Termes et conditions
Clause 1 GENERAL
- These General Relationship, Delivery and Sales Conditions (hereinafter: « these General Conditions ») shall apply to all quotations, offers, deliveries of goods and services, and to the conclusion, content and performance of all agreements of Handelsonderneming M. Vos VOF, having offices in Hedel, Velddriel and Zaltbommel. Also operating under the company names “Vostruckparts” and “Vostrucks”.
- The other party declares that he will at all times refrain from money laundering, corruption, terrorist financing and onward delivery to sanctioned persons/countries.
- Any additional and/or deviating (general) terms and conditions of the other party, including any (general) purchase conditions of that other party, shall not bind us, unless they have been accepted by us in writing, in which case our General Conditions shall remain applicable in full.
Clause 2 OFFERS
- All quotations and offers made by us shall be without engagement, and are invitations to make an offer, unless agreed otherwise in writing or unless these General Conditions provide otherwise.
- Descriptions in offers, such as images, catalogues, drawings or statements, and any finishes and colours provided otherwise, shall be as accurate as possible, but shall not bind us.
- If an order has been placed by the other party without an offer having been made by us, an agreement will only be concluded if and after we have accepted the relevant order in writing within ten days, or if and insofar as an order has already been executed by us. Sending the invoice to the other party is to be regarded as a confirmation of the order.
- Any information and/or advice provided by us shall only be of a general nature and shall be without engagement.
- Oral promises given by or arrangements or agreements made with any of our subordinates, such as representatives, agents and/or persons who are not in our service, including intermediaries, shall not bind us until and after those arrangements, promises or agreements have been confirmed in writing by an authorised representative of us.
Clause 3 PRICES
- All prices stated in an offer shall be exclusive of VAT. The prices shall always be based on the price levels applicable at the time that the offer was made, unless stated otherwise by us in writing.
- We shall have the right to charge through any changes in price levels, for example due to changes in the sales prices of our suppliers, freight charges, foreign exchange rates, import and export duties and similar levies, insurance costs, labour costs, social security costs, packaging costs, taxes and any other price-determining factors, in the price to be paid by the other party.
- If the price change is implemented after the offer has been made, the other party shall have the right not to conclude the agreement, without any costs being due. If the price change is implemented within three months after the conclusion of the agreement, the other party shall have the right to dissolve the agreement.
- Our price lists and other price indications shall be exclusive of VAT, unless stated otherwise. The other party cannot derive any rights from that. We reserve the right to change these price lists and other price indications, as well as the products mentioned therein, at any time.
- The costs of dispatching free domicile clear, cash on delivery or express delivery shall be borne by the other party, unless we have agreed otherwise in writing.
Clause 4 DELIVERY TIMES
- The delivery times specified by us are not deadlines and are not of the essence, and we will therefore not be in default by the mere fact that they are exceeded. The specified delivery times shall be based on the circumstances prevailing at the time that the agreement was concluded. If, due to no fault of our own, any delay arises as a result of a change in the aforementioned circumstances or as a result of an interim change in the order by the other party, the delivery times will be extended accordingly, without prejudice to that which has been provided hereinafter for cases in which we are temporarily or permanently unable to perform the agreement due to force majeure. Exceeding an agreed delivery period, due to whatever cause, shall not entitle the other party to any compensation or damages, or to non-performance and/or suspension of its obligations towards us.
- The delivery period starts at the moment that we have confirmed the order of the other party in writing, have received the stipulated advance payment (if any) and after all technical information that is required for the execution of the agreement has been provided to us.
Clause 5 FORCE MAJEURE
- Force majeure shall for the purposes hereof mean any shortcoming in the performance that is not due to our fault and that is not for our account.
- Force majeure on our part shall in any case occur if we, after having concluded the agreement, are prevented from performing our obligations under that agreement or from meeting the conditions thereof as a result of war, danger of war, terrorist attacks, riots, acts of war, fire, water damage, work strikes, sit-in strikes, company occupation, disruptions in the supply of energy, operational disruptions, consequences of natural disasters, illness among personnel, material defects or faults, transport difficulties or lack of raw materials. Furthermore, all other causes beyond our fault, control and/or risk.
- The provisions of the previous paragraph shall also apply to third parties from whom we must obtain all or part of the required materials or raw materials, as well as in case of storage or during transport, whether or not under our own management.
- If the agreement cannot be performed due to force majeure, each of the parties shall have the right to dissolve the agreement in full or in part, without any judicial intervention being required, without us being held to pay any damages or compensation.
- In deviation from the above, we shall in case of temporary prevention of the performance of the agreement as a result of force majeure have the right to suspend delivery for the duration of the prevention. The other party shall as then have the right to dissolve the agreement if it cannot reasonably be required from him, given the circumstances of the case, that he will await the end of the (cause of the) prevention. Such dissolution shall not entitle the other party to any damages or compensation.
