Terms and Conditions
Terms and conditions of Test Equipment Nederland B.V.
GENERAL SALES AND DELIVERY TERMS AND CONDITIONS of
Andriessen Holding B.V. and its subsidiaries, including TBA Nederland B.V. and TEN B.V., hereinafter jointly referred to as TBA-TEN.
Article 1 – Definitions
The following definitions apply to these General Terms and Conditions:
TBA-TEN: Andriessen Holding BV and its subsidiaries TBA Nederland B.V. and TEN B.V. with their registered office at Rijkstraatweg 45, 1396JD, Baambrugge, The Netherlands;
Buyer: a legal entity who, in the practice of its profession or conduct of business, enters into an agreement with TBA-TEN with the purpose of Buying the Products and/or Services.
Agreement: the agreement entered into by the Buyer and TBA-TEN.
Products: all material and non-physical products that are produced or acquired by TBA-TEN for Buyer.
ervices: All services provided by TBA-TEN to Buyer.
Article 2 – Applicability
2.1 These General Terms and Conditions apply to every offer, quotation and Agreement between TBA-TEN and the Buyer, unless otherwise agreed in writing.
2.2 The applicability of other general conditions including the conditions of the Buyer is expressly rejected.
2.3 Additions to and/or deviations from these Terms and Conditions are only binding if and to the extent that TBA-TEN has expressly accepted them in writing. Any additions and/or deviations agreed upon will only apply to the Agreement concerned.
2.4 For the purpose of these Terms and Conditions, 'in writing' is also defined as: by written message, e-mail, the Internet, or other electronic media.
2.5 Any specific stipulation included in the quotation and/or the Agreement formed between TBA-TEN and the Buyer will supersede the stipulations of these General Terms and Conditions.
2.6 TBA-TEN is entitled to amend and/or supplement these General Terms and Conditions.
Article 3 – Offer
3.1 Unless expressly stated otherwise, all quotations issued by TBA-TEN shall be valid as an offer without any obligation, which may be revoked by TBA-TEN in writing within 7 (seven) days from having received a confirmation of acceptance from the Buyer.
3.2 The Buyer guarantees the accuracy, completeness and reliability of details and documents which are made available to TBA-TEN within the scope of an order, even if these details come from third parties.
3.3 TBA-TEN retains the right to refuse orders. TBA-TEN will inform Buyers if they are unable to accept an order.
3.4 The Buyer will be entitled to cancel an order only after receiving written consent from TBA-TEN, which consent may be made subject to conditions as deemed appropriate for TBA-TEN.
3.5 TBA-TEN is not obliged to keep to an offer and/or an Agreement for a specified price if this price is based on a misprint and/or a writing error.
Article 4 – Agreement
4.1 An Agreement shall come into effect once TBA-TEN has confirmed the order in writing.
4.2 Any offer made or undertaking given by a representative of TBA-TEN shall only be binding insofar as the latter confirms this in writing.
Article 5 – Delivery
5.1 The delivery time of the Products and Services agreed upon is an indication of the estimated delivery time. In no case shall the delivery time be considered as a strict deadline, unless the parties have explicitly agreed otherwise.
5.2 A delivery delay will not give the Buyer the right to terminate the Agreement or give any rights to any compensation unless such damages are the consequence of an intentional act or intentional omission or of gross negligence by TBA-TEN.
5.3 Deliveries will be made Ex Works, Baambrugge, The Netherlands, based on the Incoterms 2020® unless the parties have agreed otherwise in writing hereto.
5.4 TBA-TEN reserves the right to effect a delivery in parts. TBA-TEN shall be entitled to demand (pre)payment for each (partial) delivery before proceeding with another delivery.
5.5 The Buyer is obliged to accept delivery of the Products upon TBA-TEN first request thereto. If Buyer fails to accept delivery, the Buyer will be liable for all costs and damages resulting therefrom.
