GENERAL TERMS AND CONDITIONS OF SALE
Article 1. General
These general terms and conditions, including all expressly and in writing accepted amendments thereto by Trisco B.V. ("Trisco"), shall apply to all offers and contracts made by Trisco ("the user"). These General Terms and Conditions of Sale exclude any other General Terms and Conditions, such as those of customers of Trisco, applicable to any legal relationship between Trisco and its customers, regardless whether this legal relationship is occasional or long-term of nature.
Article 2. Offers of Trisco
1. All offers made by Trisco are always without obligation. The agreements concluded with third parties such as by Trisco customers, are only binding if they are confirmed in writing by Trisco.
2. Under "offers of Trisco" are also included in these general conditions the offers, commitments and agreements done by or created by representatives or other persons working for Trisco.
Article 3. Dimensions, weights, tables of contents, pictures
1. The inventory lists, leaflets, guides, catalogues, circulars, tables of contents and the displayed images, sizes and weights used by Trisco, are only approximate and no rights can be derived from there.
2. The property and/or copyright on drawings provided by Trisco, images, text and the like are submitted by Trisco expressly reserved. It is forbidden to third parties to reproduce images and drawings, or to make such available to third parties in any manner whatsoever and in any context whatsoever.
Article 4. Prices
1. The sales price listed by Trisco is based on her purchase price and other cost factors. When one of these cost price components increases, after the confirmation of the order, but before transfer of the goods, Trisco has the right to pass on those increases to the buyer.
2. This clause is generally applicable and in particular on a change of import or export duties or other duties or taxes after the dispatch of the order confirmation and on a change in the exchange rate of the euro against foreign currency, where Trisco purchased and acquired the goods.
3. If sold at a non-determined certain price as well as in the cases referred to in the previous paragraphs of this article, Trisco has the right to cancel the purchase agreement if the buyer raises objections within ten days against the further specified price communicated to him by Trisco.
Article 5. Delivery
1. All offers made by Trisco are, unless otherwise stated, based on delivery carriage paid on the delivery address; the transport costs are therefore borne by Trisco.
2. For deliveries inferior to a fixed order value by Trisco, Trisco reserves the right to charge freight costs.
3. Goods to be delivered by Trisco are at the risk of the buyer, which risk passes on this buyer as soon as the goods used by Trisco warehouses/factories have left, as well as in the case of delivery on supply of third parties, the factories or warehouses of the third parties.
4. Trisco is authorized, though not required to insure the goods on behalf and for the account of the recipient of the goods against the risks to be determined by Trisco.
Article 6. Packaging
Unless the goods by Trisco are supplied in a factory packaging, for which the own provider of Trisco does not charge Trisco separately, the packaging can be charged extra by Trisco.
Article 7. Delivery Times
1. The delivery times indicated by Trisco are without engagement and are approximately.
2. Delivery time takes effect after Trisco has adopted the order in writing, all Trisco formalities required for the commencement of work have been completed, all required documents are in the possession of Trisco and the recipient Trisco, in accordance with the agreements reached, the data required for the implementation of the work made it available and has done the preparatory work agreed. If, in addition, at adoption of the contract payment in instalments is agreed on, and the first term expires, the delivery time expires no earlier than after receipt of the first payment period.
3. The goods and business are expected to be delivered in respect of the delivery time, when they or the main components, one and other, ready for shipment at the discretion of Trisco, after the buyer has notified Trisco in writing. The possible storage of goods and business shall be made at the expense and risk of the buyer.
4. Exceeding the delivery time, however caused, will give the customer never any right to compensation for damages, cancellation of the contract or non-performance or set-off of any obligation, which by him from this or any other related agreement with this Agreement arise, whether or not it do carry out work under or by third parties in performance of the contract, unless there has been gross negligence or wilful misconduct on the part of Trisco.
5. Extension of the delivery time can be carried out at the request of the buyer only with the express approval of Trisco. Possible resulting costs and losses for Trisco, are for the account and risk of the buyer. At the express request in writing by the buyer, Trisco can provide buyer with a budget of compensation of the extra costs or loss related to the request made by the customer to extend the delivery time.
