GENERAL TERMS AND CONDITIONS, TS TRADING BV. – TATTOO & PIERCING SUPPLIES
Article 1. Definitions
In these general terms and conditions is understood by ‘purchaser’: an opposite party who is a natural person or legal entity and practises a profession or runs a company.
Article 2. Applicability of these conditions
1. These conditions are applicable to every proposal and all agreements between TS Trading bv. – Tattoo & Piercing Supplies, hereinafter referred to as TS Trading bv., and a purchaser, to which TS Trading bv. has declared these conditions applicable, inasmuch as the parties have not explicitly deviated from these conditions in writing.
2. The applicability of the purchaser’s general terms and conditions is hereby explicitly excluded. Purchasers with whom contracts are entered into under the present conditions, agree to the applicability of these conditions to all later agreements between the purchaser and TS Trading bv..
3. In the event that any stipulation of these general terms and conditions should become void or be nullified, the remaining stipulations of these general terms and conditions shall remain entirely in force and the purchaser and TS Trading bv. shall consult with the aim of agreeing new stipulations to replace the void or nullified stipulation(s), whereby as far as possible, the purpose and scope of the void or nullified stipulation(s) are taken into account.
Article 3. Proposals and quotations
Proposals made by TS Trading bv. are subject to confirmation; they are valid for 60 days, unless otherwise indicated. The prices stated in proposals are exclusive of VAT, unless otherwise indicated.
If the opposite party has explicitly requested the submission of a proposal, but the order to which the proposal is related is not forthcoming within two months after submission, then TS Trading bv. shall be entitled to charge the opposite party for the costs that TS Trading bv. has incurred in relation to the proposal. All offers from TS Trading bv., regardless whether they were made in a special proposal, price list, catalogue or otherwise, are – unless explicitly otherwise agreed – entirely subject to confirmation.
Article 4. Delivery period
An agreed delivery period is not a firm date, unless explicitly otherwise agreed. Exceeding the delivery period shall never give the purchaser the right to cancel the order. Compensation and/or penalty payment by reason of late delivery by TS Trading bv. is hereby explicitly excluded.
Article 5. Delivery
1. Unless otherwise agreed, delivery to the purchaser shall occur ex-factory. This means that the shipping costs shall be borne by the purchaser.
2. The purchaser is obliged to take delivery of the purchased items at the moment they are delivered or at the moment they are made available, in accordance with the contract.
If the opposite party the refuses to take delivery or is negligent in the provision of any information or necessary instructions for the delivery, the items shall be stored at the risk of the opposite party. The opposite party shall in that case become liable for all additional costs, including in any case storage costs.
Article 6. Consignment deliveries
TS Trading bv. is explicitly permitted to deliver the items sold in consignments. The aforesaid shall not apply if a partial delivery has no independent value.
If the items are delivered in consignments, TS Trading bv. is authorised to invoice each consignment separately.
Article 7. Technical requirements, etc.
If items to be delivered in the Netherlands are for use outside the Netherlands, TS Trading bv. is not responsible for ensuring that the items fulfil any technical requirements or standards required by the laws or conditions of the country in which the items will be used, unless explicitly otherwise agreed when entering into the sale.
All other technical requirements that are made upon the items by the purchaser and which deviate from the usual requirements, should also be explicitly stated by the purchaser at the time of entering into the contract of sale.
Article 8. Samples, examples and models
If a sample, example or model is shown or provided by TS Trading bv., this is assumed to have been shown or provided only by way of demonstration: the quality of items supplied can differ from the sample, example or model, unless it was explicitly stated that delivery would be in accordance with the shown or supplied sample, example or model.
Article 9. Changes in the items to be supplied
1. TS Trading bv. is entitled to supply items that do not differ on important points from the items defined in the contract of sale.
Should TS Trading bv. make use of this possibility and supply an item that differs essentially from the agreed item, the purchaser is entitled to dissolve the contract. The purchaser has this entitlement for 7 days after he has discovered the deviation or reasonably could have done so.
2. The purchaser has no entitlement to dissolve the contract if it concerns changes in the items, the packaging or appurtenant documentation that are required to comply with applicable legal regulations or if it concerns slight changes which improve the item, or at least cause no actual impairment.
Article 10. Termination of the contract
1. The claims of TS Trading bv. on the purchaser shall become immediately due and payable in the following cases:
- if, after entering into the contract, circumstances become known which give TS Trading bv. firm grounds to doubt that the purchaser will fulfil its obligations;
- if TS Trading bv. has requested the purchaser to provide security upon entering into the contract and this security is lacking or insufficient.
In the said cases, TS Trading bv. is entitled to suspend the further execution of the contract or proceed with dissolution of the contract, all without prejudice to the right of TS Trading bv. to claim compensation.
