Article 1: General

1. These terms and conditions apply to all offers, quotations, orders and agreements for the delivery of goods and the provision of services concluded by TH TECHNOLOGY B.V., listed in the trade register of the Chamber of Commerce under number 92434037, hereinafter referred to as ‘TH Technology’, for its customers and clients, hereinafter referred to as ‘customer’.
2. Special terms and conditions that deviate from TH Technology’s general terms and conditions only apply subject to written agreement between TH Technology and the customer.
3. The general terms and conditions used by the customer do not apply and are as such explicitly excluded, unless and insofar as confirmed otherwise in writing by TH Technology. In the event of conflicting provisions between those of TH Technology and the customer, TH Technology’s terms and conditions prevail.
4. In the event of a conflict between the contents of the agreement concluded between TH Technology and the customer and these general conditions, the provisions of the agreement apply.
   
   

Article 2: Quotations and offers

1. Any offers issued by TH Technology are subject to contract and valid for thirty days, unless stated otherwise.
2. If the customer provides TH Technology with data, drawings, models, etc., TH Technology may assume their accuracy and completeness and will base its offer on this. If the information, drawings, models, etc. provided by the customer prove to be incorrect and/or incomplete after TH Technology has drawn up the quotation or made an offer, TH Technology is entitled to adjust the quotation or offer in accordance with the correct and/or complete information.
3. The prices in said offers and quotations are exclusive of VAT and other government levies or shipping costs and any transport and packaging costs, unless explicitly stated otherwise. Prices are delivery ex works.
4. The conditions in offers and quotations do not automatically apply to repeat orders.
5. If a quotation or offer is not accepted, TH Technology has the right to charge the customer for all costs it has had to incur in preparing the quotation or offer.
   
   

Article 3: Formation of the agreement

1. An agreement is only concluded after the customer has returned the signed quotation, either in writing or digitally, to TH Technology within thirty days of its date.
2. Interim price changes that affect the cost price, such as, but not limited to, changes in the prices of raw materials or in the goods to be delivered themselves, in wages, transport costs, exchange rates, import duties, etc., may be charged by TH Technology in deviation from the original quotation.
3. After acceptance of the order or assignment, changes specified by the customer will only be implemented subject to written confirmation thereof by TH Technology to the customer. TH Technology reserves the right not to implement changes specified by the customer. Any decision not to implement the specified changes is never a legally valid reason for the customer to fully or partially terminate the agreement. In that case, the customer remains liable for payment of the agreed purchase price.
4. Costs resulting from any additions and/or changes to the agreement are payable by the customer and will be invoiced on the basis of subsequent calculation.
   
   

Article 4: Performance of the agreement

1. TH Technology will perform the agreement to the best of its knowledge and ability and in accordance with high standards. All this on the basis of the latest scientific and technical knowledge at that time.
2. TH Technology is entitled to outsource the assignment in whole or in part to third parties/suppliers. Upon explicit request, TH Technology will inform the customer whether and, if so, to what extent the assignment has been outsourced to third parties/suppliers.
3. With regard to products manufactured and/or services provided by third parties/suppliers, TH Technology is to be regarded as a subcontractor/intermediary towards the customer only and is therefore not obliged to guarantee the customer anything more than what the third party/supplier engaged guarantees towards TH Technology.
4. In the event of a claim, TH Technology will mediate between the third party/supplier and the customer without being liable for any compensation itself.
5. The customer ensures that all information, of which TH Technology indicates that it is required and/or with regard to which the customer can reasonable understand that it is required for the performance of the agreement, is made available to TH Technology in time. If the information required for the performance of the agreement has not been made available to TH Technology in time, TH Technology will be entitled to suspend the performance of the agreement and/or to charge the customer for any additional costs arising from the delay, in accordance with the applicable prices.
6. Parts to be made available to TH Technology by or on behalf of the customer and that must be applied or processed on, in or to the product to be manufactured by TH Technology must be delivered by the customer to TH Technology in time, free of charge and carriage paid, in the required quantity.
7. The customer guarantees the soundness and correct functioning of the parts made available, as well as the applicability and suitability of these parts for the performance of the agreement by TH Technology.
8. If said parts are delivered too late or cannot be processed, the customer will be liable for any resulting damage or loss, including, but not limited to, production downtime.
9. If it has been agreed that the agreement will be performed in phases, TH Technology will only proceed to perform the next phase after the customer has approved the results of the preceding phase in writing.
   
