General conditions

GENERAL CONDITIONS OF SALE, DELIVERY AND PAYMENT

1. General
1.1 All our offers agreements and deliveries are subject to the following terms and conditions.
1.2 Deviating general or special terms of customers or third parties are only binding on us if they have been expressly accepted by us in writing. Such deviating clauses shall apply exclusively to the transaction, to which they relate.
1.3 If one or more provisions of these general conditions should lack binding force for any reason, the remaining provisions will remain in full force.
1.4 The applicability of any purchase or other conditions of the Contract Party is expressly rejected.
1.5 If Timberlab does not always demand strict compliance with these general terms and conditions, this does not mean that the provisions do not apply or that Timberlab would in any way waive any of its rights and relinquish the authority to demand strict compliance with the provisions of these general terms and conditions in other cases.

2. Quotations and offers
2.1 All quotations and offers made by Timberlab are without obligation. If no acceptance period is stipulated, the quotation or offer cannot in any way confer any rights if the product to which the quotation or offer relates is no longer available in the meantime.
2.2 TimberLab cannot be held to its quotation or offer if the Contracting Party can reasonably understand that the quotation or offer, or any part thereof, contains an obvious mistake or slip of the pen.
2.3 The sizes, weights, technical data, calculations and illustrations shown in our offers, stock lists, advertising material, design drawings, models, photographic recordings, samples, designs, etc., are only approximate descriptions and are entirely without obligation.
2.4 The prices stated in our offers and order confirmations are ex works, excluding VAT.

3. Risk
3.1 The goods to be delivered by us are at the Customer’s risk from the moment the goods leave our warehouses or, in the event of delivery via third parties, have left the factories or warehouses of those third parties.

4. Delivery
4.1 Unless a firm delivery date has been expressly agreed, an agreed delivery date is not a firm date, but is only approximate and is otherwise entirely non-binding and indicative.
4.2 Exceeding delivery times, for whatever reason, does not give the customer – even after notice of default – the right to rescind, pay damages and/or suspend.
4.3 If an order is delivered in parts, we are entitled to require payment for each partial delivery, in which case an invoice will be sent for each partial delivery.

5. Force Majeure
5.1 In the event of force majeure and other circumstances of such a nature that performance of a contract is impossible for us or cannot reasonably be required of us, we shall have the right to suspend performance of the work to be carried out by us in whole or in part for a period to be determined by us, or to dissolve the contract in whole or in part, without being liable to pay any compensation to the Customer. If in such a case partial execution of an order takes place, the buyer shall owe a proportionate part of the total purchase price.
5.2 Force majeure and circumstances as referred to in article 6.1 include, among others and in any case: war, threat of war, mobilization, natural disasters, import/export or transit bans, energy shortage, claims by higher authorities, strikes, labor unrest, illness, transportation problems, as well as the circumstance that we – for whatever reason – are not enabled by our own supplier to deliver, as well as fault on our part, not being gross fault of management and/or supervisors included.

6. Retention of title
6.1 Ownership of goods delivered by us shall not pass to the Customer until the Customer has paid us everything owed to us in respect of the delivery of those goods (including not only the purchase price, including the surcharges, increases and fees due pursuant to these conditions, but also any damages, interest and costs).
6.2 The goods delivered by us, which are subject to retention of title, may be resold only in the ordinary course of business.
6.3 The Customer is not authorized to pledge the goods, which are subject to our retention of title, or to establish any other right on them for the benefit of third parties. Items, which are subject to our retention of title, are not subject to pledge. This clause has property law effect. If third parties wish to establish or assert any right to the goods delivered under retention of title, the customer is obliged to notify us as soon as can reasonably be expected.
6.4 If the Customer fails to comply with its obligations or if there is a well-founded fear that it will not do so, we shall be entitled to remove or have removed from the Customer’s premises or from third parties holding the goods on behalf of the Customer, any goods delivered which are subject to retention of title. The buyer is obliged to provide all cooperation to this end, under penalty of a fine of 10% of the amount owed by him per day. The Purchaser shall not be permitted to invoke a right of retention against us with respect to safekeeping costs and/or other claims which the Purchaser has or claims to have against us.
6.5 The buyer is obliged to, at our first written request:
a. to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage and against theft, and to submit the policy of this insurance to us for inspection;
b. to pledge to us, in the manner prescribed by law, all claims of the Purchaser against insurers in respect of goods delivered under retention of title;
c. to pledge to us, in the manner prescribed by law, the claims which the Purchaser acquires against its customers in respect of the resale of goods delivered under retention of title;
d. mark items delivered under retention of title as our property and separate them from other items;
e. to cooperate in other ways with the reasonable measures which we wish to take for the protection of our right of ownership with respect to the goods, which do not unreasonably hinder the customer in the normal conduct of his business.