Clause 6 PAYMENT
- Unless otherwise agreed, payment must be made in advance by bank transfer or in advance by debit card payment at our office. In the case of a transfer, the account holder must at all times be the same as the invoiced. In addition, Vostruckparts and Vostrucks retain the right to allow delivery only to take place after the invoice amount has been credited to our bank account. We do not prefer cash payments and we do not facilitate cash payments above three thousand euros (€3,000). Banknotes of two hundred euros (€200) and five hundred euros (€500) are also not accepted by us.
- In all other cases, payment of the invoice amounts must always be made without reductions and/or settlement within fifteen days after the invoice date.
- If the other party fails to pay on time, the other party will be in default, without any reminder or notice of default being required for that, and will in addition to the agreed price or sum also be due the statutory interest on the outstanding part of the invoice amount, in which a part of a month will be charged as a full month. In addition, the other party shall be held to pay full damages or compensation for his shortcomings, whereas also all other reasonable costs incurred by us for determining the damage and liability and for obtaining payment in and out of court shall be for the account of the other party.
- The entire purchase price and the costs of the services shall in each case be immediately due and payable in the event of late payment of the amount after the payment due date, if the other party goes bankrupt, requests suspension of payments or is placed under guardianship, legal restraint or receivership, if any attachment is levied on the other party’s assets or claims, and/or if he goes into liquidation, dies or is dissolved.
- If we so require, the other party shall be held to pay the agreed prices or sums in full or in part in advance, and/or to provide sufficient security for the timely and complete performance of his payment and other obligations. We can also require this if we have already started executing the agreement. If delivery is delayed as a result, the other party shall be liable for any damage suffered by us as a result thereof. Refusal by the other party to provide the required security shall give us the right to dissolve the agreement by means of a notification to that effect, without prejudice to our right to demand compensation for loss of revenues and loss of profit.
- Each agreement is entered into under the suspensive condition that the creditworthiness of the other party must be apparent from the information to be gathered. We shall at all times have the right to deliver exclusively against cash payment.
- Any payments made by the other party shall always first be used for payment of all interest and (judicial or extrajudicial) costs that are due, and then for payment of those invoice amounts that are due the longest, regardless of any statements of the other party that the relevant payment regards other invoices.
- In case of partial delivery, the invoices relating thereto must be paid in accordance with the payment conditions applicable to the entire order.
Clause 7 DELIVERY
- Unless agreed otherwise, delivery of the goods will take place Ex Works. The goods shall be for the risk and account of the other party as soon as they have left our premises.
- If a part of the order is ready, we shall at our own choice have the right either to deliver that part of the order, or to wait with delivery until the entire order is ready.
- The other party shall be held to inspect the goods for defects immediately upon receipt. If there are defects or shortages in the delivery, we shall have the right to deliver the lacking part within a reasonable period of time and/or to replace the damaged part, without the other party having the right to demand full or partial termination of the agreement or to claim compensation or damages under whatever name or designation. Minor deviations shall not be considered to be a shortage or defect in the delivery.
- If the other party turns out to be negligent in performing any act with which he is to cooperate in the delivery of goods, the relevant goods shall be for the risk of the other party as from the moment they are ready for shipment, regardless of where they are located at that moment. In that case, the other party shall in addition to the purchase price also be due a compensation for storage costs.
- If the other party is in default with regard to the performance of his payment obligations, we shall, without prejudice to the other rights accruing to us, for the duration of the default be authorised to suspend delivery of the goods purchased by the other party, or to only deliver those goods cash on delivery.
Clause 8 COMPLAINTS, RETURNS AND WARRANTY
- All complaints must be submitted in writing with an accurate description of the complaint and the possible cause thereof, and must be in our possession within eight days after receipt of the goods/provision of our services.
- Complaints can only be submitted with regard to goods that are still in the state and condition in which they were delivered. Minor deviations and deviations that are otherwise deemed to be acceptable in the market or that are otherwise unavoidable, and deviations that are not caused by us, shall not constitute a ground for a complaint.
- In the event of a justified complaint, we shall have the right to replace the products by others, this with exclusion of all entitlements to and claims for compensation or damages from the other party.
- A written notice as referred to in the first paragraph of this Clause shall not release the other party from his obligation to pay all the purchased goods to us in full, and without any right to set-off in accordance with the provisions of these General Conditions.
- Return shipments shall only be permitted if we have agreed to that in writing. This does not mean that the complaint has been acknowledged by us. Return shipments must – unless they have been received in a damaged condition – be sent to us in an undamaged condition in the original packaging at the risk and expense of the other party.
- Crediting for return shipments shall take place on the basis of the purchase price charged to the other party, on the understanding that the amount to be credited will never exceed the price that we would charge to the other party on the day on which the returned goods are delivered to us.
- The warranty shall only apply if the other party has fulfilled all of his obligations towards us (both financially and otherwise), or has provided sufficient security for that.
- No warranty is given for used (second-hand) parts and trucks, unless stated otherwise on the invoice.
- Defects caused by normal wear and tear, improper handling or incorrect maintenance, or defects that occur after alteration or repairs carried out by or on behalf of the other party itself or by third parties, shall not be covered by the warranty.
