Terms and Conditions
Terms and Conditions
dated January 7, 1999 deposited by the Federation of Organizations in the Machine Trade “F.O.M.” (to which federation are affiliated: Association for the General Machine Trade ”VAM”, Association of Importers of Machines and Tools for the Metal Industry ”VIMAG”, Association of Importers and Traders in Woodworking Machines ”VIMHOUT”, Association of Importers of Industrial Stapling and Nailing equipment and associated fasteners "VIKSA" and the Association of Manufacturers and Importers of Compressors and Pneumatic Tools "VIP" at the Chamber of Commerce and Industry in The Hague (file no. 447) and at the Registry of the District Court in The Hague (file no. . 2/1999).
All agreements of purchase and sale in the broadest sense of the word, including all agreements or clauses in agreements for the transfer of ownership, are exclusively governed by the following conditions.
These terms and conditions also apply, insofar as necessary mutatis mutandis, to all (agreements or stipulations in agreements that pertain to) maintenance, installation and repair work and other services in the broadest sense of the word and including supervision on (persons) who (perform) such work.
Deviating stipulations only apply if the buyer and the seller have agreed in writing and then only for the agreement in which they were made; otherwise, the following terms and conditions remain in effect.
Insofar as this is applicable, the term machines used in these sales conditions must also be understood to mean installations, equipment, parts, accessories and tools, as well as related goods, in the broadest sense of the word.
All offers are without obligation. The seller is only bound by the seller having accepted or confirmed an order in writing.
If no prior written acceptance of an order has taken place, for example in the event of a sale from stock, the purchase agreement is concluded because the seller wholly or partly complies with a request for delivery from the buyer, or because the seller has requested delivery buyer sends an invoice.
The seller is not liable for errors and deviations from images, drawings and indications of dimensions and weights, as well as all other specifications that appear in price lists or advertising material and with offers or/and order confirmations, unless these have serious consequences for the capacity or the correct functioning of the machines.
The images, drawings and the like provided by the seller remain his property and may not be copied or multiplied or made available to third parties without his express permission.
Complaints on delivered used machines/goods will not be dealt with by the seller, unless otherwise agreed in writing, and the seller is not liable in this regard for whatever reason. The provisions in paragraphs 2 and 3 of this article therefore exclusively relate to new goods.
Without prejudice to the provisions of Article 6, the seller is not obliged to handle complaints that have not been submitted to him in writing within fourteen days of the date of his invoice, or within eight days of receipt of the goods, or if the buyer could reasonably only discover the defect later, within eight days of the discovery of the defect.
A complaint regarding delivered goods cannot affect the rights and obligations of the parties with regard to previously delivered goods and goods to be delivered, even if those goods have been or will be delivered for the execution of the same agreement.
If it has been agreed that the buyer will inspect or inspect the goods at the seller's location or at the buyer's location or elsewhere and he has not exercised that right within ten working days after he has taken the opportunity to do so in If he has been notified or has actually been given such an opportunity, the goods shall be deemed to have been definitively and unconditionally accepted by the buyer.
The costs of testing or inspecting are for the account of the buyer.
Assembly and commissioning
Installation and commissioning costs are not included in the purchase prices.
If the seller is obliged to assemble and put into operation the sold and delivered machines, he only accepts liability with regard to the operation of those machines, if:
assembly and commissioning takes place in accordance with his instructions, whereby he has the right to charge a mechanic with the management of the work. Travel costs and costs for accommodation, food, etc. for the technician are for the account of the buyer.
the circumstances (in the broadest sense of the word) at the location where the assembly and commissioning must take place do not exert a hindrance and foundations, walls, partitions and the like, on which and/or to which the machines/goods must be set up or fitted for the have been correctly installed, performed and/or prepared at the start of the work. All additional work is at the expense of the buyer. Furthermore, the buyer must provide the necessary assistance in the form of manpower and auxiliary materials at his own expense.
If, due to circumstances beyond the control of the seller, the fitter is unable to continue with the assembly and commissioning on a regular basis, the resulting costs will be borne by the buyer.
Article 6 applies mutatis mutandis.
