Terms & Conditions

GENERAL TERMS AND CONDITIONS 

CARROT POWERTRAIN SOLUTIONS 

Definitions 

The following definitions are used in these general terms and conditions, both in singular and in plural form, and are capitalised: 

Agreement  

any Agreement that is formed between Carrot and the Customer, any change of or addition to that Agreement, as well as all acts or legal acts in preparation and in execution of that Agreement, which in any event includes, but is not limited to the agreement on the basis of which Carrot delivers one or more products to the Customer or performs services or additional services; 

Carrot 

the limited partnership TMG Powertrain Solutions, the user of these General Terms and Conditions, having its registered office and principal place of business at Zandven 21, 5508 RN in Veldhoven, listed in the Commercial Register of the Chamber of Commerce under file number 74076493; 

Customer 

any natural person or legal entity acting in the course of a profession or a business or a consumer and with whom Carrot has concluded or intends to conclude an agreement; 

General Terms and Conditions 

these General Terms and Conditions; 

Order 

any purchase of a product from Carrot, regardless of whether it is made by a consumer or a natural person or legal entity acting in the course of a profession or a business; 

Parties 

Carrot and the Customer jointly; 

Products 

all items to be delivered by Carrot to the Customer in the context of an agreement for the sale of products, including but not limited to engine management systems and related parts and accessories; 

Quotation 

a written offer from Carrot to the Customer in which Products and/or services, including conditions and prices, are described and that serves as an invitation to conclude an agreement; 

Written/In Writing 

written communication, which includes e-mail or another electronic means. 

Article 1 – Applicability of the General Terms and Conditions 

1. These General Terms and Conditions apply to all legal relationships between Carrot and the Customer, which in any event includes all offers, Quotations and Agreements. 

2. The applicability of any general terms and conditions of the Customer is explicitly rejected. 

3. The provisions of these General Terms and Conditions also apply to anyone who works or has worked for Carrot in the performance of the Agreement. This also includes auxiliary staff and third parties, such as Carrot’s partners or cooperation partners. They may also rely on these provisions towards the Customer. Section 6:76 of the Dutch Civil Code does not apply. 

4. These General Terms and Conditions also apply to additional Agreements and successive Agreements between Carrot and the Customer. 

5. Any stipulations varying from these General Terms and Conditions are valid only if Carrot and the Customer have expressly agreed this In Writing. Unless expressly agreed otherwise In Writing, these stipulations varying from or additions to the General Terms and Conditions only pertain to the relevant Agreement. 

6. If Carrot does not always demand strict compliance with these General Terms and Conditions, this does not mean that the provisions do not apply or that Carrot in any way loses the right to demand strict compliance with these General Terms and Conditions in other cases. 

7. If there is a conflict between the Agreement and these General Terms and Conditions, the Agreement prevails over these General Terms and Conditions. 

8. If a provision of these General Terms and Conditions or an Agreement is void, nullified or cannot be applied for any other reasons, Carrot has the right to replace it with a valid provision that matches the objective and purport of the original provision as much as possible. All other provisions remain in full force. 

Article 2 – Offer and formation of the Agreement 

1. Any offer made by Carrot, including Quotations and price offers, is without obligation, even if a term for acceptance has been stated. An Agreement between Carrot and the Customer is formed at the time that Carrot accepts the Customer’s Order In Writing by means of an order confirmation, or when the Customer has confirmed the Quotation In Writing, unless Carrot objects to the acceptance within 24 hours. If the Customer’s acceptance derogates from Carrot’s offer, the Agreement is not formed in accordance with this derogating acceptance, unless Carrot states otherwise. Carrot reserves the right at all times to not accept or not perform an Order. 

2. The Customer cannot compel Carrot to maintain an offer that contains an obvious error or mistake. The Customer also cannot compel Carrot to maintain an offer that is based on incorrect or incomplete information from the Customer. 

3. Offers, Quotations and price lists do not automatically apply to future Agreements. A combined Quotation does not oblige Carrot to carry out part of the Quotation for a corresponding proportion of the quoted price. Carrot’s price lists may change from time to time and are valid only as long as they are up-to-date at the time that the Order is placed. 