7. Payment
7.1 Unless expressly agreed otherwise, payment of the amounts due to us by the other party shall be made within 30 working days of the invoice date, without set-off or suspension and without deduction of costs, either at our offices or into one of our giro or bank accounts. Payment by other means, in particular handover to our employees, is valid only after prior written agreement on our part.
7.2 All bank charges arising from payment of the purchase price in the other party’s country or from opening and confirmation of accredits shall be borne by the other party.
7.3 In case of non-timely payment of amounts due to us, the other party is immediately in default, without notice of default being required. Without prejudice to our authority in that case to declare all agreements concluded with the other party in question to be dissolved and to claim against the other party compensation for all losses incurred by us as a result, the other party:
a. have to pay interest on the amount due to us in the amount of the statutory commercial interest pursuant to article 6:119a BW;
b. must compensate us for all extrajudicial costs incurred in collecting our claim, the amount of which shall be determined as follows:
over the first €6,500 15%,
on the excess up to €13,000 10%,
on the excess up to €32,500 8%,
on the excess up to €130,000,- 5%
and the over the excess above €130,000 3%,
all with a minimum of €150,
all to be increased by V.A.T.
c. must reimburse us for all actual costs of taking legal action to collect the amounts due to us.
7.4 Payments made by the other party shall first be applied to reduce the costs due, then to reduce the interest due and finally to reduce the oldest outstanding amounts, regardless of any indication to the contrary by the other party.
7.5 We reserve the right at all times to require security for timely payment in view of both deliveries already made and deliveries yet to be made, which security at our option may be in the form of advance payment, bank guarantee, mortgage, pledge or surety. If adequate security is not provided at our request, we are entitled to suspend further performance of agreements entered into with us without being liable to pay compensation for any resulting loss. We are also authorized to deliver cash on delivery only in cases we deem appropriate, to the extent necessary in deviation from agreements made.
7.6 In case of non-, non-timely or inadequate compliance by the other party with any obligation that may arise for him from agreements concluded with us, as well as in case of bankruptcy, suspension of payment, application of the debt rescheduling scheme for natural persons or placement of the other party in receivership or cessation or liquidation of his business, we will always be entitled without any obligation to pay damages, without prejudice to any further rights accruing to us and without a warning or notice of default being required, to declare the transaction dissolved, without judicial intervention being required, without prejudice to our claims for damages, while we shall then also be entitled to dissolve other transactions in progress with the other party concerned, insofar as they have not yet been carried out, under the same conditions. Any dissolution shall always result in the immediate exigibility of all amounts due to us.

8. Intellectual and industrial property rights
8.1 The data mentioned in article 2.3 of these general terms and conditions may not be made available to third parties, in whole or in part, in any form whatsoever, without our express prior written consent, without prejudice to any further claims that we may assert in intellectual and/or industrial property with respect to such data.
8.2 In case of violation of the prohibition mentioned above under 9.1, the Customer shall owe a fine of €25,000 for each violation, without prejudice to our right to claim fulfillment of the prohibition and/or full damages.
8.3 The data mentioned in this article, as well as the trademark, patent, trade name, model, copyright or any other right to these data, shall remain our intellectual property or that of our suppliers and shall not be transferred to the customer, unless expressly agreed otherwise.
8.4 Purchasers who instruct us to deliver goods in accordance with drawings, models, samples and/or the like provided or designated by them, shall indemnify us for all costs and damages that would arise as a result of third party rights, such as design rights, trademark rights, copyrights, patent rights, etc. being violated in the performance of the agreement.

