1.1 – These conditions apply to all quotations, offers and agreements concerning the sale and delivery of goods by us to a buyer.
1.2 – In these conditions a “buyer” is to be indicated as all natural persons or legal entities, who, while acting as a (future) buyer client or otherwise, start negotiations with us and/or agree with us upon one or more contract(s) involving goods to be delivered, even if several natural persons or legal entities act jointly. The term “buyer” includes its successors, assigns and authorised representative(s). References to “we”, “our” or “us” in these conditions, shall be interpreted as references to Titan Wood B.V., trading as Accsys Technologies.
1.3 – The applicability of general conditions used by the buyer is explicitly excluded. By giving us an order to deliver any goods the buyer waives its right to invoke the provisions of its general conditions, as a result of which our general conditions are applicable to all agreements entered into by us. Any other terms which are implied by trade, custom, practice or course of dealing are also explicitly excluded.
1.4 – Deviations from these conditions are only binding to us if, and to the extent that, this is confirmed in writing by us.
1.5 – If a provision embodied in any agreement appears to be legally invalid, we have the right to replace that provision, considering the nature and contents of the agreement, the way consensus is reached, the mutually known interests of both parties as well as the other relevant circumstances, by a provision which is not unreasonably onerous to the buyer and approximates the meaning of the legally invalid provision as closely as possible. The remaining provisions of these conditions continue to apply unimpaired.
1.6 – In case of any conflicts between translations of the text of these conditions, the English text shall prevail.
1.7 – In case of any conflicts between the provisions of an agreement between us and a buyer and the text of these conditions, the provisions of the agreement shall prevail.
2.1 – All quotations, in whichever form presented, are without any obligation, unless, and to the extent that, we have confirmed in writing that the quotation is binding.
2.2 – The forwarding of a quotation and/or (other) documentation and/or samples does not oblige us to accept any order or to perform any delivery, unless otherwise is agreed.
2.3 – All quotations are valid for a period of seven days from the date of such quotation.
2.4 – We have the right to, without giving an explanation, refuse a purchase order.
3.1 – Each purchase order or acceptance of a quotation for the purchase of goods by a buyer from us shall be deemed to be an offer by the buyer to buy goods subject to these terms and conditions. No purchase order placed by the buyer shall be deemed to be accepted by us until a written confirmation of order is issued by us or (if earlier) we deliver goods to the buyer. A confirmation of order issued by the authorised persons within our organisation results in a binding agreement between us.
3.2 – We are entitled to refuse an order(s) or to attach certain conditions to the supply of the goods. The fact that we have supplied goods to the buyer on any regular basis in the past will not lead to the creation of an continuing performance agreement (duurovereenkomst), an agreement concluded for a specific duration, or any other agreement of any nature whatsoever, between the parties, nor will it mean that we are obliged to accept new order(s).
3.3 – Where our order confirmation is incorrect, written objections should reach us within seven days of the date of the order confirmation. Thereafter the order confirmation shall be deemed accurate.
3.4 – Possible additional arrangements or adjustments, as well as (oral) arrangements, representations, and/or promises made by our personnel, or made on behalf of us by our salesmen, agents, representatives or other affiliates, are only binding to us if, and to the extent that, these arrangements, adjustments and/or promises are confirmed in writing by the authorized persons within our organisation.
3.5 – We shall at any time be entitled to terminate the negotiations with the buyer and to withdraw any quotations that have been made before an agreement is entered into in accordance with these conditions, without being held liable for compensation of any costs, expenses or damages.
3.6 – If an agreement has come into effect according to the provisions of this section, the buyer is not entitled to cancel this agreement unilaterally.
3.7 – The buyer guarantees that the information provided to us is correct and complete. Any failures in the delivery of goods by us that are the consequence of incorrect or incomplete information originating from the buyer cannot be attributed to us. The buyer shall be liable for the damages, including extra costs that result from this incorrect or incomplete information.
3.8 – The buyer shall be held at all times to provide its reasonable assistance to enable us to perform the agreement in accordance with our obligations in respect thereof.