Warranty and Liability
The seller guarantees delivered new machines/goods for a period of six months after delivery or shipment, ie that he will repair free of charge all parts, which during that period due to faulty construction, any defect may arise, or will replace them with others. (at the option of the seller), provided that such defect is notified to him in writing immediately after discovery and in any event within the periods specified in Article 3 and, if the seller so desires, the part concerned is immediately sent free of charge. The warranty period is shortened if the machines/goods are in use for more than 40 hours per week.
The warranty stated above with regard to repair or the free delivery of a new part does not include any statutory levies on the part to be provided free of charge, as well as import duties and sales tax; these are for the account of the buyer. If the visit of a technician is necessary for the replacement or repair of the defective part, the usual costs will be charged.
Should the buyer carry out any repairs or changes during the warranty period or have them carried out by others without the seller's prior consent, or if he fails to fulfill his payment obligations, the seller's warranty obligation will immediately expire. The buyer does not have the right to refuse payment on the grounds that the seller has not, not yet or not fully fulfilled his warranty obligation.
The warranty replaces any other liability for non-performance, improper performance or late performance by the seller, which is therefore expressly excluded. The liability in respect of non-compliance with the warranty obligations is furthermore limited to the costs of repair or replacement by third parties, which the buyer will not proceed to, however, before the buyer has expressly given the seller notice of default and the seller has a reasonable term within which the seller will still be able to fulfill its warranty obligations.
Without prejudice to the provisions of paragraph 4 above, the seller will never be liable for any indirect damage, such as that resulting from business interruption, delay, disruption or any other business damage for whatever reason or of whatever nature, as well as for any direct or indirect damage caused to or
or by the functioning or non-functioning or incorrect functioning of the goods delivered or processed by him or by personnel in his service directly or indirectly inflicted on goods and persons, whoever or whoever.
Without prejudice to the provisions of paragraphs 4 and 5 above, any liability of the seller, for whatever reason, including liability under these terms and conditions, will always be limited to a maximum of the amount of the purchase price of the individual good in question that has already been paid by the buyer at the time of his claim.
In the event of any claim by third parties against the seller on the basis of or in connection with the (untimely or defective or incorrect) delivery or operation of a good, the limitation of the seller's liability, as described in paragraphs 5 and 6, likewise. The buyer indemnifies the seller against any further liability towards that third party(ies).
On delivery of machines/goods, the seller will, insofar as necessary and/or required, provide the buyer with instructions, regulations and/or instructions for use with regard to the use thereof and the purposes for which they can be used, to which the buyer is obliged to keep. Unless otherwise stated in writing by the buyer, the seller may assume that the buyer and his personnel or the persons whom the buyer allows to work or stay directly or indirectly at or with the machines/goods - this in the broadest sense of the word - have sufficient command of the language in which these instructions or regulations have been drawn up to take cognizance of them and to act accordingly, provided that that language is Dutch, English or German. The seller is prepared – insofar as possible – to make those instructions and regulations available to the buyer in other languages, upon written notice. The buyer is obliged to pay the costs in this regard.
Amendment or cancellation of a purchase agreement requires the written consent of the seller. If the buyer wishes to change or cancel the agreement concluded, he is obliged to compensate the seller for all damage, including lost profit and all costs arising from the change or cancellation.
All goods, including those sold free of charge, travel at the buyer's risk. Undertakings entered into towards third parties do not change this and are deemed to have been accepted in the interest and at the expense of the buyer.
The seller has the right to store or have stored goods that are ready, for reasons beyond his control, for reasons beyond his control, to store or have them stored at the expense and risk of the buyer and to demand payment as if the delivery has taken place.
The choice of the means of transport is up to the seller, also in the case of non-delivery shipments, where the buyer has not given any instructions for the shipment. Obstructions or temporary impediments to the chosen means of transport do not oblige to take another. The seller is not responsible if, for whatever reason, the transport chosen by him fails.
With regard to goods manufactured abroad, the seller reserves the right to effect customs clearance to the exclusion of the buyer.
Unless the buyer requests the seller in a timely manner to insure the goods during transport, the goods will travel uninsured.
Unless otherwise agreed, export and import duties, stamp, station and customs clearance costs, taxes, etc. are for the account of the buyer.
With regard to the agreed times of delivery, they can only be given approximately. If the agreed time of delivery has been exceeded, the buyer is authorized to set the seller a reasonable further term for delivery by registered letter. Only after this term has been exceeded, the seller can be held liable for exceeding the term.
