1.1 These terms and conditions apply to all tenders and orders issued by Tenmax with respect to the sale and delivery of Tenmax products (hereinafter referred to as "goods", and to all agreements with Tenmax pertaining thereto.
1.2 The applicability of the terms and conditions of the contracting party or Principal (hereinafter referred to as "Principal') is expressly rejected.
1.3 Stipulations derogating from these general terms and condtions may be invoked by Principal solely if and insofar as Tenmax has accepted such stipulations in writing.
2.1 All Tenmax tenders are subject to confirmation.
2.2 Orders and acceptances of tenders by Principal shall be deemed to be irrevocable.
2.3 Tenmax shall not be bound in any way unless it has indicated its acceptance in writing or delivery or partial delivery has taken place. Moreover, Tenmax shall be bound only by what it has represented in writing. Oral undertakings or agreements by or with employees of Tenmax shall not bind Tenmax unless and until they have been confirmed in writing.
3.1 Data contained in catalogues, brochures, illustrations, diagrams and size and weight estimates and similar data shall be binding on Tenmax solely if and insofar as such data is agreed in writing.
4.1 Prices quoted by Tenmax or agreed with Tenmax are net, i.e. exclusive, inter alia, of VAT, and shall apply only to delivery of unpacked goods ex-factory or ex-warehouse. Prices also exclude the costs of packaging, loading, transport, unloading, insurance, installation, assembly and/or other services.
4.2 Prices quoted by Tenmax or agreed with Tenmax are based on cost price at the time of the tender or acceptance of an order by Tenmax. Should the cost price undergo an increase, Tenmax shall be entitled to pass on the price increase to Principal.
5.1 The delivery period commences upon conclusion of the agreement, when Principal has supplied Tenmax with all requisite articles, documents and data and following receipt by Tenmax of any agreed advance payment.
5.2 Save for the exception referred to in Article 7.3, goods to be delivered by Tenmax shall be deemed to have been delivered at the time such goods leave the warehouse of Tenmax or third parties engaged by Tenmax for transport to or on behalf of Principal.
5.3 Late delivery shall not entitle Principal to damages or compensation, nor shall it entitle non-compliance by Principal with any of its obligations under the agreement. Principal shall, however, be entitled to terminate the agreement in writing, if and insofar as Tenmax fails to deliver the goods in question within a reasonable time agreed with Principal after the failure to meet the delivery deadline.
5.4 Delivery dates shall be extended for a period equal to any period of delay in implementation of the agreement where such delays are due to force majeure.
5.5 If a penalty payment is agreed with Tenmax in the event of late delivery, this shall be payable only if the failure to meet the delivery deadline is attributable to negligence on the part of Tenmax and Principal can demonstrate that it has suffered damage as a result of the late delivery. Any penalty payable shall never exceed the amount of the damage actually suffered.
5.6 Tenmax shall have the right to deliver in consignments. Each consignment shall be deemed to be an independent delivery for the application of these terms and conditions.
6.1 Risk attaching to goods for delivery by Tenmax shall transfer to Principal at the time of their delivery as provided for in Article 5.2 or Article 7.3.
6.2 Even if organised by Tenmax, any loading, sending or transport, unloading and insurance of the deliverable goods shall be for the account of Principal.
6.3 All goods delivered by Tenmax shall remain the property of Tenmax until such time as all amounts payable to Tenmax in connection with the underlying agreement have been paid in full, including damage, costs and interest. Principal has no right of retention in respect of the goods.
6.4 Industrial and intellectual property rights attaching to or connected with the delivered goods shall continue to be vested in Tenmax or interested third parties and shall at no time transfer to Principal.
7.1 Principal shall ensure that any goods delivered by Tenmax are inspected, at its own risk and expense, before they are processed. Principal is obliged to cooperate, without delay, in any agreed inspection or trial. Should Principal fail to inspect the goods and/or fail to co-operate in inspections or trials in a timely manner or at the agreed time, the said goods shall be deemed to have been approved.
7.2 Principal is obliged to accept the goods at the time when deliverable goods are ready for transport or sending
7.3 Should Principal fail to cooperate with inspections, trials or acceptance in a timely manner or at the agreed time, the said goods shall, in derogation from the provisions of Article 5.2, be deemed to have been delivered at the time at which inspection, trial or acceptance is required by Tenmax.
7.4 Tenmax shall be entitled to claim from Principal any damages and/or costs ensuing from refusal to cooperate in, or delays to, the inspection, trial or acceptance.
7.5 Tenmax shall be afforded the opportunity to remedy defects which become apparent during inspection or trials before the goods can be deemed to have been rejected. Should Principal not avail of the opportunity to conduct inspections or trials, the goods shall be deemed to have been approved.
8.1 Tenmax shall be entitled to invoke force majeure if implementation of the agreement is impeded or prevented, in part or in full and temporarily or otherwise, by circumstances beyond its control, which shall be understood to include business embargoes, strikes, work to rule, lock out or delays in deliveries to Tenmax of goods or services ordered from third parties, other than where the circumstances, incidents or operational breakdown are attributable to Tenmax.
8.2 In the event that Tenmax is subject to force majeure, its obligations shall be suspended. Should the force majeure situation exceed three months, either Tenmax or Principal shall be authorised to terminate, in writing, that part of the agreement which cannot be implemented, without prejudice to the provisions of Article 12.
9.1 Tenmax guarantees the reliability of the goods it delivers, to the extent that any defects in construction, material or finish which become apparent during the guarantee period and which are the subject of complaint shall be re-delivered free of charge, or the goods in question shall be replaced/repaired free of charge, or the Principal shall be reasonably credited in part or in full for the invoiced amount in respect of such goods, at the discretion of Tenmax. The aforesaid repair/replacement and re-delivery shall apply exclusively within the Netherlands. The costs of repair/replacement, which shall be understood to include the costs of dismantling/assembly by third parties, shall at all times be for the account of Principal.
