GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY VERKOOYEN MACHINES B.V.
I. GENERAL
1. These terms and conditions apply to all offers and agreements for the purchase/sale of goods and/or orders from VERKOOYEN Machines B.V. in Vessem hereinafter referred to as VERKOOYEN MACHINES, insofar as not stipulated otherwise in the offer or agreement. These terms and conditions may be cited as VERKOOYEN MACHINES.
2. Additions or deviations from these terms and conditions must be agreed in writing; these additions and deviations only apply to the agreement in which they were made.
3. The rights and obligations arising from agreements between VERKOYEN MACHINES and the client cannot be transferred by the client to third parties, unless with written permission from VERKOYEN MACHINES.
4. The provisions of Section 1, Title 7 of Book 7 of the Dutch Civil Code (assignment), with the exception of Article 412, do not apply to the present legal relationship, unless expressly provided otherwise in the agreement or in these terms and conditions.
II. OFFERS
1. All offers are without obligation and are valid for 30 days, unless otherwise agreed in writing. An offer containing a term can nevertheless be revoked by VERKOOYEN MACHINES, even after receipt of the order or assignment, provided that it is within 5 days.
III. AGREEMENTS
1. An agreement is only deemed to have been legally concluded after VERKOOYEN MACHINES has confirmed the order or assignment in writing or has started the execution of the order or assignment. The content of the agreement is determined by VERKOOYEN MACHINES' quotation and/or order confirmation and these general terms and conditions.
IV. PRICES
1. All quotations and the prices charged by VERKOYEN MACHINES are the prices applicable at the time of the offer or the conclusion of the agreement, ex location Veldhoven and/or Vessem, exclusive of VAT as well as other items covered by the agreement. costs, such as taxes and fees.
2. If a change occurs in one of the price-determining factors after the offer has been made, VERKOOYEN MACHINES is entitled to adjust the prices accordingly, even if the agreement has already been concluded.
3. Price changes of more than 10% give the client the right to dissolve the agreement, provided this is done in writing and within seven days of receipt of our notification in question. A dissolution as aforesaid does not entitle the client to compensation for any damage.
V. PAYMENT
1. The Client is obliged to pay all invoices before the collection and/or delivery of the relevant goods or before the relevant work is performed (payment in advance), unless otherwise agreed in writing.
2. If invoices are not paid in cash in accordance with article V, paragraph 1, the client is in default by the mere expiry of the agreed payment term, without a notice of default being required, regardless of whether or not the exceeding thereof can be attributed to the client.
3. Without prejudice to its other rights, VERKOOYEN MACHINES is then authorized to charge interest on the outstanding amount of 1% per month or part of a month, to be calculated from the due date in question.
4. All extrajudicial and judicial costs incurred by VERKOYEN MACHINES in the context of a dispute with the client, both the claimant and the defendant, are for the account of the client. The extrajudicial collection costs to be determined in accordance with the collection rate of the Dutch Bar Association, the judicial collection costs on the amount actually paid by VERKOOYEN MACHINES for the proceedings, also insofar as this exceeds the liquidated legal costs.
5. Incoming payments serve to settle the oldest outstanding items - including interest and costs - even if the client declares otherwise in this regard.
6. In the event of late payment, any exchange rate difference that is detrimental to VERKOOYEN MACHINES will be for the account of the client. Reference dates are the due date of the invoice and the date on which payment is made.
VI. DELIVERY TIME, DELIVERY, RISK
1. The delivery term stated or agreed in the offer and/or sales agreement does not count as a strict deadline, even if it has been expressly accepted by the client. In the event of late delivery, VERKOYEN MACHINES is therefore only in default after written notice of default. Delivery term also includes repair term.
2. The stated or agreed delivery period is in any case, but not limited to, automatically extended by the period(s) during which:
- there is a delay in the supply and/or dispatch and/or any other circumstance temporarily preventing the execution, regardless of whether this can be attributed to VERKOOYEN MACHINES;
- the client fails to fulfill one or more obligations towards VERKOOYEN MACHINES or there is a well-founded fear that it will fail to do so, regardless of whether the reasons for this are well-founded or not;
- the client does not enable VERKOYEN MACHINES to perform the agreement; this situation arises, among other things, if the client fails to communicate the place of delivery or to make available the data, goods or facilities required for the execution.
