Standard Terms of Business of Taiko Audio B.V. (“Taiko”), based in Oldenzaal, The Netherlands, Trade Register number 81194056.
Clause 1. SCOPE 1.1 These Standard Terms of Business apply to all quotations, advice, offers, sales and deliveries by Taiko, and form part of all agreements made with Taiko. 1.2 Buyer may invoke any variations, additions, and/or its own terms and conditions only if and to the extent that these have expressly been accepted by Taiko in writing. Buyer’s standard terms of business are not applicable. 1.3 Once Buyer has done any business with Taiko subject to these Standard Terms of Business, these Standard Terms of Business will also apply to all subsequent agreements between Taiko and Buyer. 1.4 If any of the provisions in these Standard Terms of Business are invalid, this will not affect the validity of the other provisions. If, for any reason, any of the provisions in these Standard Terms of Business prove to be invalid, parties will be considered to have replaced such provision by a valid one that approximates the scope and purport of the invalid provision as closely as possible.
Clause 2. OFFERS AND QUOTATIONS 2.1 All offers and quotations from Taiko will remain valid for a period specified by Taiko. In the absence of such a period, the offer or quotation will be free of obligation. 2.2 Sending out a quotation or any other document will not oblige Taiko to accept an order and/or delivery. Taiko reserves the right to refuse an order or to refuse to deliver cash on delivery without giving any reason. Taiko cannot be required to comply with a quotation or offer if Buyer should reasonably understand that the quotation or offer, or any part of it, contains a clear typing or other error.
Clause 3. (PERFORMANCE OF THE) AGREEMENT 3.1 An agreement with Taiko will not come into existence until after Taiko has expressly accepted or confirmed the order in writing by sending a final order confirmation (by email or otherwise). The acceptance or order confirmation will be considered to fully and accurately reflect the agreement. 3.2 As regards deliveries for which no quotation or order confirmation was sent, the invoice will be considered to be the order confirmation and to reflect the agreement fully and accurately. 3.3 Additional arrangements, changes or commitments made by Taiko’s staff, sellers, agents, representatives or intermediaries will be binding on Taiko only if Taiko has confirmed those arrangements, changes or commitments in writing (by email or otherwise). If Taiko accepts changes to the order proposed by Buyer, Taiko may increase the agreed price by such an amount as will, in its sole discretion, be necessary to cover the costs and expenses associated with those changes or delays. 3.4 If Taiko shows or provides any specimen, sample or example, this will be presumed to be shown or provided for illustration purposes only: the properties of the goods delivered may deviate from the specimen, sample or example shown or provided, unless it is expressly stated that delivery will be made in accordance with such specimen, sample or example. 3.5 Taiko may engage a third party to perform all or any part of the agreement without Buyer’s prior approval. 3.6 Each agreement is subject to the condition precedent that Taiko is satisfied that Buyer is sufficiently creditworthy to perform its payment obligations under the agreement.
Clause 4. PRICES AND PAYMENT 4.1 The prices for the goods quoted in the offer are exclusive of VAT and other government taxes, and exclusive of any expenses incurred in connection with the agreement, including travel and accommodation expenses and shipping and administrative costs, unless otherwise stated. 4.2 Payment of the amount owed to Taiko must be made within the period stated on the invoice. If no payment period is stated on the invoice, payment must be made no later than 14 days after the day when Taiko sent the invoice (invoice date). Taiko may require that all or any part of the price be paid in advance.
4.3 Buyer’s right to suspend or offset any payment against any amount owed by Taiko is excluded. 4.4 If Buyer is a consumer and fails to meet his payment obligation(s) on time, and after being reminded of the late payment and being allowed a 14-day grace period in which to meet his payment obligations, continues to fail to pay within the 14-day period, Buyer must pay statutory interest on the overdue amount and Taiko may charge the extrajudicial collection costs it has incurred in accordance with the Graduated Scale for Extrajudicial Collection Costs. 4.5 If Buyer is a business and fails to meet its obligations on time or at all, Buyer must pay interest on the overdue amount at a rate of 10% per year (with any part month being treated as a full month), and reimburse all extrajudicial collection costs. The extrajudicial collection costs are set at 15% of the overdue amount, subject to a minimum of EUR 500.
