General terms and conditions

These general terms and conditions are used by Topdek B.V., which is registered as Number 83686517 with the Dutch Chamber of Commerce and which has its place of business at Apolloweg 88 in Lelystad, the Netherlands.

Article 1 Definitions

1.1. The capitalised terms employed in this Agreement bear the meaning assigned to them below:

Agreement	a (purchase) agreement between Topdek and a Partner concerning the purchase of Products;
Article	an article in these Terms and Conditions;
In Writing/Written	a notice by letter or email;
Intellectual Property Rights	any (entitlement) to intellectual property and similar related rights in the broadest sense of the term anywhere in the world whatsoever, which are deemed to include in particular – but are not confined to – (1) copyrights, (2) design rights, (3) trademark rights, (4) trade names, (5) database rights, (6) patents, (7) trade secrets and know-how, (8) domain names and rights pursuant to the doctrine of slavish imitation, which is also deemed to include any entitlements (including at any rate the exclusive right to making public and reproduction) which the relevant international legislation and regulations assign or may yet assign to them;

Parties	Topdek and a Partner jointly;
Partner	a party to whom or which Topdek issues a Quotation and/or enters into an Agreement;
Partner Agreement	an agreement pursuant to which a Partner joins the network of partners entitled to offer and trade in Topdek Products;
Process	to attach or affix Profiles to a substrate, such as on a ship or terrace;
Products	the Profiles and Related Products taken together;
Profiles	a plastic deck, which is an alternative to teak and is suitable for ships or terraces, among other things;
Related Products	the products supplied by Topdek to be used in combination with the Profiles, including the Teak Deck Cleaner and the Teak Deck Sealer;
Terms and Conditions	these general terms and conditions;
Territory	the territory in which a Partner may offer Products for sale and trade in them pursuant to a Partner Agreement.

Article 2 Scope of application

2.1. These Terms and Conditions shall govern all offers, orders, order confirmation notices, Partner Agreements and other Agreements from, by or with Topdek, as well as all (legal) acts performed pursuant to them.

2.2. If the Parties have entered into a Partner Agreement, these Terms and conditions shall serve as an addendum to that agreement.

2.3. Any natural persons and legal entities directly or indirectly associated with Topdek and involved in any way in the execution of an Agreement may also rely on these Terms and Conditions. This clause constitutes an irrevocable third-party clause for the benefit of the parties associated with Topdek.

2.4. These Terms and Conditions shall also govern any future offers, quotations, orders and Agreements between the Parties, to the exclusion of the application of any Partner’s general terms and conditions.

Article 3 Offers and Quotations

3.1. A Partner shall place one (1) order at a time for the number of Products that they require. Where Topdek can deliver the requisite number of Products, it shall issue an order confirmation notice. It shall also state the expected delivery date in it. A separate Agreement shall be concluded between the Parties by virtue of and each time that an order confirmation notice is issued.

3.2. Topdek may periodically set prices for its Products. In the event that Topdek adjusts its prices (for example, if prices increase or a Partner fails to fulfil their procurement obligation), it shall notify a Partner of this. Should such notice not explicitly mention an effective date, the date on which Topdek has issued the notice shall serve as its effective date.

3.3. All prices mentioned by Topdek (such as in price lists, quotations and order confirmation notices) shall be stated in euros exclusive of VAT, sales tax and other government levies, and exclusive of transport costs and other expenses not explicitly mentioned by Topdek.

3.4. If Topdek makes the Partner an offer, it may only be accepted as is. Even if a Partner’s acceptance differs in any minor respect, this shall be deemed to constitute a rejection of the relevant Quotation and shall not bind Topdek. The situation shall only be different if Topdek agrees to the modified acceptance In Writing.

3.5. Topdek shall be entitled to set and adjust the prices for its Products at its own discretion. Topdek shall not be bound by prices mentioned in any previous price list or Agreement.

3.6. If a Topdek offer or price list contains a (or an apparent) clerical error, mistake or ambiguity, such as a price which a Partner knew or could have known is not realistic, Topdek shall be entitled to revoke the relevant offer or terminate the Agreement in question without having a duty to provide compensation for any costs or damage. This clause shall apply even if a Partner has already accepted the relevant offer.

Article 4 Payment

4.1. A Partner shall not be entitled to any setoff, suspension or debt compensation.

4.2. Should a Partner fail to pay an invoice on time, they shall be in default by operation of the law. In such case a Partner shall be liable for default interest of 1.5% of the unpaid amount for each month that the Partner is in default, where part of a month shall count as an entire month, such subject to Topdek’s entitlement to claim the outstanding amount in its entirety immediately and subject to any other rights which Topdek holds.

