Established by the Association of Manufacturers and Traders of Construction Machinery, Warehouse Equipment, Road Construction Machinery and Transport Equipment BMWT, established in The Hague .
Filed with the Registry of the District Court of The Hague on March 26, 2014
1.1 In these Terms and Conditions the following terms shall have the following meanings:
Supplier: the BMWT member that offers, sells and supplies goods and/or services;
Purchaser: the counterparty of Supplier.
1.2 These Conditions apply to agreements – including the actions for the conclusion of the agreements – for the delivery of goods and/or the performance of services and/or the creation of a work. They also apply to any additional or follow-up agreements. Furthermore, they apply to all forms of service provision by (an employee of) the Supplier to (an employee of) the Purchaser that is (in any way) related to the agreements mentioned in the first sentence above (such as, for example, the free provision of technical advice).
1.3 These Conditions apply exclusively in the sense that specific terms and general conditions on the part of the Purchaser do not apply, unless and to the extent that they have been accepted in writing and expressly by the Supplier. A deviating term (condition) applies exclusively in the event that the deviation has been agreed.
1.4 If a “Warranty Declaration for used machines or trucks” is issued upon purchase/sale or exchange of a used machine and/or truck, the Conditions of that Warranty Declaration also apply. To the extent that the Conditions of the Warranty Declaration deviate from these Conditions, the Conditions of the Warranty Declaration shall prevail.
2.1 Unless expressly stated otherwise, all offers made by Supplier, in whatever form, are without obligation in the sense that even after acceptance by Purchaser of an offer from Supplier, Supplier is entitled to revoke the offer within three full calendar weeks after acceptance.
2.2 Unless expressly stated otherwise, statements and specifications regarding dimensions, capacities, performances or results in images, drawings, catalogues, price lists, advertising material, etc. are only approximations and are not binding on the Supplier.
3.1 Supplier is authorized to make partial deliveries.
3.2 The Purchaser is obliged to accept goods and services, the delivery of which has been agreed by the Supplier, at the time and place agreed between the parties under the relevant agreement and/or these Terms and Conditions.
3.3 The term for delivery or performance commences with the conclusion of the agreement or, if payment to Supplier of an amount has been agreed before or at the start of the performance of the agreement, at the moment that full payment of this amount has been received. If Supplier is partly dependent on the cooperation of Purchaser for the performance of the agreement and Purchaser fails to do so for whatever reason, the term for performance will be extended by as much time as Supplier reasonably needs to undo the delay caused by Purchaser's failure. The same applies if delays in performance arise as a result of requests from or on behalf of Purchaser or a government agency to change, adjust or supplement what has been agreed. Furthermore, the additional costs incurred by Supplier in connection with a delay as mentioned above will be borne by Purchaser. The Supplier will only be in default due to exceeding the term if, after the expiry of the agreed term, the Purchaser sets a reasonable additional term in writing — (which term may not be shorter than fourteen calendar days from the date of receipt of the notice) — and the Supplier also fails to meet its delivery obligation within that additional term for reasons attributable to the Supplier.
3.4 Unless expressly agreed otherwise, delivery will take place at the Supplier's factory or warehouse.
3.5 The risk for an item to be delivered by Supplier shall permanently pass to Purchaser upon arrival at the place of delivery. If Purchaser does not take delivery at the time of delivery agreed between Supplier and Purchaser for reasons not attributable to Supplier, the risk shall permanently pass to Purchaser at that time. All costs in connection with storage and transport, which Supplier must incur with regard to the item from the time of delivery referred to in the previous sentence, shall be borne entirely by Purchaser.
3.6 Even if Supplier has undertaken to provide ownership of an item, ownership of the item shall remain with Supplier despite delivery, until Supplier has received full payment from Purchaser of what Purchaser owes Supplier on account of goods and services delivered and due to failure to pay what Purchaser owes Supplier in this respect.
