GENERAL SALES, DELIVERY AND PAYMENT TERMS OF TRIPLE STONE WORKWEAR
Artikel 1 Definitions
In these general terms and conditions, the following terms are used in the following sense, unless explicitly stated otherwise.
- Contracting party:any legal person or natural person acting in the exercise of his profession or business;
- Buyer: any contracting party that is in a contractual relationship with Triple Stone Workwear (hereinafter: TSW) under a purchase agreement concluded with TSW, as well as any contracting party that wishes to enter into a different type of agreement with TSW.
- Day: calendar day;
- Duration transaction: a distance contract relating to a series of products and/or services, the delivery and/or purchase obligation of which is spread over time;
- Entrepreneur: the natural or legal person who offers products and/or services to consumers remotely;
- Distance contract:an agreement whereby, within the framework of a system organized by the entrepreneur for distance selling of products and/or services, up to and including the conclusion of the agreement, only one or more techniques for distance communication are used;
- General Terms and Conditions: these General Terms and Conditions of TSW.
- Applicability of general terms and conditions
2.1 These general terms and conditions apply to all offers, quotations, agreements and all resulting obligations with a Buyer made by Triple Stone Workwear. Insofar as the Buyer (also) orders other products or services to which special general terms and conditions apply, these will also be declared applicable to the agreement between buyer and TSW.
2.2. Deviations from these general terms and conditions are only valid if they have been explicitly agreed in writing by TSW and the Buyer and only apply to the specific agreement to which the deviations relate.
2.3. If the Buyer declares its own general terms and conditions applicable to or refers to an agreement with TSW, then those general terms and conditions will not be accepted by TSW and the general terms and conditions of TSW will prevail, unless explicitly agreed otherwise at an earlier stage.
2.4 The general terms and conditions can always be consulted via the website and can also be downloaded as a PDF file there. The general terms and conditions will be sent free of charge on request.
2.5. Everything stipulated in these general terms and conditions and in any further agreements for the benefit of TSW is also stipulated for the benefit of intermediaries and other third parties engaged by TSW.
- Offers / quotations
3.1. All offers/quotations from TSW are without obligation and can always be withdrawn by TSW, even if they contain a period for acceptance.
3.2. Offers/quotations can also be withdrawn in writing by TSW within seven calendar days after receipt of acceptance, in which case no agreement has been concluded between the parties.
3.3. Offers/quotations can only be accepted in writing (including an acceptance by fax or by electronic means). TSW is nevertheless entitled to accept an oral acceptance as if it had been made in writing.
3.4. If the Buyer places an order on the TSW website, this order is final at the moment the Buyer presses the ‘PLACE ORDER’ button and/or receives an order confirmation by e-mail. When the Buyer of TSW receives a confirmation by email, a binding agreement is concluded between the parties.
3.5. Data included in advertising material in the broadest sense of the word, such as catalogues, price lists, leaflets, third-party websites, etc., are never binding on TSW.
4.1. All prices used by TSW are based on the price determinants known at the time of the offer/quotation.
4.2. Unless expressly agreed otherwise in writing, the prices indicated by TSW are always exclusive of VAT and excluding shipping, postage and packaging costs.
4.3. TSW is entitled to adjust the prices or parts thereof for goods or services not yet delivered and/or unpaid to any changes in price-determining factors, such as raw material prices, wages, taxes, production costs, currency exchange rates, etc.
4.4. TSW is always entitled to adjust the prices without delay if a legal price determining factor gives rise to this.
5.1. TSW is at all times entitled to demand security from the Buyer for the correct and timely fulfilment of its payment obligations.
5.2. If the delivery takes place in parts, each part can be invoiced separately by TSW, unless otherwise agreed in writing with the buyer concerned.
5.3. The payment term is thirty days after the invoice date.
5.4. If the Buyer does not pay within the agreed payment term, the Buyer is in default by operation of law and – without a notice of default being required – the commercial interest is due from the invoice date on the outstanding amount with a minimum of € 50,- without prejudice to the rights further accrued to TSW.
5.6. In the event of payment default, all judicial costs, as well as extrajudicial collection costs incurred by TSW in order to achieve fulfilment of the Buyer’s obligation, shall be borne by the Buyer. The extrajudicial collection costs amount to 15% of the amount owed by the other party, including the aforementioned interest, with a minimum of € 250,-.
5.7. In the event of payment default, TSW is entitled to suspend or dissolve the execution of the agreement and all related agreements without legal intervention.
