Terms of sale
Of the limited liability company Ten Cate Protect BV, established in Nijverdal, also trading under the name TenCate Protective Fabrics (the Netherlands), and all its subsidiaries.
Version 2024-1.0
Definitions
Seller:
Ten Cate Protect BV or its subsidiaries.
Buyer:
Any legal entity or person who enters into an agreement for the supply of goods and/or services with Ten Cate Protect BV or any of its subsidiaries.
Article 1 Scope and application
1.1 These conditions apply to every offer, and to any agreement between the Seller on the one hand and the Buyer on the other, unless parties have explicitly agreed otherwise in writing.
1.2 The Buyer also means the person/entity that issues the order and/or for whose account the items are to be delivered.
1.3 Application of the Buyer's General terms and conditions is explicitly excluded. The Seller does not agree to such terms and conditions except if and to the extent their applicability has been expressly accepted by the Seller in writing.
Article 2 Offers; orders; conclusion of agreements
2.1 Offers issued by the Seller are non-binding; offers are valid for thirty days after being issued, unless otherwise indicated.
2.2 An order issued by the Buyer to the Seller constitutes an offer by the Buyer that can only be deemed to have been accepted by the Seller after the Seller's confirmation in writing (by means of an order confirmation).
2.3 Any designs, drawings, models, samples, descriptions of specifications, illustrations, images, dimensional specifications and the like, as well as any appendices and documents pertaining to the Seller's offers, are an integral part of the Seller's offers. All the above, as well as tools made and used by the Seller in this context, remain the Seller's property and must be returned to the Seller at first request, and may not be reproduced and/or disclosed to third parties or made available to third parties without the Seller's prior consent in writing.
2.4 Promises by and agreements with employees of the Seller who are not authorized signatories are not binding on the Seller, except after and insofar as such that have been confirmed in writing by an authorized representative of the Seller.
2.5 An order confirmation sent by the Seller to the Buyer is deemed to fully and correctly reflect the contents of the concluded agreement. In the case of an order confirmation sent by the Seller, the agreement is deemed to have been established at the time the order confirmation was sent by the Seller. The Buyer is deemed to agree with the contents of the order confirmation, unless the Buyer sends notice to the Seller conveying disagreement with the contents within seven days of the date of the order confirmation. An offer signed by both parties also is considered a binding agreement. Resulting orders and order confirmations may not deviate from the agreements in the binding offer.
2.6 The contents of the Seller's price lists, brochures, printed matter, websites, etc. is not binding on the Seller, unless the Agreement expressly refers to such content. Any new quotation and/or price list from the Seller fully supersedes the previous offer.
Article 3 Prices
3.1 All prices quoted by the Seller are stated exclusive of VAT, unless expressly agreed otherwise in writing.
3.2 The prices quoted by the Seller are based in part on the cost factors prevailing at the time of concluding the agreement, such as exchange rates, manufacturer's prices, the prices of raw material and supplies, wage and transport costs, insurance premiums, taxes, import duties and other government levies.
3.3 The Seller reserves the right to change prices in response to changes in the cost factors listed in Article 3.2. Even if a price increase is a result of amended legislation or other governmental measures, the Seller has the right to charge the price increase to the Buyer. In the event of a price increase of more than 10%, the Buyer reserves the right to dissolve the agreement in writing within 3 days of the announcement of the price increase.
Article 4 Delivery; delivery time; partial deliveries
4.1 Delivery is made subject to the delivery conditions specified in the order confirmation according to the most recent version of the Incoterms, issued by the ICC (the International Chamber of Commerce).
4.2 The Seller reserves the right to underdeliver or overdeliver by a maximum of ten percent compared with the quantity stated in the order. In case the agreed quantity exceeds 5,000 meters, the Seller reserves the right to underdeliver or overdeliver by a maximum of five percent compared with the quantity stated in the order.
