Tyres in Stock general terms and conditions of payment and delivery

Article 1 - Definitions/General

a)     In the General Terms and Conditions of Tyres in Stock, the terms below shall have the following meanings:

- Tyres in Stock: any company recognised by Tyres in Stock B.V. that refers to the General Terms and Conditions of Tyres in Stock B.V. in its offers and contracts and applies them to its transactions;

- Customer: the party (not being a consumer) to which Tyres in Stock has sent an offer and/or that has engaged a Tyres in Stock to provide services or deliver goods.

b)    The terms and conditions shall apply to the formation, substance and performance of all contracts concluded between a Tyres in Stock Supplier and the Customer for the delivery of goods and/or the provision of services by Tyres in Stock.

c)   Any purchase or other conditions of the Customer shall not apply, unless this has been expressly agreed in writing.

Article 2 – Offers/Prices

a)     Unless explicity stated otherwise therein, all offers shall be free of obligation. Any offer provided by Tyres in Stock B.V. can only be accepted unaltered.

b)    The prices quoted by tyres in Stock shall apply for delivery ex warehouse or place of business of Tyres in Stock B.V., unless otherwise agreed upon in writing. Quoted prices shall be exclusive of Value Added Tax and any other government levies, unless otherwise indicated in writing. Additional costs of packaging, etc., shall be charged separately by Tyres in Stock B.V.

Article 3 - Delivery and Delivery Period

a)     The delivery dates and other dates stated by tyres in Stock shall always be indicative and can under no circumstances be regarded as deadlines within the meaning of Section 6:83, subsection a of the Netherlands Civil Code, unless expressly otherwise agreed in writing. If the expected delivery date is exceeded, the Customer may give Tyres in Stock notice of default by registered letter, affording the Tyres in Stock Supplier a reasonable period of time within which to fulfil its obligation(s) without assuming liability for damages. A reasonable period of time shall be a period of two months after expiry of the delivery date stated.

b)    Goods and/or services shall be deemed to have been provided as soon as the goods are ready to be collected from or delivered by the Tyres in Stock Supplier and/or the activities to be performed as part of the services have been completed.

c)     The Customer shall be obligated to accept any deliveries made earlier than specified by the tyres in Stock. Tyres in Stock may effect partial deliveries and invoice the Customer separately therefor. Partial deliveries cannot be undone if it appears afterwards that the order cannot be delivered in full.

Article 4 - Force Majeure

a)     In addition to its definitions in law and case law, force majeure shall be understood to mean any external causes beyond the control of Tyres in Stock that prevent the regular performance of an obligation, irrespective of whether such a cause could have been foreseen at the time the contract was concluded. Such causes shall include strikes, a general lack of raw materials, unforeseeable delays at suppliers or other third parties that Tyres in Stock depends on, government measures, general power supply failures and general transport problems.

b)    Tyres in Stock may also invoke force majeure if the circumstance preventing (continued) performance commences after Tyres in Stock should have fulfilled its obligation.

c)     In the event of prolonged force majeure, Tyres in Stock shall be entitled to declare the contract dissolved in writing without assuming liability for damages.

d)    During the period of temporary force majeure, Tyres in Stock delivery and other obligations shall be suspended without judicial intervention and the delivery period shall be extended by the same period. If the period of force majeure continues for more than three months, either party shall be entitled to dissolve the contract with due regard for the provisions set forth in Article 4e), without assuming liability to pay the other party damages.

e)     If Tyres in Stock has already fulfilled part of its obligations or is only able to perform its obligations partially at the time the force majeure commences, Tyres in Stock may invoice separately for the portion already delivered or deliver the relevant portion and send an invoice for it. The preceding provision shall not apply if the portion already delivered or yet to be delivered has no independent value.

Article 5 - Risk, Retention of Title and Right of Retention

a)     The Customer shall bear the risk of any and all damage sustained or caused by the goods and/or services provided as from the moment of delivery. The party responsible for organising transport shall bear said risk as from the moment at which the transport commences, and shall be obligated to take out adequate insurance for said risk.

b)    The Customer shall be obligated to insure the goods delivered against the customary risks under standard conditions with a reputable insurance company, and to keep them so insured from the moment of delivery until the time of full payment.

c)     All goods delivered and yet to be delivered under a specific contract shall remain the exclusive property of Tyres in Stock until the Customer has paid all sums it owes or will owe Tyres in Stock, including interest and costs as referred to in Section 3:92, subsection 2 of the Netherlands Civil Code. This means that the paid goods shall not become the Customer’s property until the Customer has settled all sums due to Tyres in Stock, including invoices other than those sent for the goods present.

d)    If the Customer fails to pay on time, Tyres in Stock shall be entitled, without notice of default or judicial intervention being required and without assuming liability for damages, to dissolve the purchase contract and repossess the goods delivered, to which the Customer shall grant Tyres in Stock free access.

e)     As long as the ownership of the goods delivered has not passed to the Customer, the latter may not pledge the goods or encumber them with any other security rights. The Customer shall be allowed to dispose of goods from Tyres in Stock in the course of its normal business operations.

f)     Goods that are present on the Customer’s premises and are listed in the Tyres in Stock product range shall be deemed to have come from Tyres in Stock, unless the Customer proves that the goods come from a different source (subject to proof to the contrary).

g)    Until the Customer has paid Tyres in Stock all sums due under a contract, Tyres in Stock may keep the Customer’s goods in its possession and recover the sum due therefrom, unless the Customer has provided sufficient security for its debt.