Article 6 – Products & Services
6.1 Any and all images and specifications of Products in catalogues, price lists, advertisements, website etc. must be deemed to be representations by approximation only, unless TBA-TEN has explicitly indicated the contrary in writing with regard to a specific delivery.
6.2 TBA-TEN offers various Services such as installation service and maintenance. TBA-TEN will exercise the greatest possible care with regard to the interests of the Buyer when providing these services.
6.3 For maintenance, TBA-TEN offers maintenance contracts for Buyers. The conditions for maintenance are set out in the maintenance contract to which these general terms and conditions also apply. Deviating provisions in the maintenance contract will prevail over these general terms and conditions.
6.4 If and insofar as a proper performance of the services requires this, TBA-TEN has the right to have the agreed services performed by third parties.
6.5 If the Buyer submits a request for support to TBA-TEN, TBA-TEN will try to process the request as soon as possible, but TBA-TEN cannot be held responsible for the temporary unavailability of systems or the temporary malfunctioning of software or other Products.
Article 7 - Obligations of Buyer
7.1 In the event that work is performed at Buyers location or at a location designated by Buyer, the Buyer will provide the facilities reasonably required by TBA-TEN or the third party engaged by TBA-TEN free of charge.
7.2 If work is performed at Buyer's location or a location designated by Buyer, Buyer will ensure that the location where the Services are performed are available to perform the Services.
7.3 The Buyer shall ensure that all data and equipment, which Buyer indicates are necessary or which the Buyer should reasonably understand to be necessary for providing the Services, are provided by Buyer in a timely manner.
7.4 The Buyer is obliged to immediately inform TBA-TEN about facts and circumstances that may be important in connection with the execution of the Services.
Article 8 – Prices
8.1 The Products and Services will be supplied at the prices mentioned in the quotation, website or the Agreement.
8.2 All prices mentioned by TBA-TEN in its quotation, website or the Agreement shall be exclusive of VAT and exclusive of any other costs like transport and insurance costs. charges imposed by government and are based on the Incoterms 2020® in force at the moment of conclusion of the Agreement unless otherwise agreed in writing.
8.3 After commencement of the Agreement but before delivery of the agreed Products, TBA-TEN will be entitled to increase the agreed prices if: the price increase is caused by changes in one or more cost price components, e.g. VAT rates, labour costs, procurement prices, legal regulations or environmental contributions and fluctuations in exchange rates. This includes increasing cost prices because of governmental measures.
8.4 In case of providing Services, TBA-TEN is entitled to increase the prices when unexpectedly more work has to be performed, which cannot be attributed to and was not foreseeable by TBA-TEN. The increase has to be reasonable and necessary to complete the Services.
8.5 Any Services that are provided by TBA-TEN in addition to or in amendment of the said Agreement under the instructions of Buyer, can be seen as additional work. Additional work must be charged to the Buyer on the basis of subsequent calculation with an additional quotation.
Article 9 – Payment
9.1 Payment shall be made by deposit on the bank account number of TBA-TEN, unless agreed otherwise in writing. The agreed price must be paid within 14 days from the invoice date, unless parties agree otherwise.
9.2 Payment must be made by the Buyer in EURO, unless TBA-TEN agrees otherwise.
9.3 TBA-TEN is entitled to demand full payment in advance, unless the parties agree otherwise in writing.
9.4 In the event that the Buyer does not fulfill his obligation to pay in time, the Buyer will owe default interest of 2% without the need for any notice of default or judicial intervention, without prejudicing the other rights of TBA-TEN such as the right to compensation for extrajudicial costs, statutory interest or commercial interest.
9.5 If due to the Buyer’s default TBA-TEN has to assign its claim for collection, all associated costs, such as administrative, judicial and extrajudicial costs, including the costs of a bankruptcy petition, are the liability of the Buyer. The extrajudicial collection costs amount to at least 15% of the principal sum, subject to a minimum of €40 and a maximum of €375, in accordance with the graduated extrajudicial collection costs. The extrajudicial collection costs for claims in excess of the sum of €2,500 will be determined in accordance with the extrajudicial collection costs scale.
