General terms and conditions

Article 1. Applicability

1.1. These general terms and conditions apply to all offers, quotations and agreements between Timyo B.V., (hereinafter referred to as: the “seller”) and its co-contracting party (hereinafter referred to as: the “buyer”). These general terms and conditions also apply to all noncontractual relations between the parties, such as wrongful act. 
1.2. These terms and conditions also apply to agreements with the seller for the performance of which the seller has to engage third parties. 
1.3. Amendments to or deviations from these general terms and conditions only apply if they have expressly been agreed in writing between the seller and the buyer. They will only apply for that agreement for which they were made; in all other respects, these general terms and conditions continue to apply. 
1.4. In the event of a conflict between these general terms and conditions and those of the buyer, these general terms and conditions will apply, to the express exclusion of the terms and conditions of the buyer. 
1.5. The buyer with whom an agreement has been concluded under these terms and conditions at some point in time agrees to the applicability of these terms and conditions to later agreements between this buyer and the seller. 
1.6. If at any time one or more provisions of these general terms and conditions are in full or in part null and void or are nullified, the other provisions of these general terms and conditions will remain in full force and effect. In that case, the seller and the buyer will enter into consultations in order to agree on new provisions to replace the null and void or nullified provisions, taking the purpose and purport of the original provisions into account as much as possible. 
1.7. Insofar as these general terms and conditions have also been drawn up in a language other than the Dutch language, the Dutch text will always take precedence in the case of differences.

Article 2. Definitions

2.1. In these trading conditions, the following terms have the following meanings:
a. “terms and conditions”: the standard conditions of sale set out in this document and (unless the context requires otherwise) any special conditions that have been agreed in writing between the buyer and the seller;
b. “agreement”: the agreement for the purchase and sale of goods;
c. “goods”: the goods (including part of the goods) to be delivered by the seller under these terms and conditions;
d. “hidden defect”: a defect that only can reasonably be discovered by the buyer after the time limit for complaints applicable to non-hidden defects has lapsed;
e. “working day”: every day of the week, not being a Saturday, a Sunday or a generally acknowledged public holiday;
f. “written/in writing”: by letter, by email or through the website

Article 3. Orders and specifications

3.1. The buyer is responsible towards the seller for guaranteeing the correctness of the conditions (including any specifications) set by the buyer for each order and for the timely provision of the necessary information to the seller to enable the seller to perform the agreement in accordance with the conditions set by the buyer.
3.2. The quantity, quality and description of each specification for the goods are those in the quotation of the seller or the order of the buyer (if accepted by the seller).
3.3. If the goods have to be manufactured or a process has to be applied by the seller to the goods in accordance with a specification provided by the buyer, the buyer will indemnify the seller against all losses, damage, costs (by whatever name) and expenses suffered or incurred by the seller in the settlement of a claim for a breach of a patent, copyright, design, trademark or any other industrial or intellectual property rights of someone else, resulting from the seller’s use of the specifications set by the buyer.
3.4. The seller reserves the right to make amendments to the specifications of the goods that are required for meeting all applicable statutory or EC requirements or, if the goods have to be delivered in accordance with the specifications of the seller, do not materially affect the quality or performance of the goods.
3.5. No order whatsoever that has been accepted by the seller can be cancelled by the buyer, except with the written agreement from the seller and on the condition that the buyer will fully indemnify the seller against all losses (including lost profits), costs (including the costs of all labor and materials used), damages, costs and expenses incurred by the seller as a result of a cancellation.
3.6. Notwithstanding any stipulation to the contrary in these terms and conditions, all intellectual property rights to the goods and all information relating thereto, of whatever nature and whether or not registrable (unless the goods have been manufactured according to the buyer’s specifications), will become and remain the property of the seller, and the buyer will therefore observe the confidentiality of all these matters and not use them for any purpose without written permission from the seller.
3.7. Notwithstanding any stipulation to the contrary in these terms and conditions, the goods will be delivered in accordance with the normal tolerances as applicable from time to time.

