Timeline Global Telecom Solutions B.V.
GENERAL SALES TERMS AND CONDITIONS
These General Sales Terms and Conditions shall apply between Timeline Global Telecom Solutions B.V. (TGTS) a registered business in The Netherlands, KVK registration No. 52914291,and buyer (“Customer”) and constitute the conditions upon which TGTS is prepared to deal with the Customer, unless otherwise separately and explicitly agreed in writing between the Parties.
The general terms and conditions of Customer shall not apply. Each Sales Order must be signed by a TGTS authorized representative to be valid.
The Sales Order, together with these General Sales Terms and Conditions, and any attachments, whether physically attached or incorporated by reference, constitute the entire and exclusive agreement between TGTS and the Customer identified in the Sales Order. It sets forth and shall constitute the entire agreement between Customer and TGTS with respect to the subject matter thereof, and shall supersede any and all prior agreements, understandings, promises and representations made by one party to the other concerning the subject matter herein.
1. PRICE AND PAYMENT
1.1. All Products are sold, and all prices are quoted Ex-works in accordance with Incoterms 2010, unless another place of delivery is agreed to in writing by TGTS.
1.2. All sales, use, import, excise and like taxes, whether foreign or domestic, shall be charged to and borne by Customer. TGTS bears no responsibility for any consular fees for legalizing invoices, certificates of origin, stamping bills of lading, or other charges required by the laws of any country of destination, or any fines imposed due to incorrect declarations. Charges will be added for non-standard factory preparation and packaging for delivery. If by reason of any act of government, the cost to TGTS performing its obligations hereunder is increased, such increase shall be added to the quoted price.
1.3. The prices are exclusive of VAT or similar tax, unless otherwise mentioned in the Purchase Order.
1.4. Prices are quoted and payments shall be made in EURO unless stated otherwise in the Sales Order.
1.5. If any undisputed monies are not paid by the due date, then TGTS may charge interest on such undisputed monies on a day-to-day basis from the date payment fell due, to the actual date of payment (both dates inclusive) at the rate of one and one-half percent (1.5%) per month.
2. TITLE AND RISK, DELIVERY, TRANSPORTATION, STORAGE AND INSURANCE
2.1. Partial delivery may be made at the option of TGTS. Stated delivery dates are approximate only. TGTS shall have no liability for damages arising out of the failure to keep a projected delivery date, irrespective of the length of the delay, and Customer shall not be entitled to cancel any order on the basis of such delay.
2.2. Risk of loss and damage to the Products shall pass to Customer upon delivery in accordance with the delivery term Ex-works, Incoterms 2000.
2.3. TGTS accepts no responsibility for any damage, shortage or loss in transit. TGTS will attempt to pack or prepare all deliveries to protect against damage or deterioration in shipment but TGTS does not guarantee against such damage. Such damage claims shall be made by Customer on carrier.
2.4. In the event Customer is unable to accept delivery of goods when tendered, TGTS may, at its option, arrange storage of the Products and Customer shall be liable to TGTS for the reasonable cost of such storage.
2.5. Products shall remain the property of TGTS until TGTS has received full payment in accordance with the Sales Order, and title and ownership of the Products shall pass to Customer upon receipt by TGTS of such payment.
2.6. These provisions of Article 2 are without prejudice to any other rights which TGTS may have with respect to Customer’s failure to take delivery of Products which includes the right to invoice Customer for the Products and claim any prepayments or deposit’s as non-fundable.
3.1. Orders placed by Customer and accepted by TGTS may be cancelled only with the consent of TGTS and are subject Customer to cancellation charges, including any prepayments or deposit’s which are non-fundable.
4.1. If TGTS at any time has reason to believe that the performance of its obligations will be delayed, TGTS shall promptly notify Customer of the estimated period of delay.
4.2. Circumstances outside of TGTS’s control, including but not limited to circumstances which are attributable to Customer such as delay in payment or delay of any of Customer’s undertakings causing TGTS a delay or delay by third party suppliers and OEM’s, shall entitle TGTS to postpone any of its undertakings until such delay is cured by Customer.
4.3. TGTS shall be reimbursed for costs for any delays attributable to Customer.
4.4. TGTS will not be liable for any delays in delivery or for direct or indirect damages suffered by Customer by reason of such delays.
5.1. Returns shall not be made without authorization from TGTS. Authorized return shipments will be directed by TGTS, including any shipping instructions and handling charges. Transportation fees must be prepaid by Customer to the point of origin of TGTS’s shipment unless otherwise agreed. Customer’s violation of this Article shall permit TGTS‘s refusal and immediate return of Products to Customer.
5.2. Returns for non-warranty related reasons shall not constitute a right towards the Customer for refund or any other finical compensation.
6. GENERAL WARRANTIES; GUARANTEE
6.1. Notwithstanding the specified “Secondary Market Equipment Warranty” in Article 7, TGTS warrants to repair, correct, or replace Products or parts thereof, if they fail to conform to, function, or operate according to the Specifications by reason of defective material, design or workmanship under this Article 6.