9.6 The Buyer will in no case be entitled to set off the sums invoiced by TBA-TEN against a counterclaim put forward by the Buyer or postpone payment in case of a counterclaim invoked by the Buyer.
9.7 In the event the Buyer has any outstanding invoice that is past due, TBA-TEN has the right to stop shipments of Products until the Buyer makes the payment.
Article 10 – Retention of title
10.1 All Products delivered to the Buyer will remain property of TBA-TEN. TBA-TEN will retain title to the Products, until the Buyer has fulfilled his obligations to pay according to the Agreement.
10.2 TBA-TEN is entitled to take back the Products that are subject to retention of title in the following cases:
(a) In the event that the Buyer fails to fulfill its obligations according to the Agreement;
(b) or in case of a well substantiated suspicion that the Buyer is not capable of fulfilling its obligations flowing from the Agreement;
10.3 The Buyer will be obliged to cooperate with bringing back the Products.
Article 11 – Liability and risk
11.1 TBA-TEN will only to be held liable in case of a product recall if;
(a) it is established that TBA-TEN is liable for the circumstances that have led to the recall and;
(b) it has been
established that the Buyer acted as a reasonable and reasonably competent professional and attempted to limit the costs incurred in connection with the recall as far as possible.
11.2 All liability of TBA-TEN to Buyers, will be limited to the sum paid out under the public liability insurance of TBA-TEN including the own risk under this insurance policy. If for any reason whatsoever no sum is paid out pursuant to this insurance, all liability will be limited to the sum of the invoice corresponding to the Agreement on which the other party’s claim is based.
11.3 TBA-TEN shall not be liable for damage of any nature whatsoever, which is caused because TBA-TEN has used incorrect and/or incomplete information supplied by or on behalf of the Buyer when the order was placed or at a later stage.
11.4 TBA-TEN will not be liable for any infringement of intellectual property rights of third parties caused by Buyer.
11.5 TBA-TEN will not—irrespective of the legal basis of the Buyer’s claim—be liable for any consequential damages, including but not limited to losses due to delays or loss of data, lost profits and penalties forfeited by the Buyer.
11.6 TBA-TEN shall under no circumstances be liable for business damages/loss of profits and damages of any nature whatsoever, which is caused by the negligent or injudicious use of the Products by the Buyer or a third party. Injudicious or negligent use shall be understood to mean in any event: the use and storing of the Products supplied in a manner other than that prescribed in the instructions.
Article 12 – Force majeure
12.1 In case of force majeure, TBA-TEN will be entitled to suspend or to partly terminate the Agreement without the obligation to pay compensation to the Buyer or other parties.
12.2 Any failure in the performance of the Agreement for which TBA-TEN cannot be held accountable because it is beyond its control will be considered as a situation of Force Majeure.
12.3 In the event that the period during which performance is not possible due to Force Majeure exceeds 6 months, both parties will be entitled to cancel the Agreement, without any obligation to pay the damages that may arise as a result.
12.4 The following situations should be considered as Force Majeure;
(a) strikes held by the employees of TBA-TEN or third parties.
(b) Illness of employees of TBA-TEN or third parties in connection with the performance of the Agreement.
(c) war, threat of war, armed conflicts;
(d) terrorist attacks;
(e) riot, revolution;
(f) natural disasters, including, without limitation, floods, earthquakes, storms, fire including fire not caused by a natural disaster;
(g) non- or late delivery of Products by (part) suppliers or other third parties engaged by TBA-TEN;
(h) statutory regulations and measures issued by the Dutch government, which interfere with the fulfilment of the Agreement on TBA-TENs’ part, including bans on imports and exports;
(i) statutory regulations and government measures issued by foreign governments or by organs of the European Union, which interfere with the fulfilment of the Agreement on TBA-TENs’ part, including import and export bans;
Article 13 – Intellectual property rights and confidential information
13.1 All rights of intellectual property on all Products supplied or made available pursuant to the Agreement, including, without limitation, software, designs, working methods, advice, (sample) contracts, materials such as (database) details, analyses, drafts, documentation, reports, quotations, pamphlets and any related preparatory material, all in the broadest sense of the word, shall rest and continue to rest exclusively with TBA-TEN.