Purchaser may only use goods to which a retention of title still applies within the framework of its normal business activities. However, it may not alienate, rent out or encumber those goods with securities or other limited property rights. If Purchaser fails to meet any payment obligation, Supplier is entitled to take goods to which a retention of title still applies without the Purchaser's cooperation. Supplier is not obliged to compensate Purchaser for any damage suffered by Purchaser in connection with the repossession. The costs of taking back and possibly converting the goods into cash shall be borne entirely by Purchaser. Any amount Supplier still has to claim from Purchaser shall be reduced by the value that the repossessed goods have for Supplier in economic traffic. However, Supplier is never required to maintain a value that is higher than the price agreed with Purchaser for those goods.
4.1 With regard to machines and installations to be delivered, Supplier will provide Purchaser with information about the construction, operation and handling of the machines and installations in the form of a manual or instruction book, but only in the case of a Dutch buyer and in the Dutch language.
4.2 The Purchaser is entitled to free instruction, to the extent that this has been agreed in the relevant agreement.
5.1 All drawings, images, catalogues, software and other data, insofar as they are not a manual or instruction book as referred to in Article 4, which the Supplier provides to the Purchaser, shall remain the property of the Supplier and shall be returned at the Supplier's first request. The aforementioned data may not be copied or made available to third parties without prior written permission.
6.1 Unless expressly stated otherwise, a quoted or agreed price does not include VAT or any other government levy due in connection with the agreement and, in the event that Supplier arranges for the transport of goods, also not the costs related to packaging, wrapping, transport and insurance. Supplier may charge the items mentioned in the previous sentence separately in full.
6.2 If the costs for the performance of the agreement increase for the Supplier because cost factors relevant to the price, such as wages, social and other insurance premiums, materials, value of foreign currencies, etc., have increased after the time of the last (price) offer from the Supplier, the Supplier is entitled to charge these higher costs additionally by means of a price adjustment.
6.3 If a price has been agreed between Supplier and Purchaser in a currency other than the Euro and that other currency decreases in value against the Euro after the time of the last (price) offer by Supplier, Supplier is entitled to adjust the price to the extent necessary to compensate for the decrease in value up to the time of full payment.
7.1 Unless expressly agreed otherwise, the agreed price must be paid in full without any discount or settlement within three weeks after the invoice date stated on the relevant invoice by transfer to the bank account specified by the Supplier for this purpose. The Supplier is also entitled to send invoices for partial deliveries.
7.2 Unless Supplier has agreed in advance in writing to a deferral of payment, Purchaser is not entitled to suspend payment of the price on the grounds that the goods delivered or services performed by Supplier are, in its opinion, defective.
7.3 If the Purchaser fails to fulfil its obligations or fails to fulfil them in a timely manner, the Supplier shall, without prejudice to its other rights under the law or agreement and without any notice of default being required, be entitled to:
suspension of the performance of the agreement in respect of which the Purchaser is in default, as well as of any other agreements with the Purchaser;
compensation for all damage resulting from the non-compliance. Insofar as the non-compliance consists of failure to pay or late payment, the said compensation will in any case consist of the statutory commercial interest (as referred to in Article 6:119a BW and 6:120 paragraph 2 BW). The interest is forfeited from the moment at which the Purchaser is in default of payment until the moment at which the Purchaser has paid in full what he owes to the Supplier. Each time after the end of a year, the interest referred to in the previous sentence is also due on the interest already forfeited but not yet paid;
reimbursement of all judicial and extrajudicial costs, the latter costs being deemed to consist of at least 15% of the amount that the Purchaser has not paid on time and that the Supplier claims.