4. If Carrot sends a Written confirmation to the Customer after an Agreement concluded orally, it is assumed that this confirmation correctly and completely represents the details of the Agreement. Should the Customer disagree with this, the Customer has the option of objecting to Carrot In Writing and supported by reasons within 2 (two) working days of receipt of the confirmation. 

Article 3 – Price 

1. The prices and discounts applied by Carrot apply on the day of the offer and/or formation of the Agreement, unless Carrot and the Customer have agreed otherwise In Writing. 

2. All prices stated by Carrot are exclusive of VAT, any delivery costs, import duties and other government levies. 

3. Carrot reserves the right to increase the agreed sales prices and delivery prices if cost-determining factors go up, such as purchase prices, transport costs, prices of raw materials or government levies. 

4. If Carrot implements a price increase of more than 10%, the Customer has the right to give Written notice to terminate the Agreement within eight days of receipt of the notification, unless the price increase follows from statutory obligations or government measures. 

Article 4 – The Customer’s obligations in general 

1. The Customer guarantees that all information that is reasonably relevant to the purpose and execution of the Agreement is provided to Carrot in good time and correctly. The Customer guarantees the correctness and completeness of this information. 

2. The Customer informs Carrot without delay of any facts and circumstances that may be relevant to the purpose and execution of the Agreement. Moreover, the Customer takes all reasonable measures to guarantee a smooth execution by Carrot. 

3. If the Customer fails to fulfil the obligations under this article, Carrot is entitled to suspend the execution of the Agreement and to charge to the Customer any resulting damage or loss and/or additional costs, without prejudice to Carrot’s other rights under these General Terms and Conditions. 

Article 5 – Delivery and delivery periods 

1. The Products are delivered at the delivery address specified by the Customer or, if such has been agreed In Writing, the Customer may collect them from Carrot’s warehouse. The risk of loss, damage or delay passes to the Customer as soon as the Products leave Carrot’s warehouse, regardless of whether they are collected or sent. 

2. If the Customer omits to provide the necessary information or instructions for delivery in good time or does not take delivery of the Products, Carrot is entitled to store the Products at the Customer’s risk and expense. All resulting costs, including storage costs and additional transport costs, are fully payable by the Customer. 

3. Carrot is entitled to deliver the Products in partial deliveries, unless otherwise agreed In Writing. 

4. All delivery periods stated or agreed by Carrot are determined to the best of its knowledge, but are never regarded as strict deadlines. Default only commences after the Customer has given Carrot Written notice of default, granting a reasonable period for performance, and Carrot also has not fulfilled its obligations after the expiry of that period. 

5. If a delivery period is exceeded this only gives the Customer the right to terminate the Agreement for breach in respect of the part to which the exceeding relates. The Customer is never entitled to refuse the delivery or to suspend payment of the Products and transport costs based on the exceeding of a period. Exceeding does not lead to a right to additional compensation. 

Article 6 – Installation of Products 

1. If the Customer and Carrot have not agreed In Writing that Carrot installs the Products, the Customer remains fully responsible for a correct and safe installation of the Products. Carrot may make instructions for use, manuals and technical documentation available as tools, but these materials are only intended as support. The use of these materials does not release the Customer of its own responsibility for a correct installation. 

2. Carrot may make software, such as programming software for engine management systems, available to the Customer. The use of this software, including tuning and adjusting the functionality of the engine management systems, is fully the Customer’s responsibility. Incorrect settings may lead to damage to the engine, related parts or the engine management system, and may moreover cause safety risks. If the Customer uses the software made available by Carrot, the Customer is fully responsible for the correct tuning and adjusting of the engine management system. Carrot cannot be held liable for damage or loss, safety risks or other consequences resulting from the use of the software or from settings or adjustments made by the Customer. 

Article 7 – Check, complaints and guarantee 

1. The Customer is obliged to check the Products within 5 (five) working days of delivery for visible defects, and to verify whether the nature and quantity are in accordance with the Agreement and the packing slip. If the Customer does not report any visible defects or abnormalities In Writing within 2 (two) working days of the end of this period, the Products are deemed to have been delivered in accordance with the Agreement and to have been accepted unconditionally by the Customer. 

