TP Europe BV. Revision 2, October 2022
GENERAL TERMS AND CONDITIONS
Article 1. General
1. These Terms and Conditions apply to every offer, quotation and agreement between TP Europe BV.”, and a Customer to which TP Europe BV. has declared these Terms and Conditions applicable, to the extent that these Terms and Conditions have not been expressly deviated from by the parties in writing.
2. These Terms and Conditions also apply to agreements with TP Europe BV. for the execution of which TP Europe BV. requires the involvement of third parties.
3. These terms and conditions are also written for the employees of TP Europe BV. and its management.
4. The applicability of any purchase or other conditions of the Client is expressly rejected.
5. If one or more provisions of these General Terms and Conditions should at any time be void or voided in whole or in part, the other provisions of these General Terms and Conditions shall remain fully applicable. TP Europe BV and the Customer will then consult to agree new provisions to replace the void or voided provisions, taking into account as much as possible the purpose and meaning of the original provisions.
6. If any ambiguity exists regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation must take place ‘in the spirit’ of these provisions.
7. If a situation arises between the parties that is not regulated in these general terms and conditions, this situation is to be assessed in the spirit of these general terms and conditions.
8. If TP Europe BV. does not always demand strict compliance with these Terms and Conditions, this does not mean that the provisions thereof do not apply, or that TP Europe BV. would to any extent lose the right to demand strict compliance with the provisions of these Terms and Conditions in other cases.
Article 2. Quotations and offers
1 All quotations and offers made by TP Europe BV. are without obligation unless the offer states a deadline for acceptance. If no acceptance period is set, no rights whatsoever can be derived from the offer or quotation if the product to which the offer or quotation relates is no longer available in the meantime.
2 TP Europe BV. cannot be held to its quotations or offers if the Customer can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.
3 The prices mentioned in an offer or quotation are exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including travel and accommodation, shipping and administration costs, unless otherwise indicated.
4 If the acceptance (whether or not on minor points) differs from the offer included in the quotation or the offer, TP Europe BV. is not bound by it. The Agreement shall then not be concluded in accordance with this deviating acceptance, unless TP Europe BV. states otherwise.
5 A composite quotation does not oblige TP Europe BV. to carry out part of the order at a corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.
Article 3. Duration of contract; terms of execution, passing of risk, execution and amendment of contract; price increase
1. The Agreement between TP Europe BV. and the Customer is entered into for an indefinite period, unless the nature of the Agreement dictates otherwise or if the parties expressly agree otherwise in writing.
2. If a deadline has been agreed or stated for the execution of certain work or for the delivery of certain goods, this shall never be a strict deadline. If a deadline is exceeded, the Customer must therefore give TP Europe BV. written notice of default. TP Europe BV. must be given a reasonable period within which to still perform the Agreement.
3. TP Europe BV. shall execute the Agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the then current state of knowledge.
4. TP Europe BV. is entitled to have certain work performed by third parties. The applicability of Sections 7:404, 7:407(2) and 7:409 of the Dutch Civil Code is expressly excluded.
5. If activities are performed by TP Europe BV. or third parties engaged by TP Europe BV. in the context of the assignment on the Customer’s premises or at a location designated by the Customer, the Customer shall provide the facilities reasonably required by those employees free of charge.
6. Delivery takes place ex TP Europe BV’s premises. TP Europe BV. is entitled to execute the Agreement in various stages and to invoice the part thus executed separately.
7. The Customer shall ensure that all data which TP Europe BV. indicates to be necessary or which the Customer should reasonably understand to be necessary for the execution of the Agreement are provided to TP Europe BV. in good time. If the data required for the execution of the Agreement are not supplied to TP Europe BV. in good time, TP Europe BV. is entitled to suspend the execution of the Agreement and/or to charge the Customer for the additional costs arising from the delay in accordance with the then customary rates. The term of execution shall not commence until the Customer has made the data available to TP Europe BV. TP Europe BV. shall not be liable for any damage, of whatever nature, resulting from the fact that TP Europe BV. has relied on incorrect and/or incomplete data provided by the Customer.