Article 8. Change of ownership and risk.
1. Immediately after the goods or business, or the main components of it, entirely apply, as delivered by Trisco assessment within the meaning of article 7 of these general terms and conditions, without prejudice to article 5 (3) the customer bears the risk for all direct and indirect damages, which shall be annexed to or by these goods for the recipient or for third parties subject to what is provided for in article 11 of these terms and conditions should arise.
2. Without prejudice to article 7, the ownership of the business, including the most important parts of this business, first on the customer as soon as the customer has completely fulfilled all its obligations towards Trisco arising from the agreement that led to the delivery of the relevant business, or from other agreements as with Trisco closed in respect of the delivery of goods or in connection with this delivery carry out work as well as by the customer in respect of actions for the shortcomings in the performance of such agreements.
Up to the moment of the full and proper compliance by the recipient of the aforementioned obligations, goods delivered remain the full property of Trisco. The customer is not expressly authorized to give or to third parties in the business property as collateral in any manner whatsoever for third parties to do serve. The customer is obliged to show the things referred to in that provision on the first reminder, or to Trisco in case of use of the competence as laid down in article 12 on first desire to return immediately to Trisco. The customer is credited for the market value of these matters in the day of the return with respect to the repossessed products based upon this article.
3. If the customer edits and processes the goods delivered by Trisco in such a way that he will form a new case as referred to in article 5: 16 Civil Code, the customer shall be deemed to have carried out this operation in Trisco's command, so that he implement the operation after the business for Trisco is supposed to keep. If the operation or third-party processing business who are involved also, is adopted, with regard to this third equal command so that the manufactured by the customer shall in such case is supposed to be had for Trisco and other suppliers and in community, as provided in title 3: 7 Civil Code as soon as the buyer has fulfilled all the obligations as referred to in paragraph 2 of this article, he will obtain ownership of the item, respectively obtain the share of the item which Trisco also in others entitled.
4. In respect of accession and mixing, the customer is obligated already required for in matters where there may be either delivered by accession of such goods, respectively mixing of such goods as delivered by Trisco, regarding the applicability of the aforementioned legal provisions the goods delivered by Trisco as mainly in the sense of the law so the new case as a result of an accession or mixing becomes totally the property of Trisco B.V., until the buyer has fulfilled his obligations as referred to in paragraph 2 of this article.
Article 9. Payment
1. As far as no other terms of payment are agreed, the recipient will have to execute payment of the amounts of the invoices Trisco without discount, debt equation or any other form of set-off, within 30 days after the invoice date.
2. If the buyer does not settle the invoices/payments due, within the aforementioned term, or has not paid within the agreed period, he shall be deemed to be in default by operation of law and Trisco has, without any summons or notice of default being required, the right to charge the buyer an interest of 1% per month from the due date to charge, this until the date of full payment, all this without prejudice to the other rights of Trisco. Month sections count as a whole month.
3. Every agreement of purchase and sale is entered into under the condition precedent, that the buyer based on gathered information by Trisco is sufficiently creditworthy.
4. During the performance of a contract Trisco is entitled to suspend performance of its obligations, until the buyer on request and at the satisfaction of Trisco, has lodged security for the fulfilment of all Trisco's obligations as valid under the agreement.
Article 10. Reclamations, complaints
1. If agreed, that the buyer will examine of have the goods examined acquired from supplier Trisco and he does not use that right within eight days, after he was notified of the opportunity to do so, the goods shall be deemed to have been accepted by the buyer.
2. Complaints must be made within eight days from the date of delivery of the goods by the buyer be submitted in writing to Trisco. After this period of eight days there are no further obligations for Trisco when a complaint is entered by the buyer.
3. After the cutting of the goods, materials, no more reclamations will be accepted.
4. The submission of reclamations, shall not relieve the buyer from the obligations resulting from the agreement concluded with him and Trisco.