4.1 – Unless agreed otherwise in writing, our prices are Ex Works (Incoterms 2010) our company, actual production site or warehouse as the case may be (as confirmed by the company), denominated in Euros and exclusive of VAT. Fluctuations in exchange rates shall be for the risk and account of the buyer.
4.2 – We may, by giving notice to the buyer at any time up to 30 days before delivery, increase our prices to reflect any increase in the cost of the goods that is due to any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs).
5. Payment and security
5.1 – We may invoice the buyer for the goods before, on or at any time after the completion of delivery.
5.2 – Payment in full is due within thirty days after the invoice date and has to be made in the Netherlands, unless otherwise agreed in writing. The buyer does not have a right of suspension, set-off, deduction or withholding.
5.3 – We reserve the right to offer terms which specify specific payment against documents at the point of transfer of title of the goods.
5.4 – Payment is considered to have taken place at the moment the amount due has been received for value in our bank account. All costs in connection with payment, including the costs of providing surety, shall be for the account of the buyer.
5.5 – Every payment made by the buyer is applied in the first place to settle the interest due, in the second place to settle the collection charges and administration costs incurred by us, and in the third place to settle the outstanding invoices/debts, starting with the settlement of the invoice/debt longest due.
5.6 – If the buyer has not (fully or timely) fulfilled any obligation towards us, has requested a moratorium, has been declared bankrupt or has gone into liquidation, or if seizure is levied on his assets and/or claims (or any event occurs, or proceeding is taken, with respect to the buyer in any jurisdiction to which it is subject that has an effect equivalent as the aforementioned events), all invoices and claims shall be immediately payable.
5.7 – In respect of any outstanding amounts the buyer has failed to pay in accordance with these terms and conditions the buyer is obliged to pay statutory interest. Such interest shall accrue on a daily basis from the moment mentioned or the due date (whichever is earlier) until actual payment of the overdue amount, whether before or after judgement. The buyer shall pay the interest together with the overdue amount.
5.8 – In the circumstances as mentioned in paragraph 5.6. we also have the right to suspend the (further) performance of our duties for a period of maximum two months and to take back unpaid goods or to declare the agreement as well as other possible agreements with the buyer partially or wholly dissolved, without prejudice to our other rights or remedies. During the period of suspension we have the right, and at the end of this period we are obliged, either to choose for (further) performance of our obligations or to choose for (partial) dissolution of the suspended agreement(s).
5.9 – We have the right to set off any and all claims and /or liability, irrespective of whether these are already due and payable, against any and all claims of the buyer. Any exercise by us of our rights under this paragraph shall not affect or limit any other rights of remedies we may have under these conditions.
5.10 – If the creditworthiness of the buyer is open to serious doubt, we have the right to deliver C.O.D. (cash on delivery), in which case the delivery costs have to be paid by the buyer, or to demand any (further) security in order to secure the fulfilment of its payment and other obligations by the buyer, including, but not limited to, a non-possessory pledge on goods that are to be indicated by us and pursuant to Incoterm 2010. If the buyer is unwilling or incapable to provide the requested security, we are entitled to declare the agreement wholly or partially dissolved, without prejudice to our other rights and without being obliged to pay any damages whatsoever.
6. Delivery risk and term of delivery
6.1 – Unless otherwise agreed in writing delivery takes place Ex Works our company, production site or warehouse as the case may be at the moment the goods are made available to the buyer by being in possession of the (first) carrier. On the moment the goods leave our company, production site or warehouse, the risk of loss or damage to the goods passes on to the buyer. The buyer is obliged either to check at the moment of delivery whether the delivered goods or packaging thereof show a deficit or any visible damage, or to check the goods directly after he has been informed by us that the goods are at its disposal. Where goods are warehoused at the request of a buyer, risk of loss or damage is with the buyer at the point of such request.
6.2 – Possible deficits or damages to the delivered goods and/or the packaging thereof, which have been discovered at the moment of delivery, are to be mentioned by or on behalf of the buyer on the delivery note or the invoice and/or the transport documents, in the absence whereof complaints will not be dealt with. Our administration records are in this respect decisive.
6.3 – Unless otherwise specifically agreed on our order confirmation, the buyer shall accept weights or quantities varying up and until 20% from the contract weight or quantity and shall pay pro-rata for the actual weight or quantity delivered. The weight or quantity stated on our order confirmation shall be conclusive evidence of the weight or quantity delivered.