   

Article 5: Delivery

1. Delivery is ex works (according to the most recent version of the Incoterms) of TH Technology.
2. Stated delivery times are approximates. TH Technology is not liable for the consequences of exceeding the stated delivery time. The delivery time being exceeded does not entitle the customer to compensation.
3. The customer is obliged to take delivery of the goods the moment TH Technology delivers them or has them delivered to the customer, and/or the moment on which TH Technology notifies the customer that the goods have been made available for collection.
4. If the customer refuses to take delivery or is negligent in providing information or instructions required for the delivery, TH Technology will be entitled to store the goods at the expense and risk of the customer. TH Technology is furthermore entitled, at its discretion, to either demand payment of the amount due after failing to take delivery or to regard the agreement, insofar as not yet performed, as dissolved, without judicial intervention and, in either case, to demand full compensation for the costs incurred and to be incurred as a result.
   
5. If the customer asks for the goods to be delivered, TH Technology is entitled to charge delivery and transport costs, unless otherwise agreed. These costs will be invoiced separately.
6. The method of transport is determined by TH Technology, unless otherwise agreed. Transport takes place entirely at the expense and risk of the customer, regardless of the circumstances.
7. TH Technology is entitled to deliver the goods in parts, unless stipulated otherwise under the agreement, or unless the partial delivery has no independent value. TH Technology is entitled to invoice separately for goods delivered in parts. If and for as long as a partial shipment has not been paid for by the customer and/or the customer otherwise fails to comply with the agreement or the provisions therein, TH Technology will be entitled to suspend the next (partial) shipment(s) until the customer has fulfilled all his obligations, all this without prejudice to TH Technology’s right to terminate the agreement without judicial intervention and to claim full compensation.
8. The risk of loss of or damage to the goods that are the subject of the agreement is transferred to the customer at the time of delivery of said goods, or at the time when the customer is notified that the goods are available to the customer for collection.

Article 6: Assembly, commissioning & start-up

1. TH Technology cannot be obliged to commence placement, installation or assembly of goods before all necessary information and data have been fully provided to TH Technology by the customer and (if applicable) TH Technology has also received the agreed payment for this.
2. TH Technology will ensure that the goods will be placed, installed or assembled correctly and properly, whereby this obligation has the character of a best-efforts obligation of TH Technology.
3. If the parties have agreed on placement, installation and/or assembly, the customer guarantees that the local circumstances and environment of the location where the placement, installation and/or assembly is to be carried out are such that TH Technology can execute the agreement undisturbed and properly. For example, access doors must be of sufficient size; foundations, floors and walls on or against which goods are to be placed or to which goods are to be attached must be installed in a timely and appropriate manner. In addition, the customer will always provide sufficient auxiliary materials and (auxiliary) manpower at its own expense.
4. Activities that fall outside the scope of the placement, installation and/or assembly or that are caused by the customer’s failure to adequately fulfil its obligations arising from the previous paragraph will be borne by the purchaser.
5. The customer will always take good care of the delivered goods and is obliged to follow all instructions for use and to take all measures and follow all instructions that must be observed when using the delivered goods and that contribute to the durability of the goods and the safety of the goods and the user thereof, including the (timely) performance of (prescribed) maintenance or repair work.
6. The customer is obliged to clearly and explicitly make the instructions for use established by TH Technology known to third parties (including, but not limited to, the customer’s employees) who use the goods.
7. The customer will ensure that the goods are only used and operated by suitably trained and certified employees with the required level of knowledge and expertise and will therefore ensure that it always has (sufficiently) trained personnel available.
8. The customer will not engage third parties for maintenance or repair work on the goods unless this has been agreed in writing between the parties.
9. The customer will not use the goods until full payment of the relevant (partial) invoice(s), including any interest and costs.
   
