General conditions
JACS. MERCHANT ELECTROTECHNICAL AGENCIES B.V.
Article 1. Applicability
General Terms and Conditions: the present General Terms and Conditions of Sale;
Seller: Jacs. Koopman Electrotechnische Agenturen B.V., the user of the present
General Terms and Conditions;
Buyer: the other party of Seller;
Agreement: the agreement between Seller and Buyer to which these General Terms and Conditions apply;
Parties: Seller and Buyer
Article 2 General
2.1 The provisions of these General Terms and Conditions apply to every offer and acceptance of Seller and Agreement between Seller and Buyer, insofar as these General Terms and Conditions have not been expressly deviated from by the Parties in writing.
2.2 These General Terms and Conditions also apply to all Agreements with Seller for the execution of which the services of third parties are (partly) used by Seller.
2.3 The applicability of general terms and conditions of the Buyer or third parties is expressly
excluded, unless the Parties have agreed otherwise in writing. If the Parties’ general terms and conditions should apply alongside each other, in the event of a conflict between the provisions, the provisions in the General Terms and Conditions shall prevail.
2.4 If one or more provisions of these General Terms and Conditions are null and void or voided, the remaining provisions of these General Terms and Conditions shall remain applicable. In that case
Parties will consult to agree on a new provision to replace the void or voided provision, whereby the purpose and purport of the provision to be replaced will be maintained as much as possible.
Article 3 Offers/Offers/Prices
3.1 All offers by Seller, in any form, are without obligation, unless a deadline for acceptance is specified in the offer by Seller.
3.2 Quotations made by Seller are without obligation unless otherwise indicated.
3.3 If the acceptance deviates from the offer included in the quotation, Seller shall not be bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless Seller indicates otherwise. Buyer guarantees the accuracy and completeness of the information provided by Buyer to Seller on which Seller bases the offers.
3.4 A composite quotation does not oblige Seller to deliver part of the items included in the
offer or quotation at a corresponding part of the quoted price.
3.5 Offers or quotations do not apply to repeat orders, unless the Parties agree otherwise in writing
.
3.6 An agreement is not concluded until Seller has accepted in writing the order, which Buyer makes following any quotation from Seller, or executes the order in question.
3.7 The prices quoted by or agreed with Seller are exclusive of sales tax (VAT) and/or other government levies, unless otherwise agreed in writing.
3.8 Seller may pass on price increases to Buyer – after timely advance notice thereof to Buyer –
, if between the time of offer/acceptance and delivery price changes of more than 5% have occurred with respect to, for example, exchange rates, wages, raw materials, semi-finished products or packaging materials, without prejudice to Buyer’s right to dissolve the Agreement in the event of a price increase of more than 10%.
3.9 If the Seller concludes Agreements with the Buyer more than once, the present General Terms and Conditions shall always apply in respect of all subsequent Agreements, regardless of whether or not they are each time explicitly declared applicable to those subsequent Agreements, and provided that these General Terms and Conditions are maintained unchanged.
Article 4. Delivery
4.1 The Buyer shall be obliged to accept the goods at the moment that the Seller delivers them or has them delivered to it, or at the moment at which they are made available to the Buyer by the Seller in accordance with the Agreement.
Delivery by the Seller of goods outside the Netherlands shall be ex works (“ex works/EXW Wijk bij Duurstede (3961 MV at the address Molenvliet 2)” in accordance with Incoterms 2010). If the Agreement or the relevant delivery of goods does not provide for cross-border transport, delivery shall be “carriage paid” (DDP).
4.2 If Buyer refuses to take delivery or fails to provide information or instructions necessary for delivery, Seller will be entitled to store the goods at Buyer’s expense and risk. In this case the Seller is also entitled to dissolve all or part of the Agreement without notice of default and, in addition to the purchase price, to claim payment of damages incurred, including (storage) costs and interest and/or to exercise its power to sell the goods purchased by the Buyer to a third party.
4.3 If Seller has specified a delivery period, it is indicative. A stated delivery date is never a deadline. If an indicative period is exceeded, the Buyer must give the Seller written notice of default and allow the Seller a reasonable period of time to still deliver.
4.4 If Seller requires data from Buyer in connection with the performance of the Agreement, the delivery period shall commence after Buyer has made such data available to Seller.
4.5 Seller is entitled to deliver the goods in parts. Seller is entitled to invoice partial deliveries
separately.