Article 4. Agreement

4.1. All offers and quotations made by the seller are without obligation for the seller, even if they contain a period for acceptance. All offers are made subject to the interim sale to a third party and subject to increase of the goods to be sold.
4.2. An agreement will only be formed if the seller has confirmed the order in writing and if, in addition, any payment security agreed, including an irrevocable (confirmed) letter of credit, has been accepted by the seller in writing. All agreements are entered into by the seller subject to the resolutive condition that the buyer, exclusively at the discretion of the (credit insurer of the) seller, proves to be sufficiently creditworthy for meeting the financial part of the agreement.
4.3. Any additional arrangements or amendments made at a later time, as well as oral representations made by employees of the seller or made on behalf of the seller by its agents or other representatives working for the seller, will only bind the seller from the moment they have been confirmed by the seller in writing.
4.4. Every advice or recommendation provided by the seller or its employees or agents to the buyer or the latter’s employees or agents with regard to the storage, application or use of the goods that has not been confirmed by the seller in writing will be at the risk and expense of the buyer, and the seller will therefore not be liable for the buyer acting on such oral advice or recommendation.
4.5. Any typographic, administrative or other error or omission in sales literature, quotation, acceptance of an offer, invoice or any other document or information provided or published by the seller may be rectified without any liability on the part of the seller.

Article 5. Prices

5.1. All prices for the goods are set in the agreed currency (if no currency has been agreed: in euro), excluding VAT, import duties and other taxes, levies and/or duties. 
5.2. If after confirmation of the order but before delivery of the goods one or more of the factors that determine the cost price are subject to change, the seller will reserve the right to adjust the agreed prices accordingly. 
5.3. The seller reserves the right, by notifying the buyer at any time prior to delivery, to increase the prices of the goods to make allowance for any increase of the costs for the seller resulting from a change in delivery date, quantities or specifications of the goods, or for any delay because of instructions provided by the buyer or the buyer’s failure to provide the seller with sufficient information or instructions.
5.4. All costs related to the transport, packaging, insurance and inspection (e.g. by customs) will be for the account of the buyer. All (foreign) import duties, levies and/or taxes owed because of the agreement concluded by the seller with the buyer, both directly and indirectly, will exclusively and fully be for the account of the buyer and may not be deducted from any amounts owed to the seller. 
5.5. If the seller and the buyer agree that the price will be in a currency other than the euro, the exchange rate for the euro on the date of confirmation of the order will apply. 
5.6. In the event of an unforeseeable increase of the cost price, the seller will be entitled to increase the price accordingly, subject to the proviso that the buyer is entitled to terminate the agreement in the event of a price increase of more than 10%. 

