GENERAL TERMS AND CONDITIONS
General Terms and Conditions TELESCOPIC MAST B.V. (Netherlands Chamber of Commerce: 68894163)
Version dated January 2023
Article 1 Scope of these General Terms and Conditions
1.1. These General Terms and Conditions (the ‘Terms and Conditions’) apply to every offer and every contract between Telescopic Mast BV, referred to below as ‘Telescopic’, and a Buyer.
1.2. Once the Buyer has contracted with Telescopic under these Terms and Conditions, or if the Buyer is otherwise familiar with these Terms and Conditions or can reasonably be expected to be familiar with them, then these Terms and Conditions shall also apply in full to subsequent contracts, even if a reference to these Terms and Conditions or a declaration of applicability thereof has not been expressly made at the time of the conclusion of the relevant contract.
1.3. In the event of any difference in meaning between different language versions of these Terms and Conditions, the Dutch text and explanation in accordance with Dutch law shall always prevail.
1.4. Telescopic expressly rejects the applicability of any other general terms and conditions (including purchasing conditions) or stipulations.
Article 2 Contract
2.1. All offers of Telescopic are subject to contract. Offers may therefore be revoked by it immediately after the contract has been accepted by the Buyer.
2.2. There is no binding contract with a Buyer until Telescopic has accepted the Buyer’s order in writing or Telescopic executes the order placed.
Article 3 Prices, quantities and order documentation
3.1. The prices charged by Telescopic are in euros and exclude VAT, transport costs, import duties and other government levies, unless expressly agreed otherwise in writing.
3.2. The price offered shall be valid only for the specific order and the quantities offered therein.
3.3. Telescopic is not obliged to honour a contract at a stated price that is based on an apparent printing or typesetting error or is clearly not in line with the market.
3.4. Telescopic is entitled to increase prices, without the Buyer being entitled to terminate the contract, by the levies or increases in levies, such as excise duties and taxes, not yet known on the day the contract is concluded. These levies must be paid by the Buyer as part of the price. Telescopic shall not be liable to pay compensation to the Buyer in the event of any increase.
3.5. Deviations from the agreed price up to a maximum of 10% of the price are considered reasonable, unless the Buyer demonstrates that it cannot reasonably be bound by such increase.
3.6. If in an order the quantity ordered differs from the standard quantity used by Telescopic or a multiple thereof, Telescopic is free to supply the next higher quantity and the Buyer is obliged to pay for it.
3.7. The Buyer shall specify in writing at the time the order is placed, or at Telescopic’s first request, which data, specifications and documents are required by the regulations of the country in which delivery is to be made.
Article 4 Warranties
4.1. If goods are supplied by Telescopic with a warranty, the warranty conditions and manufacturer’s/operating instructions apply to the goods.
4.2. If the Buyer makes a valid claim under the warranty, Telescopic will either repair or replace the goods, as Telescopic sees fit.
4.3. In any case, a claim under a warranty on cannot be made, inter alia:
a. until the Buyer has fulfilled all payment obligations;
b. if there is intent or gross negligence on the part of the Buyer or a third party;
c. if manufacturing/operating instructions have not been observed;
d. if changes have been made to the goods;
e. in the event of normal wear and tear;
f. if the assembly or repair to the goods has been carried out by third parties without Telescopic’s written consent;
g. if the assembly or repair has been carried out on the goods by a third party and this does not comply with the applicable regulations, regardless of whether Telescopic has given written consent to the assembly or repair by a third party;
h. in the event of a negligible/small failure, as described in Article 8 of these Terms and Conditions;
i. if the cause of the defect is external to the goods.
4.4. The provisions of the preceding section shall be at the discretion of Telescopic or such expert as it engages (Notified Body).
Article 5: Delivery
5.1. Unless expressly agreed otherwise in writing, delivery by Telescopic to the Buyer shall always take place in accordance with Incoterm ex works: ‘ex works / location Telescopic) as referred to in the most recent version of Incoterms of the International Chamber of Commerce (ICC).
5.2. Unless expressly agreed otherwise in writing, transport costs shall be paid by the Buyer. Delivery and transfer of the risk of the goods (loss, theft, damage, and defects) to the Buyer occurs when the goods are placed at the disposal of the Buyer or the first carrier from Telescopic’s warehouse (location) in the Netherlands.