4.3 The Buyer is required to take delivery of the purchased items at the time they are made available in accordance with the agreement and/or the agreed Incoterms delivery condition, or at the time they are delivered. If the Buyer refuses to take delivery or is negligent in providing information or instructions necessary for delivery, the goods will be stored at the Buyer's risk. In that case, the Buyer is liable for all additional costs, including in any case all storage costs. Moreover, in this event, the Seller reserves the right to claim that the competent court releases the Seller from its obligation to deliver the agreed goods, or to claim payment of the purchase price of the goods not accepted, such without prior notice of default.
4.4 An agreed delivery time is not a deadline, unless expressly agreed otherwise. In the event of late delivery, the Buyer must therefore serve the Seller notice of default in writing.
4.5 If changes in the order to the Seller result in a longer time required to perform the agreement, the delivery time will be extended by that additional time required.
4.6 The Seller is permitted to deliver sold goods in partial deliveries. In the event of partial deliveries, the Seller reserves the right to invoice each partial delivery separately.
Article 5 Termination of the agreement
5.1 The Seller's claims against the Buyer are immediately due and payable, among others, in the following cases:
- if, after entering into the agreement, circumstances come to the Seller's knowledge
that give the Seller good reason to suspect that the Buyer may not comply
with its obligations;
- in case of liquidation, bankruptcy, or suspension of payments of the Buyer;
- if the Seller has asked the Buyer to provide guarantees for compliance
and this assurance is absent or inadequate;
- if the Buyer is otherwise in default and fails to meet its obligations pursuant to the agreement. In said cases, the Seller is authorized to suspend further execution of the agreement and/or to dissolve the agreement, subject to the obligation of the Buyer to compensate any resulting losses incurred by the Seller, such without prejudice to the Seller's other rights.
5.2 If circumstances arise with regard to persons and/or materials that the Seller uses or tends to use in the performance of the Agreement, which are of such a nature that the performance of the Agreement becomes impossible or so difficult and/or disproportionately expensive that compliance with the Agreement can no longer reasonably be required, the Seller reserves the right to dissolve the Agreement.
Article 6 Defects, complaint periods, and returns
6.1 The Buyer warrants the accuracy and completeness of the data it has provided to the Seller. Concerning data provided by the Seller on sizes, quantity, colour fastness, and the like, the Buyer must take into account normal deviations and changes in the goods delivered by the Seller. The Buyer cannot derive any claims against the Seller from such differences. The goods delivered by the Seller may therefore deviate from the description in the agreement if and insofar as it concerns size differences, quantity differences and/or changes, including minor deviations in quality, colour, width, weight, finish, design, patterns and the like, which are common in the industry or technically unavoidable. The maximum permissible deviations are listed in the (product) specifications used by the Seller.
6.2 The Buyer must inspect the purchased goods (or have them examined) upon delivery for visible defects and for any transport damage. Immediately upon delivery, the Buyer must ascertain whether the delivered goods comply with the specifications in the agreement, including: whether the correct goods have been delivered; whether the delivered goods correspond in terms of quantity (for example, the number and quantity) as per the agreement; whether the delivered goods comply with the agreed quality requirements or – if these are absent – with the requirements that may be set for normal use and/or commercial purposes.
6.3 Visible defects and any transport damage must immediately be reported by the Buyer to the carrier, and also immediately, no later than five days after delivery and in any case before processing the goods, in writing to the Seller.
6.4 Non-visible defects must be reported in writing to the Seller by the Buyer no later than three months after delivery and in any case before the goods are processed.
6.5 Any complaint must be made by registered letter or e-mail with a confirmation of receipt, containing a clear and accurate description of the complaint and stating the date and number of the invoice relating to the relevant items.
6.6 Even if the Buyer files a complaint in due order, this does not affect the Buyer's obligation of full payment before the due date and of taking delivery of purchased items.
6.7 Items consisting of standard products and standard colours may be returned to the Seller only with prior written consent, provided that they are unopened and in the original packaging, and provided that they were stored correctly with the Buyer. The Seller will then refund the purchase price deducting at least 15% to cover logistical and administrative costs to the Buyer.