3. Delivery in the Netherlands takes place ex location in Veldhoven and/or Vessem, unless otherwise agreed in writing. All goods are transported at the expense and risk of the client, even if the shipment is made free of charge.
4. If VERKOOYEN MACHINES arranges for shipment of the goods at the request of the client or if the agreed parity of the ICC Incoterms places this responsibility on VERKOYEN MACHINES, the time, method of shipment and shipment route are at its discretion. Transport insurance is only taken out by VERKOYEN MACHINES at the explicit request of the client; all related costs are for his account.
5. Delivery is deemed to have taken place the moment the goods are made available to the client at VERKOOYEN MACHINES.
If the client does not accept the goods, they will be stored at his expense and risk or sold by VERKOOYEN MACHINES. VERKOYEN MACHINES is entitled to recover its claim from the proceeds.
6. Delivery outside the Netherlands takes place Ex Works (EXW) Incoterms 2000, unless one of the other Incoterms of the International Chamber of Commerce (ICC), Edition 2000, has been agreed in writing.
7. Part deliveries are allowed.
VII. WARRANTY / ADVERTISING
1. The goods delivered by VERKOOYEN MACHINES meet the specifications as laid down in the accompanying purchase contract. No warranty is provided unless otherwise stated in the purchase contract.
2. If the client invokes the warranty provided by VERKOYEN MACHINES in the relevant purchase agreement or makes a complaint, VERKOYEN MACHINES will assess the warranty or the complaint and, if necessary, settle it with due observance of the relevant provisions in the purchase contract.
Warranty claims are not transferable to third parties.
3. Under penalty of forfeiture of his right to complain, the client must report complaints regarding the amount of the invoice, visible imperfections in the delivered goods in writing to VERKOYEN MACHINES within 3 days after receipt or delivery, with an accurate description of the complaints. For all other complaints, a term of 5 days applies after the shortcomings have become known or could have been known. The items in question must be made available to VERKOOYEN MACHINES for investigation upon first request.
4. Advertising is not possible if:
-the goods have been used for a purpose other than that for which they are normally intended or, in the opinion of VERKOOYEN MACHINES, have been used or transported injudiciously or have been repaired by the client or a third party;
- the damage is caused by negligence on the part of the client (for example, due to insufficient maintenance) or because the client has acted contrary to instructions, directions and advice from VERKOOYEN MACHINES;
- it concerns parts whose seal has been broken or which are usually replaced during maintenance or service, or which are accessories;
- the client has not fulfilled its obligations towards VERKOOYEN MACHINES (both financially and otherwise).
5. In the event that the client submits a complaint with due observance of the provisions of this article and VERKOOYEN MACHINES finds his complaint well-founded, VERKOOYEN MACHINES will, at its discretion, replace the relevant goods free of charge (after which the replaced goods become its property) or repair or grant a price reduction.
6. The handling of a complaint does not suspend the payment obligation of the client.
7. If attention is paid to a complaint outside the cases described above, this is done without obligation and the client cannot derive any rights from this.
VIII. EXAMINATION
1. The Client has the right, at its own expense, to inspect the goods before delivery at a time and place determined by VERKOOYEN MACHINES.
IX. NON-PERFORMANCE / DISSOLUTION / SUSPENSION
1. VERKOYEN MACHINES is authorized to dissolve the agreement with immediate effect, without judicial intervention, in whole or in part, or to suspend the performance, without prejudice to its other rights (to fulfillment and/or compensation), if:
- the client acts contrary to any provision of the agreement between the parties;
- the client applies for a moratorium or files a declaration of bankruptcy;
- bankruptcy of the client is requested;
- the client's company is shut down or liquidated;
- a private agreement is offered.
In these cases, any claim against the client is immediately due and payable, without VERKOOYEN MACHINES being obliged to pay compensation or guarantee.
2. The provisions of paragraph 1 of this article apply mutatis mutandis if the client, after having been invited to do so in writing, has not, in the opinion of VERKOOYEN MACHINES, provided adequate security within seven days.