5.3. Telescopic is entitled to make partial deliveries and invoice the Buyer for each partial delivery. Contrary to Article 73 of the Vienna Sales Convention each delivery should be regarded as a separate contract.
5.4. The delivery times stated by Telescopic are always approximate and therefore do not constitute a deadline. Telescopic shall not be in default with regard to delivery times until it has been given a legally valid notice of default and a reasonable period of time in which to deliver.
5.5. Delay in delivery – for whatever reason – does not entitle the Buyer to suspend the performance of any of its obligations to Telescopic.
5.6. In the event of a delay in delivery due to a change in any circumstances, the delivery period shall be extended by the duration of the delay. Delayed delivery does not give the Buyer the right to terminate the contract or to claim compensation.
5.7. The Buyer must take delivery of the goods at the agreed times and place. In addition to Article 75 of the Vienna Sales Convention, if the Buyer does not take delivery at the agreed time or place, or does not provide information or instructions necessary for delivery, the Buyer shall be in default and the goods shall be deemed to have been delivered. Telescopic may then decide:
a. to store the goods (or have them stored) at the Buyer’s expense and risk and charge the Buyer for all costs incurred, including the full costs of the relevant insurance and (additional) transport costs, or in any event charge the Buyer compensation of 15% of the invoice amount including VAT; or
b. to sell the goods at their market price – having regard to any decrease in value or decline in quality thereof – in which case the Buyer must pay Telescopic the outstanding amount of the purchase price, less any monies already received, plus storage costs, additional transport costs and costs of the relevant insurance.
Article 6 Force majeure
6.1. Force majeure on the part of Telescopic shall in any case, but not exclusively, occur if, after entering into the contract(s), it is prevented from fulfilling its obligations thereunder or from preparing to do so as a result of war, war damage, civil war, threat of war, riots, blockade, boycott, piracy terrorist actions, explosions, natural disasters, epidemics and pandemics that may affect Telescopic’s business, late delivery of goods (by suppliers), prevention and interruption of transport facilities, lack of raw materials, acts of war, fire, flooding, (volcanic) ash cloud(s) strikes and sit-down strikes (both organised and unorganised), lock-outs, import and export obstructions, government measures, defective machinery, disruptions in the supply of energy, late delivery of necessary raw materials and/or auxiliary materials (from suppliers), sickness among staff and/or absence of employees who are crucial for the delivery equipment or facilities, both at Telescopic’s premises and those of third parties, such as suppliers, from whom Telescopic has to obtain all or part of the required materials or raw materials, as well as during storage or during transport, whether or not under its own management, and all other matters that arise through no fault or risk of Telescopic. This list is not comprehensive.
6.2. During and after force majeure, Telescopic’s delivery and other obligations shall be suspended until it is again able to deliver.
6.3. If the period of force majeure continues for more than 3 months and after notification by Telescopic, either Telescopic or the Buyer may terminate the unperformed part of the contract without either party thereby being liable to compensate the other.
6.4. If Telescopic has already fulfilled part of its obligations when the force majeure situation arises or is able to fulfil a part of its obligations, it is entitled to separately invoice the part delivered or the part that can be delivered and the Buyer must pay this invoice as if it were a separate contract.
6.5. In the event of force majeure, Telescopic is not liable to compensate the Buyer, and the Buyer has no claim for compensation.
Article 7 Retention of title
7.1. The sale and delivery are subject to a comprehensive retention of title. Ownership of goods sold, delivered and to be delivered, including goods already paid for, is reserved until all claims – including interest and costs – of Telescopic against the Buyer under the purchase contracts and related services have been settled.
7.2. Until ownership of the delivered goods has passed to the Buyer, the Buyer may not pledge or transfer ownership of the goods, or grant any other security right to them to third parties for debts, loans or other financial arrangements. In the event of a breach of this provision, the purchase price becomes immediately payable in full.
