Article 1. General

These Terms & Conditions apply to every proposal, offer and agreement between ATTRADE, hereinafter referred to as “Supplier” and any counterparty to which Supplier has declared these Terms & Conditions as applicable to the extent that the parties have not expressly agreed differently in writing.

  1. These Terms & Conditions also apply to agreements with Supplier, for fulfilment of which Supplier needs to involve third parties.
  2. These General Terms & Conditions were also written for the employees of Supplier and its management.
  3. Application of any terms & conditions of purchasing or other terms & conditions of the counterparty is hereby explicitly rejected.
  4. If one or more of the provisions in these General Terms & Conditions should be or become null and void, in full or in part, at any time, the remaining provisions of these General Terms & Conditions shall remain in force in full. Supplier and Counterparty should in that case enter into consultation for the purpose of agreeing new provisions to replace those null and void provisions, whereby the purpose and scope of the original provision should be respected as far as possible.
  5. Should there be any lack of clarity surrounding the interpretation of one or more provisions of these General Terms & Conditions, they shall be interpreted ‘based on the spirit’ of those provisions.
  6. Should a situation arise between the parties that is not covered by these General Terms & Conditions, that situation shall be judged based on the spirit of these General Terms & Conditions.
  7. Inasmuch as Supplier does not always demand strict compliance with these General Terms & Conditions, that shall not be construed to mean that the provisions thereof are not applicable or that Supplier shall to any degree lose the right to demand strict compliance with the provisions of these General Terms & Conditions in other cases.

Article 2 Offers and bids

  1. All offers and bids by Supplier are without obligation unless an acceptance date has been set in the offer. Any offer or bid shall lapse inasmuch as the product the offer or proposal relates to is meanwhile no longer available.
  2. Supplier cannot be bound by its offers or bids inasmuch as the Counterparty can reasonably be expected to realise that those offers or proposals, or any element of them, contain an obvious omission or error.
  3. The prices stated in any offer or proposal are exclusive of VAT and other state levies as well as any costs to be incurred in connection with drawing up the contract, to include travel, accommodation, transport and administration costs unless indicated otherwise.
  4. Inasmuch as the acceptance deviates (whether or not on secondary points) from what has been offered in the offer or proposal, Supplier shall not be bound by it. Unless Supplier states otherwise, no contract shall come about based upon that deviating acceptance.
  5. Any price offered made up of multiple elements shall not oblige Supplier to fulfil any part of the order against a corresponding proportion of the price offered. Proposals or offers do not automatically apply to future orders.

