General terms & conditions
ARTICLE 1 : GENERAL
1.1 In these General Purchasing Conditions Triconor Distribution B.V. shall be referred to as the “buyer”.
1.2 In these General Conditions “seller” shall be understood to mean the party which sells and supplies goods to the Buyer:
1.3 These General Purchasing Conditions shall be part of all offers and agreements in which Triconor Distribution B.V. acts as a buyer for the goods which are to be delivered. Conditions other than those which are mentioned in the instructions or in the General Purchasing Conditions shall only constitute a part of the agreement concerned if and to the extent that both parties have agreed on this in writing. 1.4 In case of a conflict between these General Conditions and the agreement, the agreement shall prevail.
ARTICLE 2 : ACCEPTANCE
2.1. All of the instructions from the buyer and changes thereto must be confirmed by the seller within one week after receipt by means of signing and returning an order acceptance copy of the buyer’s instructions. If seller conforms the order after the deadline of one week, buyer is not bound by the agreement except if confirmed in writing by buyer.
ARTICLE 3 : PRICES
3.1. The prices stated in the buyer’s instructions shall include all costs that are necessary for the performance of the instructions and shall apply as fixed prices, unless agreement to the contrary has been made in the instructions. Extra costs which have not been covered in advance by the buyer’s written instructions or written acceptance shall not be payable.
3.2. Agreed prices are fixed and cannot be unilaterally changed by seller. Changes in prices can only be made with prior written approval by buyer.
ARTICLE 4 : PAYMENT
4.1. Payment for the delivered goods shall be made on the basis of the invoice and within the term specified in the order confirmation or – if the delivery is postponed in accordance with the last paragraph of article 8 – within the same term following the date on which the postponed delivery was made. Payment shall not entail any acceptance of the delivered goods.
ARTICLE 5 : TRANSFER OF RIGHTS AND OBLIGATIONS
5.1. The seller is not authorised to transfer rights and obligations on the basis of the agreement(s) formed between the parties to a third party without prior written permission. However, the buyer is authorised to transfer rights and obligations on the basis of the agreement(s) formed between the parties to a third party and the seller agrees to this in advance by accepting this condition.
ARTICLE 6 : SUB-CONTRACTING OF WORK TO THIRD PARTIES
6.1. The seller shall require the prior written approval of the buyer for sub-contracting to third parties. The seller shall remain completely responsible and liable with regard to work which is (to be) carried out by third parties in connection with
the buyer’s instructions and shall indemnify the buyer from all liability.
ARTICLE 7 : DELIVERY / INCOTERMS
7.1. In the event of purchasing agreements the delivery of the goods shall be made in accordance with the provision in the at time of conclusion applicable Incoterms which has been declared applicable in the purchase agreement (currently 2020).
ARTICLE 8 : DELIVERY TIME
8.1. The agreed delivery time is a final deadline.
8.2. The buyer shall have the right to return (a) partial delivery(ies) which had not been agreed upon for the account and risk of the seller. If quantities which had not been agreed on are delivered and the deviation is larger than is customary in the branch concerned, the buyer shall be entitled to refuse the extra amount, and in the case of a shortage the entire delivery, or to return it for the account and risk of the seller.
8.3. If the buyer is temporarily not capable of taking the goods into receipt at the agreed time, the seller shall postpone the delivery upon the buyer’s request during a reasonable period which shall be determined by the buyer.
ARTICLE 9 : PACKAGING AND TRANSPORT
9.1. The goods must be properly packed, secured in such a manner, and if the seller takes care of the transport, transported in such a manner that when transported they reach the place of delivery in good condition and can be unloaded there in a safe manner. The seller is liable for the fact that the national, international and/or super-national rules on packaging and transport are complied with by it, and also by carriers contracted by or on behalf of the seller.
9.2. The buyer is prepared to advise the seller according to its best insights, but without accepting liability, in respect of packaging, transport and also the rules and provisions concerned. The buyer shall be entitled not to take the goods into receipt if the aforementioned rules and provisions have not been complied with. Receipts of the products by the buyer cannot be considered as a renunciation of rights which the buyer may have as a result of non-performance by the seller of the above.
9.3. The seller is obliged to, upon the buyer’s request, take back the packaging material used by the seller for its own account and risk.
ARTICLE 10 : TRANSFER OF TITLE AND RISK
10.1. The title to the goods purchased by buyer shall pass over from the seller to the buyer at the moment they are delivered and received by or on behalf of buyer at a destination designated by the buyer.
10.2 The risk for the goods shall pass over from the seller to the buyer in accordance with the provisions of the applicable Incoterms as stipulated in the agreement.