7.3. The Buyer must:
a. properly store and secure the goods delivered under retention of title under the right conditions (such as but not limited to temperature, humidity, light, etc.) and also insure and keep them insured against fire, explosion and water damage, and theft. Make the said insurance policy and also the proof of payment of the premium thereof available for inspection by Telescopic on first request.
b. keep the goods delivered under retention of title with due care and as recognisable property of Telescopic. In the event of a breach of this provision, the purchase price becomes immediately payable in full.
c. pledge all claims of the Buyer against the insurer in relation to the goods delivered under retention of title to Telescopic in accordance with Book 3 Article 239 of the Dutch Civil Code.
d. immediately inform Telescopic if third parties claim any rights in respect of the goods it has delivered to the Buyer and/or in the event Telescopic still has any amount to claim from the Buyer by virtue of the delivery of those goods. Telescopic shall in that case be entitled to immediately take possession of the relevant goods. In such a case, the Buyer shall be liable for all costs thereby incurred. Telescopic shall not be obliged to deliver these goods until it has been paid in full or adequate security has been provided in respect of its claim (s).
7.4. From delivery, the Buyer shall bear the risk of loss, damage or any other deterioration in the value of the goods.
7.5. Telescopic is authorised, if the Buyer is late with payment or if there is good reason to believe that the Buyer will not pay or will pay late or is or is likely to be in payment difficulties, to take possession of its property and sell it to third parties.
7.6. In the event that Telescopic claims the goods subject to retention of title as its property pursuant to section 1 of this article, the Buyer hereby unconditionally and irrevocably authorises Telescopic, or third parties to be appointed by Telescopic, to enter all those places where Telescopic’s property is located and to repossess those goods if the Buyer remains in default. Telescopic will be granted access failing which it may claim an immediately penalty of €1,000.00 for each day the breach continues, without having to give the Buyer notice of default. The costs arising from exercising the retention of title by Telescopic are the liability of the Buyer.
7.7. If Telescopic claims goods as its property and recovers those goods, it will send the Buyer a credit note for those goods in the amount of the market value of the recovered goods at the time of recovery. The market value is in any case equal to the purchase price realised by private or public sale, as Telescopic may choose, and without prejudice to the right to other compensation.
7.8. If and to the extent that the country of destination of the goods has more far-reaching possibilities regarding retention of title, those more far-reaching possibilities shall apply.
Article 8 Inspection, complaints, defects
8.1. The Buyer must check immediately on delivery that the number (packages), weight and visible quality of the delivered goods correspond to the order and shipping documents. Deviations should be reported immediately upon delivery on the (CMR) delivery note and immediately to Telescopic in writing, failing which the delivery shall be considered correct in fact and in law. The rebuttal evidence thereafter rests with the Buyer.
8.2. The Buyer must straight away, and in any event within 24 hours following delivery, inspect or engage another party to inspect the delivered goods for latent and patent defects. By ‘latent defects’, Telescopic means defects such as not immediately visible transport damage, cold-temperature damage, mechanical damage and any other damage that could have been detected as a result. Any complaint must be made in writing to Telescopic within 24 hours following the inspection. The validity of a complaint will only be accepted if the complaint is accompanied by a quality report and photos of the defects, quoting the article and invoice numbers. In the absence of any quality report and photos, or if the complaint is made too late, the right to successfully complain and recover compensation is lost.
8.3. Any right of claim by the Buyer against Telescopic relating to faults in the delivery or defects in or to goods supplied by Telescopic shall lapse irrevocably as soon as the said complaint periods have elapsed, as well as in those situations in which the Buyer fails to cooperate sufficiently with Telescopic in respect of an investigation by Telescopic into the merits of the complaint. The goods to which the complaints relate must remain available to Telescopic for possible inspection, in the condition the goods were in at the time the defects were discovered.
8.4. Any right of claim of the Buyer shall lapse after the Buyer has taken the delivered goods into use, processed or treated them, allowed them to mature, or resold them to third parties.
8.5. Any complaint about an invoice must be made in writing within 8 working days from the date of the relevant invoice, failing which all rights and claims relating thereto are lost.
8.6. The delivered goods are sound if they comply with the specific legal (usage or hygiene) regulations applicable within the European Union.
8.7. If the Buyer has specific requirements of the goods to be delivered, it must explicitly indicate this in writing before and at the time of entering into the contract, and must be specifically confirmed in writing by the Supplier, failing which the goods cannot be considered as defective if they do not meet these requirements or if they turn out not to be suitable for this purpose.