Such exceeding does not entitle the buyer to cancel the order or to refuse receipt or payment of the goods, nor does this oblige the seller to pay any compensation to the buyer, nor to delivery from stock, if purchased on delivery from the factory.
Force of the majority
Force majeure also includes all circumstances that should reasonably be deemed to preclude delivery or timely delivery of the goods sold, such as non-delivery or late delivery to the seller by his supplier, as well as if the seller does not receive the goods or does not receive them on time, in which cases the seller has the choice to postpone the delivery or to cancel the purchase agreement.
The sales price quoted by the seller is based on its purchase price and other cost factors. If one of these cost price components is increased after confirmation of the order, but before delivery of the goods, the seller has the right to pass on these increases to the buyer.
Without prejudice to the general applicability of this clause, it applies in particular to a change in import or export duties or other duties or taxes occurring after the dispatch of the order confirmation and to changes in the exchange rate of the euro against the foreign currency in which the seller bought the goods.
Terms of payment
Each agreement is entered into by the seller under the suspensive condition that the buyer appears to be sufficiently creditworthy on the basis of information to be obtained by the seller.
During the execution of an agreement, the seller is entitled to suspend the fulfillment of his obligations, until the buyer has provided security at the request and to the satisfaction of the seller for the fulfillment of all his obligations under the agreement.
Unless otherwise agreed in writing, payment must be made in cash without discount upon delivery of the goods, regardless of whether all or only a part thereof is delivered, or whether the buyer makes a complaint. Debt comparison is not allowed.
As long as the buyer has not paid the purchase price owed by him, insofar as it is due and payable, the seller is entitled to suspend the fulfillment of his obligations.
Without prejudice to the other provisions of this agreement, until the moment of payment of all claims of the seller against the buyer, which fall within the scope of Article 3:92 New Dutch Civil Code, for whatever reason and irrespective of the claimability, with including interest and costs – and in the event that delivery is made in current account, until the time of settlement of any balance credited to the seller – all goods delivered by the seller at any time are the property of the seller. Prior to the aforementioned full payment or settlement, the buyer is not authorized to pledge the goods to third parties or to transfer possession thereof, with the exception of non-fiduciary transfer of ownership in accordance with the normal destination of the goods. In the event of violation of this, as well as in case of full or partial applicability of Article 13, paragraph 1, the seller has the right to take back or take back all goods delivered by him, without any authorization from the buyer or the court being required to do so. to be collected from the place where these goods are located. In that case, any claim of the seller against the buyer is immediately due and payable in full.
If the buyer does not pay within the agreed terms, he is deemed to be in default by operation of law and the seller has the right, without notice of default, to charge him interest from the due date at a percentage of 3 points above the statutory statutory value in the Netherlands. interest and also on all judicial and extrajudicial costs related to the collection of his claim.
If the agreed payment term has been exceeded by more than one month, the seller is authorized to charge the associated collection costs to the buyer, if he uses appropriate persons or institutions to collect the claim, such with a minimum of 10% of the purchase price.
Default of the buyer
If the buyer does not, not timely or not properly comply with any obligation arising for him from this or any other agreement concluded with him, as well as if the buyer is declared bankrupt or has filed for bankruptcy, or or files for bankruptcy, or decides to or proceeds to (partial) shutdown or liquidation of his business, as well as if any enforcement attachment is levied against the buyer, the buyer is deemed to be in default by operation of law and the seller has the right, without notice of default and without judicial intervention being required, at its discretion, and whether or not in combination; – to suspend the performance of any, more or all of its obligations towards the buyer for whatever reason, and/or; – even if otherwise agreed, for each performance on his part to demand cash payment of any obligation, and/or; – to dissolve the agreement(s) in whole or in part, or to declare it dissolved, without the seller being obliged to pay any compensation, guarantee or otherwise. All without prejudice to the seller's right to compensation for damage, including lost profit, costs and interest.
A complaint does not suspend any payment obligation.
All disputes arising from or in connection with a purchase agreement or further agreements related thereto will be adjudicated exclusively by the ordinary court of the seller's place of business, unless the buyer and seller agree to submit the dispute to arbitration.
All agreements of purchase and sale and related agreements are exclusively governed by Dutch law, unless the parties have expressly agreed in writing in derogation from this provision that any foreign law is applicable.