General Terms and Conditions of Sale and Delivery July 2021
1.1 In these Terms and Conditions the following definitions have the following meaning:
Agreement: an agreement concluded between the customer and TT comprising of the Order Confirmation, these Terms and Conditions and, as applicable, the Product Specifications;
DCC: the Dutch Civil Code;
Order Confirmation: the written confirmation by TT to the customer in which the order for the supply of Products and/or the provision of (ancillary) services by TT is set out; Parties: TT and the customer collectively;
Products: all tangible objects supplied or to be supplied to the customer;
Product Specifications: the specifications of the Product provided to the customer prior to or at the moment of conclusion of the Agreement and as set out in in the Product’s fact sheet, the packing instructions and the refrigerant conditions sheet, as applicable;
Terms and Conditions: these general terms and conditions of sale and delivery and as amended from time to time; and TT: Topa Thermal B.V.
1.2 These Terms and Conditions apply to all offers, orders, Order Confirmations, (partial) deliveries of Products and provision of (ancillary) services, and to all invoices from TT to the customer with respect to the sale and delivery of Products and/or provision of (ancillary) services by TT. TT’s acceptance of an order is expressly conditioned on the customer’s acceptance of these Terms and Conditions. These Terms and Conditions shall be deemed to be accepted by the customer when an order is placed with TT. Any terms and conditions of the customer do not apply.
1.3 By accepting these Terms and Conditions, the customer agrees that these Terms and Conditions also apply to any future offers, orders, deliveries, invoices and Agreements between TT and the customer.
1.4 Deviations from these Terms and Conditions are only binding if and to the extent an authorized representative of TT has agreed thereto in writing.
1.5 TT may amend these Terms and Conditions at any time. TT will give the customer notice of any amendments and will provide the customer with the amended Terms and Conditions, which apply 5 days after these have been provided to the customer.
1.6 In case of inconsistencies between the provisions of any of the following documents, the inconsistent provisions will take precedence over each other in the following descending order: (i) the Order Confirmation (ii) these Terms and Conditions.
2. Offers and Agreements
2.1 Offers made by TT are not binding on TT and are valid for 30 calendar days, unless stated otherwise. TT reserves the right to not accept orders at all times and for any reason. All information included in brochures, catalogues, offers and the like, is not binding on TT and may not be qualified as an exact representation of what TT offers or is deemed to supply, unless the Agreement explicitly refers to such information.
2.2 An Agreement is concluded when TT sends an Order Confirmation to the customer, for which the date of the Order Confirmation is decisive. The Order Confirmation, together with these Terms and Conditions and, as applicable, the Product Specifications, fully represent the Agreement. Amendments to the Order Confirmation are only valid if approved in writing by an authorized representative of both Parties.
2.3 Verbal arrangements, including arrangements made by telephone, shall not be binding until confirmed in writing to the customer by an authorized representative of TT. The same applies to arrangements and/or agreements made by agents acting on behalf of TT.
2.4 Each Agreement concluded in accordance with clause 2.2 results in a separate agreement between TT and the customer. If however it is legally established that the relationship between TT and the customer is a continuing performance agreement, TT may at any time and for whatever reason terminate (in Dutch: opzeggen) this relationship subject to three months’ notice, without being liable for any compensation, reimbursement and/or damages as a result of such termination.
3. Documents and Materials
3.1 All documents and materials provided to the customer in the context of the Agreement other than the Products, including but not limited to calculations, drawings, materials list, catalogues, designs, samples, models, tools, Product instructions and other operating resources remain the property of TT. Such documents and materials may never be used, copied, shown or disclosed to third parties without TT’s prior written permission and must be returned to TT on TT’s first request.
4. Intellectual Property
4.1 All intellectual property rights, including without limitation copyrights, design rights, pertaining to the Products, including any part thereof and including their design, constructions, functionality, manufacture and their branding, regardless of whether or not they have been developed for a specific customer, shall automatically vest in TT (or licensors of TT, as the case may be) and these Terms and Conditions do not in any way convey any such rights in whole or in part to the customer. Insofar as any such rights should nevertheless be owned by the customer, the customer hereby and insofar as possible in advance assigns and transfers these rights to TT, which assignment and transfer TT hereby accepts. The customer shall, upon TT’s first request, provide all cooperation and execute all documents required to put the aforementioned assignment and transfer into effect. To the extent any of the aforementioned rights cannot legally be assigned and transferred, the customer hereby grants an exclusive, perpetual, worldwide, royalty-free, transferable and sublicensable unlimited license to TT to use and commercialise all of the aforementioned rights in any way TT sees fit.
