GENERAL TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT
1. General provisions
1.1 All our offers, agreements and deliveries are subject to the terms and conditions below.
1.2 Any deviating general or special stipulations of clients or third parties are only binding on us if they have been expressly accepted by us in writing. Such deviating stipulations shall only apply to the transaction to which they are related.
1.3 If one or more provisions of these General Terms and Conditions should be lacking binding force for any reason whatsoever, the remaining provisions shall remain in full force and effect.
1.4 The applicability of any purchase or other terms and conditions of the Contracting Party is expressly rejected.
1.5 In cases where TimberLab does not constantly require strict compliance with these General Terms and Conditions, this does not mean that its provisions do not apply, or that TimberLab would in any way waive any of its rights and surrender the entitlement to require strict compliance with the provisions of these General Terms and Conditions in other cases.
2. Quotations and offers
2.1 All quotations and offers of TimberLab are without obligation. If no acceptance period has been set, no rights whatsoever can be derived from the quotation or offer if the product to which the quotation or offer is related is no longer available in the meantime.
2.2 TimberLab cannot be held to be bound by its quotation or offer if the Contracting Party can reasonably understand that the quotation or offer, or any part thereof, contains an obvious mistake or error in writing.
2.3 The dimensions, weights, technical data, calculations and images shown in our offers, stock lists, advertising material, design drawings, models, photographic images, samples, designs, etc. are only approximate descriptions and are without obligation.
2.4 The prices stated in our offers and order confirmations are ex works, excluding VAT.
3.1 The goods to be delivered by us shall be at the risk of the client from the moment the goods leave our warehouses or, in case of delivery through third parties, have left the factories or warehouses of such third parties.
4.1 Unless explicitly agreed on a deadline, an agreed delivery period shall never constitute a deadline, yet is only approximate and is otherwise entirely non-binding and indicative.
4.2 Where delivery times are exceeded for any reason, this does not entitle the client – even after notice of default – to any dissolution, compensation and/or suspension.
4.3 If an order is delivered in parts, we are entitled to demand payment per partial delivery, in which case an invoice will be submitted per partial delivery.
5. Force Majeure
5.1 In the event of force majeure and other circumstances of such a nature that performance of an agreement is impossible for us or cannot reasonably be demanded of us, we shall be entitled to suspend the execution of the performance by us in whole or in part for a period to be determined by us, or to dissolve the agreement in whole or in part, without being obliged to pay any compensation to the client. If in such a case partial execution of an order takes place, the client shall be due a proportional part of the total purchase price.
5.2 Force majeure and circumstances as referred to in article 6.1 include and in any case: war, threat of war, mobilisation, natural disasters, import/export or transit bans, shortage of energy, claims from a higher authority, strikes, labour unrest, illness, transport problems, as well as the circumstance that – for any reason – we are not able to deliver due to our own supplier, as well as any fault on our part, not including gross negligence on the part of the management and/or managers.
6. Retention of title
6.1 of the title to the goods delivered by us shall not pass to the client until the client has paid us all that is due to us in respect of the delivery of those goods (including not only the purchase price, including any surcharges, increases and compensation due pursuant to these Terms and Conditions, yet also any damages, interest and costs).
6.2 The goods delivered by us, which are subject to retention of title, may only be resold in the context of normal business operations.
6.3 The client is not authorised to pledge the goods subject to our retention of title or to establish any other right on them for the benefit of third parties. The goods which are subject to our retention of title are not subject to pledge. This stipulation has property-law effect. If third parties wish to establish or assert any right on the goods delivered subject to retention of title, the client shall be obliged to inform us as soon as can reasonably be expected.
6.4 If the client fails to comply with his obligations or in case of a valid fear that he will not do so, we shall be entitled to remove the delivered goods, which are subject to retention of title, from the client or from third parties holding the goods for the client, or to have them removed. The client is obliged to cooperate fully to this end, under penalty of a fine of 10% of the amount he owes per day. The client is not permitted to invoke a right of retention against us with regard to storage costs and/or other claims which the client has or claims to have against us.