5.8. All payments must be made at a bank account number to be designated by TSW in the Netherlands.
5.9. Payments made by the Buyer always serve to settle all interest and costs owed and then to pay due invoices that are open the longest, even if the Buyer states that the payment relates to a later invoice.
5.10. Set-off by the Buyer is not permitted, unless TSW has recognized the counterclaim in writing in a cool and unconditional way.
5.11. Making payments from the Buyer to TSW electronically, including via the Internet and by credit cards is at the risk of the Buyer. TSW is not liable for damages of the Buyer related or resulting from payments electronically, via the Internet or by credit cards. The provision of credit card information by the Buyer to TSW via the Internet or otherwise is at the Buyer’s own risk.
5.12. TSW reserves the right to apply a deposit of 50 to 100% to newly notified companies.
6 Delivery & Returns
6.1. The place of delivery applies in all cases – unless otherwise stated in writing – the actual or the place of business of the Buyer or his establishment with which he was contracted upon order.
6.2. TSW makes every effort to ensure that the indication of delivery periods in offers/quotations, confirmations and/or contracts is observed as much as possible, but they can never be considered as a fatal term.
6.3. The buyer must check with or without delay after delivery whether the delivered goods or the services provided comply with the agreement.
6 4. The Buyer cannot rely on the fact that delivered goods or services do not comply with the agreement, if he fails to carry out this investigation or has not notified TSW of the defects in writing within the period mentioned below.
6.5. Visible defects must be reported to TSW in writing within five working days after delivery or after the provision of the relevant services.
6.6. Hidden defects must be reported in writing immediately after the Buyer has discovered them, but no later than one month after delivery of goods or the provision of services.
7 Buyer’s Warranties
7.1. The buyer undertakes to enable TSW to carry out the delivery.
7.2. Buyer guarantees at his own expense and risk that:
- TSW is provided with the cooperation necessary for the performance of the service;
- the ordered goods or services are purchased;
- delivery under normal working conditions, during normal working hours from 08.00 – 18.00 hours;
7.3. If the ordered goods or services have been offered to the Buyer for delivery, but delivery has not been possible on the basis that the Buyer has not fulfilled one of the obligations referred to in paragraphs 1 and 2 above, purchase shall be deemed to have been refused. From this moment on, the Buyer is in default by operation of law without further notice of default being required by TSW. The day on which refusal of purchase takes place is deemed to be the delivery date of the ordered goods or services. The goods are also at the risk of the Buyer from this moment on, in accordance with Article 8.
7.4. Without prejudice to the obligation to pay, in the case referred to in paragraph 3, the Buyer is obliged to compensate TSW for damage suffered as a result of the refusal, including but not limited to incurring costs for storage and transport, which last costs are related to the usual rates on the spot.
- Seller’s Warranties
8.1. TSW applies a warranty period of 1 year to all delivered products, except on the accessories. Accessories include elastic tires and sand stop hood.
8.2. The warranty period expires if:
- buyer is in default vis-à-vis TSW;
- the delivered products have been exposed to abnormal conditions;
- the delivered products have been treated carelessly or improperly;
- the delivered products have not been used in accordance with the purpose for which they are suitable.
- Risk transition
9.1. Regardless of what has been agreed between TSW and the Buyer regarding costs of transport and insurance, the goods remain at the risk of TSW until the moment that they have been transferred to the actual decision-making power of the Buyer or of the third party(s) engaged by the Buyer by signing consignment notes, sign-off lists and/or packing lists or by actual delivery.
9.2. As soon as the goods have passed in accordance with the provisions of paragraph 1 in the actual power of disposal of the Buyer or the third party(s) engaged by the Buyer, the Buyer is obliged to adequately insure these goods against theft, damage, destruction, etc.
10.1. If one of the Parties fails to fulfil one or more of its obligations under the agreement, the other Party will, by its part, default on it, unless fulfilment of the relevant obligation(s) is already permanently impossible, in which case the negligent Party is immediately in default, this insofar as these general terms and conditions do not provide otherwise. The notice of default will be made in writing, whereby the negligent Party will be granted a reasonable period of time to still fulfil its obligations. This period shall be of a fatal period. TSW’s liability towards the Buyer for direct damage in the event of non-performance, late or improper performance is limited to the net invoice value of the goods or services in question, but this up to a maximum of € 25,000,-.
10.2. The limitation referred to in paragraph 1 also applies if TSW is held liable by the Buyer for other than the agreement concluded between them.