4.2 If the customer has any moral rights, personality rights or similar rights anywhere worldwide in any of the Products or other subject matter mentioned in article 4.1 of these Terms and Conditions, the customer hereby irrevocably waives such rights to the extent legally possible.
4.3 TT hereby grants to customer a non-exclusive, worldwide, royalty-free, perpetual license under the intellectual property rights mentioned in article 4.1 of these Terms and Conditions to use, offer for sale, sell and otherwise commercialize the Products insofar as they have been manufactured and supplied by TT to the customer.
5. Price and Payment
5.1 All prices indicated by TT are exclusive of VAT and any other taxes or duties.
5.2 Prices are explicitly subject to alteration. TT reserves the right to appropriate prices and pricelists, at all times, due to changes in cost of labour, (raw) materials and transport, whether direct or indirect (e.g. imposed on TT through its suppliers) and pass it on to its customers.
5.3 All prices shall be valid for the performance and delivery scope specified in TT’s Order Confirmation. Any additional cost relating to requested change of the Order Confirmation (including requested changes to the Products), subject to article 2.2 of these Terms and
Conditions, additional handling or packing requirements requested by the customer (including special pallets) shall be invoiced separately.
5.4 Payments must be made in full within 30 days of the invoice date. The customer may not set-off any amounts or apply discounts to the invoiced amount, unless expressly agreed otherwise in writing. Upon request, the customer must pay in advance of the delivery.
5.5 If the customer does not adhere to the payment term set out in article 5.4 above, the customer is in default immediately and TT has the right to claim statutory interest pursuant to article 6:119a DCC. This is notwithstanding any other rights TT may have under the Agreement and/or applicable law.
5.6 In addition to article 5.5 above, TT is entitled to charge the judicial and extrajudicial collection cost that were actually incurred, with a minimum of the higher of (i) 15% of the amount due (including any interest due) and (ii) EUR 500.
5.7 Complaints regarding an invoice must be made in writing within 14 days from the invoice date. After this term has expired, the customer is deemed to have accepted the invoice. A complaint as referred to in this article 5.7 does not suspend customer’s payment obligation. In the event that the complaint is justified, TT will promptly credit the relevant amount to the customer.
6.1 Unless expressly agreed otherwise in writing, Product deliveries shall be made Carriage Paid To (CPT, Incoterms®2020) the place of destination set out in the Order Confirmation. Freight costs are charged separately to the customer.
6.2 TT shall deliver the Products and/or provide the (ancillary) services in accordance with the Order Confirmation. TT has the right to suspend its obligations under the Agreement until the customer has complied with any and all of its payment obligations vis-à-vis TT under the Agreement or otherwise.
6.3 Agreed or indicated delivery periods and deadlines for deliveries of Products and/or provision of (ancillary) services are approximations and never strict deadlines. Consequently, exceeding an agreed or indicated delivery time does not constitute default of TT and in such event TT will not be liable for any damage. Equally, the customer may not reject deliveries which are effected before the indicated delivery date.
6.4 Delivery may take place in parts.
6.5 The risk of the Products passes to the customer in accordance with the applicable incoterm. Article 7:10 (3) DCC does not apply as long as the Product is within the customer’s control.
6.6 The customer is obliged to take receipt of the Products at the agreed location(s) at the moment they are made available to the customer. If the customer fails to do so, it will be in default immediately and TT will store the Products for the risk of the customer and at customer’s costs.
7.1 The customer may request TT to hold a (rolling) safety stock of Products, for which the Parties shall make separate written arrangements.
8. Limitation of Liability
8.1 TT’s aggregate liability for damages incurred by the customer relating to or resulting from non-conform Products is at all times limited to direct damages and the amount paid out by TT’s liability insurer in the relevant event. If no payment is made under TT’s liability insurance for any reason whatsoever, TT’s total liability towards the customer is at all times limited to the invoiced value of the non-conform Products delivered.
8.2 TT is not liable for (i) any other failure against the customer under the Agreement, (ii) any unlawful act against the customer or (iii) damages caused by third parties engaged
in the performance of the Agreement or based on any legal ground, except where TT’s liability results from intent or deliberate recklessness of TT’s directors or of executive officers forming part of TT’s management.
