GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF TradingApe
In these General Terms and Conditions, the following terms shall have the following meanings:
TradingApe: the seller;
Buyer: the counterparty of TradingApe in an agreement as referred to in Article 2.1 of these Terms and Conditions;
Working Days: all calendar days except Saturdays, Sundays, January 1st, Easter Monday, Ascension Day, Whit Monday, Christmas Day and Boxing Day, days proclaimed by the government as national holidays, and the day on which the birthday of H.M. the Queen is officially celebrated;
Days: all calendar days.
2.1
These General Terms and Conditions apply exclusively to all offers and agreements under which TradingApe sells and delivers goods of any kind.
2.2
TradingApe has the right to amend and/or supplement these General Terms and Conditions. In the event of a material change, TradingApe shall notify the Buyer in writing at least one month before such change or addition comes into effect. Unless the Buyer objects in writing within two weeks after the date of dispatch of such notification, the Buyer shall be deemed to have tacitly agreed to the amendment or addition. Any purchasing or other conditions of the Buyer shall only apply if expressly agreed in writing and to the exclusion of these General Terms and Conditions.
2.3
If one or more provisions of these General Terms and Conditions are void, the remaining provisions shall remain in full force.
3.1
All quotations, price lists and similar statements issued by TradingApe are non-binding unless explicitly stated otherwise in writing. Quotations also include any appendices such as price lists, brochures and other data.
3.2
The (purchase) agreement is concluded when the Buyer places an order with Gidion B.V. and such order is accepted by TradingApe. An order is deemed accepted when it is confirmed in writing by TradingApe or when TradingApe proceeds with delivery. Orders placed by telephone, email or otherwise remotely are concluded upon written confirmation by TradingApe, unless the Buyer notifies in writing within two working days after receipt of the confirmation that it does not correctly reflect the agreement.
3.3
The Buyer and/or TradingApe shall be bound by agreements concluded by authorized persons or by persons whom TradingApe and/or the Buyer could reasonably assume to be authorized.
Design drawings, working drawings, detailed drawings, models, software, photographs, samples, designs, logos, stated dimensions, quantities, patterns, colors, materials, technical specifications and/or other data provided by TradingApe are only indicative descriptions of the goods. Only if the goods deviate materially from such data is the Buyer entitled to dissolve the agreement within 8 days after delivery.
TradingApe is not liable for the Buyer’s use of such data unless expressly agreed otherwise in writing.
Ownership of the data mentioned in this article does not transfer to the Buyer. Upon first request, the Buyer must return such data and advertising material at its own expense. Gidion B.V. is not liable for the Buyer’s use of this data unless expressly agreed otherwise in writing.
Any trademark, patent, trade name, design or copyright not belonging to the Buyer in respect of the goods and/or the data referred to in Article 4 shall not transfer to the Buyer. Without prejudice to the foregoing, nothing of the goods or data may be disclosed or provided to third parties without prior written consent of TradingApe.
TradingApe assumes that all data provided by the Buyer is accurate and complete without further investigation. The Buyer indemnifies TradingApe against all third-party claims relating to intellectual property infringements resulting from the use of such data.
If a third party objects to delivery, TradingApe is entitled to suspend or cease delivery and claim compensation from the Buyer without being liable to the Buyer.
7.1
The goods will be delivered by TradingApe or shipped for delivery to the agreed location or locations in the manner specified in the order or subsequently agreed in writing.
7.2
The Buyer is obligated to take delivery of the goods at the agreed location(s) upon first presentation at the moment TradingApe delivers them to the Buyer or arranges for their delivery,
or at the moment they are made available to the Buyer in accordance with the agreement. If the Buyer fails to do so, any resulting costs shall be borne by the Buyer.
7.3
The risk of the goods passes to the Buyer at the time they are legally and/or factually delivered to the Buyer and thereby brought under the control of the Buyer or a third party designated by the Buyer.
7.4
TradingApe is obligated to properly package the goods.
7.5
If transport is at the Buyer’s expense and the Buyer requests TradingApe to arrange the transport, the provisions of Article 4.4 remain in full force and effect.