2. Should circumstances occur in relation to persons and/or materials that TS Trading bv. uses or normally utilises for the execution of the contract, which by their nature are such that the execution of the contract becomes impossible or so difficult and/or disproportionately costly that fulfilment of the contract cannot reasonably be required, TS Trading bv. is entitled to dissolve the contract.
Article 11. Guarantee
1. TS Trading bv.’s guarantee goes no further than the guarantee provided to TS Trading bv. by the factory. Normal wear and tear is not covered by the guarantee. Defects due to injudicious handling, faulty maintenance or which manifest themselves after modification or repair on the part or on behalf of the purchaser, are not covered by the guarantee. The purchaser can only claim under the guarantee if its obligations – financial or otherwise – towards TS Trading bv. have been fulfilled.
2. If the guarantee referred to in paragraph 1 is applicable and the item is defective, TS Trading bv. must repair the item within a reasonable term after the purchaser has reported the defect.
3. TS Trading bv. may elect to replace the item if repair presents difficulties.
4. The purchaser should demonstrate that the item has become defective within the period for which this guarantee is valid. The guarantee expires if the type or serial number of an item is removed or changed.
5. The purchaser may only demand replacement of the item or dissolution of the contract of sale if:
- TS Trading bv. has made up to three attempts to remedy the same defect, these attempts have been fruitless and the defect is sufficiently serious to justify replacement or dissolution, or
- if the purchaser demonstrates that the items have or have had so many defects that they do not comply with the contract and that these defects justify replacement or dissolution.
Article 12. Return shipments
Purchaser should pay postage in advance on return shipments. TS Trading bv. accepts return shipments(s) solely and exclusively after prior agreement with the return of the good(s) in writing.
Article 13. Right of retention
TS Trading bv. is legally entitled to retain all items it has supplied to the purchaser or all items they have produced for the opposite party until settlement of all costs that TS Trading bv. has incurred in the execution of the purchaser‘s orders, regardless whether these orders are related to the aforesaid or other items belonging to the purchaser, unless the purchaser has provided sufficient security for these costs.
Article 14. Retention of title
1. The items supplied by TS Trading bv. shall remain the property of TS Trading bv. until the purchaser has fulfilled all the following obligations issuing from all sales contracts entered into with TS Trading bv.:
- consideration(s) in relation to services performed or to be performed by TS Trading bv. pursuant to the sales contract(s),
- consideration(s) in relation to the delivered or to be delivered item/items themselves,
- any claims due to non-fulfilment of contract(s) of sale by the purchaser.
2. Items delivered by TS Trading bv. that are subject to retention of title pursuant to paragraph 1, may at all times be recovered by TS Trading bv. or reclaimed without prior notice of default being required. The purchaser is not authorised to pledge the items or establish any other rights upon them.
3. On delivered items that by reason of payment have become the property of the purchaser and which are still in the hands of the purchaser, TS Trading bv. hereby already reserves the rights of pledge as envisaged in art. 3:237 of the Dutch Civil Code (BW), as an additional security for claims other than those referred to in paragraph 1 of this article, which TS Trading bv. for whatever reason may have against the purchaser. The authority included in this paragraph is likewise valid in respect of items delivered by TS Trading bv. which have been processed or incorporated by the purchaser, through which TS Trading bv. has lost its retention of title.
4. If the purchaser should fail to fulfil his obligations or there are grounds to suspect that he shall do so, TS Trading bv. is legally entitled to remove or have removed delivered items on which the retention of title referred to in paragraph 1 rests with the purchaser or third parties who may be holding the item for the purchaser. The purchaser is obliged to extend full co-operation under a penalty payment of 15% of the amount owed per day.
5. If third parties wish to establish or assert any rights under retention of title to items delivered, the purchaser is obliged to inform TS Trading bv. as soon as may reasonably be expected.
6. The purchaser is obliged at the first request of TS Trading bv.:
- to insure and maintain insurance on items delivered under retention of title against fire, damage by explosion, water and against theft and to produce the policy for this insurance for perusal;
- to pledge all insurance claims by the purchaser in relation to the items delivered under retention of title to TS Trading bv., in the manner prescribed in art. 3:239 BW;
- to pledge to TS Trading bv. any claims that the purchaser is awarded against customers after the resale of items delivered under retention of title by TS Trading bv., in the manner prescribed in art. 3:239 BW;
- to mark the items delivered under retention of title as the property of TS Trading bv.;
- in other ways to extend co-operation with all reasonable measures that TS Trading bv. wishes to take for the protection of its property rights in relation to the items and which the purchaser cannot unreasonably hinder in the course of normal business operations.
