determined by the
Association of Manufacturers of and Traders in Construction Machinery, Warehouse Equipment, Road Construction Machinery and Transport Equipment BMWT, located in The Hague .
Filed at the Registry of the District Court in The Hague on March 26, 2014
Article 1 Definitions; scope
1.1 In these Terms and Conditions the following definitions apply:
Supplier: the BMWT member that offers, sells and delivers goods and/or services;
Customer: the other party of the Supplier.
1.2 These Terms and Conditions apply to agreements - including the actions taken to conclude the agreements - for the delivery of goods and/or the provision of services and/or the realization of a work. They also apply to any additional or follow-up agreements. Furthermore, they apply to all forms of services provided by (an employee of the) Supplier to an (employee of the) Customer that are (somewhat) related to the agreements mentioned above in the first sentence (such as the free provision of technical advice). ).
1.3 These Terms and Conditions apply exclusively in the sense that specific stipulations and general terms and conditions on the part of the Customer do not apply, except if and insofar as they have been expressly accepted in writing by the Supplier. A deviating clause (condition) only applies if the deviation has been agreed.
1.4 If a “Guarantee Statement for used machines or trucks” is issued when purchasing/selling or exchanging a used machine and/or truck, the Conditions of that Warranty Statement also apply. To the extent that the Conditions in the Guarantee Statement deviate from these Conditions, the Conditions in the Guarantee Declaration take precedence.
Article 2 Offers; information material
2.1 Unless expressly stated otherwise, all offers from the Supplier, in whatever form, are without obligation in the sense that even after acceptance by the Customer of an offer from the Supplier, the Supplier is entitled to revoke the offer within three full calendar weeks after acceptance.
2.2 Unless expressly stated otherwise, statements and specifications regarding sizes, capacities, performance or results in images, drawings, catalogues, price lists, advertising material, etc. are only approximations that do not bind the Supplier.
Article 3 Delivery; purchase obligation; time and place of delivery; transfer of risk and ownership
3.1 The Supplier is authorized to make partial deliveries.
3.2 The Customer is obliged to purchase goods and services, the delivery of which has been agreed by the Supplier, at the time and place that apply between the parties under the relevant agreement and/or these Conditions.
3.3 The term for delivery or execution commences with the conclusion of the agreement or, if payment to the Supplier of an amount has been agreed before or at the start of the execution of the agreement, at the time that full payment of this amount has been made. received. If the Supplier is partly dependent on the cooperation of the Customer for the execution of the agreement and the Customer fails to provide that cooperation for whatever reason, the term for execution will be extended by as much time as the Supplier reasonably needs to complete the shortcomings caused by the Customer's failure. to undo the delay caused. The same applies if delays in implementation arise as a result of requests from or on behalf of the Customer or a government agency to change, adapt or supplement what has been agreed. In addition, any additional costs incurred by the Supplier in connection with a delay as mentioned above will be borne by the Customer. The Supplier will only be in default due to exceeding the deadline if the Customer sets a reasonable further period in writing after the agreed period has expired - (which period, however, may not be shorter than fourteen calendar days calculated from the day of receipt of the notice) - and the Supplier also within that further period does not meet its delivery obligation for reasons attributable to it.
3.4 Unless expressly agreed otherwise, delivery will take place in the factory or warehouse of the Supplier.
3.5 The risk for an item to be delivered by the Supplier permanently transfers to the Customer upon arrival at the place of delivery. If, at the time of delivery agreed between the Supplier and the Customer, the Customer does not take delivery for reasons not attributable to the Supplier, the risk at that time is permanently transferred to the Customer. All costs relating to storage and transport that the Supplier must incur with regard to the item from the time of delivery referred to in the previous sentence will be fully borne by the Customer.
3.6 Even if the Supplier has committed itself to providing ownership of an item, ownership of the item remains with the Supplier despite delivery, until the Supplier has received full payment from the Customer of what the Customer owes the Supplier on account of the goods and services delivered. and due to failure to pay what the Customer owes to the Supplier as a result.