8. If, during the execution of the agreement, it appears that for a proper execution of the agreement it is necessary to amend or supplement it, the parties will timely and in mutual consultation adapt the agreement. If the nature, scope or content of the agreement is changed, whether or not at the request or indication of the Client, of the competent authorities et cetera, and the agreement is thereby changed in qualitative and/or quantitative respect, this may have consequences for what was originally agreed. This may also increase or decrease the amount originally agreed. TP Europe BV. will give as much advance notice as possible. An amendment to the Agreement may furthermore change the originally stated term of execution. The Customer accepts the possibility of amending the Agreement, including the change in price and term of execution.
9. If the Agreement is amended, including a supplement, TP Europe BV. is entitled to execute the Agreement only after the competent person within TP Europe BV. competent person and the Customer has agreed to the price and other conditions stated for the performance, including the time to be determined for the performance. Failure to execute the amended Agreement or failure to execute it immediately shall not constitute a default on the part of TP Europe BV. and shall not constitute grounds for the Customer to terminate or cancel the Agreement.
10. Without being in default, TP Europe BV. can refuse a request to amend the Agreement if this could have qualitative and/or quantitative consequences, for example for the work to be carried out or goods to be delivered in that context.
11. If the Customer fails to properly fulfil his obligations towards TP Europe BV. then the Customer shall be liable for all damage incurred by TP Europe BV. directly or indirectly as a result.
12. If TP Europe BV. agrees a fixed fee or fixed price with the Customer, TP Europe BV. is nevertheless entitled at all times to increase this fee or fixed price without the Customer being entitled to dissolve the Agreement for that reason, if the increase in the price results from a power or obligation resulting from legislation or regulations or is caused by an increase in the price of raw materials, wages et cetera or on other grounds which could not reasonably have been foreseen when the Agreement was concluded.
13. If the price increase other than as a result of an amendment to the Agreement exceeds 10% and takes place within three months of the Agreement being concluded, then only the Customer who is entitled to invoke Title 5, Section 3 of Book 6 of the Dutch Civil Code is entitled to dissolve the Agreement by means of a written statement, unless TP Europe BV.
– is then still willing to perform the agreement on the basis of what was originally agreed;
– if the price increase results from a power or an obligation incumbent on TP Europe BV. obligation as a result of the law;
– if it has been stipulated that delivery will take place more than three months after the conclusion of the agreement.
Article 4. Suspension, dissolution and early termination of the agreement
1. TP Europe BV. is entitled to suspend the fulfilment of its obligations or to dissolve the Agreement if the Customer fails to meet the obligations arising from the Agreement or to do so in full or in time, if after the Agreement has been concluded TP Europe BV. circumstances come to TP Europe BV.’s knowledge which give good reason to fear that the Customer will not fulfil his obligations, if upon entering into the Agreement the Customer was requested to provide security for the fulfilment of his obligations under the Agreement and such security is not provided or is insufficient or if, as a result of delay on the part of the Customer, TP Europe BV. can no longer be required to perform the Agreement on the terms originally agreed.
2. Furthermore, TP Europe BV. is entitled to terminate the Agreement if circumstances arise which are of such a nature that compliance with the Agreement becomes impossible or if other circumstances arise which are of such a nature that TP Europe BV cannot reasonably be required to maintain the Agreement unamended.
3. If the Agreement is dissolved, TP Europe BV.’s claims against the Customer shall become immediately due and payable. If TP Europe BV. suspends the fulfilment of its obligations, it shall retain its claims under the law and the Agreement.
4. If TP Europe BV. proceeds with suspension or dissolution, it shall in no way be obliged to compensate for any damage and costs thereby incurred in any way.
5. If the dissolution is attributable to the Customer, TP Europe BV. shall be entitled to compensation for the damage, including the costs, incurred directly and indirectly as a result.
