GENERAL TERMS AND CONDITIONS OF SERVICES AND SALE TECNOTION BV (4 December 2018)
1. Validity of quotation and conclusion of agreement
General Terms and Conditions of Services and Sale
These General Terms and Conditions of Services and Sale shall apply to all offers made and all agreements concluded with Tecnotion b.v., hereinafter to be referred to as 'Tecnotion', for which Tecnotion is the supplier of services and/or goods. Any Terms and Conditions of Purchase of the other party (the ‘Customer’) and any deviations from these General Terms and Conditions of Services and Sale shall apply only if and insofar as Tecnotion has expressly accepted them in writing. Verbal commitments shall be binding upon Tecnotion only if and insofar as Tecnotion confirms them in writing. Insofar as these General Terms and Conditions of Services and Sale are also drawn up in a language other than English, in the event of any conflict the English text shall always prevail. The term 'in writing' shall have the following meaning: by letter, by fax or by e-mail.
All offers made by Tecnotion in any form shall be free of obligation, unless explicitly stated otherwise. Tecnotion shall be entitled to withdraw its offer within 5 working days after receipt of the acceptance of the offer by the Customer. Tecnotion shall at any time be entitled to amend its services and alter the goods, specifications and instructions for use to improve them or to comply with applicable standards and governmental regulations. Illustrations, catalogues, printed information, colours, drawings, dimensions, statements of weight and measurements etc. made available by Tecnotion are only meant to present a general idea of the goods to which they refer; they are approximate only and not binding. An agreement shall come into effect once Tecnotion has confirmed the order in writing. Any agreement will be concluded under the resolutive condition that the Customer, according to the credit insurance company or to Tecnotion, will be sufficient creditworthy. Any offer made or undertaking given by a representative of Tecnotion shall only be binding insofar as the latter confirms this in writing. 2. Prices
If Tecnotion has agreed to perform services on a fixed price basis, Tecnotion is allowed to charge ‘additional work’ (meerwerk) in case it has performed more services than the services agreed upon. If Tecnotion has made a quote regarding the hours to be spent performing the services, that quote will be regarded as an estimate only. If Tecnotion has spent more hours than the hours quoted, Tecnotion will be allowed to charge those extra hours. With regard to the delivery of goods the prices are based on delivery Ex Works, Suzhou, China (EXW, Incoterms version in force at the moment of conclusion of the agreement) unless otherwise agreed in writing. All prices are exclusive of sales tax (VAT). If, after the date the agreement was entered into, circumstances occur which give rise to price alterations for the goods, such as - but not limited to - changes in raw material costs, increase in wages, alterations by legal authorities of charges, duties and/or taxes and/or levies regarding the services and/or the goods to be supplied, Tecnotion shall have the right to increase or decrease its prices accordingly. Prices quoted shall apply to the quantities quoted only. The prices payable by the Customer shall be those set forth in Tecnotion's price-list in force at the time the order is received by Tecnotion. 3. Payment
Unless the parties agree otherwise in writing, the services and/or goods shall be paid within 30 days after the invoice date by transferring the amount due to the bank account indicated on the invoice. The day of payment shall be the date on which the amount due has been credited to the bank account. Tecnotion shall at all times have the right to demand full or partial payment in advance. The Customer shall not be entitled to invoke any set off or any right of suspension. Payment made by the Customer will first be applied to settle all interest and costs payable and subsequently for those invoices that have been outstanding for the longest periods. This will also be the case if the Customer states that the payment relates to a later invoice. Upon expiration of the term of payment, the Customer shall be in default without the need for any notice of default or judicial intervention and, as of that date, it shall owe interest over the amount due at a rate corresponding to the Dutch statutory interest rate for business transactions plus 4% per month or part of a month from the moment of default. If the Customer fails to meet any of its obligations, all extra-judicial costs reasonably incurred to obtain such payment shall be at the Customer's expense. Such costs shall in any event include the costs of collection agencies, process servers and attorneys. These costs shall amount to no less than 15 percent of the outstanding amount with a minimum of € 250,-. If Tecnotion can prove that it has incurred higher costs, that were necessary in all fairness, then these, too, shall be eligible for compensation. If a court fully or substantially awards judgement against the Customer and its decision has become final, the Customer shall be under a duty to reimburse Tecnotion for all judicial costs incurred at trial and appellate levels, including any amounts not awarded by the court. Furthermore, subject to any other rights Tecnotion may have pursuant to the law or the agreement, in the absence of timely payment it shall