7.4 If Supplier has reason to doubt the fulfilment by Purchaser of its obligations – whereby the following circumstances on the part of Purchaser in any case constitute sufficient reason for doubt: repeated failure to pay, attachment against Purchaser, suspension of payment, bankruptcy, complete or partial cessation of business -, all that Purchaser owes Supplier shall become immediately due and payable and Supplier shall be entitled to suspend the fulfilment of its obligations until fulfilment by Purchaser, including full payment or – to the satisfaction of Supplier – security for the payment, has been completed. If full payment or sufficient security is not provided within fourteen (14) calendar days after the request to that effect, Supplier shall be entitled to declare the relevant agreement dissolved without prejudice to its right to compensation for damages suffered and/or yet to be suffered.
8.1 For Supplier, force majeure shall be deemed to include circumstances of a factual, legal or other nature which – whether or not foreseeable – prevent timely performance of the agreement through no fault of Supplier or make it particularly difficult. Such circumstances shall include, but not be limited to: strikes; occupations; production interruptions as a result of machine breakdown, disruptions in the supply of energy and water or fire, etc.; import, export and production bans and other government measures; transport restrictions; failures of suppliers and assistants.
8.2 If a force majeure situation occurs on the part of Supplier, it shall notify Purchaser thereof as soon as possible. Unless there is no doubt that the force majeure situation will last thirty full working days or longer, the obligations, the fulfilment of which is prevented by force majeure or becomes particularly difficult for Supplier, and the obligations that have not yet been fulfilled, shall be suspended, without any right to compensation arising. As soon as there is no doubt that the force majeure situation will last longer than thirty full working days, or as soon as the force majeure situation has lasted longer than thirty full working days, either party shall be entitled to terminate the agreement by means of a written statement addressed to the other party, without any right to compensation arising.
9.1 If Supplier delivers goods, Supplier shall only be responsible for assembly, installation and/or commissioning if and to the extent that this has been expressly agreed.
9.2 If and to the extent that Supplier is responsible for the assembly, installation and commissioning, the following applies:
Purchaser shall provide all cooperation required to enable Supplier to carry out assembly, installation and/or commissioning in a timely and proper manner. In any case, Purchaser shall ensure in good time: good and safe access to the workplace, if necessary also outside Purchaser's usual working hours; the presence of permits, insofar as required for the execution of the work; an unloading area as well as sufficient storage space, covered and lockable if necessary; the required energy, water, fuels, lubricants and, unless otherwise agreed, the required ladders, scaffolding and other auxiliary materials to be designated by Supplier.
Purchaser shall ensure that all work on which Supplier must build during assembly, installation and/or commissioning and which has not been agreed to be carried out by Supplier – for example all disassembly work and all electrical and plumbing work, all ground, masonry, foundation, carpentry and painting work and all other construction work – is carried out promptly and properly. Purchaser shall consult with Supplier on a regular basis and provide Supplier with all information required for proper coordination of the mutual work.
Purchaser shall provide all cooperation to achieve and maintain safety at the workplace, taking into account the applicable statutory and company regulations. In particular, he shall ensure provisions in connection with fire.
10.1 Supplier shall deliver goods and perform work that meets the quality requirements that have been expressly agreed upon and the statutory regulations – in particular those relating to operation, use on roads and safety – that are in force in the Netherlands at the time of Supplier’s last offer. If Supplier becomes aware of new relevant statutory regulations in the Netherlands after Supplier’s last offer but before delivery, Supplier shall notify Purchaser thereof. The performance to be delivered by Supplier shall be adjusted in mutual consultation. The delivery period shall be adjusted as necessary and the additional costs for Supplier resulting from the adjustment shall be borne by Purchaser. Insofar as no express quality requirements have been agreed upon with regard to goods to be delivered or services to be provided, the quality of the goods to be delivered and services to be provided shall not be below good average quality.
10.2 To the extent that a permit is required for the possession and/or use of goods, the Purchaser shall be responsible for obtaining it.