Article 11. Liability
1. Subject to generally applicable legal rules of the public order, except for the provisions of the Civil Code regarding product liability, the fulfilment of the obligations by Trisco counts as only and overall indemnity and any other claim for indemnity on behalf of the buyer, not being in the quality of end-user, is excluded.
2. Trisco is liable to the buyer – not being the end-user- never be required to pay costs, damages and interest, because of injury to persons. Trisco is never required to pay costs towards the buyer, damages and interest due to damage to movable and immovable property, the loss of value of goods supplied due to be unusable in whole or in part, either directly or indirectly caused by the principal or third parties, unless the buyer proves that this is due to intent or gross negligence by Trisco, staff of Trisco expressly not included herein.
3. Trisco is never to be held liable for damages towards its buyers, referring to damages which they suffer as a result of third parties, including its own staff, as a result of damage of any nature, as caused by raw materials/products, in which in any way the raw material/product has been processed and delivered by Trisco to its buyers. Under the aforementioned third-party claims are claims included that are based on legal provisions regarding product liability legislation.
4. Trisco’s buyer commits himself not to disclose to its customers that in the established product, products of Trisco are processed, except insofar as Trisco granted permission hereto in writing based on a case-by-case situation.
5. Damage caused (also) by a product of the buyer in which a product of Trisco is processed, shall be deemed to have been caused by a defect that is fully or to a large extent attributable to the buyer and should therefore come on his behalf, unless the buyer proves that the damage was incurred exclusively by a defect in Trisco’s product, which defect at a normal examination, prior to, during or after the production by the buyer is or could be discovered.
6. Where it is established, that both the buyer as well as Trisco are held liable for the damage caused, Trisco is obliged to indemnify the buyer proportional to the extent to which the defective Trisco’s product is processed in the defected/damaged product, with (but not exceeding) as a maximum the insured sum of the insurance closed by Trisco referring product liability.
7. The buyer preserves Trisco for any damage-claim of third parties, private staff of the buyer including, following damages caused as a result of a product in which Trisco's product is processed and/or following damage caused by Trisco’s product, including damage-claims based on the legal provisions on producer responsibility. The buyer undertakes, in respect of the above mentioned protection, insurance while he will edit that Trisco will be mentioned explicitly as beneficiary. Trisco has authorization to obtain access to the policy and is also entitled to apply for information at the insurance company whether the customer has fulfilled the due insurance-premium for a certain period of time.
8. The buyer undertakes that the operation or processing of product delivered by Trisco to be done exclusively by qualified staff, that is fully aware of and experienced with the nature and quality of the products and the risks of this operation or processing, while preparation and/or processing takes place under qualified supervision.
9. As far as Trisco is addressed by third parties referred to above, which have obtained the faulty/defected product by or on behalf of the buyer, the buyer is obligated to reimburse to Trisco all costs of legal and other assistance completely that Trisco must make in respect of the damage-Trisco claims such as defence, negotiation and so on. These costs are expected to amount at least 15% of the claimed damage amounts.
10. If Trisco is addressed directly by a third, based on the legislation on producer responsibility, the buyer is obliged to hand over the design of the product or the product of which a Trisco product forms a part, to Trisco on her first request.
11. The buyer is obliged in any case opposite Trisco, to provide each product in which Trisco’s products are processed with a clear user manual, in which is warned for the risks both for normal use and improper use of a product and/or packaging. Trisco will obtain such user manual on her first request.
12. In case Trisco products are manufactured in accordance with instructions of the buyer, the buyer shall indemnify Trisco for any third party claim, damages, including own staff-members of buyer, following damage-claims caused as a result of a defect in the product, in which Trisco's product is processed, including claims based on the product liability legislation.
13. In case the product is a finished product, the buyer will indemnify Trisco for all claims of third parties, including his own staff members in respect of damage caused by a product of Trisco, after in respect of this product by or on behalf of the client or by third parties, the original packaging and/or the user manual made as labelled by Trisco, has been removed, changed or otherwise processed for any reason.