6.4 – We are entitled to perform by way of partial deliveries, which can be separately invoiced. In that case the buyer is obliged to pay in accordance with paragraph 5 of these conditions.
6.5 – All sales of Accoya wood are subject to our Grading Specifications that detail acceptable sale quality and specifications of Accoya® wood. Our Grading Specifications are available on www.accoya.com or upon request.
6.6 – Terms of delivery are given by approximation only. The terms given are never to be considered as a deadline, unless this is explicitly agreed otherwise in writing.
6.7 – We cannot be obliged to pay any compensation if the term of delivery is exceeded. If the term of delivery is exceeded repeatedly the buyer is entitled to demand for delivery within a reasonable term. If this term is also exceeded the buyer has the right to declare the agreement dissolved, except when we cannot deliver because of force majeure.
6.8 – Notwithstanding paragraph 6.6 we are not liable for any damages or losses caused by late delivery by our suppliers to us.
6.9 – Calculated costs for packaging materials, as well as pallets, are to be reimbursed for the same amount, provided that these materials and pallets, at the expense and risk of the buyer, are returned in a good state and within thirty days after receipt of the buyer. Any special packaging requirements will incur a non-refundable additional charge. Tariffs and other conditions connected to the provision of packaging materials will be incorporated in our offer.
6.10 – If delivery cannot take place due to circumstances, which can be imputed to the buyer, we are entitled to charge the buyer with the costs arising from this delay.
7. Transport and risk
7.1 – The means of transport, packaging, insurance etc. will be, if no specific instructions from the buyer are received, determined by us acting with due care, without accepting any liability whatsoever. Possible specific instructions from the buyer as to the transport, packaging or insurance will only be carried out if the buyer has declared to meet any potential costs and risks involved.
7.2 – The transport of the goods takes place at the expense and at the risk of the buyer, even if the carrier demands that consignment notes, road waybills, etc., contain the provision that all damages and losses related to the transport are at the expenses and risk of the sender unless otherwise agreed beforehand in writing.
8. Retention of title
8.1 – The ownership of the delivered goods remains with us until the buyer has fully fulfilled its payment obligations pursuant to the agreement on which the delivery was based, including possible losses and damages, costs, interest and penalties, even if the buyer has procured security. Until ownership has passed to the buyer, the buyer shall:
(a) hold the goods on a fiduciary basis as our bailee;
(b) store the goods (at no cost to us) separately from all other goods of the buyer or any third party in such a way that they remain readily identifiable as our property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the goods;
(d) maintain the goods in a satisfactory condition, ensure the goods shall at all times be stored dry, cool, frost free, in the original packaging and keep them insured on our behalf for their full price against all risks to the reasonable satisfaction of the buyer. On request the buyer shall produce the policy of insurance to us.
8.2 – The buyer shall not process or alienate the delivered goods other then within the ordinary course of its business.
8.3 – If the buyer defaults in paying any due sum we are entitled to take back all unpaid delivered goods. The buyer authorises us to have the goods returned at its expense. Furthermore the buyer authorises us, as well as any representatives appointed by us, in advance to enter its premises, warehouses, land, factories, building sites, etc in order to enable us to repossess our properties.
9. Force Majeure
9.1 – Our duty to perform our obligations is suspended during the period in which we are unable to perform due to force majeure and, for the avoidance of doubt, we shall not be in breach of these conditions nor liable for delay in performing, or failure to perform, any of its obligations under these conditions if such delay or failure result from a force majeure event.
9.2 – Equivalent to the inability to perform is the situation in which the performance is hampered seriously.
9.3 – ‘Force majeure’ means any circumstance beyond our control, which include, but is not limited to, the following circumstances: a shortage on the market of necessary (raw) materials and/or manpower, labour conflicts, war, war risks, civil war, rioting, fire, earthquake, water damage, flooding, strikes, plant occupation, lockout, im- and export impediments, government measures, machine defects, failures in the (timely) delivery of the necessary (raw) materials, water and/or energy to our company.
