General Terms and Conditions of Sale and Delivery of TSK Laboratory Europe B.V. (hereinafter also referred to as: “TSK”)
1. Quotation and order confirmation
1.1 All offers and transactions from TSK are subject to the following terms and conditions. If the General Terms and Conditions of Sale and Delivery in combination with a framework agreement or an order confirmation apply, the stipulations in the framework agreement or order confirmation shall prevail over the General Terms and Conditions of Sale and Delivery.
1.2 Acceptance of the order confirmation by the purchaser shall be assumed if, within seven working days following receipt of the order confirmation, the purchaser has not registered a written objection. In present conditions, “written” shall also mean: by facsimile transmission, by e-mail or by other electronic means.
1.3 The product description included by the purchaser in his offer and/or his orders shall only be binding if that product description has clearly been specified by TSK in a framework agreement or in an order confirmation.
1.4 The quotations notified by TSK shall be valid for 1 month.
1.5 Deviations from the General Terms and Conditions of Sale and Delivery shall only be valid if approved by TSK in writing, at detail level.
1.6 Present General Terms and Conditions of Sale and Delivery shall take precedence over any terms and conditions of purchase of a purchaser, irrespective of whether any terms and conditions of the purchaser have been presented to TSK.
2. Brochures, specifications, samples
2.1 Product descriptions on the website, in catalogues, brochures, price lists, etc. apply only as approximate descriptions and are entirely non-binding.
2.2 The quality and product description of product samples are indicative for the appearance of the product. It is permitted that deviations may occur in the finished products.
2.3 The specifications as laid down in the framework agreement or order confirmation may vary from time to time, exclusively at the individual judgement of TSK. As part of product development by TSK, the specifications may undergo changes. Any changes to the specifications shall take precedence over the specifications as stated in the framework agreement or the order confirmation.
3. Use of the goods delivered / to be delivered
3.1 The purchaser and not TSK must determine whether the goods delivered and/or to be delivered is suitable for the use intended by (the customers of) the purchaser.
4.1 The prices specified in offers and order confirmations issued by TSK are excluding transport costs, packaging costs and excluding VAT. Deliveries shall be ex-works unless otherwise agreed, in writing.
4.2 All prices specified by TSK are based on the purchase prices applicable for TSK at the time the offers or confirmations were issued, the exchange rate for the relevant foreign currency as stated in its offers and order confirmations, import duties and equivalent charges, insurance tariffs, carriage costs, taxes and margin schemes, etc. In the event of changes to one or more of the cost price determining factors referred to above, or other factors, TSK shall be entitled to pass on those changes to the purchaser in the relevant sales invoice.
4.3 The (potential) purchaser shall return the samples or models to TSK, at the first request of TSK.
4.4 The specified prices are based on the quantities indicated by the purchaser. If the actual quantity deviates from the quantity on which the prices were based, TSK reserves the right to adjust the prices.
5.1 Payment of the amounts payable by the purchaser to TSK must be made within 2 weeks following the invoice date, without settlement or suspension and without deduction of costs, to the bank account indicated by TSK. Payment in any other way is only valid following written declaration of approval from TSK.
5.2 All bank costs, arisen due to payment of the purchase price in the country of the purchaser or from the opening and confirmation of letters of credit shall be for the account of the purchaser.
5.3 In the event of late payment of the amounts payable to TSK, the purchaser shall be immediately in default, without any notice of default being required. Without prejudice to the authority in that case to declare dissolved all agreements/orders entered into with the purchaser in question, and to claim compensation against the purchaser for all damages suffered by TSK as a consequence thereof, the purchaser shall: a. be required to pay interest on the amount payable to TSK; b. be required to reimburse all extrajudical costs to TSK, with a minimum of 10 percent of the principal amount.
5.4 Payments made by the purchaser shall first reduce the costs payable, subsequently the interest payable and finally the oldest outstanding invoices, irrespective of instructions from the purchaser, stating otherwise.
5.5 TSK at all times reserves the right to demand security for timely payment in respect of deliveries already made and still to be made, which security at the discretion of TSK may take the form of prepayment, bank guarantee, mortgage, pledge or contract of suretyship. If insufficient surety is stood in response to TSK’s request, TSK shall be authorised to suspend further implementation of agreements entered into with TSK, without being required to pay compensation for any disadvantage resulting therefrom. TSK shall also be authorised, in cases relevant in its (TSK’s) judgement to deliver cash on delivery, in as much as necessary contrary to the agreements entered into.
5.6 In the event of non, late or incorrect compliance by the purchaser with any obligation which may arise for the purchaser from any agreements entered into with TSK, and in the event of bankruptcy, moratorium on payment, allowance to participate in a debt rescheduling scheme for natural persons or placing under guardianship of the purchaser or cessation or winding up of his business, TSK shall at all times be authorised – without any obligation to pay compensation, without prejudice to other rights accruing to TSK and without any reminder or notice of default being required – to declare the agreement in question dissolved, without prejudice to its entitlements to compensation, while at that time, TSK shall further be entitled, subject to the same conditions, to dissolve any other current orders with the purchaser in question, in as much as not yet (fully) implemented. Each dissolution shall at all times result in the immediate demandability of all amounts payable to TSK.