10.3. Direct damage is understood to mean only:
- the reasonable costs that a party would have to incur in order for the other party’s performance to comply with the agreement. However, this damage will not be compensated if that other party has dissolved the agreement;
- reasonable costs incurred to determine the cause and extent of the damage to the extent that the determination relates to direct damage within the meaning of these Terms of Delivery; reasonable costs incurred to prevent or limit damage to the extent that the party suffering the damage demonstrates that these costs have led to the limitation of direct damage within the meaning of these terms and conditions.
- 4. TSW is never liable for indirect damage, including consequential damage, lost profit, missed savings, damage due to business stagnation and all damage that is not covered by the direct damage within the meaning of these general terms and conditions.
10.5. TSW is never liable with regard to the materials made available by the Buyer to TSW in connection with the agreement. The buyer undertakes to take out adequate insurance with regard to these materials.
10.6. Without prejudice to the above, TSW is not liable if the damage is due to intent and/or gross negligence and/or culpable conduct or injudicious or improper use of the delivered goods by the Buyer.
11.1. The Buyer indemnifies TSW, insofar as the law allows, with regard to liability towards one or more third parties, which arises from and/or is related to the execution of the agreement, regardless of whether the damage has been caused or inflicted by TSW or by its auxiliary press(s), auxiliaries or (delivered) goods or services. In addition, the Buyer indemnifies TSW, to the extent permitted by law, against all claims of third parties in connection with any infringement of intellectual property rights of these third parties.
12 Force majeure & unforeseen circumstances
12.1. If performance on the part of the TSW or purchase on the part of the Buyer is delayed by force majeure for more than one month, each of the parties – excluding further rights – is entitled to dissolve the agreement in accordance with the law. What has already been paid or performed under the agreement will then be settled pro rata between the parties.
12.2. Force majeure of TSW shall in any case mean:
– the fact that TSW does not receive a performance (including a performance from the Buyer) that is important in connection with the performance to be delivered by it, on time or not properly delivered;
– traffic disruptions,
– government measures that prevent TSW from fulfilling its obligations in a timely or proper manner;
– riots, riots, war,
– extreme weather conditions,
– import, export and/or transit bans.
13 Right of retention
13.1 TSW is authorized to hold all goods that TSW of the Buyer has in its own right until the Buyer has fulfilled all its obligations towards TSW, with which the goods in question have direct or sufficient coherence. If matters covered by this right fall out of the power of TSW, TSW is entitled to claim these goods, as if they were the owner themselves.
14.1. Each of the parties has the right to terminate the agreement with immediate effect without further notice of default and judicial intervention, in whole or in part, in the cases described below and to the extent set out below:
- if the other party has applied for or obtained a suspension of payment or the other party has been declared bankrupt;
- when the other party’s company is voluntarily or involuntarily liquidated;
- when the other party’s company merges or is taken over;
- where a significant part of the assets of the other Party is seized;
- where other circumstances arise in which the continuation of the agreement cannot reasonably be required.
14.2. Each of the parties shall have the power to dissolve the agreement only if the other Party – after a proper and as detailed written notice of default as possible with a proposal for a reasonable period for the remedy of the shortcoming attributably fails to fulfil essential obligations under the agreement and provided that that shortcoming justifies the dissolution.
14.3 If the agreement is dissolved, TSW’s claims against the Buyer are immediately payable. If TSW suspends the fulfilment of the obligations, it retains its claims under the law and agreement.
14.4. TSW always reserves the right to claim damages.
15.1. TSW treats all personal data provided to it in accordance with the applicable legislation, in particular the General Data Protection Regulation (GDPR).
15.2. All data provided by the Buyer will only be used by TSW if this is necessary for the conclusion and fulfilment of the agreement (including the other provisions, including these general terms and conditions), as well as for the business operations of TSW. Data will only be provided to third parties if this is necessary for the aforementioned purposes.
15.3. For more information about privacy, please visit the TSW website (https://www.ultraknee.nl/privacybeleid)
16 Changes / additions
16.1. Changes to these general terms and conditions or additions there to them are only valid insofar as they have been agreed in writing by both parties.
16.2. In the event of nullity of one or more provisions in these general terms and conditions, the remaining provisions will remain in full force and effect.
16.3 The parties will consult on the void provisions in order to make a replacement valid arrangement, in such a way that the scope of the agreement is preserved.
17 Disputes & applicable law
17.1. All disputes – including those that are only considered as such by one party – which may exist between TSW and the Buyer as a result of an agreement or further agreement concluded by TSW with the Buyer, will – subject to the authority of the parties to provoke a decision of the Court of Appeal, acting in interlocutory proceedings – be subject to the judgment of the ordinary court in the place of business or district v an TSW.
17.2. Dutch law always applies to the agreements to be concluded by TSW pursuant to these general terms and conditions.