8.8. If the goods contain deviations that are not essential (including minor deviations in quality, in colour, size, quantity, weight, or design, etc.) and/or do not lead to a substantial limitation of the functionality of the goods and/or do not result in the goods no longer possessing the functionality necessary to be used for the specific purpose for which the Buyer purchased the goods, such deviations do not constitute a defect.
8.9. Complaints relating to less than 5% of the invoice amount or of the invoices together of the delivered goods to which the complaint relates shall not be regarded as a defect.
8.10. Return shipments will only be accepted by Telescopic after it has given express written consent to the Buyer. Return shipments are made at the expense and risk of the Buyer.
8.11. If the Buyer returns any items without Telescopic’s prior written consent, all costs associated with return shipment shall be borne by the Buyer. Telescopic shall then be free to store the goods (or have them stored) with third parties at the expense and risk of the Buyer at a minimum of 15% of the invoice amount including VAT, without prejudice to the right to compensation for full loss.
8.12. If there is a justified complaint, Telescopic retains the option either to:
– replace the goods; or
– give a price reduction.
The Buyer cannot object to the choice made. Nor can the Buyer ever claim compensation from Telescopic in this type of situation. Telescopic’s liability is limited to the value of the goods delivered in respect of which a complaint was made.
8.13. (Legal) claims of the Buyer on account of non-conformity, deviations in weight or numbers must be brought before the court which has jurisdiction according to these Terms and Conditions within 12 months after notification of complaint, at the risk of forfeiting all rights and claims, unless rights under applicable treaties, laws or regulations have expired earlier, failing which all rights and claims will lapse.
Article 9 Payment
9.1. The payment period is 30 days from the invoice date, unless expressly agreed otherwise in writing
9.2. The payment deadline (section 1) is a deadline. If it is exceeded, the Buyer is immediately in default, such that service of a notice of default is not required.
9.3. The Buyer is not allowed (including in the case of any complaint):
a. to suspend payment in full or in part. Suspension by the Buyer is expressly excluded;
b. to set off. Set-off by the Buyer is expressly excluded.
9.4. From the moment of default, the Buyer owes:
a. interest of 1.5% per month on the total outstanding amount. A part of a calendar month is considered a whole calendar month;
b. extrajudicial collection costs, which are set at a minimum of 15% of the amount due including VAT, or € 500.00 excluding VAT, whichever is more, without prejudice to Telescopic’s right to compensation for further loss;
c. all judicial costs incurred by Telescopic in order to enforce compliance with the Buyer’s obligations. This includes in any case all costs incurred by its legal representative, in deviation from the flat-rate compensation system provided by law. Judicial costs also include the costs of filing for bankruptcy as a means of collection.
9.5. Payments made by the Buyer after transfer to an external collection party by Telescopic shall always first be applied to reduce costs due, then interest falling due and then invoices. This order applies irrespective of any stipulate of the Buyer to the contrary at the time of payment.
9.6. All claims of Telescopic are immediately due and payable and the Buyer is immediately in default if:
a. the Buyer fails to fulfil, in time or properly, any of the obligations under any contract with Telescopic, or related, prior, or subsequent contract;
b. the Buyer has filed or intends to file a petition for a moratorium or has been granted a moratorium;
c. a petition for bankruptcy is filed by the Buyer or against the Buyer, the Buyer or a third party intends to file a petition for bankruptcy or the Buyer is declared bankrupt;
d. Telescopic otherwise has reasonable doubts about the Buyer’s ability to pay, as a result of which the Buyer is unable to meet its obligations, at Telescopic’s discretion;
e. an application under the Natural Persons Debt Rescheduling Act (WSNP) has been filed by the Buyer or the WNSP is declared applicable to the Buyer;
f. an attachment order (pre-judgment or post judgment) is obtained by a third party against the Buyer;
g. a legal entity Buyer is dissolved and liquidated or if a natural person Buyer dies or is no longer able to conduct their business;
9.7. In any situation, including but not limited to, situations a to g, Telescopic shall be entitled to suspend delivery of the goods until the Buyer has provided payment in advance or adequate (additional) security for claims and/or payment for the goods to be delivered. The Buyer shall pay in advance or provide proper (additional) security at Telescopic’s first request.