9.4 – Equivalent to force majeure are also the circumstances mentioned under paragraph 9.3. occurring in the company of third parties from whom we take up (raw) materials, services, research reports, samples, calculations etc.
9.5 – Equivalent to force majeure is also the situation in which the circumstances mentioned under paragraph 9.3. occur in relation to the storage or transport of goods, whether or not carried out under our own management.
9.6 – If as a result of force majeure the suspension of our performance of (a part of) the agreement lasts longer than three months, both parties have the right to declare (the rest of) the agreement dissolved, by giving the other party not less than 14 days’ written notice.. Neither party will in that case be obliged to pay compensation. Possible advance payments will be refunded, provided that the buyer will pay for our performances until the day of dissolution or (as the case may be) these performances will be set-off in accordance with the invoice amount agreed.
10.1 – We are not liable for any damages or losses caused by whatever reason, except for cases of intentional acts or gross negligence which cannot be excluded in a legally valid way. This exclusion of liability applies to direct and indirect damages or losses, trading losses and other consequential losses, and includes any such liability towards third parties. In case of an alleged intentional act or gross negligence the onus of proof is on the buyer.
10.2 – We are not liable for direct or indirect damages or losses, trading losses and other consequential losses, as well as damages or losses resulting from any liability towards third parties, caused by our personnel or other persons employed by us within the scope of the performance of the agreement (as far as they are not in charge of this performance). This exclusion includes intentional acts as well as gross negligence.
10.3 – Our total liability is at all times limited to the Nett invoice amount of the delivered goods.
10.4 – If we take up goods from third parties our total liability towards the buyer is limited to the extent the third party is liable towards us.
10.5 – We shall have no liability whatsoever on the grounds of infringement of patents, licenses or other third party rights as a result of the use of the information and goods provided by us or on behalf of us to the buyer.
10.6 – In relation to the goods delivered by us, the buyer fully indemnifies us against all claims of third parties related to damages or losses as to which we have excluded liability.
10.7 – We stipulate all legal and contractual defences that we may invoke to fend off our own liability towards the buyer, also for our personnel or other persons employed by us within the scope of the performance of the agreement for whose actions we could be liable under the applicable laws.
10.8 – We are not liable for any defects, damages or losses where our written instructions and/or guidelines for installation or use of our product are not adhered to.
11.1 – Without prejudice to the other provisions of these conditions all complaints related to any defects have to be submitted in writing to us within 30 days after discovery of the defect and otherwise in accordance with Certificate of Guarantee or Warranty under which the goods are sold.
11.2 – Complaints related to invoices have to be submitted within eight days after the date of the invoice.
11.3 – After the expiry of the terms mentioned in the paragraphs 11.1. and 11.2. complaints will no longer be accepted.
11.4 – Acceptance of complaints related to defects in delivered goods will only take place if defects have emerged as a result of material and/or production faults.
11.5 – Under no circumstances does the submission of a complaint by the buyer discharge the buyer from fulfilling its payment obligations towards us.
11.6 – Delivered goods can only be returned after our previous written approval. Transport and all thereto connected costs are in that case at the expense of the buyer, unless otherwise agreed in writing.
11.7 – Time shall be of the essence for the purpose of this paragraph 11.
If the buyer consists of more than one natural person or legal entity, all natural persons and legal entities are jointly and severally liable for the performance of the obligations of the buyer towards us.
13. Shorter limitation period
Without prejudice to the provisions of paragraph 11, all legal actions of the buyer towards us, irrespective of whether they are based on an agreement or statute, can be commenced during one year after the moment on which the limitation period has started according to the Dutch statutory rules. After expiry of the one year-period any legal action is barred.
14. Confidentiality and Non-Competition
14.1 – The buyer shall be held, at all times, to keep secret and confidential any and all information, materials, goods and samples that it has obtained from us and are not publicly available both before or during the course of our relationship and shall not use any of the foregoing for any purpose other than ours and pursuant to written agreement with us.
14.2 – The buyer shall in the use of the information that has come to its knowledge observe the greatest possible care. The buyer shall without our prior written permission not have the right to multiply the relevant information and documentation.
