CONDITIONS OF SALE
Tierrafino BV, Archangelkade 23, 1013 BE Amsterdam Chamber of Commerce, Amsterdam: 34275824
ANY ORDERS MADE BY THE BUYER AND ACCEPTED BY TIERRAFINO B.V. (THE SELLER) IMPLIES UNRESERVED ACCEPTANCE OF THESE GENERAL CONDITIONS OF SALE, WHICH SHALL GOVERN THE CONTRACT TO THE EXCLUSION OF ALL OTHERS, NOTWITHSTANDING ANY CONTRARY PROVISIONS IN THE
BUYER’S GENERAL CONDITIONS OF PURCHASE, EXCEPT OTHERWISE SPECIFICALLY AGREED IN WRITING.
ARTICLE 1: APPLICATION OF CONDITIONS
1. These terms and conditions apply to all offers and to all agreements of purchase and sale and/or to perform work and/or to provide services of Tierrafino BV established in Amsterdam, hereinafter referred to as “Tierrafino”.
2. The buyer or the client will hereinafter be referred to as “the other party”. If in the following a provision specifically relates to the situation in which the other party is a natural person who does not act in the exercise of a profession or business, this will be referred to as “the consumer”.
3. Conditions to the contrary only form part of the agreement concluded between the parties if and insofar as both parties have expressly agreed this in writing.
4. In these general terms and conditions, “in writing” is also understood to mean: by e-mail, by fax or by any other means of communication that can be equated with this in view of the state of the art and the prevailing views in society.
5. The acceptance and retention by the other party without comment of a quotation or order confirmation, to which reference is made to these terms and conditions, shall be deemed to be consent to their application.
6. The possible inapplicability of a (part of a) provision of these general terms and conditions does not affect the applicability of the other provisions.
7. The applicability of the general (purchase) conditions used by the other party is expressly rejected by Tierrafino.
ARTICLE 2: AGREEMENTS
1. Agreements only become binding upon written confirmation from Tierrafino.
2. Additions or changes to the general terms and conditions or other changes or additions to the agreement only become binding after written confirmation by Tierrafino.
ARTICLE 3: OFFERS
1. All offers, quotations, price lists, delivery times, etc. of Tierrafino are without obligation, unless they contain a term for acceptance. If a quotation or offer contains a non-binding offer and this is accepted by the other party, Tierrafino has the right to revoke the offer within 2 working days after receipt of the acceptance.
2. Offers are based on the execution of the agreement under normal circumstances, unless the parties have expressly agreed otherwise in writing.
3. The prices used by Tierrafino as well as the prices stated in the offers, quotations, price lists, etc. are exclusive of VAT and any costs. These costs may include – but are not limited to – travel costs, transport costs and invoices from third parties engaged. These prices apply “Ex works factory Tierrafino Archangelkade 23, Amsterdam”, unless the parties have expressly agreed otherwise in writing.
4. Shown and/or provided samples, brochures, drawings, models, statements of colours, sizes, weights and other descriptions are as accurate as possible, but are only indicative. No rights can be derived from this, unless the parties have expressly agreed otherwise in writing.
5. The samples, brochures, drawings, etc. referred to in the previous paragraph of this Article remain the property of Amsterdam at all times, even if they are made available for an (expense) compensation, unless the parties have expressly agreed otherwise in writing. These must be returned at Tierrafino’s first request. They may not be reproduced or made available to third parties without the written permission of Tierrafino.
6. Tierrafino has the right to pay the costs associated with the offer
or to charge the offer to the other party, provided that Tierrafino has informed the other party of these costs in advance in writing.
A. If between the date of the conclusion of the agreement and the execution of the agreement, the cost price of the ordered items or materials used increases and/or changes are made by the government and/or trade unions in wages, working conditions or social provisions, Tierrafino is entitled to pass on these increases to the other party. Should a new price list be issued by Tierrafino and/or suppliers and come into effect between the aforementioned dates, Tierrafino is entitled to charge the prices stated therein to the other party.
B. For the agreement concluded with the consumer, price increases may be passed on or charged 3 months after the agreement has been concluded. In the event of price increases as stated above in this Article, within a period of less than 3 months, the other party is authorized to dissolve the agreement.
ARTICLE 4: THIRD PARTY ENGAGEMENT
If and insofar as required for proper execution of the agreement, Tierrafino has the right to have certain work or deliveries performed by third parties.
