General Terms and Conditions of Sale and Delivery of De Tombe Trading B.V.

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1.     Applicability
1.1    These General Terms and Conditions are applicable to all deliveries, offers, agreements and order confirmations concluded with De Tombe Trading. The applicability of general conditions used or referred to by Buyer is explicitly rejected. Full or partial dissolution of the agreement is not possible.
1.2    In the event a specific agreement between De Tombe Trading and Buyer is concluded to which these General Terms and Conditions apply, the provisions of such specific agreement shall prevail in case of a conflict between the provisions of such specific agreement and the provisions of these General Terms and Conditions.
1.3    Unless the context shows otherwise, capitalized words and expressions used in these General Terms and Conditions are defined as follows:
Buyer: the (potential) counterparty of De Tombe Trading;
De Tombe Trading: De Tombe Trading B.V.;
Products: any tangible goods to be delivered by De Tombe Trading as specified in the offer;
General Terms and Conditions: these General Terms and Conditions of Sale and Delivery of De Tombe Trading B.V.

2.     Offers
2.1    All offers made by De Tombe Trading are based on performance of the agreement under normal conditions and during normal working hours according to the information supplied by Buyer.
2.2    Buyer’s orders are deemed irrevocable. Cancellation or amendment of an order is only possible with De Tombe Trading’s consent and against payment of any costs incurred by De Tombe Trading.
2.3    If De Tombe Trading does not confirm an order placed by Buyer by electronic means within a reasonable period of time after receipt of such order, such non-confirmation shall not be considered a rejection and Buyer may not rescind the agreement on that basis.

3.    Agreement
3.1    An agreement between De Tombe Trading and Buyer is concluded when De Tombe Trading accepts Buyer’s order in writing, or when De Tombe Trading commences the execution of the order placed by Buyer.
3.2    Buyer is obliged to provide De Tombe Trading with all information and documents necessary to execute the agreement (including governmental requirements regarding De Tombe Trading and/or the Products). De Tombe Trading is not obliged to verify whether the information and documents are correct. Failure by De Tombe Trading in the performance of its obligations due to incorrect or incomplete information provided by Buyer cannot be attributed to De Tombe Trading. Buyer is liable for the damage resulting from incorrect or incomplete information.

4.    Prices and Payment
4.1    All prices are excluding VAT and other charges, duties and taxes imposed by governmental authorities and are based on delivery EXW Incoterms 2010, unless otherwise agreed in writing. Unless otherwise explicitly stated, all prices are stated in Euro.
4.2    All payments should, unless explicitly stipulated otherwise, take place by the Buyer within the payment period stated on the invoice and in the absence thereof within fourteen (14) days following the invoice date. When the payment period is exceeded, the Buyer is legally in default. From the day that the payment period has expired until the date of full payment, the Buyer owes statutory interest on the outstanding amount. The Buyer shall in no case be entitled to invoke the right of set-off.

5.     Delivery
5.1    De Tombe Trading shall deliver within the agreed delivery period. The Buyer shall never be entitled to compensation should the delivery period be exceeded by De Tombe Trading. In case of untimely delivery, Buyer shall give notice in writing to De Tombe Trading granting De Tombe Trading a reasonable time for delivery under penalty of dissolution of the agreement. Should De Tombe Trading already have partially met its obligations, this performance shall be maintained and De Tombe Trading shall be entitled to a proportional part of the agreed price.
5.2    Delivery will be done under the terms included in the offer or order confirmation. If no condition has been agreed, delivery will be done EXW Incoterms 2010.
5.3    De Tombe Trading is entitled to postpone deliveries until Buyer has fulfilled all its outstanding payment obligations towards De Tombe Trading.
5.4    De Tombe Trading is entitled to deliver prior to the agreed delivery date and is entitled to deliver in parts and to invoice such partial deliveries separately.
5.6    If a delay in delivery is caused by or a consequence of an act or omission of Buyer or force majeure as meant in clause 9, De Tombe Trading is entitled to postpone delivery with the period of the delay.  

6.    Acceptance of delivery
6.1    Buyer shall ensure that De Tombe Trading is able to deliver the Products at the agreed place of destination on the agreed delivery date and Buyer is obliged to cooperate with delivery. Buyer shall be deemed to have received the Products in good order upon acceptance of delivery.
6.2    Minor deviations with respect to the agreed quantities, measures, color and / or quality are deemed accepted by Buyer.
6.3    De Tombe Trading will store or procure storage of the Products concerned on Buyer’s request. Stored Products are at the expense and risk of the Buyer, including the risk on the part of the Buyer of loss of quality. If Buyer does not collect the Products concerned within the stipulated term, De Tombe Trading is entitled to terminate the agreement in whole or in part and to dispose of the Products concerned in any manner it deems fit, without any compensation whatsoever being due by De Tombe Trading.