Article 6. Delivery

6.1. Delivery of the goods is made by the seller who delivers the goods to the buyer at a location agreed between the parties in writing. Unless otherwise agreed in writing, deliveries are made Ex Works in Roosendaal, even if the seller organizes the transport. If the goods have not been taken delivery of by the buyer after expiry of the delivery period, they will remain at the buyer’s disposal and will be stored at the risk and expense of the buyer. All costs relating to the storage will be charged to the buyer. 
6.2. If the seller and the buyer have agreed carriage delivery paid in writing, the following will apply:
- goods are transported by the seller to the agreed location on the basis of full loads;
- if the quantity of the goods ordered by the buyer is estimated by the seller as less than a full load, the delivery concerned can only be scheduled in a combination consignment. This means that as a result, scheduling of the delivery date and time will be less flexible and this date and time will be determined by the seller. 
6.3. Deliveries for which the seller is responsible for the transport of the goods will be made by full loads. If the buyer only calls for part of his orders, resulting in a partial load, the seller will be entitled to pass on the additional costs arisen therefrom to the buyer. Orders that are not full loads will be delivered when, in the seller’s opinion, the possibility of combination arises. 
6.4. In the event of deliveries arranged by the seller, the buyer will ensure skillful unloading, unless otherwise agreed in writing. 
6.5. If the seller delivers carriage paid, the maximum unloading time for a full load will be 2 hours, unless expressly agreed otherwise in writing. The unloading time for partial deliveries is calculated in proportion to the number of loading meters. If this unlading time is exceeded or as the case may be extra unloading addresses are added, the seller will be entitled to charge the extra unloading hours/waiting hours at cost price. These extra hours will be charged additionally per hour, with part of an hour being regarded as a whole hour. 
6.6. Packaging materials are charged on to the buyer. 
6.7. Though the stated delivery times will be observed as much as possible, this delivery time is approximate only and can never be considered a final deadline. The seller will only be in default with regard to the delivery time after having been given written notice of default by the buyer, the buyer has given the seller a reasonable period for delivery, and the seller has failed to comply. 
6.8. The agreed delivery period starts as soon as an agreement has been formed in accordance with article 4.2. 
6.9. The seller is not liable for any damage resulting from failure to deliver on time. 
6.10. Failure to fulfill any payment obligation by the buyer, or to fulfil such obligation in good time, will suspend the seller’s obligation to deliver. 
6.11. The seller reserves the right to deliver the goods in parts, in which case the (payment) conditions set out in article 8 will also apply to each partial delivery. If the goods have to be delivered in parts, every delivery will constitute a separate agreement. The buyer is not entitled to treat the agreement as a whole if the seller fails to comply with a partial delivery due to causes that cannot be attributed to the seller.
6.12. The seller reserves the right to deliver ten per cent more or ten per cent less than the quantity that was actually ordered, and the quantity delivered is deemed to be the quantity that was actually ordered, subject to the proviso that the price paid for the goods has to be adjusted pro rata to correspond with the quantity that was actually delivered.
6.13. The buyer is responsible for compliance with the laws and regulations that apply for the import of the goods in the country of final destination and for the payment of all duties owed.

Article 7. Risk transfer

7.1. The goods will be at the seller’s risk until the time of delivery to the buyer, with due observance of the provisions of paragraph 2.
7.2. The risk for the goods sold transfers to the buyer: 
- from the time of taking delivery by the buyer at the location of the seller (the Netherlands);  
- from the time of delivery at the buyer’s business, if it has been agreed that the seller will arrange the transport;
- from the time of delivery to the buyer on the means of transport, if it has been agreed that the buyer will arrange the transport of the goods bought;
- if the seller delivers goods at a transshipment site at the request of the buyer, the goods will be on this site at the risk of the buyer;
- or, if the buyer wrongly omits to take delivery of the goods, the time at which the seller offered the delivery of the goods.

Article 8. Payment

8.1. Unless otherwise agreed by the parties in writing, payment of the goods sold by the seller has to be made within 30 days of the invoice date, in the currency that was agreed. 
8.2. The date on which the seller has received the payment will be regarded as the payment date. Cash payments can only be made with permission from the seller, to a person with power of representation according to the Trade Register. The seller’s receipt will be regarded as the sole proof of such cash payments. 
8.3. The buyer is not entitled to any deduction, suspension or payment discount based on an alleged faulty delivery or based on the fact that the delivery is not yet complete or because of any alleged amount owed or claim, and invoking of settlements is also expressly excluded, unless otherwise agreed between the parties in writing.
8.4. If the payment term is exceeded, the buyer will be in default by operation of law from the expiry of the payment term, without any prior written notice of default being required. The seller is entitled to charge the statutory commercial interest (Book 6, article 119a of the Dutch Civil Code) from the due date, while all costs related to the collection will be borne by the buyer as well, both the judicial costs and the extrajudicial costs, the latter being set at 20% of the amount to be collected, with a minimum of € 1,500.00 [one thousand five hundred euro]. Extrajudicial costs include all costs with regard to the debt recovery investigation, the demand and the notice of default, the work carried out for reaching an (amicable) settlement, as well as the disbursements and the fee of the person who is charged by the seller with collection. If a petition for bankruptcy is filed against the buyer, the buyer will also owe the costs of the petition for bankruptcy, apart from the principal sum and the associated extrajudicial costs and contractual interest. 
8.5. If an order is delivered in parts, the seller will be entitled to demand payment for the partial deliveries before making the other partial deliveries. 
8.6. Discharge from obligations by making payments to persons employed by the seller who do not have express procuration for this purpose is not possible. 
8.7. The seller is entitled to require, either on or after entering into the agreement, security from the buyer for meeting the payment and other obligations under the purchase agreement, before delivering any (further) performance. The seller is entitled to require an advance or upfront payment from the buyer. Any refusal by the buyer to pay the advance or make the upfront payment or provide the requested security will entitle the seller to suspend its obligations and to terminate the agreement in whole or in part, without a notice of default and without judicial intervention, without prejudice to the seller’s right to compensation of the damage suffered. 
8.8. The seller is entitled to set payments off against older debts first, in spite of any other destination of the payment indicated by the buyer. If costs and interest have already arisen, the payment will serve to settle the (extrajudicial) costs first, then the interest, and only then the principal sum.