ARTICLE 5: DELIVERY, DELIVERY TIMES
1. Specified periods within which the goods must be delivered, or work must be performed, can never be regarded as strict deadlines, unless the parties have expressly agreed otherwise in writing. If Tierrafino does not fulfil its obligations under the agreement or does not fulfil it on time, it must therefore be given written notice of default.
2. In the case of partial deliveries, each delivery or phase is regarded as a separate transaction and can be invoiced by Tierrafino per transaction.
3. The risk regarding the delivered goods is transferred to the other party at the time of delivery.
4. Shipment or transport of ordered goods takes place in a manner to be determined by Tierrafino, but at the expense and risk of the other party. Tierrafino is not liable for damage, of whatever nature and form, that is related to the shipment or the transport, whether or not suffered from the goods. All this, unless the parties have expressly agreed otherwise in writing.
5. If it proves impossible to deliver the goods to the other party or to carry out the work to be performed, due to a cause within the sphere of the other party, Tierrafino reserves the right to store the goods at the expense and risk of the other party.
6. Tierrafino notifies the other party in writing of the storage performed and/or the impediment to the performance of the work to be performed, and also sets a reasonable term within which the other party must enable Tierrafino to resume the work and/or deliver the goods.
7. If the other party continues to fail to fulfil its obligations even after the reasonable term set by Tierrafino, as determined in the previous paragraph of this Article, the other party shall be liable for the mere lapse of 1 (one) month, calculated from the date of date of storage or hindrance in the performance of the work to be performed, is in default and Tierrafino has the right to terminate the agreement in writing and with immediate effect, without prior or further notice of default, without judicial intervention and without compensation for damages, costs and interest. to be dissolved in whole or in part.
8. The foregoing does not affect the obligation of the other party to pay the agreed or stipulated or owed price, as well as any storage and/or other costs.
9. Tierrafino is authorized – with regard to the fulfilment of the other party’s financial obligations – to demand advance payment or security from the other party, before proceeding with delivery and/or commencing the work.
ARTICLE 6: PROVIDING DATA FOR THE PURPOSES OF ADVICE
1. The other party is obliged to provide Tierrafino with all information that Tierrafino needs for the adequate performance of consultancy work in its opinion, in the desired form and at a time to be determined.
2. Tierrafino reserves the right to suspend the execution of the consultancy work until the other party has fulfilled the obligation referred to in the previous paragraph.
3. The other party shall ensure that the information to be provided is correct and complete. The other party indemnifies Tierrafino against consequences arising from incorrect and/or incomplete data.
4. The other party will inform Tierrafino about developments that are taking place within its organization and that are or may be relevant for the execution of the consultancy work and the possible granting of additional and/or new assignments.
5. Tierrafino will treat the information provided to it by the other party confidentially and will not make it available to third parties without the consent of the other party.
ARTICLE 7: PROGRESS, IMPLEMENTATION OF WORK
1. Tierrafino cannot be obliged to start with the delivery of the goods or the execution of the work until all necessary information is in his possession and he has received any agreed (instalment) payment. In the event of delays caused by this, the specified delivery times will be adjusted proportionally.
2. If the deliveries or work cannot take place normally or without interruption due to causes through no fault of Tierrafino, Tierrafino is entitled to charge the other party for the costs resulting therefrom, including call-out costs.
3. If during the execution of the agreement it appears that it is unenforceable, either as a result of circumstances unknown to Tierrafino or due to any force majeure whatsoever, Tierrafino has the right to demand that the agreement be amended in such a way that the execution thereof becomes possible, except when this will never be possible as a result of unknown circumstances or force majeure.
4. Tierrafino is then entitled to full compensation for the work or deliveries already performed by Tierrafino.
5. All expenses incurred by Tierrafino in the context of the execution of the agreement at the request of the other party shall be borne entirely by the latter, unless the parties have expressly agreed otherwise in writing.
ARTICLE 8: PACKAGING
1. Packaging, which is not intended for one-time use, in which goods are delivered, remain the property of Tierrafino and may not be used by the other party for purposes other than those for which they are intended.
2. Tierrafino is entitled to charge a deposit to the other party for this packaging. Tierrafino is obliged to take back this packaging, provided it is returned carriage paid, at the price charged to the other party, during a period determined by Tierrafino after the delivery date.