6.2. TGTS guarantees that for a maximum period of twelve (12) months or for period defined in the Sales Order as from the moment the goods are ready for delivery ex-works (Incoterms 2000), Products and parts of the Products shall be free from defective material, design or workmanship under normal use and service not due to wear and tear or weather conditions, provided they are maintained in accordance with TGTS’s instructions or through customary usage. Upon conclusion of the guarantee period, any and all obligations and liabilities of TGTS regarding defects shall end. At TGTS’s option, TGTS will either repair or replace or provide Credit Note for any confirmed defective Products or parts found defective within the guarantee period for which TGTS assumes responsibility. Replacement parts will be delivered DDU (Incoterms 2000). TGTS may require allegedly defective parts to be returned, freight pre-paid, to establish the guarantee.
6.3. This guarantee, shall apply only if:
6.3.1. the Products are not modified or changed without the written approval of TGTS;
6.3.2. Customer has given TGTS notice in writing within 14 days of such defects, non-conformities or deviations of its discovery by Customer;
6.3.3. such defect, non-conformity or deviation was not caused by interworking or interoperable equipment or other products not supplied under the Contract;
6.3.4. such defect, non-conformity or deviation was not caused by abuse, misapplication, or external Influences; and
6.3.5. TGTS is given every opportunity to inspect and remedy such defect, non-conformity, or deviation.
6.4. All transportation costs and risk of loss incurred with respect to the repair and/or replacement of defective goods shall be borne by Customer when returned to TGTS, and by TGTS when returned to Customer, transportation being by normally scheduled carrier, unless otherwise agreed.
6.5. Warranty for physical defects covers only those physical defects that prevents the item from being installed, such as broken connectors or, conditions which prevent physical installation of the item:
6.5.1. Warranty claims under this definition require images or video of the defect preventing installation with the serial number visible.
6.5.2. All other warranty claims require a physical test report in PDF Format or screenshot to be submitted with the warranty claim and such test report or screenshot must clearly identify the serial number of the unit being claimed as defective.
6.6. The warranties given above constitute the only warranties made by TGTS and are in lieu of any and all other warranties or conditions, whether express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose as determined by law or otherwise.
7. SECONDARY MARKET EQUIPMENT WARRANTY
7.1. All secondary market equipment sold by TGTS comes with a standard 90-day warranty (or as individually agreed between TGTS and the customer). If no warranty period is specified, the products are sold “as is”.
7.2. With respect to reconditioned/refurbished products, reasonable wear and tear due to prior use of the product shall not be considered a defect providing such products perform to OEM specifications on the date such products were originally manufactured. The warranty will not apply to cosmetic or incidental damages. Nor does the warranty cover defects or malfunction caused by misuse, abuse or improper maintenance.
7.3. TGTS shall not be liable for any failure of the Goods’ to comply with the warranty set out in clause 7.1 if:
7.3.1. The Customer makes any further use of such Goods after giving notice in accordance with clause 6.3b); or
7.3.2. Prior to the sale of the Goods TGTS has explicitly stated that the Goods are sold with no warranty or as” Sold as Seen”/as already defective; or
7.3.3. The defect arises because the Customer failed to follow TGTS’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice; or
7.3.4. The Customer alters or repairs such Goods without the written consent of TGTS; or
7.3.5. The defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions.
7.4. Except as provided in this clause 7, TGTS shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1
7.5. Except as set out in these Conditions, TGTS gives no warranty to the Customer in respect of the design, functionality, suitability, condition otherwise of any of the Goods and all other warranties, conditions and terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7.6. These Conditions shall apply to any replacement Goods supplied by TGTS
7.7. The Customer acknowledges that TGTS is a provider of pre-owned telecommunications equipment and as such, no two items supplied by TGTS are identical. The Customer therefore further acknowledges and agrees that, where defective Goods are replaced by TGTS pursuant to clause 7.1 above, the replacement items will not be identical to the original Goods supplied to the Customer. Notwithstanding the foregoing provisions of this clause 7.7, TGTS shall use reasonable endeavors to supply replacement items which are materially similar to the original Goods supplied pursuant to the Order but shall be under no obligation to do so in which case a credit voucher will be given in respect of any breach of warranty pursuant to this clause.
7.8. For all shipments including sales under EXW incoterms, Buyer is responsible to inspect the condition of shipments received and capture images or video of the condition exceptions, including but not limited to any visible damage to the shipment, in its original package upon receipt. Physically damaged shipments are excluded from warranty and must be addressed via insurance claim by the party responsible under the agreed incoterms.
7.9. For DAT / DDP incoterms of sale, shipments received in visibly damaged condition should not be opened unless approved in writing by an authorized TGTSS representative, and an insurance inspection will be arranged for resolution.
