immediately inform the other party in writing.

7.3.      In the event of force majeure, the other party cannot claim damages.

7.4.      The party claiming to be affected by force majeure shall notify the other party in writing without delay on the intervention and the cessation of such circumstance. If force majeure prevents Buyer from fulfilling its obligations. Buyer shall compensate Seller for expenses incurred in securing and protecting the Goods.

7.5.      Regardless of what might otherwise follow from these General Terms. either party shall be entitled to terminate this Agreement by means of a written notice to the other party if performance of the contract is suspended under Section 7.1 for more than two (2) months.

Section 8. Reserve of ownership and other securities

8.1.      Without prejudice to the provisions in these General Terms, all Goods delivered at any time by the Seller remain the property of the Seller until the Buyer has paid all his debts owed to the Seller on any ground whatsoever and irrespective of any acceleration of payment, including interest and costs. Prior to complete payment, the Buyer is not authorized to pledge the Goods to a third party or to transfer possession of it with the exception of the Goods delivered by the Seller which the buyer transfers as part of ordinary activities. In case of a breach of this Section the Seller is entitled to reclaim or to have returned any Goods delivered by him from their current location. without the necessity of any authorization from the Buyer or the Judge. In that case, every claim from the Seller is payable immediately and completely.

8.2.      If the Seller wishes to exercise his rights mentioned in Section 8.1, the Buyer hereby unconditionally and irrevocably authorizes the Seller or a third party indicated by the Seller to enter all locations where the Seller's property is situated to reclaim his property.

Section 9. Termination

9.1.      If the Buyer, does not meet his obligations of whichever agreement Seller is entitled to suspend or entirely or partially dissolve or declare dissolved all agreements that exist at that time by registered letter without any legal intervention and without prejudice to the other legal rights of the Seller in that case.

9.2.      ln the case of termination of the Agreement all mutual claims become immediately payable.

Section 10. Warranty and claims

10.1.    Communications by or on behalf of the Seller concerning the quality, composition, application possibilities, properties, handling in the widest sense, etc., of Goods delivered shall only be considered as warranties if they have been confirmed explicitly and in writing in the form of a warranty by the Seller.

10.2.    The Buyer must submit any claims regarding deliveries directly to the Seiter in writing. If there are visible faults. any claims must be in the possession of the Seller within 8 days of receipt of Goods; if in fairness the Buyer was only able to ascertain the fault at a later date (= hidden faults), any claims must be in the possession of the Seller within 21 days of ascertaining the fault. The claim should occur by accurately stating in writing the nature and cause of the complaints, attaching the delivery note and stating the relevant invoice number.

10.3.    If a claim is well-founded, the Seller can decide at its own discretion to either not invoice the faulty Goods to repair or replace the faulty Goods according to the order and to ensure that redelivery occurs:

·      If the claim concerns visible faults: prior to the delivery date or before the end of the delivery term, possibly increased by the duration of the back-order term if this is applicable, or within 21days of the return of the Goods;

·      if the claim concerns hidden faults: within 15 Business Days of the return of the Goods,

10.4.    Return shipments in relation to claims not preceded or accompanied by what is stipulated in the second sentence of Section 10.2, are not allowed. If the Buyer is in violation of this regulation and still sends the Goods back or if he sends Goods back without a valid reason, these Goods will be held at the Buyer's disposal at the Buyer's expense and risk, provided that they have not been refused by the Seller, although this does not mean in any way that the possible guarantee claim is justified. The costs of unjustified return shipments are at the expense of the Buyer.

10.5.    If the Buyer carries out repairs or changes or if he has repairs or changes carried out during the warranty term without prior permission of the Seller, the warranty obligation immediately terminates.

10.6.    Seller shall not be liable for any damage to property caused by the Goods after it has been delivered and whilst it is in the possession of the Buyer. The Seller is exclusively liable for damage to individuals related to the Buyer, his personnel or his customers. which result from actions which can be considered as failures or wrongful acts on the part of the Seller, his personnel or any other individuals involved in the execution of the order by the Seller.

10.7.    Seller shall not be liable for any indirect, incidental. consequential. sequential or special damages of any nature whatsoever including without limitation loss of production, profits or data, damages to property other than the Goods delivered or loss resulting from other agreement.

10.8.    Seller's total maximum liability, including without limitation possible compensations for delay, for claims made under this Agreement is limited in relation to each delivery of Goods to an amount not exceeding thirty percent (30%) of the price of the Goods delivered, exclusive of value added tax.

Section 11. Modification of Agreements and assignment

11.1.      Modifications of and supplements to concluded Agreements shall be effective only if they have been explicitly agreed in writing by the Seller and Buyer.

11.2.     Neither Party may, without the written consent of the other Party, which shall not be withheld without a reasonable cause, transfer his rights or obligations under the Agreement to a third party. However, Seller shall have the right to (i) transfer the Agreement completely or partly to a company belonging to the same group as Seller (ii) assign and/or pledge any and all rights under the Agreements to its financing banks which assignment or right of pledge includes a conditional transfer to a third party as a result of the enforcement by a financing bank of such assignment or right of pledge.

Section 12. Disputes and applicable law

The Rules for Expedited Arbitrations shall apply where the amount in dispute does not exceed EUR 100,000. Where the amount in dispute exceeds EUR 100.000 the Arbitration Rules shall apply. The Arbitral Tribunal shall be composed of a sole arbitrator where the amount in dispute exceeds EUR 100,000 but not EUR 1.000,000. Where the amount in dispute exceeds EUR 1,000,000, the Arbitral Tribunal shall be composed of three arbitrators. The amount in dispute includes the claims made in the Request for Arbitration and any counterclaims made in the Answer to the Request for Arbitration

12.1.     All disputes arising in connection with the Agreements and these general terms and conditions shall be finally settled in accordance with the rules of the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut) and (a) the arbitral tribunal shall be composed of three (3) arbitrators, (b) the place of arbitration will be Amsterdam, the Netherlands, (c) the language of the proceedings will be Dutch or English, (d) the arbitrators will decide according to the rules of law, (e) the IBA Rules on the Taking of Evidence in International Commercial Arbitration shall not be applicable, (f) the arbitral award will be final and binding, (g) to ensure that the arbitral award shall not be published, each Party shall notify the administrator of the NAI within one calendar month after receipt of the arbitral award that they object to publication of the arbitral award by the NAI, and (h) the proceedings shall not be consolidated with other arbitral proceedings pursuant to Article 1046 of the Dutch Code of Civil Procedure.

12.2.    Agreements between the Seller and the Buyer (including any rights resulting therefrom) shall be governed by the laws of the Netherlands excluding the applicable Sale of Goods Acts.

Section 13. Survival

The stipulations of Sections 8 and 12 and other stipulations incorporated in the Agreement, which have been clearly intended to survive the termination or cancellation, shall survive the termination of the rest of the Agreement.

Section 14. Severability

If any part of these General Terms or the Agreement, as the case may be, is held to be invalid or unenforceable, such determination shall not affect the validity of the remaining provisions of the General Terms and the Agreement. However, the Parties shall attempt through negotiations in good faith to replace any provision so held invalid or unenforceable.

 

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