Article 7 Warranty and liability
7.1 The Seller guarantees only that the goods delivered meet the agreed specifications. Unless otherwise agreed in writing, the Seller does not provide any other warranty on delivered items.
7.2 The Seller is liable only for deviations from the agreed specifications and for other defects in the goods delivered if such defects are the result of material or manufacturing defects or are caused by intent or gross negligence on the part of the Seller, such without prejudice to the limitations set out elsewhere in these terms and conditions.
7.3 If the Seller is liable for defects in the goods in accordance with the provisions of the second paragraph of this Article, the Seller may, at its discretion:
- replace the goods with goods without such defects, provided the defective goods are returned to the Seller; or
- dissolve the agreement with refund of the purchase price paid, subject to the condition that the items are returned by the Buyer.
7.4 Any compensation to be paid by the Seller must not exceed the invoiced sum of the relevant delivered goods.
7.5 The Seller is not liable for indirect and consequential losses, such as loss of sales and/or profits, missed business, loss of business, fines, loss of product or depreciation of the value of items delivered and/or the items into which they are incorporated.
7.6 Also in view of the fact that goods delivered by the Seller consist mainly of semi-finished products and products to be (further) processed by the Buyer, for example into finished products, the Seller is not liable for any damage resulting from incorrect handling of delivered goods. Improper handling includes, but is not limited to, treatment of the items for a purpose other than that for which the items are intended, and treatment or processing or use of the items contrary to the instructions for use, including but not limited to washing instructions and storage instructions.
7.7 Any claim rights of the Buyer against the Seller lapse one year after the goods have been delivered or made available to the Buyer in accordance with the agreement, unless the Buyer has initiated legal proceedings against the Seller within this period.
7.8 The Buyer shall indemnify the Seller against third party claims for losses or compensation in connection with goods delivered by the Seller to the Buyer.
Article 8 Retention of title
8.1 The Seller remains the owner of all items delivered or to be delivered by it to the Buyer under any agreement, until Buyer has fully satisfied the consideration(s) with respect to all such items. Retention of title also applies to claims that the Seller obtains against the Buyer due to the Buyer's failure to perform such agreement(s).
8.2 If the laws applicable in the destination country of the purchased goods allow for more far-reaching possibilities for retention of title than those set out above in paragraph 1, the parties undertake to accept that these more far-reaching possibilities are deemed to have been agreed for the benefit of the Seller, on the understanding that if it is not possible to objectively determine which more far-reaching rules this provision refers to, the provisions of paragraph 1 above continue to apply.
8.3 Goods delivered by the Seller, which are subject to retention of title, may only be resold in the normal course of business. In the event of bankruptcy or suspension of payments of the Buyer, reselling in the context of normal business is not permitted. Furthermore, the Buyer is not authorized to pledge the items or to vest any other right to them.
8.4 The Buyer undertakes to store the goods delivered under retention of title in accordance with the regulations, to mark them as the Seller's property, to insure and keep them insured against fire, explosion and water damage and against theft, and to make the policy and proof of premium payment of this insurance available for inspection by the Seller at first request.
Article 9 Payment
9.1 Unless otherwise agreed in writing, payment must be made within thirty days of the invoice date by transferring the amount due into the Seller's bank account number (IBAN).
The Buyer is in default if the invoice is not paid in full within thirty days after the invoice date; from the moment of default, the Buyer will be charged interest on the amount due at the legal interest rate for commercial transactions.
9.2 Upon payment to the Seller's IBAN bank account number, the day of the amount being credited in that account is considered the day of payment.
9.3 The Seller always reserves the right to require payment prior to delivery of the goods or adequate guarantees accordingly from the Buyer.
9.4 Payment is made without discount, deductions, or offsets.
9.5 Payments made by the Buyer always serve first to settle all interest and costs due, and secondly to pay for the invoices that have remained unpaid the longest, even if the Buyer states that the payment relates to a later invoice.