8.1. TGTS and Customer agree to indemnify and hold each other harmless from and against any damages direct and indirect, loss, or injury (including death) to personnel, property, equipment, materials and any other items within either party’s possession or control and that of its other subcontractors whether owned, hired, leased, chartered, etc., resulting from the intentional or negligent acts or omissions of either party’s respective officers, employees, agents or subcontractors in connection with the performance of the Purchase Order.
8.2. Third Party Liability. Each party shall assume its legal liability towards third parties for any of its own acts or omissions and shall indemnify, defend and hold harmless the other party accordingly. Under this provision the term “third party” excludes the client(s) of the Customer. Notwithstanding any other indemnities and liabilities referred to in the contract or General Sales Terms and Conditions, Customer shall indemnify, defend and hold harmless TGTS with respect to claims made by Customer’s client(s).
8.3. Consequential Loss. Notwithstanding any of the indemnities and liabilities or warranties specifically referred to elsewhere, TGTS shall under no circumstance be liable for any indirect, incidental, special or consequential damage including but not limited to, loss of use or downtime, loss of profit or revenue, loss of business, loss of data or production, or any other economic loss arising, or alleged to arise from TGTS’s failure to properly carry out its obligations, whether or not the possibility of such damages was reasonably foreseeable and Customer hereby agrees to indemnify, defend and hold harmless TGTS against any such losses regardless whether
9. TECHNICAL ASSISTANCE
9.1. Upon request, TGTS may provide engineering or technical information regarding its Products. Any such information, service or advice so provided, whether with or without additional charge, shall be advisory only. It is expressly agreed that TGTS shall have no liability for any damage or loss arising out or resulting from or caused in whole or in part by such information, advice, or assistance provided.
9.2. Customer is solely responsible for specifying, compliance and selecting material for its end application. Whereas incorrect ordering of material is not cause for warranty claim or other cancelation of order or claim against TGTS.
10. REGULATORY COMPLIANCE
10.1. Customer is informed that sale and delivery of exported Products may be subject to export regulations, e.g., of the Netherlands, the European Union and UN, Customer shall hold TGTS harmless of any and all claims which relate to infringement or violation of any kind by Customer of such regulations.
10.2. By acceptance of delivery of this order, Customer warrants it has complied with all applicable governmental, statutory and regulatory requirements and will furnish TGTS with such documents as may be required.
10.3. TGTS provides this quote and any subsequent sale subject to the express condition that no equipment will be, with any knowledge, have a destination or onward destination to an embargoed country by the Netherlands, the European Union and UN for the import or export of telecoms equipment. TGTS reserves the right to require an authenticated end user certificate if any shipment is suspected to be intended for an embargoed country. Further details can be provided on request.
10.4. whereas if the customer breach’s any regulatory compliance, Customer shall forfeit and pre-payments or deposits paid and remain liable for full value of the Order.
11. MODIFICATION OF CONTRACT
11.1. No addition or modification of the Sales Order shall be effective or binding on TGTS unless agreed in writing and executed by a duly authorized representative of TGTS.
12. FORCE MAJEURE
12.1. TGTS shall be excused from the performance of any of its obligations under the Purchase Order and such obligations shall be extended for a reasonable period under the circumstances if the performance thereof is prevented or delayed by industrial disputes or any cause beyond TGTS’s reasonable control which, without in any way limiting the generality of the foregoing, shall include acts of God, riots, wars, accidents, embargos or requisition (acts of government), including non-availability of an export license for the Products or any part thereof or visa and permits for TGTS’s personnel, or delays in the performance of its subcontractors caused by any such circumstances as referred to in this Article 12.
12.2. Should a cause of force majeure continue for more than three (3) months, TGTS shall have the right to terminate the Purchase Order.
13.1. Neither party shall have the right to assign the Purchase Order or any right herein without the prior written consent of the other party except in cases where TGTS assigns the Purchase Order to other TGTS affiliates or subsidiaries.
14. DISPUTES and GOVERNING LAW
14.1. The Purchase Order and/or any dispute and/or claim arising out of or in relation to it and any further agreements resulting there from, shall be governed, interpreted and construed in accordance with the laws of The Netherlands and with the exclusive jurisdiction and proceedings of the court Eindhoven, The Netherlands.
14.2. Customer agrees to submit to the jurisdiction of Eindhoven, The Netherlands of any such court; agrees to venue in such court; waives any defence of forum nonconveniens; agrees to notice and service of process by mail at its address specified in the Sales Order; and agrees to enforcement of any award or judgment in any jurisdiction in which Customer has its business or assets. The United Nations Convention on Contracts for the International Sale of Goods of 1980 shall not be applicable.
14.3. The invalidity or unenforceability of any particular provision of this contract shall not affect any other provision therein. The invalid or unenforceable provision may be replaced by the court with a provision that most closely mirrors that invalid or unenforceable provision.