8.1
TradingApe shall deliver the goods at the time or immediately after the end of the delivery period specified in the order. If a delivery period has been agreed, it shall commence on the date on which the Buyer placed the order. If the delivery period is exceeded, TradingApe shall have the right, without being liable for any compensation, to still deliver the goods no later than 15 working days after the expiry of the delivery period. If TradingApe has not delivered the goods after this additional delivery period, the Buyer shall be entitled, without notice of default or judicial intervention, to terminate the agreement. Termination of the agreement must be made in writing. This termination may also extend to goods already delivered under the same agreement if those goods, according to the agreement, should have been delivered as a set. In the aforementioned situation(s), the Buyer is entitled to return the goods to TradingApe at TradingApe’s expense and risk and to reclaim from TradingApe any payments made for those goods.
8.2
If ordered goods are available to the Buyer but are not accepted by the Buyer, TradingApe shall be entitled to:
either deliver the goods by means of a written notification from TradingApe, in which case the goods shall be stored at TradingApe or with the carrier from the time of dispatch of that notification, at the Buyer’s expense and risk, including the risk of deterioration in quality;
or terminate the agreement with the Buyer in whole or in part in the manner described in Article 9 below and sell and deliver the goods to a third party or parties. In that case, if TradingApe suffers any damage as a result of the Buyer’s failure to accept the goods, the Buyer shall be liable for such damage.
8.3
If no terms have been set for call-off delivery, TradingApe shall be entitled to full payment three months after the order. If within three months the ordered goods have not yet or not fully been called off, TradingApe shall have the right to demand in writing that the Buyer specifies in writing a period within which the total quantity will be called off, to which demand the Buyer must comply within five working days. The goods not yet called off shall, from the first day following that three-month period, be stored at GIDION B.V., at the Buyer’s expense and risk, including the risk of deterioration in quality.
The period to be specified by the Buyer after such demand may not exceed three months.
Article 9. Prices, invoicing and payment
9.1
All prices agreed between TradingApe and the Buyer are net and exclusive of VAT, unless expressly stated otherwise. TradingApe is entitled to increase the agreed prices at any time prior to the conclusion of the agreement as referred to in Article 3.2, by costs resulting from government measures.
9.2
If the invoice amount of a delivered batch is less than €500, TradingApe is entitled to charge an administrative fee of up to €10.
9.3
Payment must be made within the payment term stated on the invoice after the invoice date, without prejudice to TradingApe’s right to request a deposit upon concluding the agreement. However, the Buyer is entitled to suspend payment if a defect in the goods is observed. The Buyer must notify TradingApe of this in writing within the payment term. The right of suspension is limited to the amount corresponding to the price of the goods that were not properly delivered to the Buyer.
9.4
Payment may also be required for partial deliveries.
9.5
Without prejudice to the provisions of paragraph 4, if the Buyer has not paid the amounts due in full within the agreed term, the Buyer shall be in default after the expiry of that term without any notice of default being required. In that case, the Buyer shall owe interest on the outstanding amount from the date the amount became due until the date of payment, at the statutory commercial interest rate pursuant to Article 6:119a of the Dutch Civil Code, without prejudice to TradingApe’s other rights.
9.6
If the Buyer has not paid the amounts due within the agreed term, TradingApe shall also be entitled to collect the claim through legal proceedings, in which case all related costs, set at a minimum of ten percent of the claim, shall be borne by the Buyer.
9.8
In the event of full or partial award of TradingApe’s claims for payment in legal proceedings, the Buyer must reimburse all legal costs incurred by TradingApe, including amounts not awarded by the court, unless TradingApe is the only party ordered to pay the legal costs.
9.9
Payments made by the Buyer relating to invoices for goods shall always first be applied to settle all due interest and costs, and subsequently to payable invoices that have been outstanding the longest, even if the Buyer states that the payment relates to a later invoice.