be entitled either to suspend further delivery or to terminate all or part of the relevant agreement without the need for a notice of default or judicial intervention, such at its own discretion and subject to Tecnotion's right to seek compensation for any harm it has suffered. At any rate, the entire purchase price shall fall due with immediate effect in the event that the Customer fails to effect timely payment or if he goes bankrupt, is granted a suspension of payments, is placed in the care of a guardian, his possessions are attached, he dies insofar as he is a natural person, or in the event that the Customer’s business is liquidated or dissolved. Upon or after entering into the agreement and before its implementation, Tecnotion will be entitled to demand a guarantee from the Customer that both the payment obligations and any other obligations arising from this agreement will be fulfilled. Refusal by the Customer to provide the required security gives Tecnotion the right to suspend its obligations and ultimately, without any notice of default or legal intervention, the right to dissolve the agreement wholly or partially, without prejudice to his right to compensation for any damages suffered by him. 4. Retention of title
Tecnotion shall retain title to all goods delivered or to be delivered to the Customer until Tecnotion has received payment in full of the purchase price of the goods, the fees for any work done in relation to any sales agreement concluded with the Customer and any other damage resulting from a breach by the Customer of any such sales agreement. During such time as Tecnotion retains title to the goods, the Customer shall not be entitled to transfer title to them to a third party, to tender them by way of security, to encumber or to pledge them, or to place them at the disposal of a third party in any other way. Nevertheless, Tecnotion shall be entitled to sell and deliver the goods in the normal course of its business. The Customer is obliged to keep and/or render the goods subject to retention of title in Tecnotion’s favour identifiable and to keep them separate from each other and from other products held by the Customer. The Customer has a duty of care with regard to the goods covered by the retention of title and must insure them and keep them insured against all of the risks customary in the sector. The Customer shall at all times help Tecnotion exercise its right of ownership. As long as retention of title applies, the Customer shall have a duty to grant Tecnotion access to his buildings and premises. All costs incurred by Tecnotion in repossessing the goods shall be paid by the Customer. When first so requested by Tecnotion, the Customer shall be obliged to pledge to Tecnotion any accounts receivable he acquires in respect of goods supplied by Tecnotion which are subject to retention of title and have been sold to his buyers.
The time for performance of the services and/or for the delivery of the goods shall under no circumstances be deemed to constitute a fatal date. Tecnotion shall not be in default in respect of such delivery time until the Customer notifies it in writing that it is in default, in doing so stipulates a reasonable period of time within which Tecnotion has the opportunity to effect delivery, and the latter still fails to do so. Unless otherwise agreed to in writing, delivery of the goods shall be based on Ex Works, Suzhou, China (EXW, Incoterms version in force at the moment of conclusion of the agreement). From the moment of delivery, the risk of loss or damage shall pass to the Customer, even if title to the goods has not yet passed. Delivery times shall be determined per transaction. The delivery time shall commence at such time as the relevant agreement is concluded in accordance with clause 1, Tecnotion is in possession of all documents and details to be provided by the Customer and Tecnotion has also accepted any security for payment which may have been agreed or have received any prepayment. If the extended term is exceeded, the Customer shall not be entitled to cancel or terminate the agreement, unless the time for delivery is exceeded with more than 26 weeks. The Customer will never be entitled to any compensation in case of late delivery. Tecnotion shall be allowed to deliver the sold goods in partial consignments. If the goods are delivered in partial consignments, Tecnotion shall be entitled to separately invoice the Customer for those partial consignments, and the Customer shall be obliged to pay such invoices as if they concerned separate agreements. Tecnotion shall be entitled to demand payment for each partial delivery before proceeding with any other. The Customer shall be obliged to accept delivery of the goods. Unless otherwise agreed to in writing, the Customer shall promptly collect the goods or arrange for their collection from Tecnotion once Tecnotion has notified the Customer that the goods are ready for collection. If the Customer does not take prompt delivery of the goods or is negligent in providing necessary information or instructions for delivery for any reason whatsoever then the goods will be stored at the Customer’s risk. The Customer shall pay Tecnotion all additional delivery, storage and insurance costs and any other costs incurred, along with any loss arising in connection with such neglect or refusal. In such event Tecnotion shall be entitled to consider the agreement as dissolved with immediate effect, all this while reserving all other rights of Tecnotion.
