GENERAL TERMS AND CONDITIONS FOR DELIVERIES OF:Parts & Accessories Traders (PAT) Europe BV, Haarspit 1, with its registered office and principal place of business at Oudkarspel, hereinafter referred to as: user
Article 1. Definitions
1. In these general terms and conditions the following meanings will apply: user: the user of the general terms and conditions (PAT Europe BV); buyer: non-consumer, a client who acts in the course of a business or profession.
Article 2. Applicability of these terms and conditions
1. These terms and conditions apply to every offer, quotation and agreement between the user and the buyer to which these terms and conditions have been declared to apply, in so far as the parties have not expressly provided otherwise in writing.
2. These terms and conditions also apply to all agreements with the user for the performance of which third parties need to be involved.
3. Any general terms and conditions of the buyer are expressly rejected.
4. The buyer with whom an agreement has been entered into under these terms and conditions accepts the applicability of these terms and conditions to all future agreements.
5. If one or more conditions should appear to be or become null and void, this will not affect the validity of the other terms and conditions.
6. If the user should at any time choose not to rely on these general terms and conditions, this does not mean that the user would lose his right to rely on these general terms and conditions.
Articles 3. Offers and conclusion of the agreement
1. Offers made by the user are without obligation unless expressly provided otherwise and they do not bind the user to supply the goods and/or services concerned to the buyer. Offers – with or without obligation – will at least be cancelled not later than 14 days after the date of the offer.
2. Varying provisions in these terms and conditions may only be relied upon by the buyer if these varying conditions have been explicitly accepted in writing by the user in a separate agreement. In the event of inconsistency between a separate agreement and these terms and conditions, the conditions of the separate agreement will prevail over the articles of these terms and conditions.
3. Delivery periods mentioned in offers of the user as well as other periods including user performance referred to are of a general nature and only for information purposes; if they are exceeded, the (potential) buyer will not be entitled to claim compensation or demand termination.
4. The prices quoted by the user are in euros, unless stated otherwise, based on performance during normal working hours and excluding transport, packaging, delivery and installation costs, VAT and other government levies.
5. In case of a composite quotation, the user will not be obliged to supply part of the goods referred to in the quotation for a corresponding part of the indicated price.
6. Offers do not automatically apply to repeat orders.
7. The prices indicated in an offer are exclusive of VAT and ex works, unless indicated otherwise.
8. The agreement between the user and the buyer will not be concluded until the buyer has confirmed an order in writing to the user, or until the user has made a start with the actual performance of the order within four weeks after the order has been placed. Agreements that are entered into through the intermediary of commercial agents, commercial travellers and/or other persons will only bind the user after these agreements have been confirmed in writing by the user or after the user has actually started with their performance.
9. Any changes concerning an agreement will only be valid if they have been agreed in writing between the user and the buyer.
10. In the event of sale from warehouse stocks, the invoice may replace the written confirmation.
Article 4. Duty of disclosure
1. Upon request by the user, the buyer is obliged to provide the user with all information relevant to the agreement, included but not limited to the correct VAT identification number as well as the name by which the buyer is registered with the tax authority concerned.
Article 5. Samples, designs and models
1. If the user has shown or provided a design, sample or model, this is presumed only to have been shown or provided as an indication: the characteristics of the goods to be supplied may differ from the sample, design or model, unless it had been specifically stated that delivery would be in accordance with the sample, design or model shown or provided.
Article 6. Delivery
1. Unless expressly agreed otherwise in writing, the warehouse of the user (in Oudkarspel) will be the place of delivery. If any of the ‘Incoterms’ has been agreed as a delivery condition, the applicable Incoterms will apply at the moment when the agreement is entered into.
2. If goods have not been sold carriage paid, the risk for the goods during transport will be at the expense of the buyer from the moment that the goods have left the company/warehouse of the user. The risk for the goods during transport will therefore be at the expense of the buyer. The user is free in his choice of load(ing), means of transport and shipping agent/carrier, unless agreed otherwise.
3. The buyer is obliged to take delivery of the purchased goods the moment they are delivered to him or the moment they are provided to him in accordance with the agreement. At the moment of delivery of the goods the risk passes to the buyer, unless under the agreement or by law the risk has passed to the buyer at an earlier time.