14. Trisco will, subject to its responsibilities defined in these General Conditions, never be liable for any indirect damage like for example of business suspension, delay, disorder or any other company-damage for any reason or damage of any kind.
Trisco is also particularly never liable for any direct or indirect damage, which is caused to or by, respectively the operation or non-operation of the goods delivered or processed goods or by relevant staff in its service immediately or indirectly inflicted to goods and persons or anybody else.
Article 12. Dissolution
1. Without prejudice to the other accruing rights Trisco has the right, if for reasons of force majeure referred to in article 13, Trisco is prevented to execute the agreement, to suspend the agreement entirely or partially, at the discretion of Trisco, without being held for any compensation or guarantee.
2. If the buyer, not properly or timely complies with any obligation which for him from this or any other agreement concluded with Trisco should arise, as well as in case of bankruptcy, suspension of payment, cessation or liquidation of his company by the buyer itself or by a third party, he shall be deemed to be in default by operation of law and Trisco has the right without any notice and without legal intervention, to suspend the execution of the agreement or to dissolve the agreement in whole or in part, at the discretion of Trisco, without Trisco being held to pay any compensation or guarantee , but without prejudice to the other accruing rights of Trisco. In these cases any claim payable immediately, and all of a sudden, except in case of a debt settlement by the buyer to all of its creditors.
3. If Trisco owing to paragraph 2 of this article suspends the execution of the agreement, it will make the finished, working on it being included in the price and other materials for the account and risk of the buyer, the buyer will save and pay the contractual price to Trisco, minus the price calculated in the price of the already paid amounts and with already paid terms.
4. If as a result of the requirements of paragraph 1 and 2 Trisco dissolves the agreement in whole or partially, Trisco has the right to demand of the buyer, that he acquires the finished product, the products being in operation and the other product included materials, against payment of the contractual price minus the in that price calculated price of the terms at discretion of Trisco. Should buyer remain in default, Trisco will store or sell the products for the account of the buyer. In the cases stated in the two previous paragraphs the ownership of the goods is transferred to the buyer at the moment that full payment of the goods is made.
Article 13. Force majeure
Force majeure as referred to in article 12 shall mean any circumstance as a result of which compliance with the entire agreement or compliance with delivery periods, the agreements no longer reasonably can be accomplished by Trisco, such as war, danger of war, riots, strikes, civil war and labour exclusion, transportation difficulties, fire and other disturbances in Trisco’s company or Trisco’s subcontractors and delayed delivery caused by any cause whatsoever of important materials, raw or auxiliary materials, or parts. Trisco will immediately notify the buyer if a case of force majeure occurs. Trisco is not kept to the obligations in case a force majeure situation arises, as long as the force majeure situation continues to have effect. In cases of force majeure, the parties can never claim any compensation.
Article 14. Judicial and Extrajudicial costs
1. The buyer is also due, besides the obligations resulting from this these General Conditions of Sale, to compensate all extrajudicial and judicial costs, which Trisco makes in order the fulfilment, dissolution or damages under this agreement whether or not the buyer is in its right of not, approached by the buyer, to defend Trisco, unless in the latter case, according to a court ruling defence is conducted wrongly by Trisco.
2. Extrajudicial costs are payable by the buyer in any case, that we, Trisco, for the recovery or the defence referred to in paragraph 1, by the help of a third party, such as e.g. a lawyer have assured. Without prejudice to any further rights and claims, the extrajudicial costs will amount at least a minimum of 15% of the principal amount owed.
Artikel 15. Applicable Law
In respect of this agreement and in respect of the agreements, which are the corollary thereof or fall under the atmosphere of these General Conditions of Sale, both parties declare to submit to the Dutch Law, in force for the Empire in Europe. The Court of 's-Hertogenbosch will have jurisdiction to hear any disputes, as far as the law provides otherwise.
January 12, 2009 Trisco B.V.
(Free translation of “Algemene Verkoopvoorwaarden”established and drawn up January 12, 2009)