The Customer may only use items that are still subject to retention of title within the context of its normal business activities. However, he may not alienate, rent or encumber these items with securities or other limited real rights. If the Customer fails to fulfill any payment obligation, the Supplier is entitled to take possession of goods to which a retention of title still applies, without the Customer's cooperation. The Supplier is not obliged to compensate the Customer for any damage it may suffer in connection with the return. The costs of taking back and possibly realizing the goods are entirely borne by the Customer. What the Supplier still has to claim from the Customer will be reduced by the economic value that the repossessed goods have for the Supplier. However, the Supplier never has to maintain a value that is higher than the price agreed with the Customer for those goods.
Article 4 Manual; instruction
4.1 With regard to machines and installations to be delivered, the Supplier will provide the Customer with information about the construction, operation and treatment 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 Customer is entitled to free instruction, insofar as this has been agreed in the relevant agreement.
Article 5 Drawings, software, etc
5.1 All drawings, images, catalogues, programs (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 Customer, remain the property of the Supplier and must be made available upon first request. to be returned from the Supplier. Without prior written permission, the information mentioned may not be copied or made available to third parties for inspection.
Article 6 Price; adjustment of price
6.1 Unless expressly stated otherwise, a stated or agreed price does not include VAT or any other government tax due in connection with the agreement and, if the Supplier takes care of the transport of goods, nor does it include the costs associated with packaging, packaging, transport and insurance. The Supplier can charge the items mentioned in the previous sentence in full separately.
6.2 If the costs for the Supplier to execute the agreement increase because cost factors that are important for the price, such as wages, social and other insurance premiums, materials, value of foreign currency, etc., increase after the time of the last (price) offer from Supplier has increased, the Supplier is entitled to charge additional costs for these higher costs by adjusting the price.
6.3 If a price has been agreed between the Supplier and the Customer in a currency other than the Euro and that other currency decreases in value compared to the Euro after the time of the last (price) offer from the Supplier, the Supplier is entitled to adjust the price. for as much as is necessary to make up for the decrease in value that has occurred until full payment is made.
Article 7 Payment and compliance by the Customer
7.1 Unless expressly agreed otherwise, the agreed price must be paid in full without any discount and settlement within three weeks of the invoice date stated on the relevant invoice by crediting it to the bank account specified by the Supplier. The Supplier is also authorized to send invoices for partial deliveries.
7.2 Unless the Supplier has agreed in writing in advance to deferral of payment, the Customer is not entitled to suspend payment of the price for the reason that the delivered or performed work by the Supplier is, in its opinion, defective.
7.3 If the Customer does not fulfill its obligations or does not do so on time, the Supplier is entitled, without prejudice to its other rights under the law or agreement and without any notice of default being required, to:
suspension of the execution of the agreement in respect of which the Customer is in default, as well as of any other agreements with the Customer;
compensation for all damage resulting from non-compliance. To the extent that 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 of the Dutch Civil Code and 6:120 (2) of the Dutch Civil Code). The interest is forfeited from the moment that the Customer is in default of payment until the moment that the Customer has fully paid what he owes to the Supplier. Each time at the end of a year, the interest referred to in the previous sentence also becomes 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 what the Customer has not paid on time and which the Supplier claims.
7.4 If the Supplier has reason to doubt the Customer's fulfillment of its obligations - whereby the following circumstances on the part of the Customer in any case constitute sufficient reason for doubt: repeated failure to pay, seizure at the expense of the Customer, suspension of payment, bankruptcy, complete or partial cessation of the company -, everything that the Customer owes to the Supplier becomes immediately due and payable and the Supplier is entitled to suspend the fulfillment of its obligations until compliance by the Customer, including full payment, or - to the satisfaction of the Supplier – security for payment has been completed. If full payment or sufficient security is not provided within fourteen (14) calendar days after the request, the Supplier is entitled to declare the agreement in question dissolved without prejudice to its right to compensation for damage suffered and/or to be suffered.
