GENERAL CONDITIONS OF SUPPLY
1.1 These General Terms and Conditions of Supply (hereinafter to be referred to as: “Conditions”) govern all tenders, bids, firm offers, contracts with and deliveries and services provided by or on behalf of Trabocca B.V.
, all its legal successors and all legal entities affiliated with Trabocca B.V. (hereinafter to be referred to as: “Trabocca”) and to all agreements to which Trabocca is a party as the seller/contracted party.
1.2 Should there be a conflict between the terms of these Conditions and other terms of the contract made in writing, the latter have precedence.
1.3 In case of differences between the Dutch text of these Conditions and versions of these Conditions in other languages, the Dutch text shall take precedence.
2. Bids / offers
2.1 Each bid or offer made by Trabocca is always without obligation and non-binding for Trabocca even if this bid or offer includes a term of acceptance, except and insofar as it is expressly stated to the contrary in writing by Trabocca.
3. Establishment of a contract
3.1 A contract is established with Trabocca at the moment that Trabocca confirms in writing its acceptance of an assignment or order. The scope and content of the contract are as they are stated in Trabocca’s written confirmation.
3.2 Any agreement/contract exceeding a contract value of € 100.000,– is only validly concluded if signed by a member of the management of Trabocca whose authority to sign and bind Trabocca is registered with the Chamber of Commerce in Amsterdam.
Any agreement/contract not exceeding a contract value of € 100.000,– can only validly be concluded by an officer of Trabocca whose authority to sign and bind Trabocca is registered with the Chamber of Commerce in Amsterdam.
4.1 If a sample has been provided by Trabocca to the Counterparty, the Counterparty is entitled to reject the sample provided by Trabocca without stating a reason as long the Counterparty informs Trabocca of its rejection in writing no later than the 1st working day following the day on which the Counterparty received the sample. In the absence of this, the sample is deemed approved. Upon timely rejection, the sales contract is dissolved without any obligation to pay damages.
5. Requirements and warranties
5.1 Trabocca does not guarantee that the goods are suitable for any intended use or otherwise, unless it has been explicitly agreed in writing that the goods must be suitable for the described intended use. The Counterparty shall then be obliged to indicate explicitly in writing what use is intended with the goods.
5.2 Before delivery of the goods the Counterparty shall inform Trabocca in writing about all the (statutory) regulations and all the (other) requirements which will apply in relation to the goods in view of the purpose, the location and the circumstances.
5.3 Trabocca need only ensure that the goods comply with the requirements that have been agreed in writing between the parties.
5.4 Trabocca shall not be obliged to give any further guarantees than those that have explicitly been agreed in writing as such between the parties.
6.1 Trabocca can require the Counterparty to provide security or additional security for payment at any time during the course of the contract. If the Counterparty does not honour a reasonable request for the same, Trabocca is entitled to suspend the performance of its obligations until the Counterparty has provided the required security.
7. Third parties
7.1 Trabocca may involve third parties in the execution of the contract. The expenses involved will on a fair and reasonable basis be invoiced to the Counterparty.
8. Order of fulfilment of contracts
8.1 If several contracts for the same product have been concluded between the Counterparty and Trabocca on identical terms of shipment or delivery, such contracts must be fulfilled in the order in which they have been concluded and with due observance of the agreed time of shipment or delivery, unless explicitly agreed otherwise in writing.
9. Presentation of documentation
9.1 Trabocca will present the documents to the Counterparty as soon as possible.
9.2 If Trabocca can prove that the documents were presented to him or reached him too late due to the negligence of the post office, the bank, or through (other) circumstances beyond his control and that it has immediately taken all necessary steps to take possession of the documents and to provide them to the Counterparty, it cannot be held liable for expenses and/or damages, however stated and however incurred due to delayed presentation of the documents.
9.3 The Counterparty is not entitled to object to variations of minor significance in despatch, markings and numbers of packages, or in details about the means of transport, as long as the consignment upon arrival can be recognized as that intended to be delivered in the consignment concerned.
10.1 All risks with respect to the goods are borne by the Counterparty: in case of goods sold from stock, from the moment these are separate for the benefit of the Counterparty and in the case of other goods, from the moment these goods are loaded for their carriage, except if and to the extent otherwise agreed in writing.
11. Shipment, delivery and period of delivery
11.1 Trabocca is entitled to deliver in instalments, which instalments can be invoiced separately.
11.2 Trabocca will try to honour the term of delivery as far as possible, yet will never be liable for exceeding it.
11.3 Exceeding the term of delivery does not give the Counterparty any right to cancel or withdraw from the contract, nor to refuse to accept any goods. In case of delivery on equal spread, any delay in delivery of any part of the goods does not give the Counterparty any right to cancel or withdraw from the contract, nor to refuse to accept any goods. In case of excessive overrun of the term of delivery, the parties will consult with one another.