6. If the Customer fails to perform its obligations under the Agreement and this failure to perform justifies dissolution, TP Europe BV. shall be entitled to dissolve the Agreement forthwith and with immediate effect without any obligation on its part to pay any damages or compensation, while the Customer shall be obliged to pay damages or compensation on the grounds of default.
7. If the Agreement is terminated prematurely by TP Europe BV., TP Europe BV. shall, in consultation with the Customer, arrange for the transfer of any work still to be performed to third parties. This unless the termination is attributable to the Client. If the transfer of the work involves extra costs for TP Europe BV. these shall be charged to the Customer. The Customer is obliged to pay these costs within the time stated, unless TP Europe BV. indicates otherwise.
8. In the event of liquidation, (an application for) a moratorium or bankruptcy, attachment – if and to the extent that the attachment has not been lifted within three months – at the Customer’s expense, debt restructuring or any other circumstance as a result of which the Customer can no longer freely dispose of his assets, TP Europe BV. shall be free to terminate the Agreement forthwith and with immediate effect or to cancel the order or Agreement, without any obligation on its part to pay any compensation or indemnification. The claims of TP Europe BV. against the Customer shall in that case be immediately due and payable.
9. If the Customer cancels a placed order in full or in part, the work that was carried out and the items ordered or prepared for it, plus any supply and delivery costs thereof and the working time reserved for the execution of the agreement, shall be charged in full to the Customer.
Article 5. Force majeure
1. TP Europe BV. is not obliged to fulfil any obligation towards the Customer if it is hindered from doing so as a result of a circumstance which is not attributable to fault, and which is not for its account pursuant to the law, a legal act or generally accepted practice.
2. In these General Terms and Conditions Force Majeure shall include, in addition to its definition in the law and case law, all external causes, foreseen or unforeseen, over which TP Europe BV. which TP Europe BV. cannot influence, but which prevent TP Europe BV. from fulfilling its obligations. This includes strikes at TP Europe BV’s company or at third parties. TP Europe BV. is also entitled to invoke Force Majeure if the circumstance which prevents (further) compliance with the Agreement occurs after TP Europe BV. should have complied with its obligation.
3. TP Europe BV. may suspend its obligations under the Agreement during the period of force majeure. If this period lasts longer than two months, each of the parties shall be entitled to dissolve the Agreement without any obligation to pay compensation to the other party.
4. To the extent that TP Europe BV. has already fulfilled, or will be able to fulfil, part of its obligations under the Agreement at the time of the occurrence of the Force Majeure Event and to the extent that independent value can be attributed to the part fulfilled or to the part to be fulfilled respectively, TP Europe BV. is entitled to separately invoice the part already fulfilled or to be fulfilled respectively. The Customer is obliged to pay this invoice as if it were a separate Agreement.
TP Europe BV. Revision 2, October 2022
GENERAL TERMS AND CONDITIONS
Article 6. Payment and collection costs
1. Payment must always be made within 30 days of the invoice date, in the manner indicated by TP Europe BV. and in the currency invoiced, unless otherwise stated in writing by TP Europe BV. TP Europe BV. is entitled to invoice periodically.
2. If the Client fails to pay an invoice on time, the Client shall be in default by operation of law. The Client shall then owe interest of 2% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall be payable. The interest on the amount due and payable will be calculated from the moment the Client is in default until the moment of payment of the amount due in full.
3. TP Europe BV. is entitled to have the payments made by the Customer go first of all to reduce the costs, then to reduce the interest falling due and finally to reduce the principal sum and the current interest. TP Europe BV. may, without thereby being in default, refuse an offer of payment if the Customer designates a different order for the allocation of payment. TP Europe BV. can refuse full repayment of the principal sum, if this does not include the accrued and current interest and collection costs.
