General terms for sale and delivery of Trading Park B.V.
1.1. All quotations issued and offers made by Trading Park B.V. (hereafter: “Trading Park”) and their acceptance and/or agreements reached with Trading Park regarding the sale and delivery of items by Trading Park are exclusively subject to these General terms of sale and delivery (hereafter: “terms”).
1.2. In these general terms, “buyer” shall entail anyone who requests or receives a quotation from Trading Park, purchases items from Trading Park and/or concludes an agreement with Trading Park.
1.3. Applicability of the general terms used by the buyer is hereby explicitly dismissed, also in the event of any prior reference to or declaration that buyer’s own terms apply.
1.4. These terms may also be relied upon by natural persons and legal entities that are in any way involved with carrying out any agreement or assignment as well as the natural persons and legal entities that together form Trading Park or that work for Trading Park. This stipulation constitutes an irrevocable third party clause for the natural persons and legal entities mentioned in this sub clause.
1.5. Deviations from the terms may be agreed only in writing and shall apply only once they have been explicitly confirmed to buyer in writing by the legally authorized representative of Trading Park.
1.6. If any provision in these terms is declared void or are otherwise regarded as non-binding, that provision shall be interpreted in such a manner that the conflict or invalidity is reversed. The other provisions in these terms shall remain in full force in that case.
2.1. Unless agreed otherwise in writing, all quotations and/or offers by Trading Park to the buyer are entirely free of obligations and valid as long as stocks last. This term shall be a strict deadline in all cases, meaning that acceptance of the offer shall no longer be possible after that term has lapsed.
2.2. Trading Park reserves the right to revoke a quotation and/or offer it has made up to five business days after receipt of its acceptance. In such instance no agreement shall come about.
2.3. Trading Park is always entitled to modify the specifications as indicated in its quotations and/or offer.
2.4. Trading Park may decide to send the buyer a sample for approval. If no written response is forthcoming from the buyer while stocks last, the quotation from Trading Park or the engagement entrusted to Trading Park shall lapse.
2.5. In the event that a quotation and/or offer contains a manifest typing mistake, error or lack of clarity, which is at any rate deemed to include the statement of a fee which the buyer knew or should have known could not be realistic, Trading Park shall be entitled to revoke its quotation and/or offer or to cancel the relevant agreement without having a duty to provide compensation for any loss.
3. Conclusion of agreements
3.1. An offer of Trading Park needs to be confirmed by the buyer in writing, in for instance an email or order confirmation. After receiving such confirmation, Trading Park will issue an invoice. An agreement with Trading Park is concluded, only if Trading Park has issued such invoice. Objections to the content of this invoice must be submitted by registered letter or by mail no later than three days following receipt, in the absence whereof the recipient shall be considered to have agreed to the content of the invoice.
3.2. With respect to the content of the agreement between parties, only what is stated concerning the agreement in the invoice of Trading Park and in the present terms shall be decisive.
3.3. The fact that Trading Park supplies the buyer and/or has previously supplied the buyer does not give buyer any right to future deliveries by Trading Park. Trading Park is not required to provide any reason for refusing to supply the buyer in the future.
4.1. Unless explicitly agreed otherwise in writing, rates indicated on quotations and/or offers and rate charts of Trading Park do not include VAT, freight and transport or any tax or other levy imposed by public authorities and shall apply exclusively to the kilos, units and/or items stated there.
4.2. Unless explicitly agreed otherwise in writing, the rates in quotations are based on delivery ex works according to the
Incoterms valid on the date of the quotation. “Ex works” shall entail the industrial site of where the items are located.
4.3. In the event of changes to rates charged by suppliers or vendors to Trading Park and/or (other) factors that determine prices, such as exchange rates, wages, taxes, import and export duties, expenses, freights and the like change after an offer from Trading Park or an order from the buyer, Trading Park shall in all cases be entitled to reasonably adjust the rates in accordance with and with regard to the mandatory provisions in this case, regardless of whether Trading Park could have foreseen the change at the time of the offer or the order. Trading Park shall notify the buyer of stated changes the moment that such changes become known to Trading Park. The rate changes do not entitle the buyer to cancel, terminate or dissolve the agreement in any way.
4.4. Any price lists, rate charts, overviews of (the quantity and design of) items or other data issued by Trading Park are merely indicative and not binding to Trading Park.
5.1. Unless explicitly agreed otherwise in writing, Trading Park shall require payment from the buyer of the entire amount invoiced for the items in advance, ultimately at the date specified by Trading Park in the invoice.
5.2. In the event Trading Park agrees that the buyer does not need to pay the (entire) amount in advance, payment is due within fourteen days of the invoice date, unless explicitly agreed otherwise in writing. Payment is to be deposited or transferred to a bank account indicated by Trading Park, in Euros and including VAT. The settlement date indicated on the bank statements of Trading Park shall be decisive in determining the date of payment.