Article 10. Force majeure
10.1
Force majeure shall mean any circumstance, including but not limited to ice conditions, extreme weather conditions, terrorist attacks, flooding, legal restrictions, strikes, government measures, delays in supply, export bans, riots, war, mobilization, transport disruptions, machine defects, disruptions in energy supply, import restrictions, fire, and all other forms of force majeure which TradingApe or the Buyer could not reasonably have taken into account and as a result of which normal performance of the agreement cannot reasonably be required by the other party.
10.2
TradingApe or the Buyer shall immediately notify the other party in writing if a case of force majeure occurs.
10.3
In the event of force majeure, the other party shall not be entitled to any compensation.
10.4
In the event of force majeure, the parties must agree on arrangements regarding the performance of the agreement concerned.
10.5
If a case of force majeure leads to exceeding the agreed date or term, including any additional delivery period of 15 working days, the other party shall, contrary to paragraph 4, have the right to terminate the agreement concerned by means of a written statement. This termination does not extend to goods already delivered, except for goods which, according to the agreement, should have been delivered as a set (in accordance with Article 5.1).
Article 11. Retention of title and other securities
11.1
Without prejudice to the provisions of these terms, all goods delivered by TradingApe at any time shall remain the property of TradingApe until all claims of TradingApe against the Buyer, falling within the scope of Article 92, Book 3 of the Dutch Civil Code, on any grounds whatsoever and regardless of whether they are due and payable, including interest and costs, have been fully satisfied by the Buyer. Prior to full payment, the Buyer is not entitled to pledge the goods to third parties or transfer possession thereof, except for goods delivered by TradingApe that the Buyer transfers in the normal course of business. In the event of a violation of this provision, as well as in the event of full or partial applicability of Article 12, TradingApe shall have the right, without requiring any authorization from the Buyer or the court, to repossess or arrange for the repossession of all goods delivered by TradingApe from wherever they are located. In such case, all claims of TradingApe shall become immediately due and payable in full.
11.2
The Buyer is obliged to store the goods delivered under retention of title with due care and as identifiable property of TradingApe. The risk of damage to and loss of the goods, as well as any consequential damage, shall pass to the Buyer upon delivery. The Buyer is obliged to insure the goods for the duration of the retention of title against fire, water and explosion damage, as well as theft, and to provide TradingApe with access to the insurance policies upon first request.
11.3
In the event that TradingApe wishes to exercise its rights as referred to in paragraph 1, the Buyer hereby grants unconditional and irrevocable permission to TradingApe or a third party designated by it to enter all places where TradingApe’s property is or may be located and to take possession of such property. Any resulting costs shall be borne by the Buyer.
11.4
If a third party pays the aforementioned claim(s) on behalf of the Buyer, the retention of title shall not lapse; instead, ownership shall transfer to that third party until the Buyer has paid the relevant claim(s) to that third party.
11.5
If, in TradingApe’s opinion, the financial position and/or payment behavior of the Buyer gives cause to do so, TradingApe shall be entitled to require the Buyer, for initial or subsequent deliveries, to immediately provide security in a form payable to Gidion B.V. and/or make an advance payment. If the Buyer fails to provide the required security, TradingApe shall be entitled, without prejudice to its other rights, to immediately suspend further performance of the agreement without being liable for any damages, and all amounts owed by the Buyer to TradingApe on any grounds whatsoever shall become immediately due and payable.
Article 12. Suspension, termination and cancellation
12.1
If the Buyer or TradingApe fails to fulfill any obligation under any agreement with the other party, has been granted or has applied for a suspension of payments, is declared bankrupt, decides to liquidate its business, or if TradingApe or the Buyer obtains information reasonably indicating that the other party will likely be unable to meet its obligations, TradingApe or the Buyer shall be entitled, without judicial intervention, to suspend all agreements existing at that time or to terminate them in whole or in part by registered letter, without prejudice to any other statutory rights in such cases.
12.2
Upon termination, mutual claims shall become immediately due and payable.
12.3
Cancellation is only possible if TradingApe provides its written consent.