11.4 If Trabocca has undertaken responsibility for forwarding the goods from the place of unloading, the Counterparty must give Trabocca timely instructions regarding carriage and destination. If upon arrival of the goods Trabocca has received no forwarding instructions from the Counterparty, Trabocca shall despatch the goods to the Counterparty’s address by whatever means of carriage it may think the most suitable for the purpose.
11.5 The Counterparty must take delivery of the goods immediately after it has been notified by Trabocca that the goods are ready for delivery. If the Counterparty fails to take timely delivery of the goods, Trabocca is entitled to claim all damage and/or costs arising therefrom, including but not limited to storage costs, financing costs and costs for loss of quality of the goods.
11.6 If goods are not unloaded in the intended place of unloading as a result of any circumstance for which Trabocca is not accountable, Trabocca shall be entitled to charge the extra freightage incidental to such unloading elsewhere.
12. Force majeure
12.1 If Trabocca is prevented by force majeure from fulfilling any commitment and the conditions of force majeure are in Trabocca’s opinion of a temporary or passing nature, Trabocca is then entitled to delay performance of its commitments until the situation, reason, or event occasioning force majeure no longer exists.
12.2 If the situation of force majeure continues for longer than 30 calendar days, Trabocca and the Counterparty each have the right to terminate the contract.
12.3 If after a situation of force majeure as described in this Article the conditions are changed in such a way that Trabocca cannot reasonably be required to fulfil its commitments under the contract, Trabocca has the right to dissolve the contract.
12.4 A situation of force majeure shall in any case exist of, among other causes: strikes; work stoppages; government measures and/or regulations that prevent, delay, or otherwise interfere with the fulfilment of commitments; lack of means of transport; any transport route or manner of transport being inaccessible or unusable; interruption in the supply of energy, raw materials, inputs or end products; technical outages and/or defects.
12.5 The summary given in Article 12.4 is not limitative.
12.6 If as a consequence of a situation of force majeure Trabocca is prevented from fulfilling his obligations to one or more of his customers or counterparties, but not his obligations to all of his customers or Counterparties, Trabocca is entitled to select which of the obligations and for which customers and Counterparties he will fulfil, as well as the order in which this shall be done.
12.7 Trabocca has the right to claim payment for everything done by or on behalf of Trabocca to fulfil the contract with the Counterparty before the force majeure event occurred.
12.8 Should the fulfilment of the contract under increased costs be possible and the Counterparty so wishes, the additional costs will be borne by the Counterparty.
13. Right of retention / pledge
13.1 Trabocca has a right of pledge and a right of retention with regard to anyone who demands the handing over thereof in respect of all goods, documents and monies which by or on behalf of the Counterparty and with whatever destination are in the possession of Trabocca, as long as the Counterparty has not performed all its obligations towards Trabocca, in respect of all current and future claims which Trabocca has or might have on the Counterparty.
13.2 Trabocca can also exercise the rights granted to him in Paragraph 1 with regard to the amounts the Counterparty still owes him in connection with preceding assignments.
13.3 In the event of failure to pay the claim the sale of the collateral will be effected in the manner stipulated by law or – if there is agreement in this respect – privately.
14.1 Any liability of Trabocca, whether under contract or in tort, is limited to the obligation to perform in conformity with the agreement or, at Trabocca’s choice, refunding at most the amount agreed for the relevant performance or the performance with which the loss-causing event is connected. In any event, Trabocca’s liability is limited to the amount of SDR 100,000.
14.2 The Counterparty shall hold harmless and indemnify Trabocca against any and all claims that third parties should acquire or allege against Trabocca and that arise directly or indirectly from or are related to the agreement, unless and to the extent that the Counterparty proves that the damage and/or loss was caused as a result of an act or omission on the part of the board of directors of Trabocca, done either with the intent to cause that damage and/or loss or recklessly and with the knowledge that such damage and/or loss would probably result therefrom.
14.3 Trabocca shall never be liable for costs for destruction of goods, consequential loss, Traboccag loss and/or immaterial loss of any nature whatsoever, which shall include loss owing to business interruption, loss of profits, loss of income or loss of use of the Counterparty.
14.4 Trabocca shall not be liable for any damage, either directly or indirectly caused by any of its auxiliary persons, agents or representatives.