Article 5 Order and transport costs
5.1 Order and transport costs relating to shipments with an invoice value of up to € 500,– excluding VAT, are not included in the price and must be paid by the Buyer. Order and transport costs regarding shipments with an invoice value of more than € 500,– excluding VAT are included in the price. The method of transport shall, unless otherwise agreed in advance in writing, be determined and provided by the Seller in an economical manner. Packaging will never be taken back by the Seller. Damage to
goods caused by destruction of the packaging shall be at the Buyer’s expense.
Article 6 Examination, complaints
6.1 The Buyer is obliged to examine the delivered goods, or have them examined, at the time of delivery, but in any event within 8 days of delivery. In doing so the Buyer must check whether the quality and quantity of the goods delivered are in accordance with what has been agreed between the Parties.
6.2 If the Seller has shown the Buyer a model or if the Seller’s offer contains a description of the goods, this is presumed to have been shown only as an indication without the goods having to correspond to it in full, unless the Parties expressly agree in writing that the goods will correspond to it in full. Deviations in color can never give rise to any complaint on the part of the Buyer, nor can other deviations if and insofar as it concerns minor differences in size and weight and/or minor changes in constructions or parts which are necessary
for the proper performance of the Agreement.
6.3 Buyer is obliged to inspect the goods delivered by Seller for any defects. Any defects found by the Buyer must be reported to the Seller in writing within a reasonable period of time. The right of complaint lapses in any case three months after delivery as well as if the goods have been wholly or partly processed by the Buyer and/or supplied to third parties.
6.4 Even if a timely complaint is made, Buyer remains obliged to purchase and pay for the purchased goods and cannot invoke suspension and/or setoff. If Buyer wishes to return defective goods, it shall only do so with Seller’s prior written consent in the manner indicated by Seller.
6.5 Buyer shall give Seller the opportunity to investigate (or have investigated) the complaint regarding a defect.
6.6 If it appears – after investigation by the Seller – that the item is not sound, it must be returned by the Buyer to the Seller, carriage paid, within 10 days, on pain of the Buyer’s forfeiture of any rights in this regard. Following the return by Buyer, Seller shall have the right to choose whether it:
a. replaces the item;
b. repairs the item;
c. Credit Buyer for a proportionate part of the invoice.
Article 7 Payment
7.1 Payment must be made in cash upon delivery or at the latest within 30 days (net) after
invoice date in a manner to be indicated by Seller in Euros. Objections to the amount of the invoices do not suspend Buyer’s payment obligation.
7.2 Seller is entitled to charge Buyer for advance payments;
7.3 The parties may agree in writing to payment by installments;
7.4 If Buyer fails to make payment within the period of 30 days (net), Buyer will be in default by operation of law immediately and without further notice of default. The Buyer shall also owe default interest of 1% per month, unless the statutory interest rate or the statutory commercial interest rate is higher, in which case the highest interest rate shall apply. The interest on the amount due and payable will be calculated from the time the Buyer is in default until the time the Buyer pays the amount in full. In calculating interest,
part of a month shall be considered a full month. In the event of late payment, Buyer may no longer claim any discount that may have been granted by Seller. If Buyer fails to pay or pays late, Seller shall never be obliged to continue delivering goods to Buyer until full and
timely payment has been made by Buyer.
7.5 The Buyer’s right to set off or suspend any claims it may have against the Seller is excluded, unless there is bankruptcy of the Seller.
7.6 In the event of liquidation, (application for) bankruptcy, admission of Buyer to statutory debt rescheduling under the Natural Persons Debt Rescheduling Act, attachment or (provisional) suspension of payment of
Buyer, Seller’s claims against Buyer shall become immediately due and payable.
7.7 Payments shall first be applied to reduce the costs, then to reduce the interest due and finally to reduce the principal sum and current interest.
7.8 Regardless of the agreed payment conditions, Buyer is obliged to provide such security for payment as Seller deems sufficient at Seller’s first request. If Buyer fails to do so within the stipulated period, Buyer shall be immediately in default. The Seller shall in that case be entitled to dissolve the Agreement and to recover the damage suffered and to be suffered from the Buyer.
Article 8 Collection Costs
8.1 If the Buyer is in default or omission in the (timely) performance of its obligations, all reasonable costs incurred by the Seller in obtaining satisfaction out of court shall be borne by the Buyer.