3. If packaging is damaged, incomplete or lost, the other party is liable for this damage and its right to a refund of the deposit lapses.
4. If – at the discretion of Tierrafino – it should prove necessary, packaging will be charged to the other party at cost price and will not be taken back.
ARTICLE 9: COMPLAINTS/RETURNS
1. The other party is obliged immediately upon receipt of the goods
or the termination of the work to proceed to an inspection thereof. If the other party finds visible defects, errors, imperfections and/or defects, this must be noted on the consignment note.
or the accompanying receipt and must be brought to the attention of Tierrafino immediately, or the other party must inform Tierrafino within 24 hours after receipt of the goods or termination of the work, followed by an immediate written confirmation of this to Tierrafino.
2. Other complaints must be reported to Tierrafino by registered letter and with the addition of clear visual material on which the defect is visible, within 8 days of receipt of the goods or termination of the work.
3. Without prejudice to the provisions of paragraphs 1 and 2 of this Article, the provisions of paragraph 8 of Article 10 will also be taken into account with regard to the agreement concluded with the consumer.
4. If the above-mentioned complaint has not been made known to Tierrafino within the periods referred to there, the goods will be deemed to have been received in good condition or the work to be performed will be deemed to have been performed properly.
5. Items ordered are delivered in wholesale packaging in stock at Tierrafino. Minor deviations with regard to specified sizes, weights, numbers, colours, etc. do not constitute a shortcoming on the part of Tierrafino.
6. Complaints do not suspend the payment obligation of the other party.
7. Tierrafino should be given the opportunity to investigate the complaint. If return shipment proves necessary for the investigation of the complaint, this will only take place at the expense and risk of Tierrafino if the latter has given its express written consent in advance.
8. In all cases, return shipments will be made in a manner to be determined by Tierrafino and in the original packaging or packaging. Return shipments are made at the expense and risk of the other party, unless Tierrafino declares the complaint to be well-founded.
9. If, after delivery, the nature and/or composition of the goods has changed, has been wholly or partially treated or processed, damaged or repackaged, any right to complain will lapse.
10. In case of justified complaints, the damage will be settled in accordance with the provisions of Article 10.
ARTICLE 10: LIABILITY AND WARRANTY
1. Tierrafino performs its duties as may be expected of a company in its industry, but does not accept any liability for damage, including death and personal injury, consequential damage, trading loss and/or stagnation damage, which is the result of acts or omissions of Tierrafino, his personnel or third parties engaged by him, except insofar as there is intent and/or deliberate recklessness on the part of himself, his management and/or his managerial personnel, or if mandatory statutory provisions, in particular with regard to product liability, otherwise arises.
2. Without prejudice to the provisions of the other paragraphs of this Article, Tierrafino’s liability – for whatever reason – is limited to the amount of the net price of the goods delivered or the work performed.
3. Without prejudice to the provisions of the previous paragraphs of this Article, Tierrafino is never obliged to pay compensation that exceeds the insured amount, insofar as the damage is covered by an insurance policy taken out by Tierrafino.
4. Tierrafino guarantees the usual normal quality and reliability of the delivered or completed goods; its actual lifespan can never be guaranteed.
5. If visible errors, imperfections and/or defects occur in the delivered goods or in the work performed that must already have been present at the time of delivery, Tierrafino undertakes to provide those goods or the result of the work performed at its option – to repair or replace it free of charge.
6. Items produced by Tierrafino are provided with a guarantee by Tierrafino.
7. If goods supplied by Tierrafino – obtained from third parties – are provided with a guarantee by the manufacturer, that guarantee will apply equally between the parties.
8. With regard to the agreement with the consumer, Tierrafino observes the legally established warranty periods.
A. In all cases, the term within which Tierrafino can be held liable for compensation for established damage is limited to 6 months, calculated from the moment when the liability for compensation has been established.
B.Contrary to sub A of this paragraph, a maximum term of 1 (one) year applies to the consumer.