9.8. After the Buyer has fulfilled its obligations and/or provided sufficient security, Telescopic shall determine the new delivery time which, taking into account the possibilities then existing in Telescopic’s business and/or in the business of Telescopic’s suppliers, is required to deliver or process the goods.
9.9. If the Buyer fails to provide payment or (additional) security, Telescopic may store the goods in accordance with Article 5 section 7(a) or sell them in accordance with section 7(b). Telescopic is not liable to compensate the Buyer as a result of this non-delivery.
Article 10 Liability
10.1. Telescopic is not liable for any loss suffered by the Buyer, except and insofar as the Buyer proves intent, gross fault or deliberate recklessness on the part of directors on the board of directors or the company management.
10.2. ‘Loss’ here includes loss resulting from the event from which the liability arises (breach of contract), loss due to termination, loss based on breach of a legal obligation and loss based on tort.
10.3. Telescopic is not liable for:
a. non-essential items that differ from those described in the contract, such as weight or external features. These examples are not limitative;
b. defects caused by the fact that the goods are stored during transport (even if this is carried out at Telescopic’s expense) or at the Buyer’s or third party’s premises under incorrect conditions, such as incorrect temperature or humidity, or incorrect packaging. These examples are not limitative;
c. defects occurring to the goods during transport (even if this is carried out at Telescopic’s expense) or on the part of the Buyer or third parties when loading or repacking the goods. In particular, damage to the galvanic protective layer of an item are the responsibility of the Buyer and should be recovered from the carrier or the third party. The cost of any repairs will not be borne by Telescopic. This example is not limitative;
d. defects in the delivered items due to the fact that the Buyer processes the items or allows them to be processed, installs the items inexpertly (according to the user manual supplied), fails to maintain or treat them (e.g. cleaning or chemicals) in a timely or correct manner. These examples are not limitative. More specifically, Telescopic is not liable if loss is caused by the Buyer handling items in accordance with the user manual. The burden of proving that the loss is not due to transport lies with the Buyer.
e. (delay) damage caused by keeping the items for too long;
f. intentional damage, negligence, misuse of the goods. This list is not limitative;
g. complaints about goods that pertain to 5% or less of the total product value;
h. damage caused by delay of transport, including air transport (aircraft), delay of (customs) clearance;
i. pure financial loss, personal injury, death, lost profit, lost turnover, missed savings, loss of goodwill or similar losses howsoever arising, labour costs, loss due to stoppages and business stagnation, interest costs, repair costs, transport costs and fines, suffered by the Buyer, its subordinates and persons employed by or on behalf of the Buyer, irrespective of how such loss is described (direct, indirect, consequential).
10.4. The maximum and cumulative liabilities for Telescopic on whatever legal ground(s) are expressly limited in their totality to (at Telescopic’s option):
a. Replacing the ordered items, to which the complaints relate;
b. Up to the amount paid out by the insurance company in the relevant case plus the excess. If, for whatever reason, no payment is made under the insurance policy, liability for loss shall be expressly limited to 50% of the invoice value of the items on which the loss was established with a maximum of €25,000.00.
10.5. Any further liability (or risk thereof) is expressly excluded and should be insured by the Buyer itself.
10.6. Telescopic is entitled to have the loss assessed by such independent expert (Notified Body) as it chooses to engage. The Buyer must allow the expert engaged by Telescopic to investigate. An investigation by an independent third party or expert shall not be considered a binding opinion.
10.7. Legal action for loss must be brought before a court with jurisdiction under the relevant contract no later than 12 months after the loss arose, failing which all rights and claims are lost, unless rights under applicable treaties, laws – or regulations have lapsed earlier.
10.8. The Buyer indemnifies Telescopic for (all consequences of) third-party liability in relation to goods supplied to the Buyer by Telescopic. Third-party claims will therefore not be accepted by Telescopic. A Buyer should also insure itself (additionally) for this.
10.9. If and to the extent that there is any loss to a Buyer for which the transporter is insured (and has cover) or if any head of loss is covered by a warranty provided by Telescopic expressly – or on the basis of a legal obligation – then the Buyer should make this unequivocally known to Telescopic in writing and Telescopic will endeavour to deal with such a request promptly.