Article 15. Defects; complaints periods
1. The purchaser should inspect the purchased items on delivery – or as soon as possible thereafter. The opposite party should thereby determine whether the delivered goods are in accordance with the contract, specifically:
- whether the correct items have been delivered;
- whether the quantity of the delivered items (for example, number and amount) is in agreement with the contract;
- whether the delivered items fulfil the agreed quality requirements or – if these are lacking – any requirements that may be established for normal use and/or commercial purposes.
2. If visible defects or shortcomings are detected, then the purchaser should report these in writing to TS Trading bv. within 8 days of delivery. The lack of such notification presupposes that TS Trading bv. has fulfilled all its obligations towards the purchaser, with no evidence to the contrary being allowed.
3. Invisible defects should be reported to TS Trading bv. in writing by the purchaser within 3 days after discovery, however, at most within 14 days after delivery. The lack of such notification presupposes that TS Trading bv. has fulfilled all its obligations towards the purchaser, with no evidence to the contrary being allowed.
4. Even in the event that the purchaser complains promptly, the obligation to pay and accept completed orders remains intact.
Items may only be returned to TS Trading bv. after prior, written permission has been obtained.
Article 15. Provision of security
1.TS Trading bv. is always legally entitled, before delivery or before continuing delivery, to demand sufficient security to ensure the fulfilment of the purchaser’s payment obligations.
2. If the required security is not provided, or not in a satisfactory manner or the legal form of the purchaser is changed, TS Trading bv. has the right to dissolve the contract in part or wholly without judicial intervention and recover goods already delivered, without prejudice to the rights thus accruing to TS Trading bv. to payment of all that is due for costs incurred due to activities performed and deliveries made.
Article 16. Payment
1. Payment to TS Trading bv. should be made in advance by transferring the amount due to the bank or giro number provided by TS Trading bv. for this purpose, without any form of discount, unless otherwise agreed in advance by TS Trading bv. in writing.
- or in advance by means of legally-valid payment at the TS Trading bv. offices.
- or in any other manner agreed with the purchaser in writing.
In the event of late payment the purchaser shall be in breach; as of the moment of committing the breach, interest at the rate of 2% per month over and above the legally valid interest shall be payable by the purchaser over the due amount.
2. In case of liquidation, bankruptcy or suspension of payments by the purchaser, the obligations of the purchaser shall immediately become due and payable.
3. Payments made by the purchaser shall always serve in the first place to pay all interests and costs and in the second place for invoices that have been overdue the longest, even if the purchaser states that the settlement is related to a later invoice.
Article 17. Price increases
1. If TS Trading bv. agrees a certain price with the purchaser, TS Trading bv. is nevertheless legally entitled to increase the price in the event of changes in materials necessary for the execution of the contract, wages, premiums of any nature, taxes and/or other factors, which (partly) determine the price of the purchased items. If changes take place in one or more of the aforementioned factors before delivery has taken place, TS Trading bv. reserves the right to change the said prices without prior notification within reason and fairness in the judgement of TS Trading bv..
2. Prices quoted by TS Trading bv. are per piece, excluding VAT and any remaining levies applicable to the sale and delivery. Any commercial discounts granted by TS Trading bv. are applicable only to orders with a gross value excluding VAT that is higher than a limit set by TS Trading bv. from time to time.
3. TS Trading bv. may charge the valid price at the time of delivery in accordance with its current price list. If the price increase is more than 15%, the purchaser has the right to dissolve the contract.
Article 18. Collection costs
1. If the purchaser is in breach or fails to fulfil one or more obligations, then all reasonable costs incurred to obtain settlement shall be borne by the purchaser without legal recourse. In any case, 15% of the principal, with a minimum of €250 per case, shall be payable by the purchaser.
If TS Trading bv. can show that it has incurred higher costs, which were reasonably necessary, these are also eligible for compensation.
2. The purchaser is indebted to TS Trading bv. for any legal costs incurred by TS Trading bv. in all instances, unless these are unreasonably high.
This is only valid if TS Trading bv. and the purchaser are engaged in a legal procedure in relation to a contract to which these general terms and conditions apply and a final and conclusive judicial decision, whereby the findings are completely or preponderantly against the purchaser.
Article 19. Liability
1. The guarantee, as defined in article 11 of these conditions, is applicable to defects in items supplied.
2. In the matter of items supplied, as well as in the matter of the provision of additional services, the liability of TS Trading bv. is limited to at most the invoice value, unless the damage is a result of premeditation or severe neglect by TS Trading bv..
3. Even so, TS Trading bv. is only obliged to compensate damage that is an immediate and direct consequence of such neglect.
4. TS Trading bv. is likewise not obliged to compensate for damage incurred indirectly or directly, arising from defects in items it has supplied, other than as provided for in article 11 of these conditions.