3. If the client remains in default with payment and/or purchase for more than fourteen days, VERKOYEN MACHINES is entitled to resell the goods sold without further notice, in which case the down payment made to VERKOYEN MACHINES will lapse as compensation for the damage it has suffered. unless proof to the contrary is provided by the client, that this damage is less.
X. RETENTION OF TITLE
1. Delivery takes place subject to retention of title. This reservation applies to claims for payment of all goods delivered or to be delivered by VERKOOYEN MACHINES to the client pursuant to any agreement and/or work performed in the context of delivery, as well as to claims due to the failure of the client to comply with these agreements.
2. In the cases referred to in Article IX, VERKOOYEN MACHINES is authorized to take back the goods delivered that have remained its property in accordance with the previous paragraph. Such a take-back is considered a dissolution of the agreement(s) concluded with the client. The Client irrevocably authorizes VERKOYEN MACHINES to remove the relevant items from where they are located, to the extent necessary.
3. The Client is authorized, if and insofar as necessary in the context of its normal business operations, to dispose of the goods subject to the retention of title. If the client makes use of this authority, he is obliged to deliver the goods on which the retention of title rests to third parties only subject to the property rights of VERKOOYEN MACHINES. He is also obliged to grant VERKOYEN MACHINES an undisclosed pledge on first request on the claims he has or will have against these third parties. In the event that the client refuses this, this provision applies as an irrevocable power of attorney to VERKOOYEN MACHINES to establish this right of pledge.
XI. RIGHT OF RETENTION
1. VERKOYEN MACHINES is authorized to suspend the fulfillment of the obligation to hand over a good of the client, which it has in its possession in the context of an assignment, until the claim of VERKOYEN MACHINES with regard to that good has been paid in full, including interest and costs.
XII. IN RETURN
1. If the client continues to use a traded-in motor vehicle pending the delivery of the motor vehicle ordered by him, all costs with regard to the first-mentioned motor vehicle and any depreciation thereof will be for his account.
XIII. LIABILITY
1. VERKOYEN MACHINES is not liable for damage arising as a result of any shortcoming in the fulfillment of its obligation(s) towards the client. The fulfillment of the obligations under warranty/complaint as described in article VII applies as sole and full compensation.
Any other claim for compensation, including those relating to trading loss (stoppage loss, loss of income and other indirect damage of any kind) and damage as a result of liability towards third parties is expressly excluded, unless there is intent or gross negligence on the part of VERKOOYEN MACHINES or managerial subordinates.
2. VERKOYEN MACHINES is also not liable for intent or (gross) negligence of (non-executive) subordinates or others it has engaged in the context of the execution of the agreement.
3. VERKOYEN MACHINES accepts no liability for advice provided by or on behalf of it.
4. VERKOOYEN MACHINES is not liable for damage to motor vehicles of third parties on its premises.
XIV. FORCE OF THE MAJORITY
1. Force majeure within the meaning of these general terms and conditions is understood to mean any circumstance beyond the control of VERKOOYEN MACHINES, whether or not foreseeable at the time of entering into the agreement, as a result of which performance cannot reasonably be expected of VERKOOYEN MACHINES , such as war, government measures, lack of raw materials, factory or transport disruptions of any kind, strikes, exclusion or lack of personnel, quarantine, epidemics, frost loss, shortcomings of third parties that VERKOOYEN MACHINES have for the execution of the agreement. enabled, etc.
XV. PARTIAL NULLITY
1. If one or more provisions from this agreement with the client are not or not fully legally valid, the other provisions will remain in full force and effect. The invalid provisions will be replaced by a suitable arrangement that comes as close as possible to the intention of the parties and the economic result pursued by them in a legally effective manner.
XVI. PLACE OF PERFORMANCE, APPLICABLE LAW, COMPETENT COURT
1. VERKOOYEN MACHINES' place of business is the place where the client must fulfill its obligations towards VERKOOYEN MACHINES.
2. All offers and agreements of VERKOYEN MACHINES are exclusively governed by Dutch law, with the exception of the provisions of Section 6:5.3 of the Dutch Civil Code.
3. All disputes arising as a result of the agreement concluded between the client and VERKOYEN MACHINES or of further agreements that may result therefrom, will be settled by the competent court in Eindhoven/'s Hertogenbosch.