2. If the Customer is of the opinion that the delivered Products or performed services do not have the features that the Customer could expect on the basis of the Agreement, the Customer must inform Carrot In Writing without delay, but in any event within 30 (thirty) days of delivery of the Products or completion of the services. In doing so, the Customer must provide a detailed description of the established defect. 

3. Carrot will confirm the receipt of a complaint In Writing and will consult with the Customer as soon as possible. The Customer must give Carrot the opportunity within 20 (twenty) days of the report to inspect the Products or the performance of the services and to establish or have a third party establish the alleged derogation. 

4. The submission of a complaint does not suspend the Customer’s payment obligations. 

5. If a complaint is considered to be well-founded, Carrot has the option to: 

1. Provide compensation up to the invoice amount of the relevant Products or services at most; 

2. Repair or replace the relevant Products free of charge; or 

3. Remedy any defects in the provided services. 

6. Unless otherwise agreed In Writing, the delivered Products are subject to a two-year guarantee period. This guarantee applies exclusively to defects that are the result of defective material or manufacturing defects and does not cover normal wear and tear, damage caused by external factors or improper use. 

7. The guarantee lapses if the defect was caused by: 

1. damage after delivery, natural wear and tear, loss or damage resulting from wilful damage or extreme weather conditions, misuse or improper use, or use contrary to the instructions for use; 

2. changes or repairs without the prior Written consent of Carrot. 

Article 8 – Return shipments 

1. Carrot is not obliged to accept the Customer’s return shipments without Carrot’s prior Written consent. If Carrot gives its consent, the Customer must return the Products in original, undamaged and unused condition, including all corresponding documentation and packaging. Carrot may refuse the return shipment and send the Products back at the Customer’s expense if the returned Products are damaged, used or incomplete. 

2. If the Customer owes Carrot outstanding amounts, Carrot has the right to set these off against the amount that the Customer is entitled to on the basis of the return shipment. 

3. Return shipments for which Carrot has given its Written consent are at the Customer’s risk and expense, unless otherwise agreed. This also applies to return shipments in the context of guarantee or support. 

Article 9 – Payment 

1. All of Carrot’s invoices must be paid in the manner indicated by Carrot, without any right to discount and/or setoff, within 14 (fourteen) days of the invoice date or as much sooner as Carrot will indicate. 

2. Carrot has the right at all times to require full or partial down payment or additional security from the Customer for the fulfilment of payment obligations. If the Customer fails to comply with this request in good time, Carrot has the right, without such affecting its other rights, to immediately suspend the further performance of the Agreement, and anything that the Customer must pay Carrot becomes immediately due and payable. Carrot is also entitled to send an invoice for each partial delivery. 

3. Should the Customer wish to object to the invoice amount, the Customer must notify Carrot In Writing within 5 (five) days of the date of the invoice, otherwise this right lapses. Any objections to the invoice do not suspend the Customer’s payment obligation. 

4. The Customer is in default automatically and without notice of default being required as soon as the period stated in Article 9.1 has ended. At such time, Carrot has the right to suspend its activities for the Customer. 

5. From the day that the Customer’s default occurs, the Customer must pay the applicable statutory interest on the outstanding amount. 

6. If the Customer fails to pay the outstanding amounts, Carrot has the right to pass on the claim for collection. All costs to be incurred by Carrot for collection, at law and otherwise, are payable by the Customer. The extrajudicial costs amount to at least 15% of the amount payable by the Customer to Carrot, subject to a minimum of €75, on the understanding that the provisions in this respect of the Dutch Extrajudicial Collection Costs (Standards) Act and the Dutch Extrajudicial Collection Costs (Fees) Decree are not deviated from to the detriment of a natural person not acting in the course of a profession or a business. 

7. Payment by the Customer is first deducted from the costs, subsequently from the interest and finally from the outstanding principal sum. The payments are always used to cancel out the oldest outstanding debt. 

8. In the event of winding-up, bankruptcy or liquidation, attachment or a suspension of payments on the Customer’s part, Carrot’s claims become immediately due and payable. 

Article 10 – Term and early termination of the Agreement 

1. In case of a sale of Products, the Agreement ends upon delivery of the Products to the Customer. An Agreement that does not relate to the sale of Products is entered into for the definite period expressly agreed on In Writing. 

