GENERAL CONDITIONS OF TEN THE EXPORT NETWORK BV
Article 1 DEFINITIONS
- The term Client means the person or legal entity who gives the assignment.
- The term Contractor means TEN the export network B.V.
- The term Agreement means the agreement formed between the Client and the Contractor for the provision of services or delivery of products.
- The term ‘written’ in these Conditions means: in a letter, by telefax or via electronic means.
1.5 Insofar as these Conditions have been drawn up in a language other than the Dutch language, the Dutch text will always be decisive in the event of any discrepancies.
Article 2 APPLICABILITY
2.1 These General Conditions are applicable to all offers, activities, quotations and agreements between the Contractor and the Client. Deviations from these General Conditions and verbal undertakings of the Contractor will only be valid if they have been explicitly agreed in writing. The Client cannot derive any rights for future agreements from any agreed deviations.
2.2 The applicability of the General Conditions applied by the Client is explicitly excluded unless otherwise agreed in writing.
2.3 In the event that any provision of these General Conditions is null and void or are annulled, the other provisions will remain fully in force and the invalid or annulled provision(s) of the General Conditions will be replaced by (a) valid provision(s) whereby the aim and purport of the invalid or annulled provision(s) are taken into account as much as possible.
Article 3 QUOTATIONS
3.1 All offers are without any obligation even though a period for acceptance has been included in the offer. Offers are valid for 30 days unless otherwise indicated.
3.2 With regard to quotations made up of various amounts there is no obligation for the Contractor to provide the services and/or products included in the quotation for a corresponding part of the quoted price and neither does the quotation apply automatically to subsequent orders or follow-up assignments.
Article 4 AGREEMENT
4.1 The Agreement is formed at the moment that the confirmation of the assignment has been sent by the Contractor to the Client or the contract formulated by the Contractor or by the Client has been signed and received by the Contractor. The confirmation or the contract is considered to represent the Agreement accurately and fully.
4.2 The agreement is entered into for an indefinite period of time unless it ensues from the contents, nature or purport of the given assignment that it has been entered into for a fixed term.
Article 5 PERFORMANCE OF ASSIGNMENT
5.1 The Contractor will perform the assignment to the best of his understanding and capacities and in accordance with the requirements of proper skill. The Contractor determines the manner in which the assignment is carried out but in doing so he will observe the wishes expressed by the Client as much as possible.
5.2 The Contractor cannot guarantee to achieve an intended result, but he will do his utmost in order that the intended result is achieved.
5.3 The Contractor is entitled to engage third parties in the performance of the assignment. f the Client wants to involve third parties in the performance of the assignment, he will only do so if, at the Contractor’s discretion, this is conducive to a proper or efficient performance of the assignment. The Contractor will never be responsible for the activities of third parties engaged.
5.4 The Client is obliged to provide to the Contractor promptly in the form required by the Contractor and in the manner required by the Contractor all data and documents which the Contractor at his discretion needs for the proper performance of the given assignment.
5.5 The Client is obliged to inform the Contractor immediately of any facts and circumstances which might be relevant in connection with the performance of the assignment.
5.6 The Client warrants the accuracy, completeness and reliability of the data and records provided by him or on his behalf to the Contractor.
5.7 If the Client does not provide or has not provided or has not timely provided the Contractor with information or with incomplete or inaccurate information, the Contractor will be entitled to postpone the performance of the Agreement or to dissolve the Agreement and then the Client will be liable for all losses arising from this without prejudice to the right of the Contractor to reimbursement of the extra costs resulting from this and to payment of invoices for activities performed up to that moment in accordance with the Agreement.
5.8 The Contractor is not liable for losses of any nature whatsoever because the Contractor based its provision of services on inaccurate and/or incomplete information provided by the Client.
5.9 If the Contractor performs activities on the Client’s premises or on a site indicated by the Client, the Client will arrange free of charge for the facilities reasonably required by the Contractor.
5.10 The Contractor retains the intellectual property rights on the concepts, procedures, method of operation etc. it develops in connection with the assignment.
Article 6 RATE
6.1 All (either fixed or variable) rates are represented in euros excluding VAT and excluding any travel, accommodation and other extra costs unless otherwise stated. Turnover tax will be charged separately on all amounts owed by the Client to the Contractor unless international regulations differ from this and will therefore have to be observed. den.
6.2 With regard to assignments of a continuous nature, the costs due will be charged monthly in accordance with what has been set out in the Agreement.
6.3 The Contractor is allowed to pass on price rises if the Contractor can demonstrate that significant price changes occurred between the moment at which the Agreement was formed and the delivery.
6.4 The Client is obliged to reimburse the costs incurred by the Contractor in performing the Agreement insofar as they are not explicitly included in the agreed fees. These can also include the costs in connection with engaged third parties, after the Client has given his approval to this end.
Article 7 PAYMENT
7.1 Payment by the Client must take place in euros without any set-off by means of payment or transfer to a bank account specified by the Contractor and within 14 days of the invoice date unless otherwise stated in writing on the invoice.