Article 9. Cancellation

9.1. The seller is entitled to cancel an order if the buyer has not yet completely fulfilled his earlier payment obligations to the seller or to other creditors at the time of delivery. The seller may also exercise this right if the information with regard to the creditworthiness of the buyer is regarded by the seller as insufficient or if the advance has not been paid or the upfront payment has not been made. In the event of cancellation, the seller will not be liable towards the buyer on any basis and for any damage whatsoever. 
9.2. Cancellation of an order by the buyer is not possible. If the buyer nevertheless cancels an order in full or in part, for whatever reason, the seller will only have to accept such cancellation if the goods have not yet been handed over to the carrier for transport and under the condition that the buyer pays the cancellation costs, which are equal to 50% of the invoice value of the cancelled goods, plus VAT. In that case, the seller will also be entitled to charge all costs incurred so far and yet to be incurred (including any costs of preparations, arrangements, (interrupted) transport, storage, etc.), without prejudice to the seller’s right to compensation of lost profit and other damage. 
9.3. The buyer is obliged to take delivery of the purchased goods at the time they are made available to him. If the buyer refuses to take receipt of them, the seller will be entitled to sell these goods elsewhere and the buyer will be liable for the difference in price as well as for any other costs arising therefrom for the seller, including storage costs, transport costs, and any and all other costs arising therefrom. 

Article 10. Retention of title

10.1. The title of the goods delivered by the seller will not transfer to the buyer until all amounts invoiced by the seller (including the costs referred to in article 5.4.) have been paid, plus any interest, penalties and costs as well as all amounts owed because of failure by the buyer to fulfill his obligations under the purchase agreement or other agreements, including in any case the amounts owed as referred to in Book 3, article 92, paragraph 2 of the Dutch Civil Code. 
10.2. Until the title of the goods transfers to the buyer, the buyer holds the goods as the fiduciary seller and the depositary of the seller and keeps the goods separated from those of the buyer and third parties and correctly stored, protected and insured, and identified as originating from the seller. Until that time, the buyer is entitled to resell the good or use them in the course of his normal business operations, but is obliged to render account to the seller for the proceeds of the sale or otherwise of the goods, material or immaterial, including insurance proceeds, and the buyer will keep all such proceeds separated from monies or property of the buyer and third parties and, in the event of tangible proceeds, correctly stored, protected, and insured.
10.3 If the buyer forms a new good from goods delivered by the seller that fall under the retention of title, the buyer will act on the instructions of the seller and keep the new goods for the seller. The buyer will not become the owner until the retention of title lapses.
10.4. Immediately on request from the seller, the buyer undertakes to cooperate in establishing a pledge on the claims that the buyer obtains or will obtain from the resale of goods to his customers. Insofar as the seller has claims on the buyer other than those referred to in article 10.1 and the seller has delivered goods to the buyer that do not fall under the retention of title, the buyer will provide security for the fulfilment of his obligations for the benefit of the seller by establishing a non-possessory pledge on these goods. In all the aforementioned cases, the buyer will sign a deed of pledge immediately on a request from the seller. The buyer warrants that he is authorized to pledge the goods and that the goods are not encumbered with any pledge and/or limited rights, apart from the seller’s rights.
10.5. Until the time the goods are handed over to the buyer (and on the condition that the goods still exist and have not been resold), the seller is at all times entitled to demand from the buyer that the buyer delivers the goods to the seller and, if the buyer does not do so immediately, to enter the premises of the buyer or a third party where the goods have been stored and take back the goods.
10.6. The buyer is not entitled to provide the goods that remain the property of the seller as security for any indebtedness, but if the buyer does so, all amounts owed by the buyer to the seller (without prejudice to any right or remedy of the seller) will become immediately due and payable.