10.3 After delivery of goods or after the notification by the Supplier to the Purchaser that he has completed the agreed work, the Purchaser must carefully check the goods and/or work for completeness and soundness as soon as possible but in any case within ten (10) working days after delivery or the notification by the Supplier. Any shortages and/or defects – (being any failure to comply with the agreement) – that the Purchaser could have discovered during a careful inspection during the period mentioned in the previous sentence or that he discovered but subsequently did not report to the Supplier in writing within twenty-one (21) calendar days after delivery or the notification by the Supplier, can no longer be invoked against the Supplier by the Purchaser. This also applies in the event of partial deliveries.
10.4 Any shortages or defects that become apparent during the inspection referred to in 10.3 and that are reported to the Supplier in writing in a timely manner, as well as any shortages or defects that could not have been discovered during the inspection referred to in 10.3 but that come to light within six months of delivery or notification by the Supplier and are reported to the Supplier in writing within ten (10) calendar days of discovery, will be remedied by the Supplier to the extent possible by means of supplementation or – at the Supplier’s discretion – repair or replacement. Unless otherwise provided in 10.5 below, such remedy will be at the Supplier’s expense.
10.5 The following provisions also apply with regard to the undoing of deficiencies and defects:
Supplier will make every effort to have the undoing carried out as soon as possible under the circumstances. Purchaser will provide all necessary cooperation. b. The undoing will take place as much as possible at a location designated by Supplier. The goods travel to and from that location at the expense and risk of Purchaser.
In the event of reversal outside the Netherlands, the travel and accommodation costs of those who conduct the investigation and carry out the reversal will also be borne by the Purchaser.
Goods or parts that are released upon replacement automatically become the property of the Supplier.
If any shortages or defects occur with regard to goods that the Supplier has obtained from third parties, or with regard to work that the Supplier has had carried out by third parties, then – without prejudice to the provisions of 10.3 – the undoing thereof will only be done free of charge, insofar as the third party bears the costs of undoing.
The Purchaser shall have no right vis-à-vis the Supplier to rectify any deficiencies or defects which are likely to be the result of normal wear and tear, improper or careless use, use not in accordance with the intended purpose or failure to (correctly) follow certain directions or instructions from the Supplier.
The right of the Purchaser against the Supplier to rectify shortages and defects shall lapse if the Purchaser rectifies the defects itself or has them rectified by a third party without the prior consent of the Supplier.
The occurrence of shortages or defects does not constitute grounds for suspension of the payment obligation of the Purchaser towards the Supplier. If the Purchaser fails to meet his payment obligation even after a written reminder to do so, this will result in the forfeiture of his right to remedy shortages and defects.
10.6 If the Purchaser complains about a shortage or defect that cannot be remedied or can only be remedied at a cost that is disproportionately high for the Supplier, the Supplier is not obliged to remedy the defect or deficiency. In that case, the price for the delivered goods will be reduced, which reduction will be determined as much as possible on the basis of consultation between the Supplier and the Purchaser and taking into account the unit prices used when concluding the relevant agreement, or the relevant agreement can be declared dissolved in writing by either party. The Purchaser is only entitled to declare the relevant agreement dissolved if the shortage or defect that cannot be remedied is so onerous for him that, despite a price reduction, he cannot reasonably be expected to maintain the relevant agreement.
10.7 The occurrence of shortages or defects which the Supplier has an obligation to rectify may – apart from the case mentioned in 10.6 – only constitute grounds for termination of the relevant agreement by the Purchaser if the Supplier, even after a written reminder, fails to rectify the shortage or defect within a reasonable period taking all circumstances into account.
10.8 The Purchaser is entitled to free maintenance services with regard to vehicles, machines and installations to be delivered, insofar as this was agreed upon when concluding the relevant agreement.
10.9 Any claim by the Purchaser regarding performance, cancellation or termination of the agreement shall lapse if the Purchaser has not validly instituted legal proceedings against the Supplier within six (6) months after the Purchaser has reported a shortage or defect in a timely manner in accordance with the provisions of 10.3 and 10.4.