10.The other party loses its rights towards Tierrafino, is liable for all damage and indemnifies Tierrafino against any claim by third parties with regard to compensation for damage if and insofar as:
A. the aforementioned damage is caused by incompetent and/or use and/or inexpert storage (storage) of the delivered goods by the other party contrary to instructions and/or advice from Tierrafino;
B. the aforementioned damage has arisen because the other party has not acted in accordance with the instructions and/or advice given by Tierrafino;
C. the aforementioned damage is caused by errors, incompleteness or inaccuracies in data, materials, information carriers, etc. provided and/or prescribed to Tierrafino by or on behalf of the other party;
D. the aforementioned damage has arisen because the other party itself or a third party has carried out work on the delivered goods on behalf of the other party, without Tierrafino’s prior written permission;
E. the aforementioned damage has arisen because the other party has provided insufficient or incorrect information to Tierrafino and Tierrafino has based and/or performed the work to be performed on the aforementioned information.
ARTICLE 11: PAYMENT
1. Payment must be credited to Tierrafino’s account within 30 days of the invoice date, even if delivery cannot be made in accordance with ARTICLE 5, unless the parties have expressly agreed otherwise in writing.
2. If an invoice is not paid in full after the expiry of the term referred to in paragraph 1:
A. a credit restriction surcharge of 2% will be charged to the other party from that time, without any further notice of default being required;
B. the other party will owe Tierrafino default interest in the amount of 2% per month to be calculated cumulatively on the principal sum. Parts of a month are regarded as full months in these;
C. the other party, after being summoned to do so by Tierrafino, shall owe a minimum of 15% of the sum of the principal sum and the default interest with an absolute minimum of € 150.00 in respect of extrajudicial costs;
D. Tierrafino has the right to charge the other party an amount of at least € 20.00 in respect of administration costs for each payment reminder, reminder, etc. sent to the other party. Tierrafino will state this in the agreement and/or on the invoice.
3. At the discretion of Tierrafino, the agreement can be dissolved in whole or in part in the preceding or corresponding circumstances, without further notice of default or judicial intervention, whether or not combined with a claim for compensation.
4. If the other party has not fulfilled its payment obligations in time, Tierrafino is authorized to suspend the fulfilment of the obligations entered into towards the other party to deliver or to perform work until payment has been made or proper security has been provided for this. The same applies before the moment of default if Tierrafino has reasonable suspicion that there are reasons to doubt the creditworthiness of the other party.
5. Payments made by the other party always serve to settle all interest and costs owed and subsequently to settle the longest outstanding invoices due, unless the other party expressly states in writing upon payment that the payment relates to a later invoice.
A. If the other party, for whatever reason, has or will acquire one or more counterclaims against Tierrafino, the other party waives the right to set-off with regard to these claim(s).
B. The provisions under sub A of this paragraph do not apply to agreements with the consumer.
ARTICLE 12: INTELLECTUAL PROPERTY RIGHTS
1. Tierrafino is and remains the owner of intellectual property rights with regard to the content and form of drawings, designs, constructions, products, software models, descriptions or advice, etc.
2. The exercise of the rights referred to in the previous paragraph – including disclosure or transfer of data – is expressly and exclusively reserved to Tierrafino, both during and after the execution of the agreement.
3. Only after payment of the amount owed to Tierrafino as a result of a concluded agreement will the other party be entitled to a right of use in respect of the foregoing, unless the parties have expressly agreed otherwise in writing.
4. By providing information to Tierrafino, the other party declares that no copyright or any other intellectual property right of third parties is being infringed and indemnifies Tierrafino in and out of court against all consequences, both financial and other, that (may) result from this.
ARTICLE 13: RETENTION OF TITLE
1. Tierrafino reserves the ownership of goods delivered and to be delivered until such time as the other party has fulfilled its related payment obligations towards Tierrafino. These payment obligations consist of payment of the purchase price, increased by claims in respect of work performed in connection with that delivery, as well as claims in respect of – any compensation for failure to fulfill obligations on the part of the other party.
2. The goods covered by the retention of title may only be resold by the other party in the context of normal business operations.
3. In the event that Tierrafino invokes the retention of title, the agreement concluded in this regard shall be deemed to have been dissolved, without prejudice to Tierrafino’s right to claim compensation for damage, lost profit and interest.
4. The other party is obliged to immediately inform Tierrafino in writing of the fact that third parties are asserting rights to goods that are subject to retention of title by virtue of this Article.
ARTICLE 14: PROPERTY/WARRANTY
Until the other party has fully complied with its related payment obligations towards Tierrafino, the other party is not authorized to pledge delivered goods to third parties and/or to establish a non-possessory pledge on them, and/or to store the goods in the actual power of one or more financiers (warranty), as this will be regarded as an attributable failure on his part. Tierrafino can then immediately, without being obliged to provide any notice of default, suspend its obligations under the agreement or dissolve the agreement, without prejudice to Tierrafino’s right to compensation for damage, lost profit and interest.