2. If the Customer cancels the Agreement or terminates it early, the Customer must still pay the full price that was agreed on and any delivery costs. 

Article 11 – Liability and indemnity 

1. Carrot is liable only for direct damage or loss that the Customer suffers as a result of an attributable failure to fulfil the Agreement. A failure is attributable if it could have been avoided by a colleague acting properly and with due care, with due observance of regular attention, professional knowledge and available resources. 

2. Direct damage or loss is exclusively understood to mean: 

1. the reasonable costs incurred to determine the cause and the extent of the damage or loss, in so far as they relate to damage or loss within the meaning of this article; 

2. the reasonable costs to ensure that Carrot’s defective performance complies with the Agreement, in so far as these can be attributed to Carrot; 

3. the reasonable costs incurred to prevent or limit damage or loss, in so far as the Customer demonstrates that these costs have led to a limitation of direct damage or loss. 

3. Carrot is not liable for indirect damage or loss, including but not limited to: consequential loss such as damage to and/or wear or accelerated wear on the engine or other systems of the motorcycle, vehicle and any other application with a combustion engine as a result of defects or malfunctions in the Products delivered by Carrot, lost profit, drop in performance, loss caused by third-party claims against the Customer, and damage or loss resulting from the exceeding of a delivery period. 

4. Carrot is not liable (i) for damage or loss resulting from incorrect or incomplete information provided by the Customer, unless Carrot knew or reasonably should have known that this information was incorrect or incomplete, (ii) changes or adjustments to the Products not carried out by Carrot, and (iii) the use of the Products contrary to the specifications or manuals provided or warnings given by Carrot. 

5. Carrot’s liability is limited to the invoice amount of the Agreement, at any rate to that part of the Agreement to which Carrot’s liability relates. In case of personal injury or property damage for which Carrot should be liable, in spite of the provisions of these General Terms and Conditions, the liability is limited to the amount that is paid out in the relevant case under any business liability insurance taken out by Carrot. If Carrot is liable for personal injury or property damage and payment is not made under an insurance policy, any liability is limited to three times the invoice amount of the Agreement at most. 

6. Carrot’s liability arises exclusively if the Customer has given Carrot Written notice of default within thirty days of discovery of the alleged damage or loss. The notice of default must include a clear and detailed description of the failure and a reasonable cure period. If Carrot does not remedy the failure within this period, the Customer may claim compensation as provided in this article. 

7. Carrot has the right at all times to limit or repair the damage or loss as much as possible. The Customer is obliged to cooperate fully in this. 

8. The Customer indemnifies Carrot against claims of third parties who suffer damage or loss as a result of the use of products delivered by Carrot, unless this damage or loss was demonstrably caused by Carrot’s intentional acts or wilfully reckless acts. If Carrot is held liable by a third party, the Customer is obliged to assist Carrot at law and otherwise and to take all reasonable measures to prevent or limit damage or loss. If the Customer fails to do so, Carrot is entitled to take measures itself, the costs of which are fully at the Customer’s risk and expense. 

9. The limitations of liability included in this article do not apply if damage or loss was caused by Carrot’s intentional acts or wilfully reckless acts. 

10. Unless provided otherwise in these General Terms and Conditions, all legal claims against Carrot lapse one year after the Customer became familiar with or reasonably could have been familiar with the existence of these claims. 

Article 12 – Force majeure 

1. If Carrot cannot fulfil its obligations due to force majeure (within the meaning of Section 6:75 of the Dutch Civil Code), these obligations are suspended. Force majeure includes any circumstance beyond Carrot’s control that seriously obstructs the production, delivery or distribution of the Products. This includes but is not limited to: natural disasters, epidemics and pandemics, strikes, transport restrictions, government measures, supply problems at suppliers, shortages of materials, fire, operational failures and unforeseen technical or operational breakdowns. 

2. Carrot may also rely on force majeure if the situation of force majeure arises after the agreed delivery date has expired. 

3. If the situation of force majeure makes performance of the Agreement permanently impossible or if it lasts longer than three months, both Parties have the right to terminate the Agreement for breach wholly or partially without judicial intervention. 