Article 3 Contract duration: Delivery dates, execution and amendment of contract

  1. Unless ensuing otherwise from the type of contract, or where the parties have expressly agreed otherwise in writing, the contract between Supplier and the Counterparty shall be deemed entered into for an indefinite period.
  2. If a date has been agreed or stated for completion of certain work or for delivery of certain items, that shall under no circumstances be construed as a deadline. Should any deadline be missed, therefore, the Counterparty must place Supplier in default in writing. Supplier shall be offered a reasonable deadline in order to still fulfil the contract.
  3. Inasmuch as Supplier needs information from the Counterparty in order to execute the contract, the fulfilment period shall not begin until the Counterparty has provided that information correctly and completely to Supplier.
  4. Delivery takes place ex-works from Supplier. The Counterparty undertakes to accept the items at the moment they are placed at its disposal. Should the Counterparty refuse acceptance or be negligent in provision of information or instructions necessary for the delivery, Supplier shall be entitled to store those items for the account and risk of the Counterparty.
  5. Supplier has the right to have certain tasks performed by third parties.
  6. Supplier shall be entitled to fulfil the contract in different phases and to invoice the part thus fulfilled separately.
  7. Inasmuch as the contract is fulfilled in phases, Supplier may suspend fulfilment of those elements that form part of a subsequent phase until the Counterparty has approved the results of the preceding phase in writing.
  8. Inasmuch as it appears during fulfilment of the contract that it needs to be amended or augmented for proper fulfilment thereof, parties shall enter into mutual consultation in good time in order to adjust the contract. Inasmuch as the type, scope or content of the contract, whether or not at the request or instigation of the Counterparty, of the authorities responsible et cetera, is amended and the contract is thus changed in qualitative and/or quantitative terms, that may entail consequences for that which was originally agreed. This may increase or reduce the amount originally agreed. As far as possible, Supplier shall indicate the price thereof in advance. Any change of the contract may also mean that the date of execution originally stated may be changed. The Counterparty accepts the possibility of changes to the contract, to include any change in price and execution date.
  9. Inasmuch as the contract is changed, to include any addition, Supplier shall then be entitled to fulfil it only after approval has been given by the person within Supplier authorised to do so and the Counterparty has agreed to the prices and other conditions for fulfilment, to include the point in time at which it should be fulfilled. Non-fulfilment or delayed fulfilment of the changed contract shall not be deemed a breach of contract by Supplier, nor shall it constitute grounds for the Counterparty to cancel the contract. Supplier may refuse any request to amend the contract, without going into default by doing so, if such change might have consequences in qualitative and/or quantitative terms for the work to be performed or the items to be delivered in that context.
  10. Inasmuch as the Counterparty may be in default in proper adherence to whatever Supplier has required of it, the Counterparty shall then be liable for all losses (to include costs) incurred directly or indirectly by the Supplier as a result.
  11. Inasmuch as Supplier has agreed a fixed price with the Counterparty, Supplier shall nonetheless be entitled to increase that price without the Counterparty thus being entitled to cancel the contract for those reasons inasmuch as the price increase ensues from an entitlement or obligation ensuing from the law or legislation or is caused by an increase in the price of base materials, wages et cetera or for other reasons not foreseeable on entering into the contract.
  12. Inasmuch as the price increase, other than as a consequence of a change to the contract, amounts to more than 10% and takes place within three months of conclusion of the contract, only the Counterparty shall then be entitled to appeal to title 3, section 3, of Volume 6 Netherlands Civil Code (BW) and cancel the contract by written statement unless Supplier is still prepared to fulfil the contract on the basis of what was originally agreed or to the extent that the price increase ensues from an entitlement of, or an obligation on Supplier under law, or is the result of the fact that the delivery should take place longer than three months after the purchase.

Article 4 Suspension, cancellation or premature termination of the contract

  1. Supplier shall be entitled to suspend fulfilment of the obligations or to cancel the contract inasmuch as:
    – the Counterparty fails to meet the obligations from the contract in full or in time;
    – after conclusion of the contract, Supplier learns of circumstances that give good reason to fear that the Counterparty will not live up to its obligations;
    – on conclusion of contract, the Counterparty is asked to put up security for adherence to its obligations from the contract and that security remains outstanding or is insufficient;
    – To the extent the delay on the part of the Counterparty means that Supplier can no longer be expected to fulfil the contract against the conditions originally agreed, Supplier shall be entitled to cancel the contract.
  2. Furthermore, Supplier shall be entitled to cancel the contract inasmuch as circumstances arise which by nature make fulfilment of the contract impossible or if circumstances otherwise arise which by nature mean that Supplier can no longer reasonably be expected to fulfil the contract unchanged.
  3. If the contract is cancelled, the claims of Supplier against the Counterparty fall due immediately. Inasmuch as Supplier has suspended fulfilment of the obligations, it retains its rights under law and the contract.
  4. Inasmuch as Supplier suspends or cancels, it shall not be liable in any manner whatsoever for compensation of damages and costs, however caused, as a result.
  5. Inasmuch as cancellation is attributable to the Counterparty, Supplier shall be entitled to compensation of the damages, to include the costs incurred, directly or indirectly, as a result.
  6. Inasmuch as the Counterparty fails to live up to its obligations ensuing from the contract and such failure justifies cancellation, Supplier shall be entitled to cancel the contract at once and with immediate effect without being obliged to pay any damages or indemnify whatsoever, whilst the Counterparty, based upon breach of contract, shall be obliged to pay damages or indemnify.
  7. Inasmuch as the contract has been cancelled prematurely by Supplier, Supplier shall, in consultation with the Counterparty, take care of transferring any tasks still to be performed to third parties. This unless the cancellation is attributable to the Counterparty. To the extent the transfer of those tasks entails extra costs for Supplier, these shall be charged to the Counterparty. Unless Supplier states otherwise, the Counterparty shall be required to pay such costs within the period stated for that purpose.
  8. In the event of liquidation, (application for) moratorium of payment or bankruptcy, or impoundment – if and to the extent that the impoundment is not lifted within three months – at the expense of the Counterparty, of debt restructuring or another circumstance, because of which the Counterparty can no longer dispose freely of its assets, Supplier shall be free to cancel the order or contract at once and with immediate effect without any obligation whatsoever on its part to pay any damages or to indemnify. The Supplier’s claims against the Counterparty shall fall due immediately in that case.
  9. Inasmuch as the Counterpart cancels an order placed, in full or in part, the items ordered or prepared for that order, plus any transport and delivery costs thereof and the working time reserved for fulfilment of the contract, shall be invoiced to the Counterparty on an integral basis.