8.2 If Seller has incurred higher costs, which were reasonably necessary, these shall also be borne by Buyer.
8.3 Any reasonable legal and execution costs incurred by Seller shall also be borne by Buyer, including the costs to be incurred by Seller for legal assistance in proceedings.
Article 9 Retention of Title
9.1 The ownership of goods delivered by the Seller shall not pass to the Buyer until the Buyer has paid to the Seller all that it owes under the Agreement as well as any subsequent agreements.
9.2 Buyer is not authorized to pledge or otherwise encumber the items subject to retention of title.
9.3 If Buyer forms a new item (partly) from items delivered by Seller, Buyer shall form that item only for Seller and Buyer shall hold the newly formed item for Seller until Client has paid all amounts due under the Agreement; Seller shall in that case remain the owner of the newly formed item until Buyer has paid in full.
9.4 The Buyer undertakes to adequately insure and keep insured the goods delivered under retention of title against fire, explosion and water damage as well as theft and to make the policy of this insurance available for inspection by the Seller on demand.
9.5 If third parties seize the goods delivered under retention of title or wish to establish or assert rights to them, Buyer is obliged to inform Seller as soon as possible.
9.6 Goods delivered by the Seller, which by virtue of the first paragraph of this Article are subject to the
retention of title, may only be resold in the normal course of business and may never be used as a means of payment. If the Buyer has resold the items before ownership has passed to the Buyer, the Buyer shall become the custodian of the item on behalf of the Seller. The Buyer shall be obliged to disclose the Seller’s retention of title to third parties upon resale.
9.7 In the event that Seller wishes to exercise its property rights indicated in this article, Buyer hereby unconditionally and irrevocably authorizes Seller or third parties to be designated by Seller to enter all those places where Seller’s property is located and to repossess those goods.
Article 10 Guarantee
10.1 The Seller guarantees that the goods delivered meet the technical requirements and specifications included in the product description.
10.2 The warranty mentioned in the first paragraph of this article applies for 12 months after delivery.
10.3 Should the manufacturer’s warranty that Seller has received from the manufacturer deviate from the aforementioned
warranty period, in the sense that that manufacturer’s warranty period is shorter, then Seller’s warranty to Buyer is limited to the warranty given by the manufacturer.
10.4 Seller’s warranty to Buyer shall never go beyond – and Seller shall never be obliged to do more – than what is stated under Article 6.6 of these General Conditions.
10.5 Seller’s warranty to Buyer is limited to:
– manufacturing defects and therefore does not include defects and damage resulting from wear and tear, force majeure, and/or improper or inexpert use, transport or assembly by Buyer or a third party;
– deliveries to Buyers within the European Union.
10.6 This warranty lapses:
– upon resale of the delivered goods, unless the Parties have expressly agreed otherwise;
– upon injudicious or improper use by Buyer or a third party or after modifications, changes or repairs by Buyer or a third party to or of the delivered goods.
10.7 As long as the Buyer does not fulfill its obligations arising from the Agreements entered into by the Parties, it cannot invoke this warranty provision.
Article 11 Suspension and dissolution
11.1 The Seller is authorized to suspend the fulfilment of its obligations under the Agreement or to dissolve the Agreement if:
– the Buyer fails to fulfil its obligations under the Agreement or to do so on time or in full, whereby the Buyer fails to remedy this failure within a reasonable period of time following a notice of default by the Seller to that effect;
– circumstances which have come to the knowledge of the Seller after the Agreement has been concluded give the Seller good reason to fear that the Buyer will not fulfil its obligations or will not do so on time or in full. In the event that there are good grounds to fear that Buyer will only partially or improperly fulfill its obligations, suspension by Seller shall only be permitted to the extent justified by Buyer’s failure to do so;
– Buyer, upon entering into the Agreement or at a later time, is requested by Seller to provide security for the fulfillment of its obligations under the Agreement and such security is not provided or is insufficient. As soon as security has been provided by Buyer, Seller’s authority to suspend, unless such satisfaction has been unreasonably delayed as a result.
11.2 Furthermore, the Seller is authorized to dissolve the Agreement or have it dissolved if circumstances arise which are of such a nature that performance of the Agreement has become impossible or can no longer be required by standards of reasonableness and fairness, or if other circumstances arise which are of such a nature that the Seller can no longer reasonably be expected to maintain the Agreement unamended.
