GENERAL CONDITIONS
of
Top Vision Group B.V.,
a company established, under its
articles of association, in Haarlem,
hereinafter called Top Vision
1. GENERAL
1.1 The lodging of these General Conditions with the Registry of the Haarlem Arrondissementsrechtbank (Approx. = District Court) shall abrogate and replace all earlier conditions and provisions of Top Vision.
1.2 Save where otherwise expressly agreed and confirmed by Top Vision (the company) in writing, orders will be executed solely on the basis of the conditions set out below.
1.3 All deliveries shall be deemed to have been made in Haarlem, at which place all payments must be made.
1.4 Save where confirmed by Top Vision in writing, agreements made with its staff shall not be binding on the company.
1.5 These conditions shall apply to all agreements made by Top Vision with its customers and the obligations arising there from, and shall exclude any other conditions accepted by customers as being applicable, save where otherwise agreed in writing. A customer shall be deemed to be any party who places an order with Top Vision, purchases, or wishes to purchase, goods from it or concludes, or wishes to conclude, any agreement of any other kind with it.
2. OFFERS
2.1 Save where expressly agreed otherwise, all offers shall be subject to availability. Top Vision shall not be bound by an offer until it has confirmed it in writing.
2.2 In the case of composite quotations there shall be no obligation to deliver a part thereof in consideration of a corresponding part of the price quoted for the whole.
2.3 In addition to the information given in respect thereof in the company’s catalogues and brochures, all goods offered are subject to the normal and/or customary tolerances; in particular, express proviso is hereby made with regard to gradations in the quoted colour, quality, hardness, thickness etc. of goods and such provision shall, therefore, be without prejudice to minor departures from the illustrations and/or descriptions given in the company’s catalogues and brochures. Such departures shall under no circumstances relieve the customer of his obligations under the agreement.
2.4 The company hereby expressly reserves the right to change its quoted prices without prior notice, including after despatch of the confirmation of order; Top Vision shall, for example, be entitled to pass on to the customer any increases in wages, employer’s social welfare contributions and/or other working conditions which have occurred since the agreement was entered into and before delivery in full has taken place, together with any increases in other tariffs, fees, charges, imposts and taxes, and any change in exchange rates such as may cause an increase in costs for Top Vision, in which case the customer will be entitled to cancel the agreement, save only for the obligation to pay to Top Vision that part of the order already executed.
3. ORDERS
3.1 An order shall be binding on the customer. Top Vision will not be bound thereby until the confirmation of order has been despatched. Unless the customer has notified his objections to Top Vision within ten (10) days of despatch of the confirmation of order, such confirmation of order shall be deemed fully and accurately to reflect the agreement.
3.2 Any changes required by the customer in the execution of an order after same has been placed must be brought to the attention of Top Vision by the customer in good time and in writing. In the event that they are notified orally or by telephone, the risk associated with the implementation of such changes shall be borne by the customer, unless such changes have been confirmed by Top Vision in writing.
3.3 In the event that the customer cancels an order placed, whether wholly or in part, he shall be obliged to compensate Top Vision for all costs reasonably incurred with a view to the execution of this order (costs of design, drawings, calculations, preparation, storage, commission etc.). In the event that Top Vision so require, the customer shall also be obliged to compensate for loss of profit, as well as for such other losses resulting from the cancellation in question.
3.4 Any changes in the original order, of whatsoever kind, whether written or oral, made by or on behalf of the customer, which changes occasion higher costs than could have been expected when the quotation was given and/or the order confirmed, will be charged to the customer as extra.
4. DELIVERIES/EXECUTION OF ORDERS
4.1 Any partial delivery, by which shall also be understood the delivery of parts of a composite order, may be made the subject of an invoice, in which case such partial delivery shall be regarded as an independent transaction; in such cases payment must be paid in accordance with the provisions of the clause entitled “payment”.
4.2. Top Vision will not be liable for any cessation or delay, save where caused by its own fault, all this without prejudice to the provisions of clause 5.