9.2 Unless specifically agreed otherwise, the guarantee period shall be one month after delivery.
9.3 Principal shall lodge complaints with respect to externally identifiable defects at the time of inspection or trial or, if no inspection trial is agreed, within five days of delivery; failure to do so shall render any claim against Tenmax invalid. No guarantee is offered for defects such as those resulting from weathering and/or normal wear and tear; incompetent or abnormal use; installation/assembly/modification/repair/additions by Principal or by third parties; materials supplied by or on behalf of Principal, or from unforeseen damaging environmental influences (be they temporary or permanent).
9.4 Subject to forfeiture of all claims against Tenmax, complaints relating to other defects shall be lodged within five working days after their discovery.
9.5 Any guarantee shall cease to be valid if: a) the instructions given by Tenmax for storage, positioning, testing, installation, assembly, controls, maintenance or use are not followed precisely; b) the delivered goods are used incompetently or not used in accordance with the agreed or normal purpose; c) Principal or third parties not engaged by Tenmax has/have carried out work on the goods delivered by Tenmax without the permission of Tenmax; d) Principal fails to comply, comply properly or comply in a timely manner with its obligations to Tenmax under the agreement.
9.6 Tenmax's guarantee obligations to Principal with respect to goods or parts of goods which Tenmax obtains from third parties shall at no time exceed the period of the guarantee obligations of such third parties to Tenmax. Tenmax shall therefore be discharged in this context if it transfers its claim on that third party to Principal.
9.7 Principal shall be obliged, if so required, to enable Tenmax to service the guarantee.
10.1 Tenmax's liability in connection with any defects in goods it has delivered is limited to compliance with the guarantee described in the foregoing Article.
10.2 Tenmax shall at no time be obliged to pay compensation or additional damages unless and insofar as damage is suffered due to an intentional act or gross negligence on the part of Tenmax or its employees. Save for an intentional act on the part of Tenmax itself, however, Tenmax' liability for trading loss (including, for instance, stagnation damage and loss of profits), consequential or indirect damage shall at all times be excluded.
10.3 Principal hereby indemnifies Tenmax against all third-party claims based on product liability as a result of a defect in a product supplied by Principal to a third party which contains, inter alia, products or materials supplied by Tenmax.
10.4 In all instances in which Tenmax is obliged to pay compensation, such compensation shall never exceed, at the discretion of Tenmax, either the invoice value of the delivered goods which cause or contribute to the damage or, if the damage is covered by an insurance policy taken out by Tenmax, the amount actually paid by the insurer.
10.5 In all instances in which Tenmax is subject to payment of a penalty, any obligation on Tenmax to pay compensation shall be limited to the amount of the penalty, without prejudice to the provisions of Article 5.5.
10.6 Any claims against Tenmax, save for claims acknowledged by Tenmax, shall expire automatically 12 months after the inception of the claim.
10.7 Conditions limiting, excluding or establishing liabilities which may be invoked against Tenmax by Tenmax suppliers or sub-contractors in connection with the delivered goods may also be invoked by Tenmax against Principal.
10.8 Tenmax employees or agents engaged by Tenmax in the implementation of the agreement may invoke against Principal all defences under the agreement as if they themselves were party to that agreement.
10.9 Principal shall indemnify Tenmax, its employees and agents engaged by Tenmax in the implementation of the agreement against any third-party claims in connection with implementation by Tenmax of the agreement, insofar as such claims exceed or differ from Principal's claims against Tenmax.
10.10 Principal shall comply strictly with national, international or government-imposed restrictions on exports, imports and use of the delivered goods and shall reimburse Tenmax for damage suffered by Tenmax as a result of any violation of such restrictions.
11.1 Payment shall be effected within 30 days of invoice date. Tenmax shall, however, be entitled at all times to demand full or partial payment in advance and/or otherwise obtain security for payment.
11.2 Principal waives any right to set off of amounts payable between the parties. Guarantee claims shall not suspend Principal's payment obligations.
11.3 Should Principal fail to pay any amount owed on the basis of the foregoing, it shall be in default without any requirement of notice of default. As soon as Principal becomes in default, all other Tenmax claims on Principal shall become due and payable and Principal shall immediately become in default with respect to those claims, without any requirement of notice of default. With effect from the date on which Principal becomes in default, it shall owe default interest to Tenmax of 1.5% for each month or part of a month that the default continues; Principal shall also be responsible for all judicial and extrajudicial costs, whereby the latter shall be 15% of the principal amount.
12.1 Should Principal fail to comply or fail to comply punctually or properly with one or more of its obligations, or be declared bankrupt, require a moratorium (temporary or otherwise) or liquidate its company, or should an attachment be levied on all or part of its assets, Tenmax shall be entitled, at its own discretion, to suspend implementation of the agreement or to give written notice terminating the agreement forth with without prior notice of default, while retaining its rights to claim compensation for costs, damage and interest.
12.2. Principal may terminate the agreement only in instances as provided for in Articles 5.3 and 8.2. of these terms and conditions, and in such cases only after payment to Tenmax of all outstanding amounts, whether due and payable or otherwise.
12.3 In the event that the agreement ends on the basis of Article 12.1 before the goods are delivered as agreed, Tenmax shall be entitled to receive the full agreed price for those goods, minus any savings directly related to the termination. Costs incurred or investments made at the time of termination of the agreement shall be paid in full by Principal
13.1 All disputes which may arise between the parties shall be heard exclusively by the competent court in Rotterdam.
13.2 This agreement is governed by the law of the Netherlands.