13.2 The Buyer is not permitted to modify all or part of any Products supplied, their packaging or labelling without the prior written consent of TBA-TEN, unless otherwise agreed upon in writing.
13.3 The Buyer is aware that the Products supplied under the Agreement (may) contain confidential information and trade secrets of TBA-TEN or its part suppliers. The Buyer undertakes to keep this information confidential, to not disclose or give the use of it to third parties other than for the purpose for which it was made available.
Article 14 – Warranty
14.1 TBA-TEN guarantees that the Products meet all the quality requirements and specifications and provides a warranty of 12 months after the delivery date.
14.2 TBA-TEN guarantees that all Services shall be provided in a professional, workmanlike manner, in accordance with reasonable standards or practices. Further, TBA-TEN guarantees that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in the Agreement.
Article 15 – Acceptance and complaints
15.1 Immediately following the delivery of the Products, they must be inspected and verified by the Buyer or The Buyer must verify whether the Products delivered comply with that stipulated in the Agreement, namely:
a. whether the correct Products have been delivered;
b. whether the correct Services are being provided as agreed upon.
c. whether the Products delivered comply with the quality requirements made;
d. whether the Products delivered comply with that agreed on by the parties in terms of quantity (number, amount, weight).
15.2 Any visible defects or visible decreased quantity and visible (transport) damage in the Products must be noted by the Buyer to TBA-TEN within 7 (seven) days from delivery, in writing, with a clear and detailed description of the complaint(s), stating the order number, in the absence whereof the Buyer will be considered to have received the agreed quantity of Products without any visible defects or visible (transport) damage. Any hidden defects, non-visible decreased quantity and non-visible damage in the Products must be reported to TBA-TEN immediately as soon as they are discovered.
15.3 In the case of delivery of defective Products as described in Articles 15.1 and 15.2, the Buyer can return the products. Return shipments of delivered products are only possible if the Buyer provides TBA-TEN with a written statement stating the reason for returning the products, including date and invoice number. TBA-TEN must confirm the return shipment.
15.4 In case of a defect which is attributable to TBA-TEN, Buyer is entitled under the warranty, to be decided at TBA-TEN r’s discretion, to have the Products repaired, receive new Products or is entitled to receive the sum that was paid according to the invoice.
Article 16 – Suspension and termination
16.1 TBA-TEN will be entitled to suspend or terminate the Agreement with immediate effect without any notice of action or default being required and without being obliged to pay damages or compensation, if:
(a) the Buyer has applied for or has been granted (temporary) suspension of payment;
(b) the Buyer has instituted bankruptcy proceedings or a Court has declared that the Buyer is bankrupt;
(c) the Buyer dies or is placed under legal control;
(d) the Buyers’ business is liquidated;
(e) the Buyer fails to comply with his obligations pursuant to an Agreement into which he has entered, or fails to do so properly or in case of a well substantiated suspicion that the Buyer fails to comply with his obligations.
Article 17 – Applicable law & Disputes
17.1 These General Terms and Conditions and all agreements formed between the Buyer and TBA-TEN shall be exclusively subject to Dutch law, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (1980) [CISG].
17.2 All disputes arising from an Agreement between the Buyer and TBA-TEN shall be submitted exclusively to the competent Court in Amsterdam, the Netherlands unless TBA-TEN would elect to submit the dispute to the competent court in the place where the Buyer has its registered offices.
17.3 The provisions of this article leave intact the right of TBA-TEN to obtain a settlement by means of arbitration of the International Chamber of Commerce under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrator(s). The place of arbitration will be Amsterdam, the Netherlands. The arbitral procedure shall be conducted in English.