Article 11. Termination and suspension 

11.1. If the buyer fails to fulfil the obligations arising for him from the agreement concluded or fails to fulfil such obligations in a timely or proper manner, or if there are sound reasons to fear that this will happen, as well as in the event of an application for a suspension of payments, a petition for bankruptcy or a liquidation of the business of the buyer if the buyer is a company, or in the event of a change in the buyer’s form of undertaking or in the board of directors of the company or of the contribution of the activities of the company, the seller will be entitled to suspend the agreement for a reasonable period or terminate the agreement without a notice of default or judicial intervention, without being obliged to pay any compensation of damage to the buyer. 
11.2. The seller’s claim with regard to the part of the agreement that has already been performed, as well as the damage arising from the suspension or termination, including lost profit, is immediately due and payable without prior notice of default being required.

Article 12. Force majeure

12.1 In the case of force majeure – which includes, but is not limited to, riot, (threat of) war, mobilization, strike, weather conditions, omissions on the part of suppliers of the seller, failed crops, phytosanitary restrictions, viruses, acts of God, labor strike, fire, import and export restrictions – or in the case of other circumstances, as a result of which performance or timely performance cannot be required from the seller, the seller will be entitled to, at its discretion, without judicial intervention and without owing any compensation for damage to the buyer, by means of a written notice either to terminate the agreement in whole or in part, or to suspend performance of the agreement until the moment at which the force majeure situation has come to an end. 
12.2. If the agreement has already been partly performed by the seller, the buyer will pay the sales price of the goods delivered and the associated costs (see article 5.4). 
12.3. Insofar as the period of suspension (pursuant to paragraph 1) has lasted for more than two months, the buyer will be entitled to terminate the agreement to the extent the seller has not yet performed, after the buyer has set a reasonable period for delivery and the seller has failed to comply. In such event, the buyer will never be entitled to any form of compensation (for damage). 

Article 13. Complaints

13.1. The buyer is obliged to check the goods for visible and/or immediately observable defects as soon as they have been delivered. Visible and/or immediately observable defects are taken to mean all defects that can be observed by means of normal sensory perception or a simple random sample. The buyer is also obliged to check whether the goods delivered are in conformity with the order. If, according to the buyer, there is a defect or non-conformity, the buyer will inform the carrier immediately and notify the seller within 8 days (of delivery) in writing (see also paragraph 3). By failing to comply with the duty of supervision and the obligation to notify, the buyer loses all his claims on the seller. Defects that cannot reasonably be observed upon delivery will be communicated to the seller, in writing and with statement of reasons, immediately after having been observed, but no later than three months after delivery of the goods.
13.2. The right of complaint lapses in the event of – in the opinion of the seller – faulty assembly, maintenance and/or processing of the goods, while the buyer will fully indemnify the seller against all third-party claims resulting therefrom. 
13.3. If the number, quantity and weight of the delivered goods deviate less than 10% from what was agreed, the buyer will nevertheless be obliged to accept the delivery. The seller is entitled to deliver comparable and/or equivalent types to replace unavailable types or higher or lower thicknesses and/or sizes to replace unavailable thicknesses and/or sizes, at the accordingly higher or lower prices. Such deliveries will not be regarded as faulty. 
13.4. Complaints regarding quality and quantity of the goods delivered have to be submitted in writing and no later than within eight calendar days of delivery. Complaints that were not submitted properly will not be processed. As soon as this term has been exceeded, the buyer will be deemed to have accepted the delivery and any complaints will no longer be processed. The date of the postmark, fax or email is the determining factor for establishing whether a complaint has been submitted in good time. 
13.5. The buyer has to store or keep the goods separated from the other goods so it will remain possible to distinguish the seller’s goods. Furthermore, the buyer has to treat and maintain the goods with due care. 
13.6. The complaint has to contain a description of the fault and the seller has to be given the opportunity, on first request, to investigate the complaint. The buyer has to permit the seller, at the latter’s request, to have an inspection of the relevant goods conducted by an expert or an independent testing body. If the expert finds the complaint to be justified, the costs of the inspection will be borne by the seller. If the complaint is found to be unjustified, the costs will be borne by the buyer. 
13.7. The right of complaint can only be exercised by the immediate contracting party of the seller. The right of complaint is not transferable. 
13.8. Any right of complaint lapses if the buyer failed to treat and maintain the goods that were rejected by him with due care during the period in which they were at his location. 
13.9. If the buyer has submitted a timely and justified complaint to the seller and the seller has acknowledged this complaint, the seller will only be obliged, at its discretion, to deliver the missing goods, replace the faulty goods, or return a proportionate part of the purchase price. The seller has to be given a reasonable period for making replacement deliveries. 
13.10. The payment obligation of the buyer is not suspended by submitting a complaint, unless the seller has agreed to such suspension in writing
13.11. The goods are returned at the risk and expense of the buyer and can only be returned after prior permission in writing from the seller. 