Upon receipt of the services and/or the goods, the Customer shall be obliged to inspect the services and/or the goods for defects. The Customer shall in particular examine whether the result of the services conform to the objective of the agreement, whether the correct goods have been delivered and whether the quantity of the delivered goods conform to that agreed upon. Visible defects must be reported to Tecnotion in writing within five (5) working days after the date of dispatch. Defects that are not visible upon receipt must be reported to Tecnotion within five (5) working days after discovery or within five (5) working days after the Customer should reasonably have discovered the defects. The Customer shall provide Tecnotion with the opportunity to investigate or have investigate the complaint. The Customer shall grant all necessary co-operation with the investigation. If the complaint is justified, Tecnotion shall only be obliged to either re-perform (part of the) the services or to replace or repair the defective goods at its own discretion. If Tecnotion finds - in such case - that it should not be required to re-perform (part of the) the services or to replace or repair the goods, or that such re-performing of the services or such replacement or repair of the goods is impossible, Tecnotion shall credit the price received regarding the respective services or the goods to the Customer. Tecnotion shall in no event be obliged to replace or repair or credit the price if the damage is a result of normal wear and tear or is a result of circumstances attributable to the Customer. Even if the Customer complains in a timely fashion, it shall remain obliged to pay for and take receipt of all orders placed. The Customer is not allowed to suspend any of its obligations towards Tecnotion. Goods may only be returned to Tecnotion subject to its prior written consent and instructions. The right to complain on any basis whatsoever shall lapse if the defect or the damage is reported too late or one year after the delivery, whichever occurs first, unless a different time period has been agreed upon. Complaints about the invoice must be notified to Tecnotion within (five) 5 working days after invoice date.
Tecnotions liability is limited to the actions as described in clause 6. Except in the case of legal liability pursuant to provisions of mandatory law and a deliberate act or omission, or gross negligence on the part of Tecnotion, any liability of Tecnotion for any damage is excluded. Tecnotion shall not be liable for any indirect or consequential damage, including but not limited to damage resulting from late delivery, damage to other goods of the Customer or any third party, damage resulting from incorrect or improper use of the services and/or the goods by the Customer, loss of turnover, loss of profit or loss caused by the inoperability of equipment, nor for damage resulting from any incorrect and/or incomplete information supplied by the Customer. In all cases where Tecnotion is obliged to pay compensation for damages, the aggregate liability of Tecnotion to the Customer under any theory or ground shall at all times be confined to the net invoice value of the goods and/or the services concerned or to that part of the net invoice value to which a claim for compensation is directly or indirectly related. Total compensation for damages payable by Tecnotion shall in no event exceed € 1.000.000 EUR per event (whereby a series of related events will be considered as a single event) with a maximum of 5.000.000 EUR per year, and as far as liability in USA/Canada is at stake to a maximum of 2.500.000 EUR per year. The Customer shall indemnify Tecnotion against any claim made by a third party in respect of which Tecnotion is not liable under these terms and conditions.The Customer indemnifies Tecnotion from and against all claims by third parties on account of product liability as a result of a defect in a product supplied by the Customer to a third party and that consisted, entirely or partially, of goods and/or materials supplied by Tecnotion. The Customer is obliged to compensate all damage suffered by Tecnotion in this respect, including the full costs of defense.
Tecnotion warrants the goods to be free from any defects in material and workmanship for a period of one year after delivery by Tecnotion. No warranty is given when defects are the result of:
- Tecnotion being provided by the Customer with incorrect and /or incomplete information and specifications.
- failure to follow the assembly instructions correctly and/or completely and, if applicable, failing to follow the advice that Tecnotion has given regarding the (assembly of the) goods;
- normal wear and tear;
- improper use;
- lack of proper maintenance;
- fitting, assembly, alterations or repairs by the Customer or by third parties
9. Intellectual property rights, know-how, specific tools and confidentiality
Except where intended to serve as instructions for use or advertising purposes, or where information is or becomes rightfully part of the public domain, all information (including know-how) in relation to the goods supplied and their maintenance are Tecnotion’s property and remain its property and may not be utilised or copied, reproduced, transmitted or communicated to third parties without the prior written consent of Tecnotion. The Customer shall in particular observe confidentiality with respect to any and all information (including know-how) provided to it during or in connection with the agreement by Tecnotion and it shall not disclose, make public or use this information to render services to third parties, unless explicitly approved in writing by Tecnotion. Any and all rights regarding information (including know-how) and goods, including components, materials, raw materials, tools, drawings and specifications, as well as any and all rights with respect to software which Tecnotion puts at the Customer's disposal for the benefit of performance of the agreement will remain vested in Tecnotion. The above also applies to specific tools produced and/ or designed by Tecnotion for - or on behalf of - the Customer. The Customer is not entitled to (directly or indirectly) use those tools in another manner than that agreed upon between parties nor is the Customer allowed to produce, reproduce or copy such tools. Unless otherwise agreed in writing, Tecnotion shall retain the ownership of such tools. If such tools are produced at the specific request of the Customer and the Customer has fulfilled all of his obligations vis-à-vis Tecnotion, the Customer is entitled to request Tecnotion to destroy said tools in case the relationship between Tecnotion and the Customer has been terminated. Unless otherwise agreed in writing, Tecnotion retains the copyright and all intellectual property rights in the offers made by it and in the designs, pictures, drawings and the like provided by it. Tecnotion reserves all of its intellectual property rights in connection with the goods which it supplies. The Customer shall not be permitted to modify all or part of any good supplied, or to affix any other trademark to it, to use the relevant mark in any other way, or to register it in his own name. In case any intellectual property rights are brought into existence during or in connection with the execution of the agreement, Tecnotion will be entitled to such rights, unless otherwise agreed in writing. If necessary, those rights will be transferred to Tecnotion at its first request.