6.5 The client is obliged to respond to our first written request:
a. to insure the goods delivered under retention of title and to keep them insured against fire, explosion and water damage and against theft, as well as to provide the policy of such insurance to us for inspection;
b. to pledge to us all claims of the client against insurers with respect to goods delivered under retention of title in the manner prescribed by law;
c. to pledge to us, in the manner prescribed by law, the claims which the client acquires against his clients in respect of the resale of goods delivered subject to retention of title;
d. to mark the goods delivered under retention of title as our property and to separate them from other goods;
e. to cooperate in other ways with reasonable measures we wish to take to protect our property rights in respect of the goods, which do not unreasonably impede the client in the normal course of his business.
7.1 Unless explicitly agreed otherwise, the payment of the amounts due to us by the other party must take place within 30 working days after the invoice date, without offsetting any amounts or suspension and without deduction of costs, either at our office or in one of our giro or bank accounts. Payment in any other way, in particular to our employees, shall only be valid after prior written agreement on our part.
7.2 All bank charges arising from the payment of the purchase price in the country of the other party or from the opening and confirmation of accredits shall be borne by the other party.
7.3 In case of late payment of amounts due to us, the other party shall be immediately in default, without a notice of default being required. Without prejudice to our authority in that case to declare all agreements concluded with the other party in question to be dissolved and to claim compensation from the other party for all damage caused to us as a result thereof, the other party:
a. must pay interest on the amount due to us to the amount of the statutory commercial interest pursuant to Book 6, Section 119a of the Dutch Civil Code;
b. must reimburse us for all extrajudicial costs relating to the collection of our claim, the amount of which is determined as follows:
on the first € 6,500 15%,
on the excess up to € 13,000 10%,
on the excess up to € 32,500 8%,
on the excess up to €130,000 5%
and the excess on € 130,000 3%,
all this with a minimum of € 150,
all to be increased with VAT.
c. must compensate us for all actual costs of taking legal measures to collect the amounts due to us.
7.4 Payments made by the other party first serve to reduce the costs due, then to reduce the interest due and finally to reduce the longest outstanding amounts, irrespective of any different instructions from the other party.
7.5 We reserve the right at all times to require security for the timely payment of both deliveries already made and deliveries yet to be made, which security may be in the form of prepayment, bank guarantee, mortgage, pledge or surety at our discretion. If, at our request, adequate security is not provided, we shall be entitled to suspend further performance of agreements entered into with us without being obliged to pay compensation for any resulting loss. We are moreover authorised to deliver only C.O.D. cash on delivery in cases which in our opinion qualify for this, to the extent necessary in deviation from agreements made.
7.6 In the event of non-, late or improper fulfilment by the other party of any obligation that may arise for him from agreements concluded with us, as well as in the event of bankruptcy, suspension of payments, application of the debt-rescheduling scheme for natural persons or the other party being under legal restraint or the closure or liquidation of its company, we will at all times be authorised without any obligation to pay compensation, without prejudice to our further rights and without the need for a reminder or notice of default, to declare the transaction as dissolved, without judicial intervention being required, without prejudice to our claims for compensation, while we are in that case also authorised to dissolve other current transactions with the respective other party, insofar as not yet executed, under equal conditions. Any dissolution shall at all times result in the situation that any amounts due to us shall be immediately claimable.
8. Intellectual and industrial property rights
8.1 The information mentioned in article 2.3 of these general terms and conditions shall not be provided to third parties, in whole or in part, in any form whatsoever, without our explicit prior written consent, without prejudice to any further claims we may make in respect of intellectual and/or industrial property with regard to such information.
8.2 In case of violation of the prohibition mentioned above under 8.1, the client will be due a fine of € 25,000 for each violation, without prejudice to our right to demand compliance with the prohibition and/or full compensation.
8.3 The data mentioned in this article, as well as the brand, patent, trade name, model, copyright or any other right to these data, remain our intellectual property or that of our suppliers and are not transferred to the client, unless explicitly agreed otherwise.
8.4 Clients who instruct us to deliver goods in accordance with drawings, models, samples and/or the like provided or designated by them, shall indemnify us against all costs and damage which would arise as a result of the performance of the agreement infringing the rights of third parties, such as design rights, trademark rights, copyrights, patent rights, etc.