14.5 With respect to products Trabocca obtained from a third party, the terms applicable to such a contract shall also apply to the Counterparty if and to the extent that Trabocca invokes them. In such a situation, Trabocca shall send the terms of such a contract to the Counterparty as soon as it is entered into.
15. Claims / complaints
15.1 If the Counterparty is of the opinion that Trabocca has failed in the performance of its obligations under the contract, he must inform Trabocca thereof in writing, substantiated with reasons, within 72 hours after delivery of the goods. The Counterparty must send proof to Trabocca which demonstrates the alleged shortcomings.
15.2 If Trabocca deems any complaint well-founded, it has the right, at its election, to perform in conformity with the agreement or to refund at most the amount agreed for the relevant performance, whereby the Counterparty is held to return the goods to Trabocca.
15.3 Complaints concerning invoices must be submitted to Trabocca in writing within eight days of the date of the invoice.
15.4 If a complaint is not lodged within the term set forth in this Article, or is not lodged in the prescribed manner, the delivered goods will be deemed to have been completely and irrevocably accepted and approved by the Counterparty as fulfilling the agreement. An invoice that is not contested in the prescribed manner and within the term set forth shall be deemed to be irrevocably accepted and approved by the Counterparty.
15.5 A complaint shall never relieve the Counterparty of its commitments with respect to Trabocca.
15.6 Returning the delivered goods, or a portion thereof, for any reason, may be done only with Trabocca’s express prior written permission and delivery instructions.
15.7 All claims against Trabocca must be submitted to the competent court within twelve (12) months after the Counterparty has become or reasonably should have become aware of the damage and/or the shortcoming, failing which any right to damages shall be expired.
16. Reservation of ownership
16.1 The goods delivered remain the property of Trabocca until the moment of payment in full of all sums owed by the Counterparty under the terms of the contract.
16.2 In respect of deliveries of goods destined for Germany, both the obligations and the property law consequences relating to the reservation of ownership as stipulated in Article 16.1 are governed by German law. In respect of such deliveries, the “extended retention of title” as set out in the “Germany-clause” attached to these Conditions applies.
17. Prices and payment
17.1 Unless otherwise stated in writing, all prices are in accordance with Incoterms 2010 and exclusive of VAT.
17.2 Unless otherwise agreed in writing, payment must be made by the Counterparty, even in the event that the goods have been lost or damaged during transit, upon first presentation against surrender of a complete set of documents.
17.3 If payment on arrival has been agreed upon, payment must be made immediately when the means of carriage arrives at the place of destination. In the event of arrival on a day other than a working day, payment must be made on the first working day after arrival of the means of carriage at the place of destination.
17.4 If the means of carriage has been lost or has suffered delay through whatever event, payment must be made on the first working day after the day on which according to the latest reported news the means of carriage would have arrived at the place of destination.
17.5 The Counterparty is in no case entitled to any discount and/or set-off and/or suspension of any of its obligations.
18. Documentary credit
18.1 If the parties have agreed that payment shall be made by means of documentary credit, the Counterparty shall ensure that the documentary credit will be available to Trabocca at such a time that Trabocca is able to fulfil his contractual obligations. In the event that the Counterparty should fail to fulfil the above obligation, it shall be in default of the fulfilment of its obligations, without any reminder, summons or notice of default being required.
19. Negligence, interest and expenses
19.1 The Counterparty shall be in default simply by virtue of his failure to make payment or to fulfil some other obligation within its specified term, without additional warning, summons, or proof of default being required.
19.2 If a payment due to Trabocca is not made in a timely manner, the Counterparty will automatically owe Trabocca interest pursuant to Article 6:119a Dutch Civil Code starting on the date on which the term for payment has lapsed, without prejudice to Trabocca’s other rights.
19.3 The Counterparty shall bear all legal and non-legal expenses, including Trabocca’s expenses for legal aid and advice.
20. Cancellation of contracts
20.1 Trabocca shall be entitled to terminate the contract with the Counterparty immediately if (not limitative):
(a) the Counterparty fails to fulfil any obligation pursuant to the agreement;
(b) the Counterparty has been adjudicated bankrupt or a petition for such bankruptcy has been filed;
(c) the Counterparty has filed a petition for the suspension of payments or suspension of payments to Trabocca has been granted to it;
(d) the Counterparty, being a natural person, is deceased or is made a ward of the court, or if all or part of the estate of the Counterparty is placed under administration;
(e) the Counterparty, being a legal person, is dissolved or is in liquidation, or a decision is made with respect to the liquidation of the Counterparty;
(f) the Counterparty merges with a third party or is taken over by a third party;
(g) the Counterparty changes its legal form;
(h) there is a substantial change in the Counterparty’s business activities.