7.2 The Contractor will ensure prompt invoicing. Partial invoicing is possible at any time unless this has been explicitly excluded in writing.
7.3 If the Client does not fulfil his payment obligation to the Contractor within the agreed period he will be in default without a prior demand for payment and notice of default being required and he will owe interest on the invoice amount from the day on which the invoice should have been paid. For each month (or part thereof) in which the payment period has been exceeded this interest amounts to one twelfth part of the promissory note discount rate effective at the moment of invoicing plus 2%.
7.4 All costs, both the court costs as well as the extrajudicial costs, incurred with regard to the collection of the amount due from the Client and not paid within due time will be at the expense of the Client. The extrajudicial costs are fixed at 10% at least of the respective invoice amount and will amount at least to EUR 500 per claim.
7.5 If at the Contractor’s discretion the financial position or the payment history of the Client gives rise to it, the Contractor will be entitled to demand, when or after the Agreement has been entered into and before performing (any further), that the Client immediately furnish payment security in a form to be determined by the Contractor (including (partial) payment in advance). If the Client fails to furnish the required security, the Contractor will be entitled, without prejudice to its other rights, immediately to postpone the further performance of the Agreement or to dissolve in whole or in part the Agreement without a notice of default or judicial intervention being required notwithstanding the Contractor’s right to compensation for the losses it has suffered. In addition, any amount owed by the Client to the Contractor for any reason whatsoever, will become immediately due and payable.
7.6 Any objections to an invoice must be submitted to the Contractor in writing stating the reasons within eight (8) days after the invoice date. After this period has lapsed complaints will no longer be dealt with and the Client will have forfeited his rights in this connection. Objections to the amounts of submitted invoices will not postpone the Client’s payment obligation.
7.7 The Contractor has the right of retention on all data, documents and other goods in his possession up to the moment at which the Client has paid all the amounts owed to the Contractor.
7.8 The Contractor is entitled to suspend the fulfilment of its obligations until the Client has fulfilled all his due and payable payment obligations.
Article 8 CONFIDENTIALITY
8.1 “Confidential Information” includes all information, knowledge and data with regard to the commercial, administrative, financial, pricing, technical or operational arrangements, whether or not with regard to products, production processes and ingredients, formulas, business plans, inventions, methods, designs as well as all other information with regard to both parties and of their subsidiaries, business partners or sister companies which are of a confidential nature regardless of the manner in which this information has been recorded or communicated. Confidential Information also includes reports, analyses, memos, notes or any other documents containing, representing or based on Confidential
Information formulated by the party who receives the Confidential Information (or which has been formulated by a third party in the party’s name and for his benefit).
8.2The Confidential Information provided either directly or via their representatives and/or advisors or in any other way and either verbally or in writing by the one party to the other party must be treated in strict confidentiality by both parties.
8.3 The restrictions and obligations mentioned above do not apply to Confidential Information:
- a) which is already known (without there being any violation/breach of contract by a third party) to the party who is provided with it; or
- b) which is in or comes into the public domain in any way other than as a result of a breach of the obligations arising from this Agreement; or
- c) which the party providing the information states explicitly that the information is not covered by the obligation to observe secrecy under this Agreement.
8.4 Both parties are not obliged under this Agreement to observe secrecy of certain Confidential Information if and insofar as they are or will be forced to disclose it pursuant to the law, regulations or a court order.
8.5 The copyright or other intellectual property rights forming part of the Confidential Information are and remain the property of the party who provided the Confidential Information.
8.6 Both parties will impose the obligations pursuant to this Article on third parties engaged by them in the performance of the assignment.
Article 9 PERIODS
9.1 The agreed delivery period begins as soon as an Agreement has been formed in accordance with Article 4.1. If the Client is obliged to furnish an agreed payment security (such as a (partial) advance) or to provide information required for the performance, the delivery period will only commence after the payment security has been furnished or the information and/or materials have been fully provided.
9.2 The delivery dates specified are only considered as approximate subject to unforeseen circumstances and can never be considered as deadlines. The Contractor will only be in default with regard to the delivery date after the Client has given it a written notice of default, in which it has been given the opportunity still to deliver within a reasonable period and the Contractor has not complied with this. Only in the event of an excessive breach (more than 12 weeks) of the agreed delivery date will the Client be entitled to dissolve the Agreement unless the breach is caused by force majeure. However, the Client will never be entitled to any penalty or compensation.
Article 10OPOSTPONEMENT, NOTICE OF TERMINATION AND DISSOLUTION
10.1 The Contractor is entitled to postpone the agreements existing between it and the Client for a reasonable period insofar as they have not yet been performed, without any judicial intervention and without a notice of default being required, or to dissolve the Agreement without any obligation to pay compensation if the Client has not fulfilled in time or not properly fulfilled his (payment) obligations arising for him from any agreement entered into with the Contractor as well as in the event of a bankruptcy or moratorium of the Client or on the discontinuation of operations or the winding-up of his business.