4. If the buyer refuses to take delivery of the goods or fails to provide information or instructions that are needed for the delivery, the goods will be stored at the risk and expense of the buyer. In that case the buyer will also owe all additional costs, including at least storage costs.
5. The user is entitled to engage third parties for the performance of his obligations.
Article 7. Delivery time
1. The delivery time specified by the user will never start until he has all the necessary information.
2. The delivery times specified by the user are always approximate only and never strict deadlines.
3. In the event of late delivery, the buyer must therefore give notice of default to the user and allow the user a reasonable term as yet to fulfil his obligations. Notices of default by the buyer must always be in writing.
Article 8. Partial deliveries
1. The user is allowed to deliver sold goods in parts
2. If the goods are delivered in parts, the user will be entitled to invoice each part-delivery separately.
Article 9. Technical requirements etc.
1. If goods to be delivered in the Netherlands need to be used outside the Netherlands, the user will not be responsible for the goods complying with the technical requirements, standards and/or regulations set by the laws or conditions of the country where the goods will be used. This condition does not apply if, when the agreement was entered into, the use of the goods abroad was agreed and the buyer submitted all the necessary details and specifications.
2. If the buyer requires the delivered goods to meet technical requirements that differ from the requirements that normally apply in the Netherlands, the user will only be bound by this if this has been explicitly agreed by the parties.
Article 10. Termination of the agreement
The user is entitled to terminate the agreement wholly or in part, without notice of default or court intervention being required, with immediate effect if:
• After the agreement has been entered into the user learns of circumstances that give the user good grounds for fearing that the buyer will not be able to meet his obligations and/or
• The user has asked the buyer when the agreement was entered into to provide security for performance and this security is not provided or is insufficient despite being demanded and/or
• Circumstances occur relating to persons and/or materials the user uses / engages or tends to use or engage, which are of such nature that the performance of the agreement becomes impossible or problematic and/or disproportionally expensive that performance of the agreement can no longer be reasonable required and/or
• The buyer loses the free disposal of his assets, for example through liquidation, (application for) a moratorium, bankruptcy or seizure and/or
• Other circumstances occur, which are of such nature that the maintenance of the agreement cannot reasonably be required from the user.
If the user makes use of his right to terminate the agreement, any claims the user has against the buyer will be immediately due and payable. The right of the user to claim compensation will not be affected by this.
Article 11. Right of suspension
1. If and as long as the buyer fails to meet in a prompt or proper manner any obligation arising from the agreement he has entered into with the user or a related agreement, the user will be entitled to suspend the performance of his obligations under an agreement.
2. The buyer is not entitled to suspend performance of his obligations under the agreement.
Article 12. Retention of title
1. All goods supplied by the user will remain the property of the user until the buyer has met all obligations arising from all agreements entered into with the user.
2. Goods supplied by the user, which are subject to the retention of title by virtue of paragraph 1, may only be sold on in the context of normal business activities but may never be used as a means of settlement.
3. If the buyer creates a new item from the goods supplied by the user, which are subject to retention of title, the buyer will be acting on the instruction of the user and the buyer will keep the item for the user. The buyer will not become the owner until the time that the retention of title lapses after all claims of the user have been met.
4. The buyer is not entitled to pledge the goods that are subject to retention of title nor encumber them in any other manner.
5. The buyer hereby and for any time as may be necessary grants unconditional and irrevocable permission to the user or to a third party to be designated by him, in all cases in which he intends to exercise his ownership rights, to enter all those places where the property of the user will then be located and to take this property with him.
6. If a third party seizes the goods that are subject to retention of title, or wishes to establish a right to or lay claim to these goods, the buyer will be obliged to inform the buyer of this immediately, both orally and in writing.
7. The buyer undertakes to insure the goods that have been supplied subject to retention of title and to maintain insurance cover against fire, damage caused by explosion and water as well as against theft and to allow this insurance policy to be inspected on demand. The user is entitled to compensation for any damage to goods supplied by the user which are still subject to retention of title. The buyer will give his full cooperation in this regard.