Article 6 - Payment

a)     Unless agreed otherwise, all deliveries shall be made on cash payment or prepayment. If the parties agree otherwise, payment shall normally be due 14 days after the invoice date. The parties may also agree on a different due date in writing. The applicable due date shall constitute a deadline.

b)    All costs associated with payment shall be borne by the Customer. Payments shall first be applied to settle the costs, then the interest due and finally the principal and current interest. If the principal consists of multiple invoices, the payment shall be allocated to the longest outstanding invoice or invoices, regardless of the invoice numbers that the Customer allocates to the payment.

c)     If the Customer fails to pay by the due date, the Customer shall be in default without further notice being required and shall owe 1% interest on the principal per month or part of a month. If the statutory interest under Section 6:119a or Section 6:119 of the Netherlands Civil Code should be higher, the Customer shall owe this statutory interest.

d)    If the Customer defaults on fulfilling its payment obligations, all costs reasonably incurred by Tyres in Stock to effect settlement out of court shall be charged to the Customer. The extrajudicial collection charges are set at 15% of the principal, unless the Customer demonstrates that Tyres in Stock has incurred less damages.

e)     If Tyres in Stock demands payment in court or otherwise demands performance of the contract in court and Tyres in Stock wins its case in whole or in part, the Customer shall be obligated to pay all costs actually incurred by Tyres in Stock in connection with the legal proceedings, such as the costs of legal assistance, attachment and court registry fees.

Article 7 - Conformity

a)     Tyres in Stock shall perform the contract to the best of its ability and understanding, in accordance with the requirements of good workmanship. The Customer shall be obligated to examine as soon as possible after delivery whether Tyres in Stock has duly complied with the contract and to notify Tyres in Stock in writing within a reasonable period of time, within 10 working days after delivery at the latest, if the latter’s performance should be found inadequate (due date). If notification is not reasonably possible within this period, the deadline shall be 10 working days from the moment the defect is detected or could have been detected.

b)    Complaints shall not entitle the Customer to postpone payment.

c)     If a complaint is lodged on time as referred to in Article 7, paragraph a, the Customer shall allow tyres in Stock to verify the validity of the complaint. If the complaint is valid, the Customer shall give Tyres in Stock a reasonable period of time to repair or replace the service or item provided.

d)    The parties shall also deem the performance of the contract to be satisfactory if the Customer has failed to effect the verification or notification referred to in Article 7a on time. By signing for correct receipt on delivery, the Customer shall waive the right to lodge any complaints regarding quantity and visible damage to the goods received. No rights can be derived from apparent misprints or typographical errors in catalogues or price lists.

e)     Tyres in Stock shall guarantee both the soundness of the goods delivered in relation to their price and the quality of the services provided, except if:

- The Customer does not follow the instructions or regulations given by the VACO Supplier or its supplier;

- They are not used normally;

- Defects are the result of normal wear and tear or normal use;

- An item is installed, repaired or altered by a third party at the Customer’s behest;

- A government regulation dictates the nature or quality of the materials used;

- The Customer supplies materials or goods to Tyres in Stock for processing;

- Materials, goods or working methods have been employed on the Customer’s express instructions.

f)     If Tyres in Stock replaces any goods pursuant to the provisions of Article 7c or 7e, these items shall become its property. If the Customer has already put the items into use, Tyres in Stock shall be entitled to charge the Customer a fee relative to the period during which the items in question were used by the Customer or a third party and this fee shall be in the same proportion to the purchase price as the period of use to the normal life span of the items.

Article 8 - Liability

a)   Tyres in Stock’s total liability shall be limited to repair, replacement or revocation of the contract. Tyres in Stock shall not be liable for any other compensation (no compensation for consequential loss). The Customer shall be responsible for claims to guarantees provided by third parties (manufacturer or importer).

b)   Tyres in Stock, its subordinates and third parties engaged by it shall not be liable for damage to people, items or the business of the Customer and/or third parties resulting from defects in the goods and/or services provided by Tyres in Stock, except in the event of intent or wilful recklessness.

c)   The Customer shall indemnify Tyres in Stock against third-party claims resulting from a shortcoming in the goods or services provided.

d)   In addition, Tyres in Stock liability shall be limited to the amount paid out by the insurance company in so far as such liability is covered by the insurance taken out. If the insurance should not provide cover or if the insurance company refuses to pay, tyres in Stock liability shall be limited to the invoice value of the relevant item and/or service.

e)   In the event of any damage caused by a defect in an item delivered by Tyres in Stock which was neither produced nor imported into the European Union by the same, Tyres in Stock shall undertake to inform the Customer within a reasonable term of the address of the supplier, producer or importer in the EU. If Tyres in Stock is not or no longer able to do so or if it has produced the item or imported it into the European Union itself, its liability shall not exceed its statutory obligations (pursuant to Sections 185 - 193 of Book 6 of the Netherlands Civil Code) and its obligations pursuant to the provisions of Article 8, paragraph a.

Article 9 - Applicable Law and Disputes

a)     All contracts concluded with Tyres in Stock shall be governed by Netherlands law. Applicability of the CISG or the Vienna Sales Convention is expressly excluded.

b)    Any disputes ensuing from contracts with Tyres in Stock shall be brought before a Dutch Court in the district where Tyres in Stock has its registered office, unless statutory regulations dictate otherwise.