14.3 – The buyer shall oblige its employees to observe secrecy with respect to all information with a confidential nature as referred to hereinbefore in paragraph 14.1. and to our activities. This obligation, and the obligations set out in paragraph 14.1 and 14.2 above, shall apply both during the term of the agreement and after the duration thereof.
14.4 – The buyer and/or its employees shall at the end of the agreement return to us any and all information (or securely destroy at our request), received from us within the framework of the instruction, forthwith.
14.5 – The buyer shall during the term of the agreement as well as during a period of two years after the end of the agreement refrain from (having others) entering into any direct or indirect contractual relationship, howsoever called, with our employees, unless we agree otherwise in writing. The buyer guarantees that the aforementioned obligation will also be complied with by any legal persons with which he is connected in a group as inter alia referred to in Article 2:24 b of the Netherlands Civil Code.
15. Intellectual property
15.1 – We retain full ownership of all information and all intellectual and industrial property rights (and the right to obtain patents, registered designs, design rights, copyright, trade-marks and any other intellectual property rights), including modifications or improvements thereto, with regard to all that has been or is being delivered and/or developed by us or by third parties during or prior to the agreement between us, including, but without limitation price lists, reports, recommendations, samples, calculations, brochures, designs, sketches and drawings, production processes, know-how, technical information and any information obtained from analysis or testing of any products, samples or materials provided by us. The buyer is obliged to return or destroy such data on our first request, carriage paid.
15.2 – The buyer shall never contest or dispute any of our intellectual and/or industrial property rights nor attempt to register one or more of these rights or otherwise try to obtain protection of these rights in its favour.
15.3 – The buyer shall do all such acts and things and sign such agreements and documents as shall be necessary in order to give effect to this paragraph 15.
16. Waiver and Severance
16.1 – No failure or delay by a party to exercise any right or remedy provided under these conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.2 – If any provision or part-provision of these conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these conditions.
17. Compliance with relevant requirements
17.1 – The buyer will, and will procure that its officers, employees, agents and subcontractors, comply with all applicable laws, statutes, regulations and codes relating to anti-bribery, anti-corruption and anti-tax evasion (“Anti-Bribery Laws”), together with all applicable laws, statutes, regulations and codes relating to anti-slavery and human trafficking (“Anti-Slavery Laws”), and have and shall maintain its own policies and procedures to promote anti-bribery, anti-corruption, anti-tax evasion, anti-slavery and anti-human trafficking and such policies and procedures shall ensure compliance with the Anti-Bribery Laws and Anti-Slavery Laws and the buyer will enforce them where appropriate. The buyer further warrants that it is not aware of any bribery, corruption, tax evasion, slavery or human trafficking practices within its business or supply chain.
17.2 – We may dissolve any agreement between us and the buyer immediately by giving written notice to that effect to the buyer if the buyer is in breach of this paragraph 17, without any liability towards us and the buyer shall be responsible for and indemnify us for any damages, claims or losses incurred by us as a result of buyer’s breach of paragraph 17.
17.3 – We are committed to acting with integrity in the way we conduct our business and require the buyer to know, understand and abide by all applicable laws and regulations in the countries in which they conduct business.
18. Applicable law
18.1 – Dutch law is applicable to our legal relationship with the buyer, with the exclusion of the Convention on International Sale of Goods 1980.
18.2 – Concerning the interpretation of international commercial terms, the “Incoterms 2010” as compiled by the International Chamber of Commerce in Paris (I.C.C.), are applicable.
19.1 – All disputes, arising from the legal relationship between us and the buyer, are to be submitted to the Dutch Court which has jurisdiction. If in first instance the District Court has jurisdiction, a dispute has to be submitted to the District Court in Arnhem.
19.2 – The contents of paragraph 19.1. leaves unaffected our right to either submit the dispute to the court which has jurisdiction according to the ordinary rules of jurisdiction or to submit the dispute to arbitration proceedings in accordance with the provisions of paragraph 19.3. The buyer agrees to these rights.
19.3 – In case we will submit a dispute to arbitration proceedings the dispute shall be settled in accordance with the Rules of Arbitration of the International Chamber of Commerce by one or three arbitrators, to be decided by us and appointed in accordance with these Rules. The place of arbitration will be Arnhem, the Netherlands. The language of arbitration will be either English or Dutch at our option.