Article 5 Force majeure

  1. Supplier shall not be required to live up to any obligation whatsoever if it is prevented from doing so as the consequence of a circumstance for which it cannot be apportioned blame, or which is for its account by force of law, any legal transaction or generally held opinions.
  2. Force majeure within the meaning of these General Terms & Conditions shall be interpreted as provided for by the law and jurisprudence as all external causes, foreseen or unforeseen, upon which Supplier can exert no influence, but because of which Supplier is not in a position to live up to its obligations, to include strikes in the operation of Supplier or of third parties. Supplier shall also be entitled to plead force majeure even if the circumstance that prevents (further) fulfilment of the contract occurs after Supplier should have met its obligations.
  3. During the period in which the force majeure persists, Supplier may suspend fulfilment of the obligations under the contract. Should that period last longer than two months, each of the Parties shall be entitled to cancel the contract without obligations to pay damages to the other party.
  4. To the extent Supplier, at the time of occurrence of force majeure, had meanwhile partly lived up to its obligations ensuing from the contract or can still live up to them, and living up to that part has or will add value independently, Supplier shall be entitled to invoice that part already fulfilled. The Counterparty shall be required to pay that invoice as if there was a question of a separate agreement.

Article 6 Payment and collection costs

  1. Unless stated otherwise by Supplier, payment is due 50% upon ordering and 50% within 8 days of delivery in a manner to be specified by Supplier and in the currency invoiced in. Supplier shall be entitled to invoice periodically.
  2. Inasmuch as the Counterparty remains in arrears with timely payment of an invoice, the Counterparty shall be deemed in default by operation of law. The Counterparty shall then be liable to interest of 1% per month unless the statutory interest is higher, in which case the statutory interest is due. The interest on the amount due shall be calculated from the moment that the Counterparty goes into arrears until the moment of settlement of the full amount owed.
  3. Supplier shall be entitled to apply the payments effected by the Counterparty in the first instance to reduce the costs, then to reduce interest accumulated and only then to reduce the principal amount and ongoing interest.
  4. Supplier may, without going into default by doing so, refuse an offer to pay if the Counterparty specifies another order for allocation of the payment. Supplier may refuse complete settlement of the principal amount if the accumulated and ongoing interest and collection costs have not also been settled.
  5. Under no circumstances shall the Counterparty be entitled to offset amounts it owes to Supplier.
  6. Objections to the amount of an invoice shall not suspend the obligation to pay. Neither shall the Counterparty, unless it can plead section 6.5.3 (articles 231 to 247 inclusive, Volume 6 BW), be entitled to suspend payment of an invoice for other reasons.
  7. Inasmuch as the Counterparty is in default or in arrears in meeting its obligations (in a timely manner), all reasonable costs to obtain payment out of court shall be for the account of the Counterparty. The out-of-court costs shall be calculated on the basis normal in credit collections practice in the Netherlands, presently the calculation method according to “Rapport Voorwerk II” (The Dutch directive by which courts define the level of out-of-court costs). Inasmuch, however, Supplier has incurred higher costs for collection which were reasonably necessary, the costs actually incurred shall be due. Any court and execution costs incurred shall also be recovered from the Counterparty. The Counterparty is also liable to interest on the collection costs owed.