5.3. The buyer is not entitled to any deduction, suspension, set off or settlement.
5.4. If the amount due is not paid on time, the buyer shall be in default, without any demand or prior notice of default being required, and shall owe Trading Park the statutory commercial interest pursuant to Art. 6:119a of the Dutch Civil Code from the date the invoice becomes payable to Trading Park.
5.5. In case of non-compliance, bankruptcy and/or seizure of the buyer, Trading Park is entitled to suspend without any notice of default or judicial intervention all current agreements between the buyer and Trading Park or to demand payment in cash for them, even if it was agreed otherwise, or to dissolve agreements entirely or in part, as well as to retrieve
items supplied immediately, without Trading Park being required to provide any compensation for damages or guarantee and without prejudice to its other rights, such as the right to compensation for damages.
5.6. Trading Park may at any moment settle by virtue of an agreement with the buyer anything that is due on demand or otherwise against whatever the buyer owes it.
5.7. All actual legal and other costs incurred by Trading Park, arising from or relating to incorrect or untimely fulfilment of obligations by the buyer, shall be entirely at the expense of the buyer. Legal costs are explicitly not limited to lawyers’ fees and court costs. The costs shall be deemed to amount to no less than 15% of the amount payable subject to a minimum of Euro 250.
6. Retention of title and transfer of ownership
6.1. All items to be and already supplied by Trading Park shall remain the exclusive property of Trading Park, until the buyer has fulfilled all his obligations toward Trading Park with respect to the corresponding previous and subsequent items supplied by Trading Park, as well as regarding the (future) claims by Trading Park against the buyer due to (future) failure by the buyer to fulfil his commitments toward Trading Park.
6.2. The buyer is not entitled to encumber the items in any way at all by limiting the right to security or enjoyment or to remove them in any other way from recovery by Trading Park, until ownership has been transferred.
6.3. The buyer is required to treat items that have been supplied subject to retention of title with care and to retain them as identifiably the property of Trading Park, until ownership has been transferred to him.
6.4. The buyer is required to insure the items at his own expense, for the duration of the retention of title, against damage by fire, explosion and water, additional damage or destruction for any reason at all, as well as against theft, and to present the policies for these insurances to Trading Park for review at its first request.
6.5. If the buyer is negligent in complying with his payment obligations to Trading Park, or if Trading Park has reason to fear that he will fail to fulfil these obligations, Trading Park shall be entitled to retrieve the items supplied subject to the retention of title immediately.
6.6. If Trading Park reclaims items as its property supplied according to this provision, buyer shall indicate to Trading Park where the items are located and shall grant Trading
Park access at any time to its sites and/or buildings to inspect the items and/or to enable Trading Park to enforce its rights.
7. Supply and delivery times
7.1. The buyer is required to take receipt of the items that Trading Park presents to him.
7.2. Trading Park shall notify the buyer that the items are ready to be delivered from the warehouse where the items are stored. The buyer is then required to take (or arrange for) receipt of the items to be supplied to him within fourteen business days after aforementioned written confirmation. Trading Park can (but is not obliged) to extend this term.
7.3. Unless agreed otherwise in writing, delivery shall be Ex Works, pursuant to the Incoterms 2010. The risk transfers to the buyer from the date of the notification stated in clause 7.2. Loading and unloading is at all times for the risk of the buyer.
7.4. Deviating from the provision in the previous section, parties may agree in writing that Trading Park arranges the transport. The risk and the costs of storage, loading, transportation and unloading shall in that case transfer to the buyer after unloading of the items by Trading Park at the agreed location.
7.5. If the buyer does not collect the items before the term of delivery term stated in clause 7.2. lapses, and/or the buyer refuses the items, the items shall be considered to have been delivered.
7.6. If, following the expiration of the agreed term of delivery, the buyer has not taken receipt of the products, Trading Park shall be entitled to store the products at the expense and risk of buyer (if the storage facilities accommodate this). If delivery is not taken in time, Trading Park shall be entitled from fourteen days after the term of delivery has lapsed to dissolve the agreement, without prejudice to the right of Trading Park to compensation for damages and the right of Trading Park to sell the products to third parties.
7.7. The method of packaging shall, in the absence of any additional written agreement, be determined by Trading Park.
7.8. Trading Park shall always be entitled to deliver in sections, which sections may be invoiced separately.
7.9. Stated delivery times are never to be regarded as strict deadlines for Trading Park, unless agreed otherwise in writing.