Article 14. Liability

14.1. Except for the statutory liability pursuant to mandatory statutory provisions and except in the event of intent or willful recklessness of the management of the seller, the seller will never be liable for any direct damage suffered by the buyer. 
14.2 Liability for indirect damage, consequential damage, immaterial damage, trading loss, environmental damage, damage due to lost profit or damage resulting from third-party liability is expressly excluded. 
14.3. If and insofar as, in spite of the provisions of paragraph 1 and paragraph 2, any liability rests with the seller for whatever reason, this liability will be limited to the amount equal to the net invoice value of the relevant goods, excluding VAT, subject to the proviso that the seller’s liability will never exceed a total amount of no more than € 10,000.00 [ten thousand euro]. 
14.4. The buyer is obliged, if necessary, to inform his purchasers about the correct treatment of the goods delivered. The buyer is obliged, if and where applicable, to inform his purchasers about the danger associated with the goods. 
14.5. The buyer indemnifies the seller against third-party claims for compensation of damage for which the seller is not liable pursuant to these terms and conditions.

Article 15. Intellectual property rights

15.1. The seller reserves all intellectual property rights the seller has in connection with the goods delivered by the seller. 

Article 16. General

16.1. The seller may transfer its rights and obligations under an agreement to a third party without permission from the buyer. The buyer cannot transfer his rights and obligations under an agreement to a third party without the written permission from the seller, who may attach conditions to such transfer.
16.2. Notifications by one of the parties to the other party are given to that other party in writing, at that party’s headquarter or registered office or another address that has been communicated at the relevant time pursuant to this provision to the party giving the notification.
16.3. Any waiver by the seller of a violation by the buyer of the agreement and/or terms and conditions will not be regarded as a waiver of a next violation of the same or another provision.
16.4. If a provision of these terms and conditions is regarded by a competent authority as invalid or unenforceable, the validity of the other provisions of these terms and conditions and the rest of the provision in question will not be affected.
16.5. The Incoterms are the international rules for the interpretation of trading conditions of the International Chamber of Commerce as in force on the date of concluding the agreement. Unless otherwise required by the context, every term or expression that has been defined or given a certain meaning by the provisions of the Incoterms has the same meaning in the agreement, but if there is a conflict between the provisions of the Incoterms and these terms and conditions, only these terms and conditions will apply.

Article 17. Competent court / applicable law 

17.1. All disputes, including those that are regarded as such by only one of the parties, will exclusively be resolved by the competent court of the District Court of Zeeland-West-Brabant, Breda location.  
17.2. Dutch law exclusively applies to all offers made and quotations provided by the seller, as well as all agreements concluded between the buyer and the seller and the performance thereof. 
17.3. The applicability of the Vienna Sales Convention has been excluded.