4.3 Orders will be executed within the normal time applicable thereto. In the event that an order is required to be accelerated, overtime and/or any other additionally incurred costs may be charged. The customer shall afford Top Vision a degree of latitude with regard to the period allowed for execution of the order. Such period will be deemed to be irrevocable and binding only if, when the order is placed, the customer has explained to Top Vision in writing the consequences of a delay and same has been confirmed by the company in writing.
4.4 Goods to be delivered by Top Vision shall in all cases be despatched for the account and risk of the customer, save in those cases in which the total amount involved in the order justifies delivery carriage paid; the foregoing shall be at the exclusive discretion of Top Vision.
4.5 Where deliveries carriage paid are concerned the cheapest method of despatch shall in all cases be used, save where otherwise agreed in advance. In the event that some other means of despatch is involved, additionally incurred costs shall be payable by the customer.
4.6 Acceptance of the goods by the carrier without any reservation on the bill of lading or receipt shall be deemed to constitute proof that the packaging was in good condition. In the absence of a signed bill of lading with observations recorded thereon the customer shall implicitly acknowledge that the packaging was in good condition.
4.7 All delivery times are given by Top Vision in all cases as approximations only and shall not be binding on the company. The delivery period will commence as soon as the confirmation of order has been despatched and, furthermore, when all data, drawings and materials which, in the opinion of Top Vision, may be required have been furnished to it by the customer. No overrun of delivery times shall under any circumstances relieve the customer of his contractual obligations, nor shall it entitle him to claim rescission of the agreement or damages.
4.8 If, however, the overrunning of a delivery period is such that it would not be reasonable to expect the customer to continue with the agreement, he will be entitled to cancel the order in question, provided always that he gives written notice thereof to Top Vision, without prejudice to the latter’s right nevertheless to deliver the goods within a period of four (4) weeks from receipt of the aforementioned notice. The customer may require that Top Vision indicate forthwith whether it intends to avail itself of such right.
4.9 Goods wrongfully returned to Top Vision shall remain at the customer’s disposal and risk; any transport and/or storage costs shall be payable by the latter .
4.10 Top Vision shall be entitled, without notification to or consultation with the customer, to contract out the order or parts thereof to, or to cause it to be carried out by, outside third parties if, in its opinion, this would conduce to the good or efficient execution of the contract.
4.11 In the event that Top Vision has goods of the customer in its possession, it shall be entitled to retain them until all costs incurred by Top Vision for the execution of orders from the same customer have been paid in full by the customer, irrespective of whether such orders relate to the aforementioned or to other goods of the customer, unless the customer has furnished adequate security for such costs. Top Vision shall also enjoy a right of retention in the event that the customer becomes bankrupt.
4.12 Delivery of the goods ordered will be made from Top Vision’s stores by the placing of the goods at the customer’s disposal, or by the handing over of the goods at such place to the carrier in question.
4.13 As soon as notice is given to the customer that the goods ordered by him are at his disposal, they must be collected by him within a period of ten days, failing which Top Vision shall be entitled to charge the customer for storage costs or to regard the agreement as legally rescinded and shall be entitled to claim damages.
4.14 In the event that the customer fails to collect the goods within the period laid down under sec. 4.6 of this clause, all loss of or damage to the goods, save where such are borne by Top Vision’s insurer, shall be payable by the customer.
5. OVERRUN OF DELIVERY PERIOD
5.1 Save where expressly agreed to the contrary in writing, the periods agreed with Top Vision shall in all cases be regarded by the customer as being approximate and not under any circumstances binding.
5.2 Disruptions to the company’s business due to force majeure (including, inter alia, war, mobilisation, disturbances, flood, closure to shipping and other interruptions to transport, hold-up’s in or restrictions on or stoppages of supplies by public utilities, fire, failure of machinery and other accidents, strikes, lock outs, acts of employees’ organisations, such as make production impossible, acts of the authorities, non-delivery of necessary materials and semi-finished products to Top Vision by third parties and other unforeseen circumstances, including in the country of origin of the materials and/or semi-finished products, such as disrupt the normal course of operations and delay or may reasonably be expected to render impossible the execution of the order) will relieve Top Vision of the obligation to comply with the agreed period or of the duty of performance and the customer shall not be entitled as a result hereof to enforce any right or claim any damages for costs, losses or interest.