   

Article 7: Inspection, complaints, returns, limitation and expiry periods

1. The customer is obliged to inspect the goods upon delivery, or as soon as possible thereafter. As part of that process, the customer must inspect whether the quality and quantity of the goods delivered correspond to the agreement, or that they at least meet the relevant requirements in the normal course of business and trade.
2. Any advice given by TH Technology with regard to the technical application, whether verbal or written or in any other way, does not discharge the customer from the obligation referred to in paragraph 1 of this article.
3. Any visual defects must be reported to TH Technology in writing within eight days of delivery. Any hidden defects must be reported within three weeks of discovery, but no later than 12 months after delivery, failing which the customer will no longer be entitled to claim breach of contract on the part of TH Technology.
4. If a complaint is received in time, i.e. in accordance with the preceding paragraph, the customer remains obliged to take delivery of and pay for the purchased goods. If the customer wishes to return faulty goods, he must do so subject to the prior written consent of TH Technology, in the manner as indicated by TH Technology.
5. Complaints can be enforced only in respect of goods that are still in the same condition as upon delivery.
6. TH Technology must be given the opportunity to (physically) inspect the processed object(s) in response to submitted complaints.
7. Returns that have not been preceded by a written complaint as referred to in paragraph 3 of this article will be rejected. The costs of such unauthorised returns are payable by the customer.
8. In the event of an unauthorised return of the goods, TH Technology will be entitled to store the relevant goods either at TH Technology or third parties, at the risk and expense of the customer.
9. The customer is obliged to carefully package, ship and insure any goods to be returned. The customer is liable for any damage to or loss of the returned goods caused by his fault or negligence.
10. Legal proceedings against TH Technology, which are the result of an agreement subject to these general terms and conditions, lapse after one year. They expire after two years. The limitation period or expiry period commences on the first day after the expiry of a period of one calendar month after the conclusion of the relevant agreement.
    
    

Article 8: Payment

1. Payment must be made within 14 days of the invoice date, in a manner to be stipulated by TH Technology and in the currency stated on the invoice, without any deduction or offsetting. Claims regarding the amount due on invoices do not suspend the payment obligation.
2. If the customer fails to make payment within the stated period of 14 days, the customer will be in default by operation of law, without any notice of default or notification being required. In that case, the customer owes the statutory commercial interest. The interest on the amount payable will be calculated from the moment the customer is in default, until full settlement.
3. In the event of winding-up, bankruptcy or a moratorium on payments on the part of the customer, all claims of TH Technology against the customer will become immediately due and payable. Furthermore, TH Technology has the right to declare all agreements concluded with the customer dissolved, without further notice of default or judicial intervention being required and without prejudice to any other of its legal rights.
4. TH Technology is entitled to first allocate any payments made by the customer to costs, subsequently to any interest due and finally to the principal sum and accrued interest. TH Technology, without this causing it to be in default, can refuse an offer for payment if the customer appoints a different order for the allocation of the payment. TH Technology can refuse full settlement of the principal sum, if this does not include any accrued interest and costs due.
   
5. The customer is not entitled to suspend payment of the amount it owes on the grounds that TH Technology has failed to fulfil any obligation towards the customer under any agreement whatsoever. An appeal by the customer to set-off is also excluded.
   
   

Article 9: Debt-collection costs

1. In the event that the customer is in default or fails to (timely) fulfil his obligations, all extrajudicial costs reasonably incurred by TH Technology to collect payment will be at the expense of the customer. In the event of a monetary claim, the customer in any case owes collection costs in addition to statutory commercial interest.
2. The debt-collection costs are calculated in accordance with the Extrajudicial Collection Costs (Fees) Decree (BIK), with a minimum of € 250.00.
   
   

Article 10: Retention of title

1. All goods delivered by TH Technology, including any designs, sketches, drawings, films, software, (electronic) files, etc., remain the property of TH Technology, until the customer has fulfilled all obligations under the agreement(s) concluded with TH Technology.
2. The customer is not entitled to pledge, or in any other way encumber goods that are subject to retention of title.
3. If a third party seizes supplied goods subject to retention of title or if it wishes to establish a right or lay claim to that, the customer is obliged to notify TH Technology thereof as soon as reasonably can be expected.
4. The customer is obliged to sufficiently insure the goods supplied subject to retention of title and to keep them insured against damage or loss caused by fire, explosion and flooding, as well as theft, and to submit the insurance policy for inspection on demand of TH Technology.
5. Goods delivered by TH Technology which, pursuant to the provisions of Article 9, paragraph 1, are subject to retention of title, may only be resold in the context of normal business activities and may never be used as means of payment. TH Technology is entitled to attach the condition to this resale referred to above that any claims from said purchase agreement(s) are pledged to TH Technology as security.
6. In the event that TH Technology wishes to exercise its proprietary rights referred to in this article, the customer hereby gives his unconditional and irrevocable permission to TH Technology, or any third party to be designated by it, to access any location as to where the property of TH Technology may be stored and to retrieve those goods, without further notice of default or judicial intervention being required.
7. Until the customer has paid TH Technology all amounts owed under the agreement (and/or previous similar agreements), TH Technology may retain the relevant goods of the customer and recover its claim on them by preference, unless the customer provides sufficient security for payment of these amounts.
   