Article 13. Defects; complaint periods
1. Upon delivery of the purchased goods, the buyer must immediately inspect the goods or have them inspected (within 24 hours at the most). The buyer must ascertain whether the delivery complies with the agreement, namely: whether the right goods have been delivered, whether the delivered goods correspond as to quantity (for example amount and number) with what has been agreed, whether the delivered goods meet the agreed quality requirements or, if these are lacking, with the requirements for normal use and/or commercial purposes.
2. The buyer must immediately (and not later than within 8 working days after delivery) inform the user of any defects. This statement must be made in writing with a detailed specification of the defect. The user must be given an opportunity to inspect the complaint, also on location.
3. If the buyer fails to inspect the delivered goods immediately and/or fails to inform the user immediately of the defects, or does not give the user an opportunity to inspect the complaint, the buyer will lose his rights with respect to the defects found.
4. If the buyer has any rights on account of defects, the user may choose either to repair, replace or pay alternative compensation. In the event of replacement or payment of alternative compensation, the buyer must return the defective goods to the user, unless the user specifically waives this option.
5. Even if the buyer presents his complaint in time, he will still have the obligation to pay and to take delivery of the orders he has made.
6. Any costs on account of unjustified complaints by the buyer will be at the expense of the buyer.
7. Goods may only be returned to the user after prior written permission.
Article 14. Guarantee
1. The user only guarantees that the goods he delivers have the characteristics needed for normal use of the goods, as well the characteristics needed for any special use, if this special use has been specifically stipulated in the agreement with the user.
2. The guarantee referred to in article 14.1 does not apply if the goods to which the guarantee refers:
• are not used in accordance with the order or have been or are being used improperly and/or
• instructions for use have not been observed and/or
• inexpert repairs have been made and/or
• changes have been made and/or (serial) numbers or seals are damaged or have been removed.
3. If the user provides a guarantee, the guarantee period will be equal to the number of months the producer or the user’s supplier has provided guarantee unless explicitly provided otherwise in writing, but never for longer than the statutory guarantee period.
4. If the guarantee provided by the user relates to goods and/or services located outside the Netherlands, the user will only be liable for the cost of repair or replacement for no more than the amount than these costs would have been in the event of implementation in the Netherlands.
5. If the buyer makes a claim under the guarantee for specific goods supplied by the user, these goods may only be returned to the user by the buyer after prior written permission of the user.
6. If, with due observance of article 14.5, goods are returned, these goods must be provided with a copy of the original invoice provided by the user to the buyer together with an accompanying, fully completed guarantee certificate and a clear description of the complaint.
Article 15. Price/Price increase
1. Unless explicitly provided otherwise, the prices indicated by the user will apply: in euros (€), excluding VAT, based on the minimum quantities used by the user, excluding transport costs and ex works.
2. The user is entitled to increase the price, if between the date of the agreement and the date of delivery at least three months have lapsed and price changes have occurred with respect to raw materials, currencies and/or wages or other circumstances, without the buyer being entitled to terminate the agreement for that reason.
3. If the price increase is more than 10% of the price agreed in the agreement, the buyer will be entitled to terminate the agreement by written notice.
Article 16. Security
1. The user is entitled to require sufficient security from the buyer for the fulfilment of his payment obligations, including requiring the payment of advances by the buyer, before he delivers or continues deliveries that have already started or continued performance of other obligations from the agreement.
2. If the user has any doubt about the buyer’s ability to pay, the user will be entitled to postpone the delivery.
Article 17. Packaging
1. The buyer is obliged to return any returnable packaging to the address of the user within 14 (fourteen) days after delivery, empty and undamaged and at his expense. If the buyer fails to meet his obligations with respect to the packaging, all costs resulting from this will be at his expense. Such costs may include costs resulting from late return and the costs of replacement, repair or cleaning.
2. If the buyer fails to return returnable packaging within the specified term after being summoned, the user will be entitled to replace it and to charge the costs for this, provided that the user has announced that he will take such steps in his summons.
Article 18. Payment
1. Unless agreed otherwise, the buyer must pay within 14 (fourteen) days after the invoice date, either net cash on delivery or by deposit or transfer into a bank or giro account designated by the user in the currency in which invoicing has taken place, at the discretion of the user.