11.3 Seller may dissolve the Agreement with Buyer in the event of force majeure. Furthermore, Seller may at any time terminate the Agreement prematurely for important reasons. In the aforementioned cases, Buyer shall fully respect Seller’s intellectual property rights in accordance with the provisions of Article 16 of these General Terms and Conditions.
11.4 If the Agreement is dissolved, Seller’s claims against Buyer are immediately due and payable. If Seller suspends fulfillment of its obligations, it retains its claims under the law and the Agreement.
11.5 Seller always retains the right to claim damages from Buyer. If Seller makes use of its right of dissolution and/or right of termination as referred to in this Article 11, Buyer is additionally obliged to reimburse Seller:
– the amounts according to the state of the goods delivered;
– the reasonable costs arising from any obligations entered into by Seller with third parties for the delivery of goods under the
Agreement;
– the additional reasonable other costs incurred by Seller.
Article 12 Cancellation
12.1 Cancellation of an Agreement is excluded.
12.2 If, upon cancellation, Buyer refuses to take delivery of the goods already purchased by Seller, whether processed or unprocessed, Buyer shall be obliged to pay all damages resulting therefrom to Seller, including lost profits by Seller.
Article 13 Liability
13.1 If goods delivered by Seller are defective, Seller’s liability to Buyer is limited to what is regulated in these terms and conditions under Article 10 with regard to the “Warranty”.
13.2 The Seller can only be held liable for direct damage suffered by the Buyer if the Buyer proves that this damage is the direct and exclusive result of a shortcoming attributable to the Seller, all this subject to the provisions of Article 13.3.
13.3 The Seller can never be held liable for direct damage by the Buyer and/or third parties resulting from:
– incorrect or incomplete information provided by Buyer before, during or after entering into the
Agreement with Seller;
– improper or injudicious use of the item by Buyer and/or by third parties in constructions,
working methods or materials, or use of the item by Buyer and/or third parties in deviation from the product specifications and/or any other technical documentation provided by Seller, inadequate method of storage, inadequate maintenance, modification and/or repair of the item by Buyer and/or third parties, or use of the item by Buyer and/or third parties in a manner that deviates from the state of technical knowledge prevailing at the time;
– defects in the item resulting from normal wear and tear;
– a defect in the item or a failure in the service provided due to force majeure.
13.4 If the Seller is liable for direct damage, such liability shall be limited to a maximum of the net purchase price associated with the items delivered by the Seller which resulted in the damage to the Buyer. . If it should be established in court that Seller is bound to compensate a higher amount of damage than the amount resulting from the first sentence, then in such a case the amount of compensation shall be capped at the amount paid by Seller’s liability insurer in the case in question.
13.5 Seller shall never be liable for indirect damage of Buyer and/or third parties, including
– but not limited to – consequential damage, trading loss, individual damage, loss of profit, stagnation damage and damage caused by intent or gross negligence of auxiliary persons of Seller.
13.6 The Buyer indemnifies the Seller against all third party damage in connection with the goods supplied by the Seller, including – but not limited to – damage on the grounds of infringement by the Seller of third party rights – including – but not limited to – intellectual property rights – and/or damage due to product liability as a result of a defect in the good supplied by the Buyer to a third party, of which the good supplied by the Seller is a component, except if and insofar as the Buyer proves that the damage was caused exclusively by the good supplied by the Seller to the Buyer.
13.7 Buyer is at all times responsible for and liable by virtue of complying with the legal and related permits and requirements regarding, among other things – but not exclusively – the requirements for use of the goods delivered by Seller to Buyer under the Agreement.
13.8 The limitations of Seller’s liability in these General Terms and Conditions for direct damage of Buyer do not apply if the damage is due to intent or gross negligence of Seller or its subordinates.
13.9 Failure by Seller to exercise any right or remedy under these General Conditions and/or the Agreement shall not be construed by Buyer as a waiver by Seller of any right or remedy, whether present or future. Neither Seller’s receipt of payments from Buyer nor Buyer’s reliance on the actions of (persons on behalf of) Seller may be construed as a waiver of that right or remedy.