4. The Customer shall never be entitled to offset the amounts owed to TP Europe BV. Objections to the amount of an invoice do not suspend the payment obligation. The Customer who is not entitled to invoke Section 6.5.3 (Sections 231 to 247 of Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
5. If the Client is in default or omission in the (timely) fulfilment of its obligations, all reasonable costs incurred to obtain satisfaction out of court shall be borne by the Client. The extrajudicial costs shall be calculated on the basis of what is customary in Dutch collection practice, currently the calculation method according to Rapport Voorwerk II. However, if TP Europe BV. has incurred higher costs for collection which were reasonably necessary, the actual costs incurred shall qualify for reimbursement. Any judicial and execution costs incurred will also be recovered from the Customer. The Customer shall also owe interest on the collection costs owed.
Article 7. Retention of title
1. All goods supplied by TP Europe BV. delivered under the Agreement shall remain the property of TP Europe BV. until the Customer has properly fulfilled all obligations under the Agreement(s) concluded with TP Europe BV. Agreement(s) concluded with TP Europe BV.
2. Any goods supplied by TP Europe BV. which comes under the retention of title as a result of paragraph 1, may not be resold and may never be used as a means of payment. The Customer is not authorized to pledge or encumber in any other way anything subject to retention of title.
3. In the event that TP Europe BV. wishes to exercise its property rights referred to in this article, the Customer grants unconditional and irrevocable permission in advance to TP Europe BV. and any third parties to be appointed by TP Europe BV. to enter all those places where TP Europe BV.’s property is located and to repossess the same.
Article 8. Guarantees, investigations and complaints, limitation period
1. The services to be delivered by TP Europe BV. meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended in normal use in the Netherlands. The warranty referred to in this article applies to goods intended for use within the Netherlands. In the event of use outside the Netherlands, the Customer must himself verify whether the goods are suitable for use there and meet the relevant conditions. TP Europe BV. can in that case set other warranty and other conditions with regard to the goods to be delivered or work to be carried out.
2. Any form of guarantee will lapse if a defect has arisen as a result of or arising from injudicious or improper use or use after the expiry date, improper storage or maintenance by the Customer and/or third parties when, without TP Europe BV’s written permission, the Customer or third parties have made changes or attempted to make changes to the goods, have attached to them other goods that should not have been attached to them or if they have been processed or treated in a manner other than prescribed. Nor is the Customer entitled to any warranty if the defect is caused by or is the result of circumstances beyond TP Europe BV’s control, including the fact that TP Europe BV. including weather conditions (for example but not limited to extreme rainfall or temperatures) et cetera.
3. The Principal shall be obliged to examine the delivered goods, or have them examined, immediately at the time the goods are made available to him or the work in question has been carried out respectively. In doing so, the Customer shall examine whether the quality and/or quantity of the goods delivered is in accordance with what was agreed and meets the requirements agreed between the parties in this respect. Any visible defects must be reported to TP Europe BV. in writing within seven days of delivery. Any non-apparent defects must be reported to TP Europe BV in writing immediately, but in any event no later than fourteen days after their discovery. The notification must contain as detailed a description as possible of the defect so that TP Europe BV. is able to respond adequately. The Customer must give TP Europe BV. the opportunity to investigate a complaint (or have it investigated).
4. A timely complaint by the Customer shall not suspend his payment obligation. The Customer shall in that case also remain obliged to accept and pay for the other goods ordered and what he has instructed TP Europe BV to do.
5. If a defect is reported later, the Customer is no longer entitled to repair, replacement or compensation.
6. If it has been established that an item is defective and a claim to that effect has been made in good time, TP Europe BV. shall, at TP Europe BV’s discretion, replace or repair the defective item within a reasonable period of time after receipt thereof or, if it is not reasonably possible to return the item, written notification regarding the defect by the Customer, or pay compensation to the Customer. In the event of replacement
the Customer is obliged to return the replaced item to TP Europe BV. and to transfer ownership of it to TP Europe BV. unless TP Europe BV. indicates otherwise.
7. If it is established that a complaint is unfounded, the costs incurred as a result, including the investigation costs incurred by TP Europe BV, shall be borne in full by the Customer.
8. Notwithstanding the statutory limitation periods, the limitation period for all claims and defences against TP Europe BV. and the third parties engaged by TP Europe BV. involved in the execution of an Agreement, shall be one year.