4.3. Topdek shall be entitled to arrange for any payments made by a client to serve to reduce any expenses in the first place, then any interest that is due and finally the principal sum and any current interest.

4.4. Should a Partner be in default with regard to compliance with one (1) or more of their obligations to pay any pecuniary sum, they shall be liable for all reasonable (legal) expenses incurred for the purposes of securing payment judicially and extrajudicially. Compensation for such costs shall amount to no less than 15% of the entire outstanding sum subject to a minimum of €650.00 in all cases.

4.5. Topdek shall be entitled to suspend the supply of Products for as long as the relevant Partner fails to comply with their financial obligations (for any reason whatsoever) or in the event that Topdek has grounds to assume that the Partner will be unable to comply with their financial obligations without Topdek having a duty to provide compensation for any costs or damage.

Article 5 Delivery of Products

5.1. Any (delivery) deadline applicable in Topdek’s case shall be indicative and not material, unless explicitly stipulated otherwise In Writing in the relevant Agreement. Topdek is authorised to deliver in parts.

5.2. Topdek shall be entitled to modify its Products, even if samples or models have been shown to the relevant Partner. A Partner may object if any modification affects the quality of the relevant Products. Amongst other things, Topdek shall be entitled to adjust the dimensions.

5.3. The delivery of Products shall occur DAP (Incoterms 2020). As such, a Partner shall be liable for any damage which occurs while the Products are unloaded, which is deemed to include (but is not confined to) fire and water damage, theft and damage due to a fall or push. Topdek may decide to effect delivery in some other way (as a result of which any risk shall pass at such time as delivery occurs). In that case, it will communicate this to the relevant Partner (for example, in an order confirmation notice).

Article 6 A Partner’s trade in the Products

6.1. Topdek manufactures all its Products for the Dutch market and takes into account Dutch legislation, regulations and standards, including those European standards applicable in the Netherlands. Topdek is not responsible for compliance with foreign standards or foreign legislation and regulations. Should a Partner sell Products outside the Netherlands, they shall themself be responsible for ensuring that the Products also comply with the legislation, regulations and standards applicable in the relevant country. Where certain current or future legislation or regulations in force in the Territory has or have an adverse effect on the trade in the Products, a Partner shall notify Topdek immediately and – in the case of future legislation and regulations – before any amendment takes effect.

6.2. A Partner shall not contravene any legislation and regulations governing modern slavery, human trafficking, corporate social responsibility, anti-bribery, anti-corruption and privacy which are in effect in the Netherlands or the Territory.

6.3. Should a Partner themself contravene the legislation and regulations mentioned in Article 6.2. or suspect that any of their actual or potential customers is doing so, the Partner shall immediately report this In Writing to Topdek.

6.4. A Partner shall immediately notify Topdek In Writing if any person employed in the Territory as a public servant performs work for the Partner (including as an employee, manager or contractor) or has or acquires a direct or indirect interest in the Partner.

6.5. A Partner shall not offer Products for sale or trade in them in a way that may adversely affect the reputation of the Products’ trademarks and trade names, ‘Topdek’ and ‘Topdek 2G’.

Article 7 Complaints and claims

7.1. Topdek shall endeavour to ensure that the Products possess the qualities and properties required for their normal use or which Topdek has warranted in Writing are present. Normal wear and tear, quality impairment or damage due to use may under no circumstances ever constitute grounds for a claim.

7.2. It is of great importance that any defects in Products are discovered as soon as possible and in the case of the Profiles, preferably before they have been Processed. A Partner shall be required to report any defect in a Profile to Topdek by no later than one (1) week after its delivery (as set out in Article 5.3). Any defect in a Related Product, as well as shortages and inappropriate deliveries, must be reported In Writing to Topdek by no later than five (5) weeks after delivery. Should a defect manifest itself in a Product which could not reasonably have been known to the relevant Partner before that deadline, the latter must report a defect in a Profile In Writing to Topdek as soon as possible but by no later than one (1) week after its discovery and any defect in a Related Product by no later than four (4) weeks after it is discovered.

7.3. Should a Partner detect a defect in a Profile, it shall immediately halt its (further) Processing.

7.4. In case of a complaint the relevant Partner shall always describe a defect accurately and accompany it with photographs. A Partner shall also provide information with the aid of which Topdek is able to trace the relevant Products, including the order number.

7.5. Most problems affecting Profiles arise when they are Processed. A Partner shall themself be responsible for proper Processing and shall be required to rely on their expertise in relation to the substrate, the materials, any pre-treatment and Processing, amongst other things. Under no circumstances shall Topdek be liable for any faulty Processing of Profiles. In view of the foregoing, once the Profiles are Processed, any defects shall be deemed to be the result of faulty Processing. The relevant Partner shall bear the burden of proof that any defect is due to a faulty Profile itself and not the result of Processing. This shall apply unless it follows otherwise from the assignment of the onus of proof under mandatory law.