Article 14 Transfer of risk
14.1 The risk of loss, theft, embezzlement or damage to products, items, data,
documents, software, data files or data (including codes, passwords, documentation) that are manufactured or used as part of the implementation of the Agreement will pass to the Buyer at the time that these are placed in the actual power of disposal of the Buyer or an auxiliary person of the Buyer and/or from the time that these are delivered or are deemed to be delivered as provided for in Article 4 of these Conditions. Insofar as these items are in the actual disposal of Seller or Seller’s auxiliary persons, Seller shall bear the risk of loss, theft, embezzlement or damage.
14.2 If the Buyer itself takes care of the transport of the goods that are the subject of the Agreement, this will take place entirely at the expense and risk of the Buyer.
Article 15 Force Majeure
15.1 The Parties shall not be obliged to fulfill any obligation if they are prevented from doing so as a result of a circumstance that is not due to gross negligence or intent on the part of the Party invoking it, and which is not for their account by virtue of the law, a legal act or generally accepted practice.
15.2 In these General Terms and Conditions, force majeure means, in addition to its definition in the law and in case law: all external causes, foreseen or unforeseen, over which the Seller has no control, but which prevent the Seller from fulfilling its obligations, are delayed or rendered uneconomical or as a result of which the fulfilment of these obligations can no longer reasonably be required of the Seller. Force majeure includes – but is not limited to – (i) force majeure of
third parties engaged by Seller; (ii) government measures; (iii) power failure; (iv) failure of internet, computer network or telecommunication facilities; (v) strike; (vi) general transport problems; (vii) the unavailability of one or more subordinates of Seller.
15.3 The Seller also has the right to invoke force majeure if the circumstance preventing (further)
performance occurs after the Seller should have fulfilled its commitment.
15.4 The Parties may suspend the obligations under the
Agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the Parties shall be entitled to dissolve the Agreement, without any obligation to pay damages to the other Party.
15.5 Insofar as the Seller has already partially fulfilled its obligations under the agreement or will be able to fulfil them at the time when the force majeure occurs, and the fulfilled or still to be fulfilled part has independent value, the Seller is entitled to invoice the fulfilled or still to be fulfilled part separately. Buyer is obliged to pay this invoice as if it were a separate Agreement.
Article 16 Intellectual Property and Confidentiality
16.1 Without prejudice to the other provisions of these General Terms and Conditions, the Seller reserves the rights and powers to which the Seller is entitled under intellectual property law.
16.2 All documents, advertising leaflets, documentation, quotations,
agreements, designs, sketches, photographic material, drawings, software and the like provided by Seller to Buyer are exclusively intended to be used by Buyer and may not be reproduced, sold, rented, disclosed, or brought to the notice of third parties by him without the prior permission of Seller, unless the nature of the documents provided dictates otherwise.
16.3 Buyer is aware that the information made available to it, as referred to in this Article, contains confidential information and trade secrets of Seller or its licensors. The Purchaser undertakes to keep the information made available to him, as referred to in this Article, secret, not to disclose it to third parties or give it for use and to use it only for the purpose for which it was made available to the Purchaser. Third parties also include all persons working in the Buyer’s organization who do not
necessarily have to use the items made available under the Agreement.
16.4 Any right to use intellectual property rights granted to Buyer is non-exclusive, non-transferable to third parties and non-sublicensable, unless otherwise agreed in writing with Seller
.
Article 17 Other Provisions
17.1 The Buyer is not permitted to transfer the rights and obligations under these General Conditions and/or the Agreement to a third party without the prior written consent of the Seller.
17.2 The Seller is entitled to subcontract (part of the work from) the Agreement – whether by subcontracting or not – to third parties.
17.3 The Buyer is obliged to keep confidential all business-sensitive or other confidential information which it receives from the Seller orally or in writing during the term of the Agreement, both during the term of the Agreement and thereafter, and with due observance of the relevant provisions in
these General Terms and Conditions.
Article 18 Disputes, Competent Court
18.1 The District Court of Midden-Nederland shall have exclusive jurisdiction to hear disputes in the first instance. This concerns all disputes that may arise between the parties as a result of their Agreement or further agreements and other actions in connection with the Agreement such as, for example, although not exclusively, wrongful act, undue payment and unjust enrichment. Without prejudice to the above, the Seller shall also be entitled to submit the dispute to the court with jurisdiction under the law.
Article 19 Applicable Law
19.1 Each Agreement between Seller and Buyer and these General Conditions are exclusively governed by Dutch law. The applicability of the Vienna Sales Convention is expressly excluded.