10.10. In the event of a warranty claim by the Buyer, the goods in question (or parts thereof) must be returned to Telescopic in their original packaging and undamaged as far as possible, if desired under conditions to be specified by Telescopic.
Article 11 Intellectual property rights
11.1. The Buyer shall refrain from any infringement of any copyright and any other rights of intellectual or industrial property as well as similar rights, including trademark rights, patents, patents and confidential business information within the meaning of Section 1 of the Trade Secrets Protection Act, in respect of goods supplied to the Buyer by Telescopic, including products and the drawings, models, moulds, forms made by or on behalf of Telescopic and anything related to the execution of the order. The said items remain the property of Telescopic, even if the Buyer has been charged for them, unless otherwise agreed in writing.
11.2. Unless otherwise agreed in writing, the Buyer is not allowed, inter alia:
a. to change or remove, or cause to be changed or removed, any indication in or on items concerning rights as referred to in section 1 of this article, such as brands or trade names of Telescopic or third parties;
b. to reproduce, disclose or alter, in whole or in part, any items supplied by Telescopic to the Buyer as referred to in section 1.
11.3. If the Buyer learns of third parties in any way infringing the intellectual or industrial property rights referred to in this article, the Buyer must immediately notify Telescopic in writing. The Buyer must on first request provide Telescopic with any further information or follow its instructions.
11.4. If Telescopic manufactures goods for the Buyer using items provided by the Buyer or manufactured in accordance with the Buyer’s instructions, such as drawings, models, moulds, shapes or other data, the Buyer guarantees Telescopic that no intellectual or industrial property rights of third parties are infringed. The Buyer indemnifies Telescopic for third-party claims alleging infringement of an intellectual or industrial property right.
11.5. If Telescopic learns that the manufacture and/or supply of goods breaches any third-party right, Telescopic is entitled without further notice to cease manufacturing and/or supplying the relevant goods and/or to terminate te contract, without being liable for compensation. In such a case, the Buyer must compensate Telescopic for any loss suffered by Telescopic, including lost profit.
11.6. If the Buyer fails to comply with the obligations under this article, then without further notice of default, it shall be in breach and shall forfeit to Telescopic an immediately payable penalty of €5,000.00 per breach plus a penalty of €2,500.00 per day for each day that the breach continues, up to a maximum of €100,000.00, without prejudice to Telescopic’s right to claim compensation for the full amount of its loss.
Article 12 Termination of contract
12.1. Unless otherwise agreed in writing, contracts are to be regarded as separate contracts and there is no continuing performance contract that needs to be terminated.
12.2. If and insofar as the Buyer can prove in writing that this is a continuing performance contract then, unless otherwise agreed, the contract can always be terminated in writing subject to a notice period of 3 months (to be calculated from the last working day of the month) without any obligation to pay compensation for loss thereby caused.
12.3. If the Buyer fails to comply with one or more contracts, Telescopic has the right to suspend or terminate the remaining contracts given the sensitivity and nature of the product.
12.4. In the event of termination of the contract(s), Telescopic shall in any case be entitled to the following compensation:
a. Termination before delivery: 50% of the agreed amount as per contract;
b. Termination after delivery: 100% of the agreed amount as per contract.
Both in case (a) and case (b) without prejudice to Telescopic’s right to full damages, including loss of profit.
12.5. Section 4 of this article also applies if Telescopic agrees to termination otherwise at the request of the Buyer.
Article 13 Recall provision
13.1. If Telescopic deems it necessary to make a product recall for any reason, the Buyer must cooperate with any measures Telescopic deems necessary to mitigate loss, failing which it is liable to pay an immediately payable penalty.
13.2. If the Buyer discovers that the items delivered (may) require a product recall, the Buyer should contact Telescopic immediately.
13.3. If the Buyer fails to comply with the obligations under this article, it shall owe an immediately payable penalty of € 5,000.00, plus a penalty of € 1,000.00 per day for each day that the breach continues, without prejudice to the right of Telescopic to compensation for the full amount of its loss.
Article 14 Disputes and applicable law
14.1. Contracts between the parties are governed by Dutch law.
14.2. Any dispute related to and/or arising from the contract shall be settled exclusively by the Court of Oost-Brabant for the district of ‘s-Hertogenbosch, unless any provisions of mandatory law dictate otherwise.