7.6. Should a Partner succeed in providing prima facie evidence as provided for in Article 7.5, Topdek may conduct a counter-assessment (or arrange for one to be carried out). Should Topdek succeed in providing evidence to the contrary regarding the cause of a defect, it shall still not be liable for (costs or damage resulting from) any alleged defect.

7.7. When reporting a defect to Topdek, a Partner shall be required to provide every assistance to Topdek, so that the latter can investigate (the cause of) the defect. The Products concerned shall remain available to Topdek in the condition they were in when the defect was detected. A Partner shall not be entitled to file a claim in respect of any Products which Topdek has not been able to inspect.

7.8. In the event that a complaint does not comply with the provisions of this Article 7, any entitlement to a claim and any liability on the part of Topdek shall lapse.

7.9. In the event that those Profiles which have already been Processed are not (or no longer) located in the Benelux at the time when a complaint is reported and Topdek decides to investigate, Topdek may require the Partner to pay any reasonable travel and accommodation expenses that it incurs for the purpose of its investigation.

Article 8 Retention of title

8.1. Products shall be supplied subject to retention of title, with the result that any items supplied shall remain the property of Topdek until the relevant Partner complies with all of their financial obligations pursuant to the relevant and any other Agreements (which are deemed to include the price of the Products concerned, any shipping costs, interest and extrajudicial expenses) pursuant to the Agreement in question and any other Agreements.

8.2. A Partner shall be required to store any Products delivered subject to retention of title as the recognisable property of Topdek and to insure them against the customary risks, including those of fire, damage and theft.

8.3. In the event that a third party arranges for any Products subject to Topdek’s retention of title to be attached, the relevant Partner shall have a duty to notify Topdek of this as soon as possible but by no later than within two (2) days after the time when they learn of the attachment. The Partner shall be required to notify the bailiff of Topdek’s retention of title when the attachment occurs.

8.4. At any point in time Topdek may decide for reasons of its own to collect any Products that are subject to its retention of title from the relevant Partner or to arrange for this to be done. A Partner shall have a duty to notify Topdek of the location of its Products and to grant it or any other party engaged by it (such as a bailiff) access to such location.

Article 9 Intellectual Property Rights

9.1. All Intellectual Property Rights to the Products and the associated packaging, labels and tags, as well as to advertising material, documentation, reports, quotations and preparatory materials for same, shall be vested exclusively in Topdek and its licensers. A Partner shall only be entitled to the (non-exclusive) use of such Intellectual Property Rights provided that this is necessary for the purposes of the normal method of advertising for and/or selling any Products. No Intellectual Property Rights shall be transferred from Topdek to a Partner.

9.2. A Partner shall not be permitted to register trademarks, trade names or domain names, Google AdWords or similar keywords, or social media pages that include the trade names or trademarks, ‘Topdek’ and ‘Topdek 2G’.

9.3. A Partner shall warrant that they will not do or fail to do anything that infringes Topdek’s Intellectual Property Rights or those of any other party from whom Topdek has secured a licence, renders such rights invalid or may impair the property of the relevant rightsholder and/or Topdek’s licence to such Intellectual Property Rights.

9.4. Under no circumstances shall a Partner be allowed to remove any designation regarding Topdek’s Intellectual Property Rights on any Products or the other items mentioned in Article 9.1.

9.5. Topdek shall be entitled to mention a Partner’s trade name or other name and trademark, and to use its logo for the purposes of promoting any Products and Topdek’s business, including on its website and social media pages.

Article 10 Liability

10.1. Topdek shall only be liable for damage which directly ensues from foreseeable and avoidable non-compliance for which it may be held culpable and which is directly related to (the execution of) an Agreement.

10.2. Any duty on the part of Topdek to pay compensation to a Partner for any reason whatsoever, shall at all times be confined to compensation for – only – any direct damage (as defined in Article 10.5.) subject to no more than the amount which Topdek’s insurer pays out in the relevant case.

10.3. In the event that and insofar as Topdek’s liability insurer does not proceed with a payout, any duty to pay compensation on the part of Topdek shall be confined to no more than the sum which it has received pursuant to the relevant Agreement (exclusive of VAT).

10.4. Under no circumstances shall the Topdek’s overall compensation for damage suffered by a Partner exceed €30,000.00 excluding VAT.