Article 7 Reservation of title

  1. All items delivered by Supplier within the context of the contract remain the property of Supplier until the Counterparty has properly met all obligations from contract(s) concluded with Supplier.
  2. Items delivered by Supplier falling under the reservation of title pursuant to paragraph 1 above may not be resold and may under no circumstances be used as a method of payment. The Counterparty shall not be entitled to pledge or otherwise encumber items falling under the reservation of title.
  3. The Counterparty must do whatever may reasonably be expected of it in order to secure Supplier’s rights of title.
  4. Inasmuch as third parties place a lien on the items delivered under reservation of title or assert rights to them, the Counterparty shall be obliged to notify Supplier thereof immediately and keep it abreast of the situation.
  5. The Counterparty undertakes to insure items delivered under reservation of title, and keep them insured, against fire, explosion and water damage, as well as against theft, and to submit the policy for that insurance to Supplier for inspection on first request. In the event of any payout from that insurance, Supplier shall be entitled to such monies. To the extent necessary, the Counterparty commits vis-à-vis Supplier in advance to provide its assistance in any respect that may (appear to) be necessary or desirable in that context.
  6. In the event that Supplier intends to exercise the rights of title mentioned in this article, the Counterparty herewith grants Supplier and third parties instructed by Supplier unconditional and irrevocable permission in advance to enter those places where Supplier’s property is located and take those items back.

Article 8 Guarantees, research and advertisements, period of limitations

  1. The items to be delivered by Supplier meet the normal requirements and standards that can reasonably be set at the moment of delivery and for which they are intended in normal use in Europe. The guarantee mentioned in this article applies to items intended for use within Europe. In the event of use outside Europe, the Counterparty itself needs to verify if use thereof is suitable for the purpose there and meets the conditions placed on them. In that case, Supplier can set other guarantees and other conditions with regard to the items to be delivered or work to be performed.
  2. The guarantee mentioned in paragraph 1 of this article applies for a period of 30 days from delivery unless it ensues differently from the form of the item delivered or the parties have agreed otherwise. Unless otherwise stated, inasmuch as the guarantee issued by Supplier relates to an item produced by a third party, the guarantee shall be limited to that guarantee which the producer of the item gives for that item.
  3. Any form of guarantee lapses if a defect is the result of or ensues from inexpert of inappropriate use thereof, incorrect storage or maintenance thereof by the Counterparty and/or by third parties whenever, without Supplier’s written permission, the Counterparty or third parties have performed, or tried to perform, modifications to the item, attached other items to it that should not be attached to it or they have been processed or machined in a manner other than that specified. Nor shall the Counterparty be entitled to claim against the guarantee if the defect has been caused by, or is the result of, circumstances beyond Supplier’s control, to include weather conditions (such as, for example but not limited to, extreme rainfall or temperatures) et cetera.
  4. The Counterparty shall be required to examine the items delivered, or have them examined, immediately at the moment at which they are placed at its disposal, respectively the relevant work has been carried out. The Counterparty needs to check thereby whether the quality and/or quantity of the items delivered conforms to what was agreed and meets the requirements that the parties agreed in that respect. Any visible defects must be reported to Supplier in writing within seven days. Any concealed defects must be reported to Supplier in writing immediately, but at the latest within fourteen days, upon discovery of them.. The report should include a description as detailed as possible of the defect to enable Supplier to react appropriately. The Counterparty must give Supplier the opportunity to investigate any complaint or have it investigated.
  5. Inasmuch as the Counterparty complains in time, that shall not suspend its obligation to pay. In that case, the Counterparty remains obliged to accept and pay for the other items ordered.
  6. Inasmuch as a defect is reported later, the Counterparty shall have no further right to repair, replacement or compensation.
  7. Where it has been established that an item is faulty and that fact has been reported in time, Supplier shall replace the faulty item within a reasonable period after receiving it back, or where returning it is not reasonably possible, after written notification with regard to the defect by the Counterparty. In the event of replacement, the Counterparty shall be obliged to return the item replaced to Supplier and transfer title to it to Supplier unless Supplier states otherwise.
  8. Should it be established that a complaint is groundless, the costs incurred thereby by Supplier, including the costs of investigation, shall all be for the account of the Counterparty.
  9. Upon expiry of the guarantee period, all costs for repair or replacement, including administration, transport and travel costs shall be invoiced to the Counterparty.
  10. In derogation of the statutory periods of limitation, the period of limitations for all claims and complaints against Supplier and third parties involved in fulfilment of any contract by Supplier, amounts to one year.