7.    Complaints
7.1    Complaints should be submitted in writing within ten (10) days of the receipt of the delivery. Complaints will not be recognized after this date, unless they concern hidden defects. In such a case a period of a maximum of two (2) months applies. Neither shall claims be recognized if the delivered Products have in any way been used or processed. Complaints or differences of opinion, whatever the nature, do not entitle the Buyer to postponement of payment.
7.2    Defects in a part of the delivery do not entitle the Buyer to reject the complete delivery.

8.     Risk and title to the Products
8.1    Unless agreed otherwise, the risk of the Products passes to Buyer as per the agreed Incoterm.
8.2    De Tombe Trading retains title to the Products delivered or to be delivered, until Buyer has fulfilled its payment obligations with respect to all Products delivered.

9.     Force Majeure
9.1    If De Tombe Trading fails to perform any of its obligations due to Force Majeure, De Tombe Trading is entitled to suspend performance of its obligations under the agreement or to terminate the agreement in whole or in part, without any compensation being due. De Tombe Trading will in inform Buyer in writing if a situation constituting Force Majeure occurs.
9.2    The term “Force Majeure” shall mean any permanent or temporary circumstance, event or occurrence the cause of which is not reasonably within the control of De Tombe Trading, including, without limitation, strikes, fires, floods, explosions, wars, acts of terrorism, riots, delays of carriers, transportation problems, embargoes, unavoidable accidents, restrictions imposed by national or local jurisdictions or any governmental authority and all other circumstances under which De Tombe Trading can reasonably no longer be held to fulfill its obligations towards Buyer.

10.    Intellectual property and confidentiality
10.1    Buyer acknowledges that all intellectual and industrial property rights pertaining to the Products are and shall remain the exclusive ownership of De Tombe Trading and / or its suppliers. Products may not be copied or otherwise manufactured or reproduced.
10.2    Each party shall keep maintain confidentiality of the terms and conditions of the agreement and all technical, business, financial and other information acquired during the performance of any agreement, unless this information and knowledge is or later becomes generally available to the public without breach of this clause 10. Each party shall obligate its employees and consultants to respect these obligations of confidentiality.

11.    Termination
11.1    If Buyer fails to observe these General Terms and Conditions or the terms of any other agreements between Buyer and De Tombe Trading, or if Buyer becomes insolvent, all balances then due and owing to De Tombe Trading shall become due immediately, notwithstanding any agreed upon payment periods. Any orders that have been confirmed by De Tombe Trading, but not yet filled, shall in such cases become cancelable at the sole discretion of De Tombe Trading.

12.    Liability
12.1    Except in case of gross negligence or willful intent of De Tombe Trading or its directors, De Tombe Trading’s aggregate liability under any agreement is limited to the amount invoiced (excl. VAT) under the purchase order relating to the Products, which caused the damage, or, at De Tombe Trading’s sole option, to the amount actually paid out by De Tombe Trading’s insurers.
12.2    In no event shall De Tombe Trading be liable for consequential or indirect losses or damages, including but not limited to loss of profits, incurred losses, costs and expenses, loss of contracts, loss of savings or losses caused by disruption or stoppage of the production and/or the business.
12.3    The foregoing provisions do not affect liability based on mandatory law.

13.    Applicable law and dispute resolution
13.1    Dutch law shall – with the exception of the provisions of the United Nations Convention on the International Sale of Goods (1980) – be applicable to all legal relationships between De Tombe Trading and Buyer.
13.2    All disputes arising under or in connection with an agreement or agreements resulting there from or the performance thereof between De Tombe Trading and Buyer as well as any disputes regarding these general conditions, shall be exclusively settled by the competent court in The Hague, the Netherlands.

14.     Miscellaneous
14.1    Where “written” or “in writing” is used in these General Terms and Conditions, it shall also mean fax or e-mail correspondence.
14.3    Any deviations from these General Terms and Conditions must be agreed by De Tombe in writing and are only applicable to the relevant agreement.
14.4    If any provision of these General Terms and Conditions is invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of the General Terms and Conditions which shall remain in full force and effect.
14.4    Unless specifically agreed otherwise, Buyer may not assign the agreement or assign or encumber any of its rights there under to any third party without De Tombe Trading’s prior written consent.