   

Article 11: Liability

1. TH Technology is only liable for damage or loss suffered by the customer that is the direct and exclusive result of a failure in the performance of the agreement attributable to TH Technology. Furthermore, only damage or loss against which TH Technology is insured is eligible for compensation.
2. If, at the time of concluding the agreement, TH Technology has not taken out insurance for the damage or loss suffered by the customer or if said insurance does not cover this damage or loss, for whatever reason, TH Technology’s liability will be limited to the highest of the following amounts:
   a. € 25,000;
   b.The invoice amount pertaining to the agreement under which the damage or loss occurred.
3. TH Technology is never liable for any form of consequential damage or loss, including, but not limited to, turnover and/or business interruption losses or lost profit.
4. TH Technology is only obliged to deliver in accordance with the specifications agreed upon when the agreement was concluded. TH Technology accepts no liability whatsoever for the applicability of the goods delivered by the customer for any purpose whatsoever.
5. All images, drawings and data regarding weights, dimensions, colours, etc., stated by TH Technology in any document, other than the order confirmation, are mere approximates from which the customer cannot derive any rights.
6. TH Technology is not liable for any inaccuracies in data, drawings, documents and advice etc. provided by or on behalf of the customer for use in the performance of the agreement.
7. If, as a result of normal processing carried out by TH Technology or processing carried out at the explicit request of the customer, goods belonging to either the customer or other persons have become unusable, the risk thereof will be entirely borne by the customer. In cases where damage or unusability of the goods and/or the processed object(s) arise as a result of gross negligence or neglect on the part of TH Technology or its personnel, liability will never exceed the value of the processing that TH Technology would carry out or has carried out in the context of the assignment.
8. If – at the discretion of TH Technology – it appears during processing of the object(s) presented to or by TH Technology that one of the requirements described above has not been met, it can – without further notice of default being required – dissolve the agreement by means of a statement to that effect, with the obligation of the customer to compensate for all resulting damage, in particular loss of profit, suspend its obligations under the agreement, or demand performance of the agreement, in which latter case TH Technology has the right to make the processed object(s) suitable for the processing ordered at the expense of the purchaser or to have them made suitable, with an extension of the agreed delivery time by the time required to carry out such work or to have such work carried out.
9. TH Technology is not liable for damage or loss resulting from improper use of the products supplied by TH Technology and/or resulting from use contrary to the operating instructions.
10. TH Technology is furthermore not liable for the applicability and durability of products supplied by it that are used as part of goods not supplied by it.
11. Claims against TH Technology on the basis of incorrect advice lapse if these have not been reported in writing and supported with reasons within six months after the customer was or reasonably should have been aware of the facts on which the claims are based, and in any case within five years of the date of the relevant assignment.
12. The customer will indemnify TH Technology against and hold TH Technology harmless from all third-party claims for damage attributable to the customer.
13. The restrictions detailed in these terms and conditions with regard to liability do not apply if the damage can be attributed to intent or gross negligence on the part of TH Technology or its managerial subordinates.
    
    

Article 12: Force majeure

1. The parties will not be obliged to fulfil any obligation should they be prevented from doing so due to a circumstance not attributable to any wrongful act on their part, nor chargeable to them in accordance with the law, any juristic act or generally accepted practice.
2. In these general terms and conditions, force majeure, in addition to the explanations in existing (case) law, is taken to mean all external causes, anticipated or otherwise, beyond the control of TH Technology, as a result of which TH Technology is unable to fulfil its obligations. This includes strikes in TH Technology’s company and non-delivery or late delivery by TH Technology’s suppliers.
3. TH Technology is also entitled to invoke force majeure if the circumstance that prevents the (continued) fulfilment arises after TH Technology should have fulfilled its obligation.
   
4. During the period of force majeure the parties may suspend their obligations under the agreement. If such period exceeds two months, either party may dissolve the agreement without being obliged to pay compensation to the other party.
5. To the extent that, at the time of occurrence of a situation of force majeure, TH Technology has already performed part of its obligations under the agreement or will be able to perform such obligations, and the services performed or to be performed will have independent value, TH Technology will be entitled to invoice the services performed or to be performed separately. The customer is obliged to pay this invoice as if it were a separate agreement.
   