Article 10 Collection costs
10.1 If the Seller takes collection measures against the Buyer who is in default, the costs of such collection activities are charged to the Buyer, with a minimum of ten percent of the amount outstanding. Extrajudicial collection costs are due even if only a single reminder has been sent.
10.2 The Buyer is liable to the Seller for any legal costs incurred by the Seller in all instances, unless unreasonably high. This applies only if both the Seller and the Buyer are engaged in legal proceedings with respect to an agreement to which these General Terms and Conditions apply, and a court finds fully or substantially against the Buyer in a final and conclusive ruling.
Article 11 Force majeure
11.1 Force majeure means circumstances that prevent the fulfilment of the agreement that are not attributable to the Seller.
This will include (if and insofar as these circumstances make performance impossible or unreasonably difficult): strikes; a general lack of necessary raw materials and other items or services required for realizing the agreed performance; unforeseeable stagnation on the part of suppliers or other third parties on which the Seller depends; the circumstance that the Seller fails to deliver a performance that is important in connection with the performance to be delivered by itself, or fails to deliver it on time or properly; government measures including (international) sanctions that prevent the Seller from fulfilling its obligations on time and/or fully; excessive sick leave rates; local, national, European or worldwide pandemic; terrorist attacks; (unforeseen) conflicts, hostilities, war; restriction or suspension of the delivery by public utility companies; fire stagnation due to frost damage or other weather influences and general transport problems.
11.2 The Seller also has the right to invoke force majeure if the circumstance preventing (further) fulfilment occurs after the Seller should have fulfilled its commitment.
11.3 During force majeure, the Seller's delivery and other obligations are suspended. The Seller is never liable for any losses, nor for any penalties, related to late delivery resulting from a force majeure situation. If the period in which fulfilment of the obligations by the Seller is not possible due to force majeure lasts longer than three months, both parties are authorized to dissolve the agreement, without any obligation to pay compensation in that case.
11.4 If at the onset of the force majeure, the Seller has already partially fulfilled its obligations or can only partially fulfil its obligations, the Seller reserves the right to separately invoice the part already delivered or the deliverable part, as the case may be, and the Buyer is required to pay this invoice as if it were a separate agreement.
Article 12 Confidentiality
Subject to their respective statutory obligations, both parties are required to keep confidential all confidential information mutually obtained or obtained from other sources in the context of the agreement. Information is considered confidential if such confidentiality has been communicated by the disclosing party or if it arises from the nature of the information.
Article 13 Intellectual property rights
13.1 The Seller reserves all intellectual property rights, including, but not limited to, copyrights, trademark rights, patent rights, database rights, design rights, trade name rights, as well as rights to know-how and trade secrets.
13.2 All documents and information provided by the Seller, such as reports, advice, designs, sketches, drawings, software, etc. remain the property of the Seller, and are intended solely for use by the Buyer, and may not be reproduced, disclosed to, exploited, or shared with third parties without the Seller's prior written consent.
13.3 The Seller also reserves the right to use the knowledge gained from the execution of the work for other purposes, as long as no confidential information is brought to the knowledge of third parties.
13.4 If the delivered goods have been produced by the Seller based on specifications provided by the Buyer, the Buyer warrants that no third party rights (such as intellectual property rights) are violated in the process. The Buyer shall indemnify the Seller against all and any claims of third parties in this regard and shall compensate the Seller on demand for any resulting or related losses incurred by the Seller.
Article 14 Applicable law
Any agreement between the Seller and the Buyer is governed exclusively by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (the ‘Vienna Sales Convention’) does not apply.
Article 15 Dispute resolution
In derogation of the legal rules concerning the competence of the civil court, any dispute between the Buyer and the Seller must in the first instance be settled exclusively by the competent court in Amsterdam (the Netherlands).
Article 16 Translations
In the event of differences detected between translations of these general terms and conditions and the original Dutch text of these terms and conditions, the Dutch text prevails. The translations are provided for informational purposes only.