5.3 In the event of force majeure Top Vision will without delay notify the customer hereof and the latter will be entitled, during a period of eight (8) days from receipt of such notice, to cancel the agreement in writing, but he shall be obliged to pay the company for that part of the order already executed.
5.4 All additional costs due to force majeure, e.g. transport and storage costs, demurrage, insurance, discounts and allowances etc. shall be payable by the customer.
6. COMPLAINTS AND GUARANTEE
6.1 Top Vision will not be liable for printed, clerical or calculation errors or ambiguities in offers, confirmations of order or prospectuses, nor for the consequences thereof. In the event of differences in the interpretation of offers, confirmations of order or prospectuses, Top Vision’s interpretation shall be binding.
6.2 Shortages or defects in part of a delivery shall not entitle the customer to decline the whole delivery.
6.3 Any complaints concerning shortages or defects in the goods must be notified in writing or by telegram to Top Vision by the latest eight days after the arrival thereof at the place of destination.
6.4 Any shortages or defects which could not reasonably have been discovered within the time laid down in the preceding article must be notified to Top Vision immediately after discovery thereof, but by the latest ninety (90) days after receipt of the goods, whilst any processing of or other operations involving the goods in question must be halted immediately.
6.5 The customer shall afford Top Vision all the co-operation required by the company for investigation of a complaint, inter alia by the making available of sample material and/or by enabling Top Vision to conduct or cause to be conducted an on-the-spot investigation into the quality and/or quantity of the goods delivered.
6.6 In the event that Top Vision regards a shortage or defect in the goods delivered as having been proved, it shall have the choice either of re-supplying the apparently unsatisfactory goods free of charge or of allowing the customer a mutually agreed discount on the purchase price. In the first mentioned case the customer shall, at Top Vision’s request, return the unsatisfactory goods to it carriage paid.
6.7 Top Vision will not accept any liability for shortages or defects caused by or to the delivery due to the fault or other act of the customer or third parties or due to extraneous causes.
6.8 Top Vision shall have no obligations over and above those resulting from this clause; in particular, Top Vision will under no circumstances be liable for direct or indirect consequential losses which might arise from non-delivery, late delivery, wrong delivery or a shortage or defect in the goods delivered.
7. LIABILITY
7.1 Save in cases of intent or gross negligence, which must be proved by the customer, Top Vision will accept no liability whatsoever for any loss, of whatever kind and however caused, if such loss exceeds the value of the work to be performed by Top Vision or a proportionate part thereof.
7.2 In the event that an order for supply or execution of work is placed for the account of two or more natural or legal personalities, such persons shall be severally liable for compliance in its entirety with the ad hoc obligation resulting from the agreement.
7.3 In placing an order for the manufacture/assembly, reproduction or duplication of material protected by rights of authorship or any industrial ownership right, the customer declares that no right of authorship or industrial ownership right of any third parties will thereby be infringed and he shall save harmless Top Vision in legal actions and extra-judicially from all consequences, both financial and otherwise, resulting from manufacture/assembly, reproduction or duplication.
7.4 Top Vision will not be liable for any inaccuracies in indications of freight charges, fees and expenses made to it by third parties.
7.5 Nor will Top Vision be liable if any incorrect freight charges, costs and fees are applied. Any claims made at the time or subsequent additional claims made under this head shall be payable by the customer.
7.6 In the event of the non-punctual and/or incomplete provision of data by the customer, Top Vision will accept no liability for punctual and complete processing of such data nor for the consequences thereof for the customer.
7.7 Nor will Top Vision accept any liability for faults or incompleteness as a result of the furnishing by the customer of incorrect data or as a result of the non-processing of data which had not expressly been notified or made available to Top Vision.