   

Article 13: (Other) indemnifications

1. The customer indemnifies TH Technology against third-party claims with regard to intellectual property rights to materials or data provided by the customer and used in the performance of the agreement.
2. If the customer provides information carriers, electronic files or software, etc. to TH Technology, the customer guarantees that these does not infringe the property or copyrights of third parties, and that the information carriers, electronic files or software are free of viruses and defects.
3. The customer indemnifies TH Technology against all third-party claims on account of product liability as a result of a defect in a product supplied by the customer to a third party and which (in part) comprised products and/or materials supplied by TH Technology.
4. The customer indemnifies TH Technology against any claims brought by third parties who suffer damage or loss in relation to performance of the agreement and which damage or loss is attributable to the customer.
   
   

Article 14: Intellectual property and copyrights

1. The customer is not permitted to make changes to the goods, unless the nature of the goods delivered dictate otherwise or unless otherwise agreed in writing.
2. Any designs, drafts, drawings, films, software and other materials or (electronic) files created by TH Technology within the framework of the agreement remain the property of TH Technology, regardless of whether they have been made available to the customer or third parties, unless agreed otherwise.
3. All documents such as designs, drafts, drawings, films, software, (electronic) files, etc., provided by TH Technology are intended only for use by the customer and may not be reproduced, published or disclosed by the customer to any third parties without the prior permission of TH Technology, unless the nature of the documents provided dictates otherwise.
4. TH Technology reserves the right to use any new knowledge, obtained as a result of the execution of the work, for other purposes, insofar as this does not involve the disclosure of any confidential information to third parties.
   
   

Article 15: Software & data

1. If TH Technology makes software available to the customer for the use of a good, this is always done on a non-exclusive basis.
2. TH Technology always has the right (but is not obliged) to change or modify the (operating) software at any time, to make a new version, upgrade or update available and to change the functionalities and/or properties of the software.
3. The software may only be used by the customer himself, to the exclusion of any other party.
4. The customer acknowledges that the software supplied with products is supplied in the software’s then-current state (“as is”) and without warranties, unless such warranties have been explicitly agreed.
   
5. If the customer fails to fulfil its obligations under these general terms and conditions and/or any agreement between the parties, or fails to fulfil them sufficiently, or if TH Technology deems this necessary for safety reasons, TH Technology will be entitled, after having warned the customers of the measures to be taken, to deny the customer the possibility to use software required for a product (and thus possibly to put the machine in question out of service) until such time as TH Technology (at its own discretion) has determined that the customer is sufficiently fulfilling its obligations or the safety risks identified by TH Technology have been sufficiently reduced.
6. TH Technology is and remains the owner of all information and data generated by the items and software supplied by TH Technology and is entitled to analyse that information and data, including for the improvement of its products and software.
   
   

Article 16: Confidentiality

1. Either party will be under the obligation to keep secret all confidential information obtained from the other party or from another source in the course of their agreement. Information will be deemed to be confidential if another party has communicated its confidential nature or if such confidentiality ensues from the nature of the information.
2. If TH Technology is under an obligation, either pursuant to a statutory provision or a court order, to disclose confidential information to any third parties designated by law or by the competent court, and it cannot invoke any privilege, either statutory or recognised or permitted by the competent court, TH Technology will not be under any obligation to pay compensation or indemnify and the customer will not be entitled to dissolve the agreement on account of any resulting damage.
3. When concluding an agreement, TH Technology records the customer’s data in a file. This file is used for the following purposes:
   – for executing the agreement.
4. TH Technology does not provide this information to third parties except in cases where this is necessary for the performance of the agreement. In such cases, the permission to use such data is limited to the described purpose.
5. The controller for data processing is TH Technology B.V., located at De Overzet 1, 9321 DB Peize. The customer can at any time obtain an insight into his data and have this data adjusted if required, free of charge. The customer can also object to receiving information from TH Technology by email, telephone and/or normal post at any moment.
   
   

Article 17: Disputes

1. The competent court of Northern Netherlands, Groningen hearing location, has exclusive jurisdiction in the first instance to hear disputes that in any way arise from the agreement(s) between TH Technology and the customer.
   
   

Article 18: Applicable law

1. All agreements between TH Technology and the customer are governed by Dutch law. The applicability of the Vienna Sales Convention is excluded.
   
   

August 2024