7.10. Only if a delivery time has explicitly been agreed in writing as strict, is the buyer entitled to dissolve the agreement if Trading Park has not supplied the items ordered according to this deadline, but only after the buyer sends a registered letter giving Trading Park a reasonable period to meet its obligations after all.
8. Inspection and complaints
8.1. The buyer is required to inspect the quality and quantity of the items immediately after they have been delivered. Any defects relating to the quality or quantity are to be reported in writing within 48 hours of delivery, listing the nature and scope of the complaints. Other complaints must in any case reach Trading Park within four business days after the items have been received. Without any written notice, the buyer shall be considered to have approved the items delivered, and Trading Park may choose not to accept complaints any longer.
8.2. Except if evidence is provided to the contrary, Trading Park shall regard the quantities indicated on the consignment notes or other delivery documents as accurate.
8.3. The buyer is required upon the first request from Trading Park to return to Trading Park the allegedly defective items within five business days after sending the complaint, at the own expense and risk of the buyer, packaged in the same manner as by Trading Park.
8.4. Submitting a complaint shall never be any ground for suspending or settling the payment obligations the buyer has toward Trading Park or for dissolving (the) agreement(s).
8.5. The buyer, after discovering any defects, may no longer use or sell that item, except after receiving written permission to do so from Trading Park. Should the buyer do so nonetheless, complaints shall not be accepted.
8.6. If a complaint is deemed justified by Trading Park, Trading Park shall to the choice of Trading Park supply substitute items or shall credit the relevant portions of the amounts invoiced to him. Trading Park shall not be required to pay compensation for costs or damages.
8.7. Trading Park shall not be required to supply substitute products or to reimburse the invoice value, if the defective products have not been provided to Trading Park on time, and/or the buyer has not strictly observed the instructions for storing the products delivered, either causing spoilage or having made it possible and/or as a result of which the accuracy of the complaints expressed by the buyer can no longer be investigated.
8.8. If a complaint is deemed by Trading Park to be unfounded, the items returned shall be returned to the buyer at the expense and risk of the buyer.
9. Liability and indemnification
9.1. Except in cases of intent or recklessness on its own part or that of its supervisors, Trading Park is not liable for any damages or loss, of any nature at all, that the buyer, his employees or other agents, or a third party might suffer as a consequence of the items supplied by Trading Park.
9.2. In the event that it is established by law that Trading Park, despite the provision in the previous section, is liable for the damages meant there, its liability shall at any rate be limited to the amount that its Insurance would pay out or, if there is no insurance cover, for whatever reason at all, to the invoice value of the items that relate to its liability.
9.3. The provisions in clauses 9.1. and 9.2. concern both the contractual and the non-contractual liability of Trading Park, including product liability and liability for possible infringement of intellectual property rights and shall at all times be confined to compensation of no more than any direct loss. For the purposes of these general terms and conditions “direct loss” is only deemed to refer to: (a) material damage inflicted on the buyer’s property in so far as it has occurred as a direct result of a loss-inflicting act which amounts to a breach of the relevant agreement, (b) any reasonable costs which the buyer needs to incur in order to ensure that Trading Park’s performance accords with the relevant agreement, (c) any reasonable costs incurred for the purposes of determining the cause and scope of any loss in so far as such determination concerns a direct loss in accordance with this section and (d) any reasonable costs incurred for the purposes of preventing or limiting any loss in so far as the buyer can show that such costs have resulted in a limitation of any direct loss in accordance with this section.
9.4. Under no circumstances may Trading Park be held liable or be required to pay compensation for any indirect and/or incidental loss, unless the applicable mandatory law legislation does not permit the exclusion of such loss (or part thereof). For the purposes of these general terms and conditions “indirect and/or incidental loss” is deemed to refer to, amongst other things (but not confined to), consequential loss, loss of turnover and/or earnings, forgone savings, investments, any loss due to the disruption or stoppage of business and/or any expenses incurred for the purposes of preventing, determining or limiting any indirect and/or incidental loss, and/or liability for same, and any costs incurred for the purposes of securing extrajudicial compensation for such indirect or incidental loss.
9.5. The buyer shall do all in its power to limit any loss. Under no circumstances shall Trading Park proceed with compensation for any loss which could reasonably have been avoided.
9.6. In all events, including in the event that the invoice value of the items is higher and in the event that the foregoing sections are not upheld in law for any reason whatsoever, Trading Park’s liability or at any rate its duty to provide compensation shall be confined to no more than Euro 25,000.
9.7. The buyer shall indemnify Trading Park from any claims by its agents, including its employees or representatives, and/or third parties, concerning damages for which Trading Park has excluded and/or limited liability toward the buyer.