Clause 5. SUSPENSION AND TERMINATION FOR CAUSE 5.1 If Buyer fails to perform any of its (payment) obligations properly, on time or at all, Taiko may terminate all or any part of the agreement with immediate effect without court order, or suspend performance of its obligations under the agreement until such time as Buyer has met its (payment) obligations. 5.2 Taiko may also suspend performance of its obligations or terminate all or any part of the agreement with immediate effect without court order in that event that: a) Buyer is declared bankrupt or an application for its bankruptcy is made, or applies for a suspension of payments or makes an application under the statutory debt restructuring scheme, or if all or any part of its assets are attached; b) Buyer’s business otherwise comes to a standstill; c) Buyer makes a settlement offer to its creditors; d) Buyer dies or a guardian is appointed by the courts to care for his person or property; e) Buyer fails to meet any obligation conferred on it by law or contract; f) Buyer fails to pay all or any part of an invoice amount within the stated period or refuses to provide security as requested; g) Buyer discontinues or transfers all or any part of its business, including to a newly incorporated or existing company or partnership, or the general purpose of its business changes, or Buyer proceeds to liquidate its business; h) Buyer otherwise proves to be insolvent; i) any of Buyer’s assets or receivables are attached. 5.3 If an event as described in Clause 5.2 occurs, Taiko may demand the immediate payment of all amounts owed by Buyer without a warning or notice of default being necessary. 5.4 In the event of full or partial termination or suspension, Buyer will be liable for any loss or harm incurred by Taiko as a result.
Clause 6: DELIVERY 6.1 Agreed delivery deadlines are approximations only and not binding. Taiko will in no event be in default without being sent a notice of default first. If any goods ordered cannot be delivered within the deadline specified by Taiko, Taiko will so notify Buyer in writing (by email or otherwise) or by telephone as soon as possible. 6.2 Goods which have been taken receipt of may be returned to Taiko only with Taiko’s express prior permission. If, after delivery, changes are made to the nature and/or composition of the goods or some or all of the goods are damaged or repackaged, any right of Buyer to claim that the goods are defective will lapse. 6.3 All deliveries will be made to the delivery address specified by Buyer.
Clause 7. RISK 7.1 The risk of loss of or damage to or any reduction in the value of the goods ordered will pass to Buyer immediately on delivery at the delivery address specified by Buyer. 7.2 If Buyer comes and collects the goods itself, transport of the goods will be at Buyer’s risk and expense.
Clause 8. RETENTION OF TITLE/OBLIGATION TO PROVIDE SECURITY 8.1 Ownership of the goods delivered remains with Taiko and will not pass to Buyer until Buyer has paid all amounts owed to Taiko in full. 8.2 As long as Buyer is not the owner of the goods delivered by Taiko, Buyer may use those goods only in the normal course of its business. Buyer is not entitled to dispose of the goods, create any restrictive rights over the goods or otherwise encumber them. 8.3 Taiko may repossess at any time any goods title to which has been retained (regardless of whether they have already been assembled) if Buyer fails to meet its obligations on time or at all. In such cases, Buyer must cooperate with Taiko on pain of a penalty of EUR 500 for each day Buyer fails to do so, payable on demand and subject to a maximum equal to the net amount invoiced for the goods delivered. 8.4 As regards goods ownership of which has passed to Buyer through payment or otherwise and which are still in Buyer’s possession, Taiko will hold a pledge over such goods as referred to in Section 3:237 of the Dutch Civil Code as additional security for any such claims other than those referred to in Section 3:92 (2) as Taiko may have against Buyer on any basis whatsoever. Taiko is entitled and is hereby irrevocably authorised by Buyer at any time to perform the necessary action to create such pledge (including without limitation creating a pledge by notarial or private registered deed) and for those purposes to also act on Buyer’s behalf. Buyer must, at Taiko’s request, cooperate in creating such pledge without delay. 8.5 Buyer is required to store the goods delivered subject to retention of title with due care and as identifiable property of Taiko. Buyer must insure the goods against fire, explosion, water damage and theft for the duration of the title retention, and submit the insurance policies for inspection by Taiko at its first request. If Taiko so requires, Buyer will create a pledge in favour of Taiko over claims which Buyer may have against the insurance companies under such policies in the manner as described in Section 3:239 of the Dutch Civil Code, as additional security for Taiko’s claims against Buyer. The last two full sentences of Clause 8.4 are applicable.
Clause 9: RECEIPT OF GOODS 9.1 Buyer must take receipt of all goods ordered by it. 9.2 If Buyer refuses to take receipt of goods ordered by Buyer or made to Buyer’s specifications, Taiko may store the goods at Buyer’s expense until such time as Buyer performs or Taiko terminates the agreement for cause.