8.3 Under no circumstances is TT liable for damage arising as a result of delivery terms being exceeded nor for company damage, environmental damage, consequential loss and/or indirect damage, including but not limited to customer’s loss of profits and sales, lost savings, damage resulting from the loss of productivity, reputation damage, loss of goodwill and business interruption loss.
9. Warranty and Defects
9.1 The Products conform to the Product Specifications. Articles 7:23 (1) and 6:89 DCC do not apply.
9.2 TT does not give any warranties in respect of the Products and/or (ancillary) services, whether express or implied, including but not limited to, warranties that the Products are merchantable or that these are fit for any particular purpose. Article 7:17 DCC does not apply.
9.3 The customer shall inspect the Products after delivery and any complaints regarding visible defects (whether in quantity or in quality) must be notified to TT in writing within 5 calendar days of the delivery of the Products. Complaints relating to non-visible defects must be reported to TT in writing immediately upon discovery, but in any event within 12 months following the date of delivery of the defective Products. Customer’s right to invoke the non- conformity and all other possible claims in respect of the Products lapse by operation of law following expiry of the abovementioned terms.
9.4 Any complaint as referred to under article 9.3 above, must be accompanied by a specification of the nature and scope of the alleged deficiencies and/or defect and supported by sufficient evidence (e.g. photographs). The customer must provide any and all cooperation required to allow TT to examine the alleged non-conformity. If so requested, TT must be provided access to the Products or the Products must be sent to TT at TT’s expense for examination.
9.5 If a complaint is deemed well-founded by TT, TT’s sole obligation for any defective product shall be, at TT’s discretion, to either replace the defective Product or part thereof, or issue credit to the customer for (part of) the purchase price of that Product. Article 7:21 DCC does not apply. If TT considers the complaint to be unfounded, it may charge the customer for the costs that arose in connection with investigations by TT.
9.6 Under no circumstance can the customer claim under the abovementioned articles 9.1, 9.3 and 9.5, if the customer did not fully take into account and adhere to any of the Product instructions provided by TT. The burden of proof that the customer handled the Products in full compliance with any applicable Product instructions rests with the customer.
10. Retention of Title
10.1 TT retains title to all Products delivered to the customer, until the purchase price for all of the Products is paid in full, including any interest and costs due.
10.2 The customer may not sell the Products subject to a retention of title or establish any limited rights on them, except in the normal operation of its business. The customer shall undertake, on first request by TT, to cooperate in establishing a right of pledge on the customer’s claims obtained or to be obtained by the customer pursuant to passing on the Products to customer’s customers.
10.3 The customer’s right to sell the Products subject to retention of title in the normal operation of its business as referred to under article 10.2 above, automatically expires if (i) an attachment is placed against the customer, (ii) the customer has requested a moratorium or insolvency (or bankruptcy), (iii) the insolvency (or bankruptcy) of the
customer will be/was requested or (iv) the customer enters into a payment scheme with one or more of its creditors.
10.4 The customer is obliged to treat the Products subject to a retention of title with the necessary care and retain the Products as recognizable property of TT separate from similar products.
10.5 The customer is obliged to immediately inform TT in case payment difficulties towards TT arise and/or if it is unable to meet its financial obligations or payment agreements made and/or is in danger of being granted a moratorium of payment, or if third parties claim to have rights or wish to establish rights on or attach Products subject to a retention of title.
10.6 In case the customer does not meet its financial obligations under the Agreement or if TT reasonably anticipates that customer will fail to do so, TT has the right to retrieve the Products subject to the retention of title, remove them or have them removed from the customer or third parties, without being liable for any compensation, reimbursement and/or damages. The customer shall fully cooperate and at all times grant TT or third parties designated by TT access to its premises /grounds and/or buildings where the Products are located. The customer shall compensate TT for any costs incurred in this regard.
10.7 TT’s rights under this article 10 are notwithstanding any other rights TT has under the Agreement or applicable law.
11.1 If the customer fails to comply with any obligation under the Agreement and/or applicable law, the customer is in default immediately without any notice being required and TT may
– at its discretion – suspend performance of its obligations and/or terminate (in Dutch: opzeggen) all or part (at TT’s discretion) of the Agreement in writing without TT being obliged to pay any compensation, damages or costs and without prejudice to TT’s other rights whether arising from the Agreement and/or applicable law, including its right to claim for damages and performance or to dissolve (in Dutch: ontbinden) the Agreement.