9.8. In case there is (1) any matter which may result in a safety risk arising from the items or (2) a mandatory recall, withdrawal or similar measure (“recall”) of any of the products, Trading Park shall immediately inform buyer. Buyer is obliged to act in the best interest of Trading Park and shall take appropriate measures.
10.1. All products are sold to buyer on an “as is” basis and no guarantee or warranty is given in relation to it, unless clause 10.2 applies. Unless agreed otherwise in writing, Trading Park does not guarantee that the items do not infringe any intellectual property rights (including trademark rights) and the buyer is solely responsible for checking whether the products can be brought onto the market in a certain territory because of such rights. The fact that items cannot be brought onto the market in a certain territory as a result of intellectual property rights is no ground for termination of an agreement, nor is Trading Park obliged to compensate any costs or damages.
10.2. Guarantees for items purchased elsewhere by Trading Park shall be given to buyer, only if and to the extent that the manufacturer/supplier concerned actually issues a guarantee. The guarantee shall cover only replacement of the items or crediting of the invoice amount. All damages, both direct and indirect, arising from the items supplied by Trading Park being unfit for their purpose or defective, are excluded from the guarantee.
10.3. Claims under a guarantee shall lapse, if the items have not been used according to the instructions from the supplier or Trading Park, if what is supplied is used for purposes other than the normal ones, or if what is supplied is treated, stored or used improperly.
10.4. If the buyer fails to fulfil his obligations, Trading Park shall be relieved of its (guarantee) obligations as a consequence.
10.5. Guarantees lapse in the event of untimely or improper inspection or complaint, as mentioned in Article 8.
11. Implementation by third parties and transfer of rights
11.1. Trading Park shall be entitled to make use of services rendered by third parties in carrying out the agreement.
11.2. Trading Park may at any time transfer its rights and/or duties arising from the agreements with the buyer entirely or in part to a third party or offer them as security in some way, for which the buyer already grants permission in such an event.
12. Force majeure
12.1. Force majeure on the part of Trading Park shall in any case entail: any circumstance beyond its control that impedes fulfilment of the obligations to which these terms apply, permanently or temporarily. Force majeure shall also include: bans on transport, import and/or export, industrial actions, sit-down strikes, absenteeism due to sickness of staff, transport problems, turmoil, acts of war, fires, water damage, defective machinery, interruptions in the power supply, government measures (including in any case import and export restrictions), sales prohibitions, anything at Trading Park or at its vendors, as well as breach of contract by the suppliers of Trading Park that renders Trading Park unable to (continue) fulfil(ling) its obligations toward the buyer.
12.2. If in the view of Trading Park the force majeure is temporary, it is entitled to suspend carrying out the agreement until the circumstance causing the force majeure no longer occurs.
12.3. If in the view of Trading Park the force majeure is permanent, it is entitled without any judicial intervention to adapt the agreement, to dissolve it entirely or in part or to cancel it immediately, without being required to provide any compensation for damages to the buyer.
12.4. If Trading Park has already fulfilled part of the agreed obligations at the start of the force majeure situation, it shall be entitled to invoice the items supplied separately and in the interim, and buyer is required to pay this invoice, as if it concerned a separate transaction.
Cancellation by the buyer of an agreement concluded with Trading Park is possible exclusively with consent from Trading Park.
Trading Park shall be entitled by the simple occurrence of the circumstances below, without any warning or notice of default or judicial intervention being required, either to dissolve the agreement entirely or in part and to reclaim what was supplied as its property, and/or to demand full payment of any amount that the buyer owes Trading Park, all without prejudice to the right of Trading Park to compensation for damages, if:
- the buyer fails to comply, does not comply in time or does not comply correctly with any obligation he has toward Trading Park;
- the buyer is declared bankrupt, or an application has been submitted to this effect, applies for suspension of payments, or has suspended payments;
- the buyer requests a debt rescheduling arrangement;
- all or part of the assets of the buyer are or have been seized;
- the buyer proves to be insufficiently creditworthy in the opinion of Trading Park to fulfil its obligations toward Trading Park;
- the company of the buyer is dissolved or wound up;
- the buyer proceeds to cease or has already ceased his operations, the transfer of his company or part thereof, including merging his company with a company to be established or already existing, and (partial) transfer of control in the company, with the buyer not yet having fulfilled all his obligations toward Trading Park.
15. Applicable law and jurisdiction
15.1. All agreements concluded with Trading Park to which these terms apply are exclusively subject to Dutch law. The United Nations Conventions on Contracts for the International Sale of Goods and similar conventions are not applicable.
15.2. Any disputes arising from the agreements concluded between Trading Park and the buyer, including these terms, shall exclusively be brought before the court with jurisdiction where Trading Park is registered as doing business, this unless Trading Park chooses to initiate proceedings at a different court of law.