8. RETENTION OF TITLE
8.1 Notwithstanding the fact that they may actually already have been delivered, ownership of the goods shall not pass to the customer until he has paid Top Vision all that he owes under whatever head.
8.2 In respect of those goods mentioned in 8.1 of this clause, Top Vision shall, insofar as is possible, also retain (joint) ownership as security for all its outstanding claims against the customer in the event that such goods have been processed or made the subject of any other operation or if, Top Vision, such payment not having been made, would otherwise be deprived of the ownership thereof by any act of the customer.
8.3 Until further notice the customer will be entitled to sell and supply the goods delivered to him to third parties within the normal conduct of his business, provided always that, upon a first request by Top Vision, he shall assign to the latter the claims acquired by him against his own customers from such sales. The customer hereby confers now and for the future irrevocable authority upon Top Vision to proceed to collect the claim(s) in question.
8.4 No lien of whatsoever kind may be constituted by the customer on the goods, nor may he cause such goods to be given as security for a claim by a third party.
8.5 Top Vision shall be entitled at any time to remove or cause to be removed the goods it has delivered from the premises of the customer or the keepers thereof if the customer has failed to honour his obligations to Top Vision. The customer shall be obliged to afford his co-operation to this end and he shall pay a contractual penalty of f 1,000.– for each day that he remains in default .
9. RIGHT OF OWNERSHIP AND COPYRIGHT
9.1 The customer hereby undertakes to employ the designs delivered only for his own use and not, in any manner whatsoever, and whether for valuable consideration or not, to make them available to third parties.
9.2 All rights of an industrial or intellectual nature, including, inter alia, rights of authorship or copyright, in respect of the designs originating from or used by Top Vision etc. are and shall remain, both during the execution of the order and thereafter, the express, exclusive and inalienable property of Top Vision, irrespective of any share in the creation of such designs etc. by the customer or third parties thereby enlisted. The exercise of such rights – including disclosure or transfer of data – shall, both during and after execution of the order, be reserved expressly and exclusively to Top Vision.
9.3 The customer shall save harmless Top Vision from claims by third parties based on improper use or infringement of rights of authorship or copyright by Top Vision from the use of designs etc. provided by the customer.
10. PAYMENT
10.1 In the event that execution of an order extends beyond a period of one month or if, in the opinion of Top Vision, the sum involved in the order justifies this, the company shall be entitled to demand payment or payment in advance or payment in instalments. Top Vision shall be entitled, irrespective of the agreed payment condition, to require adequate advance security for payment or to require same during execution of an order.
10.2 All payments for deliveries in the Netherlands must be made within thirty days of the invoice date net cash without any deduction and in valid Dutch currency. All payments for deliveries outside the Netherlands must be made in advance net cash and without deduction in an agreed currency.
10.3 In the event that credit terms longer than thirty days after the invoice date are allowed or if improper use is made of such terms, the customer shall pay interest on the invoice amount to the value of 1 % per month or part of a month commencing on the date on which the invoice amount becomes due for payment; in each case after a period of one year the customer shall pay the aforementioned interest on the interest then accrued. If and to the extent that the statutory rate of interest is higher than the rate mentioned herein, it shall be the statutory interest which is charged.
10.4 All costs incurred by Top Vision to enforce its rights shall be payable by the customer. Such costs shall be at least 15 % of the sum involved and will be not less than f 100.
11. DISPUTES
11.1 A dispute shall be deemed to exist as soon as one of the parties declares this to be the case.
11.2 All agreements with and transactions involving Top Vision shall be subject exclusively to the laws of the Netherlands.
11.3 All disputes, of whatever kind, shall be justiciable before the competent Dutch courts to the exclusion of all other arbitration, advisory or jurisdictional authorities.
12. CONCLUDING PROVISIONS
12.1 In all cases in respect of which these General Conditions make no provision, the decision shall reside exclusively with Top Vision.