ARTICLE 11 : GUARANTEE / INDEMNIFICATION
11.1 The seller guarantees that the goods are of good quality, entirely in accordance with the demands, specifications, conditions, samples of the buyer and/or with other details provided by the buyer and are free of defects and suited for the purposes for which they are intended.
11.2. The seller shall also guarantee that in respect of the goods the statutory rules and governmental provisions of the country of origin have been complied with and that, to the extent that it is necessary for the health or safety of persons or properties, these are equipped with the necessary clear instructions, governmental rules and/or warnings.
11.3. The seller shall indemnify the buyer from all claims which third parties may bring against the buyer as a result of damages which have arisen as a result of actions or failures to act of, or non-performance of obligations towards the buyer by the seller and/or by a third party/parties involved by the latter in the performance of the purchase agreement, including liability on the grounds of product liability.
ARTICLE 12 : DEFAULT
12.1. If the seller does not comply with its obligations – including its guarantee obligations – the buyer shall be entitled, insofar as compliance has not become permanently impossible, following a written demand to perform, as it chooses:
– to demand compliance with the agreement as well as compensation for the damages it has incurred;
– to convert the obligation to comply into an obligation to pay compensation as well as additional compensation for the damages it has incurred;
– to dissolve the agreement in whole or in part and to demand compensation for the damages it has incurred without resorting to a court of law.
12.2. In the event of total dissolution any goods which may already have been delivered shall be returned by the buyer to the seller in return for repayment of amounts and costs of transport which have already been paid. In the event of partial dissolution the buyer shall pay a reasonable part of the agreed purchase price for the goods which have already been delivered and accepted by it. To the extent that the buyer elects for performance of the agreement the seller shall be obliged to promptly comply with this in full and to replace any goods which may have been refused at its own expense and risk.
12.3. If replacement is not carried out properly by the seller within a reasonable term which is to be set by the buyer, or if there is insufficient opportunity with a view to the continuity of the buyer’s business for having a replacement carried out by the seller, and also in the case following a notice in default for the duration of the delay in the performance of the agreement or a part thereof, the buyer shall be entitled to implement the replacement or delivery or the performance, as the case may be, in another manner for the account and risk of the seller, without this having consequences for the guarantees stipulated from the seller.
ARTICLE 13 : TERM AND TERMINATION OF AGREEMENT
13.1 The agreement is in principle entered into for a definite period of time and ends as soon as the obligations under the agreement have been fulfilled by the buyer and the seller.
13.2 An agreement may be terminated, cancelled or terminated in full or in part by the buyer without the buyer being liable to pay any compensation or damages or any other form of compensation to the seller.
13.3 Both the Buyer and the Seller will have the right to terminate the agreement with immediate effect by means of a written notification to the other party in the event that
(ii) the other party’s bankruptcy is applied for or
(iii) the other Party has ceased to exist or no longer carries on business.
ARTICLE 14: INSURANCE
14.1 Seller shall ensure that he obtains a (liability) insurance that provides adequate cover for the risks that the seller assumes under the agreement, and shall always pay the premiums for that insurance on time. At the buyer’s first request, the seller shall submit a copy of the policy of the insurance policy concerned.
ARTICLE 15: FORCE MAJEURE
15.1. If one of the parties is unable to comply with its obligations under an agreement as a result of force majeure, that party shall have the right to perform the agreement in whole or in part at a later time, unless the counterparty cannot reasonably be expected to agree to a later performance.
15.2. By force majeure are understood circumstances that prevent compliance with the agreement and which cannot be reasonably imputed to a party. These include (if and in so far as these circumstances render compliance impossible or make it unreasonably difficult): fire, strikes, stagnation in the supply of goods, in the event of unexpected defects and/or disruptions, with one of the parties or their suppliers.
15.3. In the event of a force majeure which is already apparently permanent, or if the force majeure has lasted for longer than three months, the party concerned shall have the right to dissolve the agreement in whole or in part.
ARTICLE 16 : SUSPENSION/SET OFF
16.1 The seller is not entitled to suspend its obligations towards the buyer. Nor is the seller entitled to set off any claims.
ARTICLE 17: APPLICABLE LAW / COMPETENT COURT
17.1. All agreements shall be governed exclusively by Dutch law. The applicability of the rules of the Vienna Purchasing Convention (CISG) is expressly excluded.
17.2. All disputes between the buyer and a supplier shall be exclusively submitted to the competent Court in the district ‘Midden-Nederland’, The Netherlands, or, at the choice of the buyer, to the competent Court of the place of residence of the seller.