5. TS Trading bv. is not liable for any damage resulting from circumstances it had not foreseen. All circumstances concerning the liability of TS Trading bv. that were not explicitly stated in writing at the time of entering into the contract by the purchaser, are deemed to be unforeseeable circumstances.
6. TS Trading bv. is not liable for any damage resulting from improper use of the items supplied by TS Trading bv. or use contrary to the instructions provided by TS Trading bv. to the purchaser, or which is the result of shortcomings attributable to the purchaser’s company or business dealings or is a consequence of the use of hazardous materials or pesticides.
7. Likewise, TS Trading bv. is not liable for any damage that is the consequence of the application of data provided by or on behalf of the purchaser, nor if purchaser has used the goods supplied outside his company or for private purposes.
8. If TS Trading bv. provides services, for example but not exclusively, the provision of advice, the liability of TS Trading bv. is completely excluded in all cases for which no payment was stipulated for the provision of the service.
Article 20. Hardship clause
1. If, on the grounds of special circumstances in a case, the exclusion of liability by TS Trading bv. cannot be accepted, then its liability shall be limited to the maximum amount for which its liability is insured, with a maximum of 75% of the legal compensation.
2. TS Trading bv. has covered the risk of contractual and legal liability by an insurance policy. An own-risk clause is attached. It is partly for this reason that the maximum stipulated in the first paragraph of these conditions is included. The portion of the legal compensation paid by the purchaser can be regarded as a threshold figure; that is to say: the first 25% of the compensation amount is borne by the purchaser, whilst the remaining 75% shall be borne by TS Trading bv., the foregoing up to the maximum insured amount.
3. Any claim for compensation for damage shall expire after 6 months, counted from the day upon which it arose.
Article 21. Indemnification
1. The purchaser indemnifies TS Trading bv. against all claims from third parties issuing from injudicious use of the items it has supplied or use contrary to the regulations, instructions and manuals compiled by TS Trading bv. or contrary to recommendations given by TS Trading bv. to the purchaser and against any other party for whom the purchaser is liable or to whom the purchaser ought to pass on the instructions, manuals, regulations or recommendations.
Article 22. Force majeure
1. Under force majeure is understood: circumstances that hinder the fulfilment of the contract, which are not attributable to TS Trading bv..
These shall include (if and insofar as these circumstances render fulfilment impossible, or form an unreasonable impediment): strikes in companies other than TS Trading bv., wild strikes or political strikes in the TS Trading bv. company; a general defect in necessary materials and other items and services needed to achieve the agreed performance; unforeseen delays on the part of suppliers or other third parties upon whom TS Trading bv. is dependent and general transport problems.
2. TS Trading bv. also has the right to invoke force majeure, if the circumstance hindering (further) fulfilment sets in after TS Trading bv. should have fulfilled the contract.
3. During a force majeure situation, the delivery and other obligations of TS Trading bv. are suspended. If the period in which fulfilment of the obligations by TS Trading bv. is impossible due to force majeure endures for longer than 3 months, both parties are entitled to dissolve the contract, in that case without any obligation to compensation arising.
4. If TS Trading bv. has already partially fulfilled its obligations at the start of the force majeure situation, or is only able to partially fulfil its obligations, it is legally entitled to invoice the already delivered or deliverable part separately and the purchaser is obliged to pay this invoice as if it was a separate contract. This is, however, not applicable if the already delivered or deliverable part has no independent value.
Article 23. Settlement of disputes
1. Contrary to the legal rules for the jurisdiction of the civil court, any dispute between the purchaser and TS Trading bv., shall be settled by TS Trading bv. in Sittard, if that court is duly authorised.
TS Trading bv. remains entitled to summons the purchaser before the authorised court in accordance with the law or the applicable international treaty.
2. If the purchaser is a consumer or has four or less (including the purchaser) workers, he has the right to opt for settlement of the dispute by the authorised civil court in accordance with the law, during four weeks after TS Trading bv. has invoked this stipulation in writing.
Article 24. Modification of the conditions
TS Trading bv. is entitled to modify these conditions. These modifications take effect at the stated time of entry into force. TS Trading bv. shall send the modified conditions promptly to the opposite party. If no time of entry into force is stated, the changes shall come into force for the opposite party as soon as the modification has been announced.
Article 25. Confidential information
The parties are, with the exception of legal obligations to publish certain data, bound to confidentiality in respect of data received from the other party and results of a confidential nature derived from them by processing. The parties shall take all reasonable precautions to this end.
Article 26. Applicable law
Dutch law is applicable to every contract between TS Trading bv. and the purchaser. The United Nations Convention on Contracts for the International Sale of Goods, dated 11 April 1980 (Vienna Sales Convention) is not applicable.