Article 9. Infrared measurements, investigations and liability
1. The outcome of infrared measurements and calculations is highly dependent on the conditions of when the measurements are made.
2. This must be taken into account when interpreting the report issued by TP Europe BV. TP Europe BV. carries out the measurements to the best of its knowledge and ability, but does not accept any liability for conclusions drawn by third parties from the report issued by TP Europe BV. If TP Europe BV. issues advice with regard to infrared measurements, such advice is issued to the best of its knowledge and ability and on the basis of the state of the art known at that time. The possibility remains that, despite TP Europe BV’s infrared advice report, the intended result is not (entirely) achieved. Numerous circumstances beyond our control may be the cause of this. For that reason, TP Europe BV. accept no liability regarding the extent of corrective measures, despite the fact that work has been carried out on the advice of TP Europe BV. to limit the consequences of gas leaks or thermographic observations.
3. This does not apply if TP Europe BV. has demonstrably made mistakes or has not acted according to the requirements of good workmanship, to be judged by standards of reasonableness and fairness.
4. Should TP Europe BV. may be liable, such liability shall be limited to the provisions of this clause.
5. TP Europe BV. is not liable for any damage, of whatever nature, resulting from the fact that TP Europe BV. has relied on incorrect and/or incomplete data provided by or on behalf of the Customer.
6. Should TP Europe BV. be liable for any damage, TP Europe BV. liability shall be limited to a maximum of 50% of the invoice value of the order, or at least to that part of the order to which the liability relates.
7. TP Europe BV’s liability shall in any event always be limited to the amount paid by its insurer in the relevant case.
8. TP Europe BV. shall only be liable for direct damage.
9. Direct damage shall exclusively mean the reasonable costs incurred to establish the cause and extent of the damage, to the extent that such establishment relates to damage within the meaning of these General Terms and Conditions, any reasonable costs incurred to have TP Europe BV’s faulty performance conform to the Agreement, to the extent that these can be attributed to TP Europe BV. and reasonable costs incurred to prevent or limit the damage, to the extent that the Customer demonstrates that these costs led to a limitation of the direct damage as referred to in these General Terms and Conditions. TP Europe BV. shall never be liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business interruption.
10. The limitations of liability set out in this article do not apply if the damage is due to intent or gross negligence on the part of TP Europe BV. or its executive employees.
Article 11. Indemnification
1. The Customer shall indemnify TP Europe BV. against any claims by third parties who incur damage in connection with the performance of the Agreement and whose cause is attributable to parties other than TP Europe BV. In the event that TP Europe BV. is sued by third parties on that account, the Customer is obliged to assist TP Europe BV. both extra-judicially and judicially and to do immediately all that may be expected of him in that case. Should the Customer fail to take adequate measures, TP Europe BV. is entitled, without notice of default, to take such measures itself. All costs and damages incurred on the part of TP Europe BV and third parties as a result shall be for the account and risk of the Customer.
Article 12. Intellectual property
1. TP Europe BV. reserves the rights and powers to which it is entitled under the Copyright Act and other intellectual property laws and regulations. TP Europe BV. is entitled to use the knowledge acquired by it in the execution of an Agreement for other purposes as well, to the extent that no strictly confidential information of the Customer is disclosed to third parties.
Article 13. Applicable law and disputes
1. All legal relationships to which TP Europe BV. shall be governed exclusively by Dutch law, even if all or part of an obligation is performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
2. The court in TP Europe BV.’s place of business has exclusive jurisdiction to hear disputes, unless imperatively prescribed otherwise by law. TP Europe BV. is nevertheless entitled to submit the dispute to the court with jurisdiction under the law.
3. The parties will only resort to court after making every effort to settle a dispute by mutual agreement.
Article 14. Location and amendment of terms and conditions
1. These terms and conditions have not been filed with the Chamber of Commerce.
2. The most recent version or the version applicable at the time when the legal relationship with TP Europe BV was concluded shall always apply.