4. If Carrot, at the time of the occurrence of force majeure, has already partially fulfilled its obligations or can only perform partially, Carrot has the right to separately invoice the part already delivered or the deliverable part. The Customer is obliged to pay this invoice as if there were an independent delivery. 

5. Carrot will do its utmost to limit the consequences of force majeure as much as possible. Regardless of the above, damage or loss as a result of force majeure does not qualify for compensation. 

Article 13 – Suspension and termination for breach 

1. Each Party has the right to terminate the Agreement for breach if the other Party, after having been given proper and detailed Written notice of default with a reasonable period to remedy the failure, fails attributably to fulfil essential obligations under the Agreement. 

2. Carrot is entitled to wholly or partially suspend the performance of the Agreement or to terminate the Agreement for breach with immediate effect without notice of default and without judicial intervention by means of a Written notification if the Customer: 

1. fails to fulfil their obligations or payment obligations; 

2. based on the information known to Carrot gives good cause for concern that they will not fulfil their obligations; 

3. obtains or applies for a provisional or definitive suspension of payments; 

4. is declared bankrupt or put into liquidation or files for bankruptcy or files a winding-up petition; 

5. winds up or terminates their business; or 

6. otherwise can no longer dispose freely of their assets. 

3. The Customer never claims any compensation in connection with a suspension or termination for breach by Carrot on the basis of this article. 

4. If the Customer, at the time of termination for breach or termination, has already received deliverables under the Agreement, these deliverables and the corresponding payment obligations continue to exist, unless Carrot is essentially in default with respect to those deliverables. Invoices that were sent before the termination for breach or termination and that pertain to activities already performed or Products already delivered remain payable in full and are immediately due and payable. 

5. The Customer is liable for loss suffered by Carrot as a result of the suspension or termination for breach of the Agreement under this article. 

Article 14 – Retention of title 

1. All Products delivered by Carrot remain the property of Carrot until the Customer has paid in full all amounts payable under the Agreement, including the amounts referred to in Article 9. This retention of title also extends to future claims of Carrot against the Customer that arise from the delivery of Products. 

2. As long as the retention of title applies, the Customer is not allowed to pledge the Products, give them to third parties as security or to otherwise encumber them. 

3. If the Customer acts as reseller, the Customer may only resell and deliver the Products delivered subject to retention of title in the normal course of business. This does not affect the obligation to pay Carrot in full. 

4. The Customer is obliged to immediately inform Carrot In Writing if third parties claim the Products delivered subject to retention of title, attach them or otherwise want to exercise rights in respect of them. 

5. If the Customer applies for a provisional or definitive suspension of payments, reaches a debt settlement, if the Customer’s bankruptcy or liquidation is petitioned for or ordered, or if the Customer otherwise can no longer dispose freely of their assets, the retention of title revives in respect of all Products delivered by Carrot that have not yet been paid in full. 

6. In case of the Customer’s default, Carrot has the right to repossess the Products delivered subject to retention of title. The Customer hereby gives Carrot unconditional consent to enter the areas where the Products are located and to take back the Products. All resulting costs, including transport costs and storage costs, are fully payable by the Customer. 

7. The Customer is obliged to take out adequate insurance against normal business risks for the Products subject to retention of title at their own expense, and to submit a certificate of insurance on Carrot’s demand. 

Article 15 – Intellectual property (IP) 

1. All intellectual property rights relating to the Products delivered by Carrot are vested in Carrot or its licensors. 

2. Carrot is allowed to use the Customer’s name and logo for promotional purposes, unless the Customer objects to this In Writing. 

Article 16 – Other provisions 

1. Without Carrot’s prior Written approval, the Customer may not wholly or partially transfer to third parties their rights or any obligations resulting from the relationship with Carrot or have their rights exercised or any obligations fulfilled by third parties. Carrot at all times has the right to transfer its rights and obligations under the Agreement to a third party. 

2. Carrot has the right to adjust these General Terms and Conditions unilaterally. Future changes take effect as soon as they have explicitly been communicated to the Customer. 

Article 17 – Applicable law and choice of forum 

1. Dutch law applies exclusively to the legal relationships between Carrot and the Customer. Any applicability of the 1980 Vienna Sales Convention is hereby excluded. 

2. Any disputes between Carrot and the Customer are submitted to the competent court in the district where Carrot has its registered office.