9. Claims and complaints
9.1 Complaints concerning goods delivered by us must be submitted to us in writing by the client as soon as possible, yet at the latest within 10 working days after the day of delivery of the goods – or, in case of hidden defects: within 10 days after the moment at which the defect could reasonably have been discovered – accompanied by a copy of the packing list concerned, on pain of loss of all rights concerning any shortcoming on our part.
9.2 Submitting a complaint does not release the client from the obligation to make timely payments in accordance with the invoice sent to him.
9.3 Complaints reported in time and in writing can, if valid, only
result in the replacement of the goods delivered or – at our option – payment of a credit amount to the client for the agreed price of the defective goods. Costs of disassembly and reassembly are not reimbursed.
10.1 Subject to the restrictions below, we guarantee both the reliability of the products delivered by us and the quality of the material or services used by us for that purpose, except to the extent that they have been provided to us by the client. We shall, at our discretion, replace or repair, free of charge, any defects in the goods delivered which are not externally visible and which are the direct consequence of the use of faulty material or of manufacturing faults. Costs of disassembly and reassembly shall not be reimbursed and shall remain at the client’s expense.
10.2 Unless otherwise agreed, the guarantee only covers defects that become apparent within 24 months after delivery.
10.3 Complaints on the basis of the guarantee must be submitted to us in writing and in detail immediately, yet in any case within 10 working days after a defect as referred to in paragraph 1 has arisen, failing which any guarantee obligation will lapse.
10.4 Products in respect of which a guarantee is invoked can only be sent to us in consultation with us. If we deliver new products in fulfilment of our guarantee obligation, the originally delivered products shall remain or become our property. All provisions of these Terms and Conditions shall apply to the new products delivered.
10.5 Defects resulting from improper use, faulty maintenance or use for other than normal business purposes or improper use are excluded from the guarantee.
10.6 In case the client does not, does not properly or does not timely comply with any obligation under the agreement entered into with him, the guarantee with respect to this agreement shall lapse.
10.7 No guarantee is given with regard to the warping of wood. Weather conditions and other external influences may affect the structure, quality and colour of wood. For example, wood ages due to sunlight. When the wood becomes wet, it expands and when it dries, it shrinks. This can result in tensions that cause the wood to warp or crack. The extent to which wood changes, discolours, warps or cracks is a natural process and cannot be predicted. This entirely depends on the various (weather) conditions. As a result , there is no guarantee regarding discolouration, cracks or warping.
11.1 Without prejudice to the provisions of articles 6., 10. and 11. of these terms and conditions, we are not liable for damage caused by or in connection with goods delivered by us, unless such damage is the result of intent or gross negligence on the part of our executive staff. Liability on our part shall under no circumstances exceed the amount of the purchase price of the goods leading to liability. We will never be liable for consequential damage (loss of profit, damage due to interruption of business operations, loss of data, etc.).
11.2 The client shall indemnify us against any third-party claim for damages against us with respect to the use of drawings, samples, models or other items or data supplied by the client and shall be liable for all costs arising from such use.
11. 3 The client is liable for all damage as a result of loss, theft, fire or damage to the goods and materials provided by us as soon as they are under the client’s control.
12. Non-acquisition of personnel
12.1 During the term of the agreement, as well as one year after termination thereof, the client will not in any way, except after written permission thereto, induce personnel working for us to take up employment with the client or to have them otherwise, directly or indirectly, work for him.
13. Applicable law/competent court
13.1 All contracts concluded with us are governed by Dutch law, on the understanding that the United Nations Convention on the Contracts for International Sale of Goods CISG (Vienna Convention on the Contracts for the International Sale of Goods) is expressly excluded.
13.2 All disputes relating to the conclusion, interpretation or execution of an agreement entered into with us shall be submitted exclusively to the District Court in Arnhem.
13.3 Nevertheless, we reserve the right to submit a dispute to the court in whose jurisdiction the other party is domiciled.
14. Translation of these general terms and conditions
14.1 Where these terms and conditions have been translated into a language other than Dutch, the Dutch version shall prevail in the event of any dispute or ambiguity regarding the meaning or interpretation of one or more of these terms and conditions.
Otterlo, October 2018