12.4
If TradingApe consents to cancellation, the Buyer shall owe TradingApe compensation amounting to 50% of the price (including VAT), unless the costs already incurred plus loss of profit exceed this amount, in which case the compensation shall be determined based on the actual costs incurred plus loss of profit.
12.5
The Buyer shall at all times indemnify TradingApe against claims from third parties resulting from the cancellation of the agreement.
Article 13. Complaints
13.1
The Buyer shall observe the instructions regarding the storage and handling of the delivered goods. The Buyer shall inspect the goods upon delivery or otherwise as soon as possible thereafter, to the extent that this may reasonably and/or customarily be expected.
13.2
Complaints regarding deliveries must be submitted by the Buyer in writing directly to TradingApe. In the case of visible defects, complaints must be received by TradingApe within 8 days after receipt of the goods; if the defect could reasonably only be discovered later (hidden defects), within 8 days after discovery of the defect. The complaint must include a written detailed description of the nature and grounds of the complaint, along with submission of the packing slip and indication of the relevant invoice number. Submission of a complaint suspends the payment obligation with respect to the disputed goods pursuant to Article 9.4.
13.3
If a complaint is well-founded, TradingApe shall, at its discretion, either repair the defective goods or replace them with goods in accordance with the order, provided that redelivery or repair takes place within a reasonable period after the validity of the complaint has been established. In such case, the Buyer shall under no circumstances be entitled to any additional compensation.
13.4
If (timely) redelivery or repair as referred to in Article 13.3 is not possible, the Buyer shall be entitled, without notice of default or judicial intervention, to consider the purchase agreement terminated. The provisions of Article 8.1 shall apply mutatis mutandis to such termination.
13.5
Returns in connection with complaints that are not preceded or accompanied by the information referred to in the second sentence of paragraph 2 are not permitted. If the Buyer nevertheless returns goods in violation of this provision, or returns goods without valid grounds, such goods—unless refused by TradingApe—shall be held available to the Buyer at the Buyer’s expense and risk, without this implying any acknowledgment of the validity of any warranty claim. The costs of unjustified returns shall be borne by the Buyer.
Article 14. Warranty and Liability
14.1
Statements made by or on behalf of TradingApe regarding the quality, composition, possible applications, properties, and handling of delivered goods shall only be considered a warranty if they have been expressly confirmed in writing by TradingApe in the form of a guarantee.
14.2
If the Buyer carries out or has repairs or modifications carried out during the warranty period without prior consent from TradingApe, the warranty obligation shall immediately lapse.
14.3
In the event of late, incorrect, or defective delivery or defects in or relating to delivered goods and/or packaging, TradingApe shall not be liable in any way for any resulting damage, except in cases of intent or willful recklessness on the part of TradingApe itself or its managerial subordinates.
14.4
Without prejudice to the previous paragraph of this Article (14), TradingApe shall not be liable in any way for damage caused by late, incorrect, or defective delivery or defects in or relating to delivered goods and/or packaging, if such damage is caused by employees of TradingApe, by auxiliary persons engaged by Gidion B.V., or by companies belonging to the same group (corporate group) as TradingApe.
14.5
Any claim by the Buyer under this Article (14) shall lapse one year after the date on which the Buyer suffers the damage or the damaging event commenced.
14.6
The Buyer shall indemnify TradingApe against all claims from third parties relating to goods and/or packaging supplied to the Buyer by Gidion B.V., through which such third party may have suffered damage, regardless of the cause or time of occurrence.
Article 15. Amendments to agreements
Changes to and additions of concluded agreements shall only be valid if expressly agreed in writing by TradingApe and the Buyer.
Article 16. Disputes and applicable law
16.1
All disputes relating to an agreement or the execution of an agreement between the Buyer and TradingApe that cannot be resolved amicably between the parties shall be submitted to the competent court in the jurisdiction where TradingApe is established, unless the subdistrict court has jurisdiction. Notwithstanding the foregoing, TradingApe shall have the right to submit a dispute to the competent court in the jurisdiction where the Buyer is established.
16.2
Agreements between the Buyer and TradingApe shall be governed by Dutch law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