Clause 10: DEFECTS 10.1 Buyer must check the goods delivered for visible defects, shortfalls or damage promptly on delivery. 10.2 Any shortfall or visible damage found on delivery must be reported to Taiko in writing (by email or otherwise) as soon as possible, but no later than within 48 hours. 10.3 Taiko has no obligation to remedy any defects as referred to in Clause 10.2 if they have not been reported within the stated period. 10.4 Any damage, deviations or defects incapable of being discovered on delivery must be reported to Taiko in writing (by email or otherwise) within fourteen days of discovery, but in any case within thirty days of delivery. After expiry of this period, Buyer will be considered to have approved the goods delivered and to have accepted the presence of any defects. 10.5 If, for any reason, Taiko has an obligation to repair or replace any goods, Taiko has discretion either to repair or to replace those goods.
Clause 11. LIABILITY 11.1 Taiko will only be liable for any loss or harm incurred by Buyer directly and exclusively resulting from a failure attributable to Taiko. Taiko’s liability will be limited at all times to the amount it receives from the insurance company. If, for any reason, Taiko is unable to claim payment from the insurance company, the amount to be reimbursed will be a maximum of 50% of the net order amount. 11.2 No compensation will be paid under any circumstances for: a. any indirect and/or consequential loss or harm, including loss of profits, production losses, losses arising from an interruption of operations, shipping costs, or travel and accommodation expenses; b. damage to items under Taiko’s supervision [visual damage]. This includes, without limitation, damage to goods that are being worked on or goods located in the vicinity of where the work is being performed caused by or in the course of the performance of contract work; c. any loss or damage caused by an intentional act or omission or deliberate recklessness on the part of persons under the control of Taiko or non-managerial employees of Taiko. 11.3 The performance of obligations in connection with complaints or the payment of compensation by Taiko or its insurance company will constitute sole and full compensation. Buyer will indemnify Taiko in all other respects. 11.4 If any goods or component parts manufactured by Taiko’s suppliers show any defects in material or workmanship, Buyer is only entitled to be paid the compensation Taiko receives from its suppliers, and Taiko will endeavour to take action to obtain such compensation. All claims and other rights as against Taiko arising on any basis whatsoever will lapse on expiry of one year after Buyer first became aware or could reasonably have become aware of the existence of such claims or rights.
Clause 12. FORCE MAJEURE 12.1 Taiko is not required to perform any obligation to Buyer (including repairing defects) if it is prevented from doing so by circumstances for which it is not at fault or for which it is not held responsible by law or according to generally accepted opinion. 12.2 In these Standard Terms of Business, force majeure includes, without limitation, all external causes – provided for or unforeseen – that are beyond Taiko’s control and which prevent Taiko from performing its obligations and Buyer from demanding specific performance and/or repair. Events of force majeure include, without limitation, employment disputes, mobilisation, confiscations, embargos, fire, loss or theft of tools, disruptions to the power supply, failure by suppliers and/or subcontractors to meet their contractual obligations to Taiko on time or at all. In other words, any circumstance that is beyond Taiko’s control and risk. 12.3 Force majeure as defined in Clause 12.2 and, more generally, circumstances of such a nature as to reasonably prevent Taiko from performing the agreement in full will entitle Taiko to terminate all or any part of the agreement or suspend performance of all or any part of the agreement, without being liable for damages to Buyer.
Clause 13. GOVERNING LAW 13.1 The agreement is governed by the laws of the Netherlands, to the exclusion of the UN Convention on the International Sale of Goods (Trb. 1981, 184 and 1986, 61). 13.2 If Taiko concludes an agreement with Buyer in an international context, Buyer must inform Taiko immediately as to whether any of the provisions in these Standard Terms of Business are unenforceable in Buyer’s country. In such cases, subject to Taiko’s prior approval, Taiko will pay the reasonable costs of any investigation necessary in that regard. If Buyer fails to comply with the first sentence of this Clause 13.2, Buyer cannot enforce such provisions either in or out of court and must indemnify Taiko for any loss or harm incurred as a result, unless Taiko refused to pay the reasonable costs of such investigation. 13.3 International terms of trade, if used, must be interpreted in accordance with the Incoterms 2000 adopted by the International Chamber of Commerce (ICC) in Paris, France.
Clause 14. CONVERSION 14.1 If and to the extent that any of the provisions in these Standard Terms of Business is unenforceable pursuant to the doctrine of fairness and reasonableness or the fact that the provision is unreasonably onerous, such provision will be interpreted as having such a content and purport approximating its original content and purport as closely as possible so as to render it enforceable.
Clause 15. DISPUTES 15.1 A dispute will be considered to exist if either of the parties declares that there is a dispute. 15.2 Unless expressly agreed otherwise, all disputes will be submitted to the competent division of the District Court of Gelderland in Arnhem, The Netherlands. However, Taiko remains entitled to summon Buyer to appear before another court on which the law has conferred jurisdiction.