10. Force majeure
Tecnotion is entitled to suspend the fulfilment of any obligations if any circumstances that could not be foreseen when the agreement was concluded and that are beyond Tecnotion’s influence temporarily prevent the fulfilment of those obligations. If the period during which Tecnotion cannot fulfil its obligations exceeds or will exceed two months, either party shall be entitled to terminate the agreement without judicial intervention and without any obligation to pay damages to the other party. If Tecnotion has performed part of its obligations when the situation of force majeure arises or if it can only perform part of its obligations, it shall be entitled to separately invoice the Customer for the partial performance and the Customer shall be obliged to pay such an invoice as if it concerned a separate agreement. Within the meaning of this clause, force majeure shall include strikes, export regulations or export prohibitions, lack of raw materials, delays in deliveries by suppliers, war, civil war, insurrection, fires, floods, labour disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, sanctions, boycotts, non-availability of any required permits, licences and/or authorisations, defaults or force majeure of suppliers or subcontractors and transportation problems. These circumstances shall constitute force majeure for both Tecnotion and its suppliers.
11. Suspension and dissolution
Tecnotion shall be entitled to suspend any (further) performance of the agreement or to dissolve the agreement without the need to give notice of default or for judicial intervention, without prejudice to its right to claim alternative or additional damages, if any goods of the Customer are attached or if the Customer is granted a suspension of payments or is declared bankrupt, if the Customer defaults in complying with one or more of its obligations to Tecnotion or if Tecnotion fears that the Customer is or will be unable to meet its obligations under the agreement and the Customer fails to offer adequate security for the performance of its obligations and Tecnotion shall not have a duty to provide any form of compensation. If one of the events referred to in this article occurs, all claims it may have against the Customer on whatever basis will immediately become due. If the Customer wishes to cancel the agreement without Tecnotion having failed in the performance thereof and if Tecnotion so agrees, Tecnotion is entitled to charge the expenses, damages and lost profit and, to Tecnotion’s own choice and depending on all circumstances (e.g. already performed supplies/production and whether it concerns a customised good or not), 75% to 100% of the contract price unless otherwise agreed in writing.
12. Sanctions and export control
Trade Laws means any laws, regulations, or other binding measures of the United Nations, the European Union, any EU member state, the United States of America or any other applicable jurisdiction which relates to economic or trade sanctions, export controls, non-proliferation, anti-terrorism or similar restrictions. The Customer agrees and acknowledges that the goods are sold and delivered in accordance with any and all applicable Trade Laws. The Customer agrees to ascertain and comply with all applicable obligations and restrictions arising from Trade Laws. The Customer acknowledges that Trade Laws prohibit, entirely or to a certain extent, or impose certain requirements on exports, transactions and dealings with certain countries, individuals and entities. The Customer will review and comply with any applicable Trade Laws relating to the agreement.
Unless otherwise agreed, each agreement will be entered into for one specific and specified job. Tecnotion may for weighty reasons, to be determined at its discretion, prematurely discontinue or give notice of termination of the agreement in whole or in part without prejudice to any other right. The Customer is, in such case, obliged to (i) pay for the work actually performed in the event of periodic payment, or (ii) pay a proportional part of the agreed upon compensation, considering the term of the agreement already expired and the work performed, in the event of a fixed contract sum. Tecnotion will not be obliged to compensate any damage which the customer might incur as a consequence thereof.
14. Applicable law and disputes
These General Terms and Conditions of Services and Sale and all offers and agreements existing between Tecnotion and the Customer shall be solely governed by and construed in accordance with the laws of the Netherlands. Application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. All disputes shall be submitted to the competent Court of Almelo, the Netherlands unless Tecnotion would elect to submit the dispute to the competent court of the country in which the Customer is domiciled. Disputes between Tecnotion and Customers who are established outside the European Union will be settled 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 arbitrator. The place of arbitration will be Almelo, the Netherlands. The arbitral procedure shall be conducted in the English language. These General Terms and Conditions of Services and Sale and all offers and agreements existing between Tecnotion and the Customer shall be solely governed by and construed in accordance with the laws of the Netherlands. Application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. All disputes shall be submitted to the competent Court of Almelo, the Netherlands unless Tecnotion would elect to submit the dispute to the competent court of the country in which the Customer is domiciled. Disputes between Tecnotion and Customers who are established outside the European Union will be settled 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 arbitrator. The place of arbitration will be Almelo, the Netherlands. The arbitral procedure shall be conducted in the English language.