Article 8 Force majeure
8.1 For the Supplier, force majeure applies to circumstances of a factual, legal or other nature, which - whether or not foreseeable - through no fault of its own, prevent the timely performance of the agreement or make it particularly difficult. Such circumstances include: strikes; business occupations; production interruptions due to machine breakdown, disruptions in the supply of energy and water or fire, etc.; import, export and production bans and other government measures; transportation barriers; shortcomings of suppliers and assistants.
8.2 If a circumstance of force majeure occurs on the part of the Supplier, he will inform the Customer of this as quickly as possible. Unless there is no doubt that the force majeure situation will last thirty full working days or longer, the obligations, the fulfillment of which is prevented by force majeure or becomes particularly onerous for the Supplier, and the corresponding obligations that have not yet been fulfilled will be suspended, without any right to compensation arises. As soon as it is beyond any 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, each of the parties is entitled to terminate the agreement by means of a written statement addressed to the other party, without giving rise to any right to compensation.
Article 9 Assembly, installation and/or commissioning
9.1 If the Supplier delivers goods, the Supplier will only be responsible for the assembly, installation and/or commissioning if and insofar as this has been expressly agreed.
9.2 If and insofar as the Supplier is responsible for the assembly, installation and commissioning, the following applies:
The Customer provides all cooperation necessary to enable the Supplier to carry out the assembly, installation and/or commissioning in a timely and proper manner. In any case, he will ensure in a timely manner that: good and safe access to the workplace, if necessary also outside the Customer's usual working hours; the presence of permits, to the extent required for the execution of the work; an unloading area as well as sufficient storage space, covered and lockable where necessary; the required energy, water, burning lubricants and, unless otherwise agreed, the required ladders, scaffolding and other auxiliary materials to be designated by the Supplier.
The Customer shall ensure that all work on which the Supplier must build upon assembly, installation and/or commissioning and which has not been agreed to be carried out by the Supplier - for example, all disassembly work and all electrician and plumbing work, all land -, masonry, foundation, carpentry and painting work and all other work of a constructional nature are carried out on time and properly. The Customer regularly consults with the Supplier and provides him with all information necessary for proper coordination of mutual activities.
The Customer provides all cooperation in achieving and maintaining safety in the workplace, taking into account the applicable legal and company regulations. In particular, he is responsible for provisions in connection with fire.
Article 10 Quality; examination; repair of defects; servicing
10.1 The Supplier delivers goods and carries out work that comply with the quality requirements that have been expressly agreed and with the legal regulations - in particular those relating to operation, use on roads and safety - that were applicable at the time of the Supplier's last offer in the Netherlands. be force. If the Supplier becomes aware of new relevant legal regulations in the Netherlands after its last offer but before delivery, the Supplier will report this to the Customer. Adjustments to the performance to be delivered by the Supplier will take place in mutual consultation. The delivery period will be adjusted as necessary and any additional costs resulting from the adjustment for the Supplier will be borne by the Customer. Insofar as no express quality requirements have been agreed with regard to goods to be delivered or services to be performed, the quality of the goods and services to be delivered will not fall below good average quality.
10.2 To the extent that a permit is required for the possession and/or use of goods, the Customer is responsible for obtaining it.
10.3 After delivery of goods or after the Supplier has notified the Customer that he has completed the agreed work, the Customer must carefully inspect the goods and/or work as soon as possible, but in any case within ten (10) working days after delivery or the Supplier's notification. to check for completeness and accuracy. To shortages and/or defects – (i.e. each failure to comply with what was agreed) – that the Customer could have discovered during a careful inspection in the period referred to in the previous sentence or that he has discovered but subsequently not within twenty-one (21) calendar days After delivery or notification from the Supplier to the Supplier in writing, he can no longer make any appeal to the Supplier. This also applies in the case of partial deliveries.