Clause 9 RESERVATION OF OWNERSHIP
- The other party shall only become the owner of the goods delivered or to be delivered by us under a condition precedent. The ownership of the goods delivered by us will not be transferred to the other party until after the other party has paid all that he owes to us with regard to the relevant agreement. If the other party has resold the goods and delivered them on to a third party before the ownership has passed to him, the relevant third party shall only become the holder of the goods vis-à-vis us.
- The other party shall in the event that the goods that have been sold by us are delivered by him to third parties, be held to reserve the ownership of the relevant goods and to in advance transfer to us all of the rights that he may have vis-à-vis those third parties in pledge or otherwise, as security for any financial claim we may have against the other party as a result of the agreement concluded between us and the other party.
- In the event that the other party fails to perform any obligation towards us with regard to any goods sold by us or any services to be performed by us, we shall have the right to take back the goods originally delivered to us, without any notice of default being required for that. The other party already now for then authorises us to enter the place where those goods are located.
Clause 10 LIABILITY
- With the exception of the preceding provisions regarding complaints, and except in case of gross negligence and/or intent, we shall never be liable for any direct and/or indirect damage to any persons, goods or enterprises of the other party and/or of third parties. This without prejudice to the legal liability of us pursuant to mandatory provisions.
- If, despite the provisions of paragraph 1 of this Clause, we are held to pay any damages or compensation, the relevant damages or compensation shall per event (in which a series of events will count as one single event) never exceed the price (excluding VAT) stipulated in the agreement between the Parties within the framework of which the event occurred, with a maximum of one hundred thousand euros (€ 100,000).
- Condition for the existence of any entitlement to damages or compensation shall always be that the other party after the occurrence thereof has reported the damage to us in writing as soon as reasonably possible.
- The other party shall indemnify us against all damage that we may suffer as a result of any claims from any third parties relating to goods delivered and/or services provided by us, including any claims from any third parties that suffer damage resulting from a defect in any goods delivered by us and/or services provided by us that were used, changed or delivered onward by the other party to a third party with addition of or in combination with any own products and/or services of the other party, unless the other party proves that the defect is not the result of any use, modification or redelivery as referred to hereinabove.
- In addition, the other party shall indemnify us against any costs incurred by us and any damage suffered by us or by third parties by using or applying any goods, models, drawings, samples, etc. on instruction of the other party. Damage shall also be understood to mean any damage caused by such use or application by which any intellectual or industrial property rights of third parties are infringed.
- Insofar as the other party has made any goods available to us, this will be entirely at the risk of the other party. If those goods are then damaged or destroyed, we shall not be held to pay any damages or compensation. The other party shall be held to insure those goods against fire, theft and damage, and to keep them insured for the entire duration of the agreement.
Clause 11 RIGHT OF RETENTION
We shall be entitled to refuse delivery of all goods of the other party that are under our care, as long as the relevant goods or any activities performed by us have not been paid in full.
Clause 12 DISSOLUTION
- The agreement will be dissolved by operation of law, without any judicial intervention and without any notice of default being required, at the moment that the other party who has not or not fully performed his obligations arising from the agreement is declared bankrupt, requests to be granted a suspension of payments, or by an attachment being levied, placement under legal restraint or by another cause loses the power to dispose of his all or part of his assets, unless the receiver or the administrator acknowledges the financial obligations arising from the purchase agreement as estate debts.
- If the other party gives us good reason to fear that he will not perform his obligations towards us, or if the other party does not perform the obligations arising for him from any agreement concluded with us in time, properly or in full, and in the event of any suspension of payments, liquidation of the business of the other party or his death, we shall have the right to dissolve the agreement in full or in part.
- Dissolution shall take place without any judicial intervention and without any notice of default being required, and with recovery of all goods on which our reservation of ownership and/or right of pledge rest.
- In the event of dissolution, we shall have the right to take back the goods mentioned in the previous paragraph at the other party at his expense, to which the other party must cooperate on all days and hours, and to claim back the goods delivered by us, insofar as they have not yet been paid for, or to demand payment for the executed part of the agreement and/or demand advance payment for any further deliveries.
- In the aforementioned cases, any claim that we have against the other party shall immediately be exigible.
- By the dissolution, any reciprocally existing claims shall become immediately exigible. The other party shall be liable for all damage suffered by us, including any loss of profit.
Clause 13 DISPUTES
- All agreements to which these General Conditions apply shall be governed by Dutch law. Any disputes arising from any agreements existing between the parties will be submitted to the court in ‘s-Hertogenbosch, except where legal provisions direct otherwise, unless we prefer to submit the dispute for settlement to another competent whether or not Dutch court.
- If any provision of these General Conditions is void or voided, the remaining provisions of these General Conditions shall remain in full force and effect, and the parties shall enter into mutual consultations to agree upon new provisions to replace the void or voided provisions, in which the objective and the portent of the void or voided provisions are observed.
Clause 14 CHANGES
We reserve the right to change these General Conditions in full or in part, or for specific goods or other parties.