Article 9 Liability

  1. Inasmuch as Supplier may be liable, that liability is limited as defined in this provision.
  2. Supplier shall not be liable for damage of any kind whatsoever occurring because Supplier has worked based upon incorrect and/or incomplete information issued by or on behalf of the Counterparty.
  3. Inasmuch as Supplier may be liable for any damage whatsoever, that liability of Supplier shall be limited to a maximum of two times the invoice value of the order, or to that part of the order to which the liability relates.
  4. Supplier’s liability is in any event always limited to the amount paid out by its insurer in cases arising.
  5. Supplier shall be liable only for direct losses.
  6. Direct losses are deemed only those reasonable costs to determine the cause and scope of the loss, to the extent that such determination relates to losses within the meaning of these Terms & Conditions, any reasonable costs incurred to correct the Supplier’s malperformance such that the conditions of contract are met to the extent that failure to meet them can be attributed to Supplier, as well as reasonable costs incurred to prevent or limit damage to the extent that the Counterparty can demonstrate that those costs resulted in limitation of direct losses as defined in these General Terms & Conditions of Business.
  7. Supplier shall under no circumstances be liable for indirect losses, to include consequential losses, spoiled profits, missed savings and business interruption losses.
  8. The liability limitations set out in this article shall not apply if the losses were due to gross negligence of Supplier and its managers.

Article 10 Transfer of risk

  1. The risk of loss, damage or impairment transfers to the Counterparty at the moment when items are placed under the control of the Counterparty.

Article 11 Indemnification

  1. The Counterparty indemnifies Supplier for any claims asserted by third parties suffering losses in connection with fulfilment of contract and of which the cause is attributable to a party other than Supplier.
  2. Inasmuch as Supplier is addressed by third parties in that context, the Counterparty shall be obliged to support it both in and out of court and immediately do whatever may be expected of it in that case. Should the Counterparty fail to take adequate measures, Supplier shall be entitled, without serving notice of default, to do so itself. All costs and losses on the part of Supplier and third parties thus incurred shall fully be for the account and risk of the Counterparty.

Article 12 Intellectual property

  1. Supplier reserves the rights and powers accorded to it based upon copyright law and other intellectual property law and legislation. Supplier shall be entitled to use knowledge on its part gained through fulfilment of a contract also for other purposes, as long as no strictly confidential information of the Counterparty becomes known to third parties.

Article 13 Applicable law and disputes

  1. The law of the Netherlands applies exclusively to all legal relationships to which Supplier is party even if an obligation is met completely or partly abroad or when the party to the legal relationship is domiciled there. Applicability of the Vienna Purchasing Treaty is precluded.
  2. Unless compelling law provides otherwise, the court at the Supplier’s principal place of business is exclusively competent to hear disputes. Supplier nonetheless shall be entitled to put the dispute before the court competent according to law.
  3. Parties shall call upon a court only when they have undertaken their utmost efforts to settle any dispute in mutual consultation.

Article 14 Lodging and changes of terms & conditions

  1. These General Terms & Conditions have been lodged with the Chamber of Commerce in ’s-Hertogenbosch.
  2. The latest version lodged, resp. the version as it applied at the time the legal relationship with Supplier came about, shall always apply.
  3. The Dutch text of these General Terms & Conditions shall always be authoritative in interpretation thereof.