20.2 If any of the situations referred to in Article 20.1 occurs, all of Trabocca’s claims on the Counterparty shall be fully payable on demand.
20.3 Any right of the Counterparty to dissolve the agreement is excluded.
21.1 Changes to the contract and/or the Conditions are valid only when made in writing and when both parties have given their approval to the change(s).
22.1 All information about Trabocca which has not been made public by Trabocca in some way and which the Counterparty receives in connection with the agreement, is confidential and may not be passed on to third parties.
22.2 All data and information provided in the context of a bid or offer expressly remain the industrial or intellectual property of Trabocca. The Counterparty is expressly forbidden to disclose in any way, any material or any data or information without the prior written permission of Trabocca. The use of this material and this data and information must remain strictly limited to the Counterparty’s own internal use in the context of an order placed with Trabocca.
23. Applicable Law
23.1 All legal relationships arising out of or in connection with the agreement and/or the delivery of the goods and/or these Conditions shall be governed exclusively by Dutch law, with the exclusion of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, 11 April 1980).
23.2 All disputes arising out of or in connection with the agreement, these Conditions and/or the delivery of the goods shall be exclusively decided by the competent court at Amsterdam, the Netherlands.
24.1 In the event that any provision in these Conditions should not – either entirely or partially – be valid and/or imperative, then this will not in any way have any implications for the validity of the other provisions in these Conditions.
(1) Trabocca behält sich das Eigentum an den Liefergegenständen bis zum Eingang aller Zahlungen aus dem Liefervertrag vor. Verarbeitung oder Umbildung erfolgen stets für Trabocca als Hersteller, jedoch ohne Verpflichtung für sie. Wird der Liefergegenstand mit anderen, Trabocca nicht gehörenden Gegenständenden nicht verarbeitet, so erwirbt Trabocca das Miteigentum an der neuen Sache im Verhältnis des Wertes der Kaufsache zu den anderen verarbeiteten Gegenständen zur Zeit der Verarbeitung. Erlischt das (Mit-) Eigentum Trabocca durch Verbindung, so wird bereits jetzt vereinbart, dass das (Mit-) Eigentum Trabocca an der einheitlichen Sache wertanteilsmässig (Rechnungwert) auf Trabocca übergeht. Der Käufer verwahrt das (Mit-)Eigentum Trabocca unentgeltlich. Ware, an der Trabocca (Mit-)Eigentum zusteht, wird im folgenden als Vorbehaltsware bezeichnet.
(2) Der Käufer ist berechtigt, die Vorbehaltsware im ordnungsgemässen Geschäftsverkehr zu verarbeiten oder zu veräussern, solange er nicht in Verzug ist. Verpfändungen oder Sicherungsübereignungen sind unzulässig. Die aus dem Weiterverkauf oder einem sonstigen Rechtsgrund (Versicherung, unerlaubter Handlung) bezüglich der Vorbehaltsware entstehenden Forderungen tritt der Käufer bereits jetzt sicherungshalber im vollem Umfang an Trabocca ab. Trabocca ermächtigt ihn widerruflich, die an Trabocca abgetretenen Forderungen für dessen Rechnung im eigenen Namen einzuziehen. Diese Einzugsermächtigung kann nur widerrufen werden, wenn der Käufer seinen Zahlungsverpflichtungen nicht ordnungsgemäss nachkommt.
(3) Bei Zugriffen Dritter auf die Verbehaltsware wird der Käufer auf das Eigentum Trabocca hinweisen und diese Unverzüglich benachrichtigen.
(4) Bei vertragswidrigem Verhalten des Käufers – insbesondere Zahlungsverzug – ist Trabocca berechtigt, die Vorbehaltsware zurückzunehmen oder ggf. Abtretung der Herausgabeansprüche des Käufer gegen Dritte zu verlangen. In der Zurücknahme sowie in der Pfändung der Vorbehaltsware durch Trabocca liegt kein Rücktritt vom Vertrage.
(5) Trabocca verpflichtet sich, die Ihr zustehenden Sicherheiten auf Verlangen des Käufers insoweit freizugeben, als der Wert der Sicherheite die zu sichernden Forderungen um 20% übersteigt. Für die Bewertung des Sicherungsgutes ist, auch soweit es be- oder verarbeitet worden ist, der Gestehungspreis massgebend. Die Bewertung abgetretener Forderungen erfolgt zu deren Nennwert.