9. Advertisement
9.1 Complaints concerning goods delivered by Us must be submitted to Us in writing by the Customer as soon as possible, but no later than 10 working days after the day of delivery of the goods – or, in the case of hidden defects: within 10 days of the time when the defect could reasonably have been discovered – accompanied by a copy of the packing list in question, on penalty of loss of all rights in respect of any shortcoming on our part.
9.2 The submission of complaints does not relieve the buyer from the obligation to make timely payments in accordance with the invoice sent to him.
9.3 Timely and written complaints, if well-founded, can only lead to replacement of the delivered goods, or – at our option – crediting the buyer for the agreed price of the defective goods. Costs of disassembly and reassembly will not be reimbursed.

10. Warranty
10.1 Subject to the limitations set forth below, we guarantee both the soundness of the products we deliver and the quality of the materials or services used by us for that purpose, except to the extent that all of the foregoing have been made available to us by our client. We shall, at our option, replace or repair, free of charge, any non-externally observable defects in the delivery that are the direct result of the use of faulty material or manufacturing defects. Costs of disassembly and reassembly will not be reimbursed and remain the responsibility of the buyer.
10.2 The warranty, unless otherwise agreed, covers only defects that manifest themselves within 24 months of delivery.
10.3 Claims based on warranty must be submitted to us in detail in writing without delay, but in any case within 10 working days after a defect as referred to in paragraph 1 has arisen, in excess of which any warranty obligation shall lapse.
10.4 Products, in respect of which a warranty claim is made, must be shipped to us only after consultation with us. If we deliver new products in fulfillment of our warranty obligation, the originally delivered products shall remain or become our property. The new delivered products are subject to all the provisions of these terms and conditions.
10.5 Defects resulting from improper use, poor maintenance or use for other than normal business purposes or improper use are excluded from the warranty.
10.6 In case of changes, including repairs, carried out without our written consent and in case of use of parts other than those supplied by us, any claim to warranty will lapse. If our buyer does not, does not properly or does not timely fulfill any obligation pursuant to the agreement entered into with him, the warranty relating to this agreement shall lapse.
10.7 There is no warranty on the “working” of wood. Weather conditions and other outside influences can affect the structure, quality and color of wood. For example, wood ages due to sunlight. When the wood gets wet, it expands and when it dries, it shrinks. This can create stresses that cause the wood to warp or crack. The degree to which wood changes, discolors, warps or cracks is a natural process and cannot be predicted. This depends entirely on different (weather) conditions. As a result, no warranty as to discoloration, cracking or warping applies.

11. Liability
11.1 Without prejudice to the provisions of Articles 6, 10. and 11. of these terms and conditions, we shall not be liable for any damage caused by or in connection with items delivered by us, unless such damage is the result of intent or gross negligence on the part of our executive staff. Liability on our part shall in no event exceed the amount of the purchase price of the items leading to liability. We are never liable for consequential damage (loss of profit, stagnation damage, loss of data, etc.).
11.2 The Customer shall indemnify Us against any third party claim for damages against Us in respect of the use of drawings, samples, models or other items or data sent by the Customer and shall be liable for all costs arising therefrom.
11.3 The Customer is liable for all damages resulting from loss, theft, fire or damage to our items and materials once they are in the Customer’s possession.

12. Non-acquisition of personnel
12.1 During the term of the agreement, as well as one year after its termination, the Buyer will not, except after obtaining written permission, in any way induce personnel employed by us to take up employment with the Buyer or otherwise, directly or indirectly, have them work for him.

13. Applicable law/competent court.
13.1 All agreements concluded with us are governed by Dutch law, on the understanding that the Vienna Sales Convention (United Nations Convention on the Contracts for the International Sale of Goods CISG ) is expressly excluded.
13.2 All disputes concerning the conclusion, interpretation or execution of a contract concluded with us shall be submitted exclusively to the District Court in Arnhem.
13.3 Nevertheless, we reserve the right to submit a dispute to the court in whose jurisdiction the other party is located.

14. Translation of these general terms and conditions
14.1 Where these terms and conditions have been translated into a language other than Dutch, in the event of disagreement or ambiguity regarding the meaning or interpretation of one or more of these provisions, the Dutch version shall prevail.

Otterlo, October 2018