2. After the expiry of 14 (fourteen) days after the invoice date, the buyer will be in default by operation of law; from the moment that he is in default, the buyer will owe interest of 1% a month on the due and payable amount, unless the statutory interest is higher, in which case the statutory interest will apply. The interest is calculated from the moment the buyer is in default until payment of the amount due has been made in full.
3. In the event of liquidation of the buyer, bankruptcy, suspension of payment or if he otherwise loses the power of disposition of his assets, the claims of the user and the obligations of the buyer towards the user will be immediately due and payable.
4. Payment must take place without discount. The buyer is never entitled to setoff. Objections against the amount of the invoice do not suspend the buyer’s obligation to pay.
5. Payments made by the buyer will first be applied to settle all costs and interest payable and subsequently those invoice amounts that have been outstanding for the longest period.
6. The user will at all times be entitled to use his right to setoff.
Article 19. Collection charges
1. If the buyer fails to comply with one or more of his obligations, all judicial and extrajudicial costs incurred for settlement will be at the expense of the buyer. The buyer will at least owe:
15% on the first € 3,000, 10% on the excess up to € 6,000, 8% on the excess up to € 15,000, 5% on the excess up to € 60,000, and 3% on the remaining excess.
2. If the user is able to demonstrate that he has made higher costs, which were reasonably required, these will also qualify for compensation.
Article 20. Liability
The statutory liability of the buyer is limited as follows:
1. The user will never be liable for consequential loss, such as lost profit, lost savings and/or business and loss due to business interruption.
2. The user will never be liable for damage that is caused or has been caused by the incorrect or incomplete provision of information by the buyer.
3. The labiality of the user is, moreover, limited to the amount paid by the user’s insurer in a specific case.
4. If in a specific case the insurance does not offer cover or does not pay, and the user is liable, the liability of the user will be limited to the invoice value of the transaction, at least that part of the transaction to which the liability relates.
5. The limitations of liability in this article also apply to damage caused by the user or his subordinates due to gross negligence or intentionally, in so far as permitted by law.
6. The limitations of liability in this article also apply to claims which the buyer bases on other grounds, for example on the grounds of an unlawful act.
7. If the buyer sells on the goods supplied by the user, he will be obliged to exclude in his purchase agreement any liability of the user (for example, on account of product liability). If the buyer fails to do this, he will be liable to pay the user compensation for any damage caused as a result.
Article 21. Force majeure
1. In these general terms and conditions force majeure is understood, in addition to the legal definition and interpretation of the term, to include all exterior causes, whether anticipated or not, over which the user cannot exercise any control, but which prevent the user from being able to meet his obligations, including strikes in the company of the user or third parties.
2. During a period of force majeure, the delivery and other obligations of the user will be suspended. If the period during which due to force majeure the user is unable to meet his obligations lasts longer than 2 months, both parties will be entitled to terminate the agreement, without either of the parties being obliged to pay compensation.
3. If, when the situation of force majeure arises, the user has already met part of his obligations, or is able to meet only part of his obligations, he will be entitled to separately invoice the part already supplied, or which can be supplied, and the buyer will be obliged to pay this invoice as if it were a separate contract.
Article 22. Limitation
1. Contrary to the statutory period of limitation, the period of limitation is one year for both user and buyer.
1. To determine the extent of the buyer’s obligations, the administrative data of the user will be decisive, subject to proof to the contrary to be provided by the buyer in accordance with objective criteria.
2. The user and the buyer consider the quantities, sizes and weights stated on the invoice or consignment note as correct, subject to proof to the contrary to be provided by the buyer in accordance with objective criteria
Article 24. Dispute resolution / Applicable law
1. The Court in the user’s place of business has exclusive jurisdiction to resolve disputes. Even so, the user is entitled to summon the other party before any other court that has jurisdiction according to the law.
2. Dutch law applies to all agreements between the user and the buyer. The provisions of the Vienna Sales Convention are expressly excluded.
Article 25. Changes to and source of the terms and conditions
1. These terms and conditions have been filed with the Chamber of the Commerce at Alkmaar. The version filed at the time when the agreement was entered into will at all times apply.
Article 26. Other conditions
1. These terms and conditions are also available in translated versions. In the event of any doubts or discrepancies, the Dutch version will prevail over the translated versions.