10.5. For the purposes of these Terms and Conditions, ‘direct damage’ shall only be deemed to refer to:

a. any reasonable costs incurred by a Partner to ensure that Topdek’s performance complies with the relevant Agreement;

b. any reasonable costs incurred by a Partner for the purposes of determining the cause and extent of any damage, insofar as such determination relates to direct damage within the meaning of these Terms and Conditions; and

c. any reasonable costs incurred by a Partner to prevent or limit damage insofar as the Partner can show that such costs have had the effect of limiting any direct damage within the meaning of these Terms and Conditions.

10.6. Under no circumstances shall Topdek be liable for any indirect damage. Amongst other things, for the purposes of these Terms and Conditions ‘indirect damage’ is deemed to refer to (but is not confined to) consequential loss, loss of turnover and/or earnings, forgone savings, investments, any loss due to the disruption or stoppage of business and/or any expenses incurred for the purposes of preventing, determining or limiting any indirect and/or incidental loss, and/or liability for same, and any costs incurred for the purposes of securing extrajudicial compensation for such indirect damage. Should Topdek nevertheless be liable for any indirect damage, the provisions of Article 10.1 to 10.4 shall apply, in respect of which the limitations referred to therein shall apply in respect of the sum of any direct and indirect loss.

10.7. Any claim for compensation against Topdek shall lapse by the mere expiry of five (5) months after the damaging event occurred.

10.8. A Partner shall be required to take out adequate insurance against the usual risks, including against fire, damage, theft and liability.

10.9. A Partner shall be required to make every effort to reduce costs and damage, regardless of the cause. Under no circumstances shall Topdek have a duty to provide compensation for costs or damage which could have been reasonably avoided or which the Partner could have reasonably insured.

10.10. The limitations of liability referred to in this section shall cease to apply, if and in so far as the relevant loss is due to a deliberate act or omission, or wilful recklessness on the part of Topdek, such to be proven by the relevant Partner, unless it follows otherwise from the assignment of the onus of proof under mandatory law

10.11. Should a Partner fail to comply with any provision of these Terms and Conditions, the relevant Partner Agreement or any other Agreement and this results in Topdek incurring any costs or suffering any damage, the Partner shall provide Topdek with full compensation for such costs and damages.

Article 11 Force majeure

11.1. Topdek shall not have a duty to fulfil any obligation to a Partner nor to provide compensation for costs or damages if force majeure occurs. In the case of Topdek force majeure shall be deemed to occur in the case of war (or the danger of war), rioting, an act of war, fire, a flood, water damage, an industrial strike, a staff shortage, a sit-in, a pandemic or epidemic (or a measure due to either), the unavailability of raw materials or parts, a computer, software, energy, network or internet malfunction or cybercrime (such as hacking and cyberattacks), any of these either in Topdek’s business or that of any other party that is relevant for the purposes of executing an Agreement (such as a supplier). Furthermore, force majeure shall be deemed to occur in the case of any other cause which occurs through no fault of Topdek or in respect of which it bears any risk.

11.2. In so far as Topdek has already partially fulfilled its obligations pursuant to an Agreement at the time when force majeure occurs, Topdek shall be entitled to issue an invoice for those that have already been fulfilled.

Article 12 Other provisions

12.1. Any amendment of the provisions of these Terms and Conditions or an Agreement shall only come into effect provided that it is recorded In Writing and it shall only apply to the Agreement in respect of which it has been discussed and not (also) any other Agreement.

12.2. In derogation from Article 12.1, Topdek shall be entitled to amend these Terms and Conditions by means of a Written notice addressed to its Partners. A Partner shall consent to any reasonable amendment. An amendment shall come into effect at the effective time that is announced or, where no time is mentioned, at such time as Written notice of it is given.

12.3. In the event that any provision of these Terms and Conditions or an Agreement appears to be invalid or non-binding, the Parties shall remain bound by the remaining part thereof. The parties shall replace the invalid or non-binding part with provisions that are valid and binding, and whose consequences approximate those of the invalid or non-binding part as far as possible, given the content and scope of these Terms and Conditions or the relevant Agreement.

12.4. Should these Terms and Conditions appear in multiple languages and there is a conflict between language versions, what is stipulated in the Dutch version shall prevail.

12.5. Any agreement between the Parties (including an Agreement) shall only apply in respect of the Parties themselves. A third party may not accede to an agreement between the Parties. As such, Article 6:254(1) of the Dutch Civil Code shall not apply.

Article 13 Choice of law and forum

13.1. These Terms and Conditions and any quotation or Agreement shall be solely governed by and construed in accordance with the law of the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

13.2. The District Court of Central Netherlands, having its seat in Lelystad shall enjoy exclusive jurisdiction to hear a dispute, unless Topdek chooses to bring proceedings before a court in another place (such as the place in which the relevant Partner has its registered office).