11.2 In case of a (provisional) suspension of payment, bankruptcy on the part of the customer, cessation or liquidation of the customer’s business, or when the customer is placed under guardianship TT may immediately terminate (in Dutch: opzeggen) all Agreements, without TT being liable in any way for any loss, damage, costs and interest, and without prejudice to TT’s other rights including its right to claim for damages and performance or to dissolve (in Dutch: ontbinden) the Agreement.
11.3 TT’s claims against the customer become immediately due and payable in each of the cases referred to in articles 11.1 and 11.2 above.
11.4 Customer’s right to fully or partly dissolve the Agreement (article 6:265 DCC) or to suspend performance under the Agreement (articles 6:52 and 6:262 DCC) is hereby explicitly excluded.
12.1 Neither Party may provide or disclose to any third party, or use for any purpose outside of the context of the Agreement, and is to keep confidential any information regarding or obtained in connection with the Agreement or transactions contemplated hereby or any information (if communicated in connection with the Agreement) regarding the other Party’s or its suppliers’ or customers’ products, services or business operations, except to the extent such information cannot reasonably be qualified as confidential or must be disclosed for statutory reasons or by way of defence in legal proceedings, or with the other Party’s explicit prior written consent.
12.2 Without TT’s prior written consent, the customer may not (publicly) refer to its business relationship with TT at its website, in advertising materials, brochures and the like.
13 Force Majeure
13.1 In case of force majeure TT has the right, at its own discretion, to suspend the performance of its obligations under the Agreement in full or in part (including for example extension of the delivery term), or to terminate (in Dutch: opzeggen) the agreement in full or in part. TT is not liable for any compensation, reimbursement and/or damages as a result of force majeure, or as a consequence of the suspension or termination due to force majeure.
13.2 For the purpose of these Terms and Conditions force majeure means any circumstance taking place independent of TT’s control, even if such circumstance could have been foreseen at the time of entering into the agreement, which prevents the performance of (part of) the Agreement, including but not limited to: veterinary diseases and epidemics, strikes by or illness on the part of TT’s employees and failures of suppliers or other third parties engaged by it, governmental measures and/or prohibitions, import- and/or export hindrances, traffic obstructions, accidents involving a means of transportation used by TT or a third party engaged by it, technical defects in these means of transportation, shortage of transportation means or limited capacity within such means, a lack of required permits or exemptions, unavailability or limited availability of raw materials and parts, and theft.
14.1 TT has the right to engage third parties to perform its obligations under the Agreement.
14.2 If one or more provisions and/or stipulations of these Terms and Conditions and/or the Agreement are invalid and/or non-binding and/or in contravention of any provision of applicable mandatory law, the Terms and Conditions as well as the related Agreement will not be affected and shall continue to apply in full, while as regards the provisions that are void, declared void or can be declared void, TT will adopt new provisions and/or stipulations in consultation with the customer, which will approach the purport of the provisions and/or stipulations that are void or declared void to the maximum extent possible.
14.3 Each claim against TT, except those expressly acknowledged by TT in writing, expire on account of the mere expiration of a period of 12 (twelve) months after the claim arose, unless provided otherwise in these Terms and Conditions.
14.4 TT may assign its rights and obligations under these Terms and Conditions and/or the Agreement to a third party. The customer’s rights and obligations under the these Terms and Conditions and/or the Agreement are non-transferable within the meaning of article 3:83 (2) DCC.
14.4 To the extent applicable, articles 7:402 (1), 7:406 (2) and 7:408 (1) DCC do not apply.
15 Applicable law and Disputes
15.1 All Agreements, these Terms and Conditions and any contractual or non-contractual obligations arising therefrom are governed by Dutch law, with explicit exclusion of its conflict of laws rules. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 11 April 1980) is expressly excluded.
15.2 Prior to the initiation of any legal proceedings (except when seeking for conservatory measures), Parties shall attempt to amicably resolve any dispute arising out of or relating to any Agreement, these Terms and Conditions or any other contractual or non-contractual obligations arising therefrom. Any unresolved disputes shall exclusively be brought before the competent court of The Hague, the Netherlands.
This disclaimer may change from time to time.