10.2 The consequences of the postponement, notice of termination and/or dissolution will be fully at the expense and risk of the Client.
10.3 Any postponement, notice of termination and/or dissolution do not affect the payment obligation for activities already performed. In addition, the Contractor will then be entitled to claim from the Client compensation for loss and reimbursement of costs and interest including the Contractor’s loss of revenue.
10.4 If the Contractor has given premature notice of termination, the Client will be entitled to the Contractor’s cooperation with regard to the transfer of activities to third parties unless facts and circumstances which are attributable to the Client form the grounds of the notice. If the transfer of the activities involves extra costs for the Contractor, the Client will be charged for them. In the event of a premature notice of termination the Contractor will retain its right to payment of the invoices for activities carried out until then, whereby the provisional results of the work performed until then will be provided under reservations to the Client.
10.5 Should the Client be in default or breach of the fulfilment of one or more of his obligations, all the reasonable costs for obtaining fulfilment in as well as out of court, including the Contractor’s costs for legal assistance which the Contractor must incur as a result of the non-performance, the late or incorrect performance by the Client, will be at the expense of the Client.
Article 11 LIABILITY
11.1 In performing his activities for the Client, the Contractor will observe the highest care possible with regard to the Client’s interests.
11.2 If the Client takes certain decisions (amongst other things) on the basis of the products and/or services provided by the Contractor, the Contractor can never be held responsible for the consequences or the results of this. The liability of the Contractor for indirect loss including also consequential loss, lost profits, missed savings and loss by operational delays is at all times excluded.
11.3 The Contractor is not liable for loss of any nature whatsoever because the Contractor based itself on inaccurate and/or incomplete information provided by the Client.
11.4 The liability of the Contractor for loss for any reason whatsoever is limited to the amount of the consideration due from the Client for the service or the product unless and insofar as the Contractor can be blamed for intent or gross negligence.
11.5 die in verband met de uitvoering van de overeenkomst schade lijden en die aan opdrachtgever toerekenbaar is.
11.6 The exclusion of liability laid down in this Article is also stipulated for the benefit of the third parties engaged by the Contractor for the performance of the assignment, who therefore because of this can directly invoke this exclusion of liability.
Article 12CHANGED CIRCUMSTANCES
12.1 Should the circumstances assumed by the Client and the Contractor at the time when the Agreement was formed change so considerably that as a result compliance with one or more of these conditions cannot reasonably be required from either party, the Agreement will be adjusted accordingly, or a new agreement will be formulated and entered into.
12.2 If the parties agree that the Agreement be amended or supplemented, the Contractor will take the initiative to this end.
12.3 If the amendment or supplement to the Agreement has financial and/or qualitative consequences, the Contractor will inform the Client of this in advance. If a fixed rate has been agreed, the Contractor will indicate in this connection to what extent the amendment or supplement to the Agreement will lead to this rate being exceeded as a consequence.
12.4 If an assignment must be speeded up at the Client’s request, costs for overtime and/or any extra costs incurred will be charged.
Article 13 FORCE MAJEURE
13.1 The term ‘force majeure’ in these General Conditions means – apart from what it means in legislation and case law – any external causes whether or not foreseen which are beyond the control of the Contractor but which cause the Contractor to be unable to fulfil its obligations. This includes illness of (personnel of) the Contractor or third party(ies) engaged or a failure of the Contractor’s suppliers.
13.2 Neither party is obliged to fulfil any obligations if he is prevented from doing so as a result of force majeure.
13.3 In the event that the Contractor is prevented by force majeure from fully or partially carrying out the agreed activities, the Contractor will be entitled to postpone the execution of the Agreement or to consider the Agreement as wholly or partially dissolved without any judicial intervention being required, all this at the Contractor’s discretion, without being obliged to pay any compensation or provide any warranty.
13.4 If the Agreement has already been partly executed, the Contractor will be entitled to invoice separately for what has already been fulfilled.
Article 14 ASSIGNMENT OF RIGHTS AND OBLIGATIONS
14.1 The Client is not entitled to assign his rights and obligations pursuant to the Agreement fully or partially to a third party without the prior written consent of the Contractor.
14.2 In the situation whereby the (relevant activity(ies) of) the Client’s business merges with or is continued by another company for any reason, in any manner and any form whatsoever, a liability of the original and successive company will be created with regard to the fulfilment of the Client’s obligations referred to in Article 14.1.
Article 15 APPLICABLE LAW AND COMPETENT COURT
15.1 These General Conditions and the offers submitted, and the quotations given by the Contractor as well as all agreements between the Client and the Contractor are exclusively governed by Dutch law.
15.2 All disputes which might arise between the Contractor and the Client will be settled by the competent court in Utrecht (the Netherlands) notwithstanding the power of the Contractor if required to submit the dispute to another competent court. Disputes between the Contractor and Clients established outside the EU, will definitively be settled in accordance with the Arbitration Regulations of the ICC by one or more arbitrators appointed in accordance with these Regulations. The language used will be English. The arbitration will take place in Utrecht.