11.1 Supplier is obliged to deliver goods that do not infringe industrial or intellectual property rights of third parties in the Netherlands. If Purchaser is approached by a third party in connection with a conflict in the Netherlands with an industrial or intellectual property right, he shall immediately inform Supplier thereof and leave the handling and settlement of the third party's claim to Supplier. If Supplier considers the presence of a conflict in the Netherlands with an industrial or intellectual right to be plausible, Supplier shall be entitled - at his discretion and in consultation with Purchaser - to remedy the infringement by adapting or replacing the item concerned or by acquiring a licence or to take back the item concerned against repayment of the purchase price received for it. The costs of handling and settlement of the third party's claim shall be borne by Supplier, who shall otherwise not be liable for any compensation.
11.2 If Supplier uses materials, drawings, models, instructions etc. from or on behalf of Purchaser in the performance of an agreement with Purchaser and a third party holds Supplier liable – due to infringement of an industrial or intellectual property right in connection with the use of materials, drawings, models, instructions etc. from or on behalf of Purchaser, he shall inform Purchaser of this without delay. Supplier shall leave the handling and settlement of the third party claim to Purchaser, who shall bear all costs and damages related to the third party claim of himself and of Supplier. Supplier shall be entitled either to suspend the performance of the relevant agreement pending the result of Purchaser's actions towards the third party, or to terminate the relevant agreement with immediate effect without being liable for any damages.
12.1 The following provisions apply to the liability of Supplier towards Purchaser for damage suffered by Purchaser as a result of a failure to perform or unlawful act by Supplier:
For damage consisting of injury or damage to health, whether or not resulting in death, and any resulting damage, the Purchaser is entitled to compensation to the extent that the Supplier can obtain payment under a liability insurance policy, provided that a maximum of Euro 1,125,000 applies per claim.
For damage consisting of damage to or total or partial loss of an item and resulting damage, the Purchaser is entitled to compensation to the extent that the Supplier can obtain a payment under a liability insurance policy, provided that a maximum of Euro 45,450 applies per claim or series of related claims.
The Purchaser is not entitled to compensation for any damage other than that referred to under a. and b. above, unless it is the result of intent or deliberate recklessness on the part of the Supplier's management staff alone.
Supplier shall not be liable for damage that comes to light twelve (12) months after the event causing the damage that is legally attributable to Supplier. Without prejudice to the provisions of the previous sentence, a claim for damages shall lapse if no legal action is instituted against Supplier within six (6) months after the damage has come to light.
Purchaser shall indemnify Supplier against all claims by third parties, regardless of the grounds, in connection with the goods and services supplied or work performed by Supplier to Purchaser, unless and to the extent Purchaser demonstrates that there is no connection between the third party's claim and any circumstance for which Purchaser is responsible.
If the Purchaser holds the Supplier liable for compensation for damage on the basis of a claim taken over from a third party, in the causation of which the Supplier is in any way directly or indirectly involved, the Supplier may also invoke the above provisions against the Purchaser.
The above provisions also apply to the benefit of persons who are in any way involved in the performance of the Supplier's obligations towards the Purchaser.
13.1 The legal relationship(s) between Supplier and Purchaser shall be exclusively governed by Dutch substantive law. The Vienna Sales Convention of 11 April 1980, which entered into force for the Netherlands on 1 January 1992, shall not apply.
13.2 Unless mandatory statutory provisions provide otherwise and the parties do not subsequently agree to arbitration, the court within whose jurisdiction the Supplier has its principal place of business shall have exclusive jurisdiction to hear disputes that arise between the Supplier and the Purchaser concerning or related to a legal relationship between them and that cannot be resolved amicably. However, the Supplier shall remain entitled to also take legal action against the Purchaser – at the Supplier’s discretion – before the court within whose jurisdiction the Purchaser’s principal place of business or the Purchaser’s branch that is closely involved in the dispute is located.
13.3 If the parties subsequently agree to arbitration, such arbitration shall, unless otherwise agreed, be governed by the then applicable arbitration rules of the Council of Arbitration for the Metal Industry and Trade in The Hague.
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