5.7 If payment takes place later than specified in article 5.1, from the due date, TSK shall be entitled to charge interest on the remaining amount not yet paid, in the amount of 1.5% per month or part of a month. Following each of the first two reminders, reminder costs in the amount of €50 excluding VAT may also be charged, and €100 excluding VAT for the third and all subsequent reminders.
6. Property rights
6.1 The ownership of the goods supplied by TSK shall only be transferred to the purchaser as soon as the purchaser has paid all amounts payable to TSK in respect of the delivery of those goods (which shall not only be taken to mean the purchase price including the surcharges, increases and payments payable in respect of present terms and conditions, but also any interest and costs). The risk for the goods to be delivered shall be transferred if and as soon as these goods have left the warehouse and/or the factory.
6.2 The products from TSK are trademark protected and the purchaser is not authorised to register or allocate rights in whatever form if and in as much as such action infringes the intellectual property rights of TSK, if those rights are violated in any way, or if the enforcement of those rights is frustrated or impeded.
6.3 TSK retains the intellectual property rights to each product, including in cases in which products are developed in collaboration with the purchaser, unless otherwise agreed in writing.
7.1 Unless otherwise specified in the framework agreement or the order confirmation, delivery will be made ex warehouse.
8. Transport packaging
8.1 The delivery shall be packaged in accordance with the general packaging methods of TSK. If a purchaser requires other packaging, TSK must be duly notified in writing at the moment of placement of the order. The additional costs for the nonstandard packaging agreement shall be for the account of the purchaser.
8.2 The packaging from TSK shall comply with the legal requirements as applicable in the Netherlands. Prior to acceptance of the order by the purchaser, the purchaser must inform TSK in writing of any additional and/or other requirements.
9.1 Colour deviations from the samples which remain within the margins and which in trade are considered as reasonable and customary, shall not be considered shortcomings.
9.2 A deviation in quantity of 4 percent or less per delivery shall not be an error/fault and for that reason shall not grant any right to a pro rata adjustment of the invoice amount.
10. Liability of TSK – force majeure, faulty deliveries
10.1 If incidents occur which could not be foreseen by TSK or incidents arise over which TSK has no influence, which impede TSK in implementing the agreed delivery, TSK shall not be liable, due to force majeure.
10.2 TSK shall under no circumstances be liable for loss of production, loss of production time, loss of profit or other indirect losses. If TSK is liable for the goods supplied by TSK with shortcomings, the purchaser may demand compensation for any demonstrable direct losses suffered by the purchaser. The compensation shall under no circumstances be higher than the total price of the order for the goods in question with shortcomings, however in all cases with a maximum of €10,000, except in the event of deliberate action or gross negligence on the part of the directors of TSK.
10.3 If more than 4 percent of a delivery contains goods with shortcomings, at its own discretion, TSK may decide to reimburse the invoice amount or to redeliver the goods. Below this limit, TSK shall not be liable.
10.4 Goods recognised by TSK as faulty may be returned to TSK according to the instructions and for the account of TSK.
10.5 Any liability for faulty goods and liability for replacement deliveries shall expire at the latest 6 months following delivery.
11. Obligation upon the purchaser to inspect the delivered goods
11.1 The purchaser is required to inspect the delivery immediately following receipt or at the latest following arrival of the delivered goods at the business address of the purchaser.
11.2 Complaints relating to errors or shortcomings must have been submitted to TSK in writing, within 1 week following the delivery.
12. Liability of TSK for delayed deliveries
12.1 Unless otherwise agreed in writing, an agreed delivery time shall not be a deadline but shall only be an approximation, and shall otherwise be entirely non-binding. TSK is not liable for delays which TSK could not have foreseen or could not have restricted (“force majeure”).
12.2 Under no circumstances shall TSK be liable for loss of production, loss of production time, loss of profit or other indirect losses. If TSK is liable for the delay, the purchaser may demand compensation for any demonstrable direct losses suffered by the purchaser. The compensation shall under no circumstances exceed the total price of the order in respect of the non-delivered goods in question, however in all cases with a maximum of €10,000, except in the case of deliberate action or gross negligence on the part of the directors of TSK.
13. Product liability
13.1 The purchaser guarantees TSK that the illustrations and/or additional documentation for the goods contain all warnings and preventive measures required in the countries to which the goods will be delivered on, by the purchaser. The purchaser shall indemnify TSK against claims from third parties against TSK directly or indirectly relating to and/or arising from insufficient information provision in respect of the correct treatment and/or use of the goods.
14.1 TSK and the purchaser shall undertake to pass on no information to third parties obtained in connection with the offers and/or orders, if containing confidential information, except for TSK’s suppliers.
15. Applicable law, competent court
15.1 Present General Terms and Conditions of Sale and Delivery are subject to Dutch law, and to the exclusion of the Vienna Sales Convention (CISG)
15.2 The court in Breda is exclusively competent in the event of any disputes.