ARTICLE 15: BANKRUPTCY, DISCLOSURE, etc.
Without prejudice to the provisions of the other ARTICLE and of these terms and conditions, the agreement concluded between the other party and Tierrafino will be dissolved without judicial intervention and without any notice of default being required, at the time when the other party is declared bankrupt, (provisional) suspension of payments of payment, or loses the power of disposal and/or legal capacity with regard to its assets or parts thereof by attachment, placing under guardianship or otherwise, unless the trustee in bankruptcy or the administrator acknowledges the obligations arising from the agreement as debt of the estate.
ARTICLE 16: FORCE MAJEUR
1. In the event that fulfilment of that which Tierrafino is obliged to under the agreement concluded with the other party is not possible and this is due to non-attributable non-compliance on the part of Tierrafino or on the part of the party engaged by Tierrafino for the execution of the agreement, third parties or suppliers, or in the event that another important reason arises on the part of Tierrafino, Tierrafino is entitled to dissolve the agreement concluded between the parties, or to fulfill its obligations towards the other party during a reasonable period to be determined by it. without being obliged to pay any compensation. If the above situation occurs when the agreement has been partially performed, the other party is obliged to fulfill its obligations towards Tierrafino up to that moment.
2. Circumstances in which there will be non-attributable non-compliance will include: war, riot, mobilization, domestic and foreign riots, government measures, strike and lock-out by workers or the threat of these and similar circumstances; disruption of the currency relations existing at the time of entering into the agreement; operational disruptions due to fire, accident or other incidents and natural phenomena, irrespective of whether the non-fulfilment or late fulfillment takes place at Tierrafino, its suppliers or third parties engaged by it for the performance of the contract.
ARTICLE 17: CANCELLATION AND DISSOLUTION
A. The other party waives all rights to dissolve the agreement ex. article 6:265 et seq. of the Dutch Civil Code or other statutory provisions, unless mandatory legal provisions oppose this. This applies subject to the right to cancel or terminate the agreement under this Article.
B. The provisions of sub A of this paragraph do not apply to the agreement with the consumer.
2. In the context of these general terms and conditions, cancellation is understood to mean: the termination of the agreement by one of the parties before the start of the execution of the agreement.
3. In the context of these general terms and conditions, termination is understood to mean: the termination of the agreement by one of the parties after the implementation of the agreement has commenced.
4. In the event that the other party terminates or cancels the agreement, it will owe Tierrafino a fee to be determined by Tierrafino. The other party is obliged to compensate Tierrafino for all costs, damage and loss of profit. Tierrafino is entitled to fix the costs, damages and lost profit and – at its discretion and depending on the work already performed or deliveries – to charge 20 to 100% of the agreed price to the other party.
5. The other party is liable to third parties for the consequences of the cancellation or termination and indemnifies Tierrafino in this regard.
6. Amounts already paid by the other party will not be refunded.
ARTICLE 18: APPLICABLE LAW/COMPETENT COURT
1. The agreement concluded between Tierrafino and the other party is exclusively governed by Dutch law. Disputes arising from the agreement will also be settled under Dutch law.
2. Notwithstanding the provisions of paragraph 1 of this ARTICLE, if the legal system of the country or the state of destination of the goods is more favorable to Tierrafino, the legal consequences of a retention of title of goods destined for export will be governed by that law.
3. Any disputes will be settled by the competent Dutch court, although Tierrafino is entitled to bring a case before the competent court in the place where Tierrafino is located, unless the subdistrict court has jurisdiction in this matter.
4. For disputes with the consumer, within 1 (one) month after Tierrafino has informed him that the case will be submitted to the court, the consumer can indicate that he opts for settlement of the dispute by the legally competent court.
5. With regard to disputes arising from an agreement concluded with a counterparty established outside the Netherlands, Tierrafino is entitled to act in accordance with the provisions of paragraph 3 of this ARTICLE or – at its option – to submit the disputes to the competent court in the country or state where the other party is established.
6. The applicability of the Vienna Sales Convention is excluded.
7. Where any dispute may arise between the text of these terms and conditions as a result of translation from Dutch to English, the original in Dutch will always take precedence.