10.4 Deficiencies or defects, which become apparent during the inspection referred to in 10.3 and which have been reported to the Supplier in writing in a timely manner, as well as shortages or defects which could not have been discovered during the inspection referred to in 10.3, but which were discovered within six months after delivery or notification. of the Supplier still come to light and are reported to the Supplier in writing within ten (10) calendar days after the discovery, the Supplier will undo as much as possible by supplementing or - at the Supplier's option - repair or replacement. Unless stated otherwise in 10.5 below, this undoing will be at the expense of the Supplier.
10.5 The following provisions also apply with regard to the rectification of shortages and defects:
The Supplier will make every effort to carry out the undoing as soon as possible under the given circumstances. The Customer provides all necessary cooperation for this purpose. b. The undoing will take place as much as possible at a place designated for this purpose by the Supplier. The goods travel to and from that location at the expense and risk of the Customer.
In the event of cancellation outside the Netherlands, the travel and accommodation costs of those who conduct research and carry out the cancellation will also be borne by the Customer.
Goods or parts that become available upon replacement automatically become the property of the Supplier.
If 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 - they will only be remedied free of charge, to the extent that the third party will bear the costs of undoing.
The Customer has no right towards the Supplier to rectify shortages and defects that are likely to be the result of normal wear and tear, improper or careless use or use not in accordance with the intended purpose, or failure to (correctly) follow certain instructions or instructions from Supplier.
The Customer's right towards the Supplier to rectify shortages and defects lapses if the Customer carries out the reversal itself or has it carried out 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 Customer's payment obligation towards the Supplier. If the Customer fails to fulfill its payment obligation even after a written reminder, this will result in the forfeiture of its right to rectification of shortages and defects.
10.6 If the Customer complains about a shortage or defect that cannot be remedied or can only be remedied at disproportionately high costs for the Supplier, the Supplier is not obliged to remedy the defect or deficit. 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 Customer and taking into account the unit prices used when concluding the relevant agreement, or the relevant agreement can be terminated by each of the parties. be declared dissolved in writing. The Customer is only entitled to declare the agreement in question dissolved if the shortage or defect that cannot be remedied is so inconvenient for him that maintenance of the agreement in question cannot reasonably be expected of him, even despite a price reduction.
10.7 The occurrence of shortages or defects, in respect of which the Supplier has an obligation to rectify, can only - apart from the case referred to in 10.6 - constitute a ground for termination by the Customer of the agreement in question if the Supplier continues to do so after a written reminder. fails to remedy the shortage or defect within a reasonable period, taking all circumstances into account.
10.8 With regard to vehicles, machines and installations to be delivered, the Customer is entitled to free maintenance services, insofar as this was agreed upon when concluding the relevant agreement.
10.9 Any claim by the Customer with regard to compliance, annulment or dissolution of the agreement shall lapse if he has not legally initiated a legal action against the Supplier within six (6) months after he discovered a shortage or reported the defect in a timely manner.
Article 11 Conflict with industrial/intellectual property rights
11.1 The Supplier is obliged to deliver goods that do not infringe industrial or intellectual property rights of third parties in the Netherlands. If the Customer is sued by a third party in connection with a conflict with an industrial or intellectual property right in the Netherlands, he will immediately inform the Supplier of this and leave the handling and settlement of the third party's claim to the Supplier. If the Supplier considers the presence of a conflict with an industrial or intellectual right in the Netherlands to be plausible, the Supplier is entitled - at its option and in consultation with the Customer - to remedy the infringement by adapting or replacing the item in question or by acquiring a license or to take back the item in question against reimbursement of the purchase price received for it. The costs of handling and settling the third party's claim will be borne by the Supplier, which is otherwise not obliged to pay compensation for any damage.
11.2 When the Supplier uses materials, drawings, models, instructions, etc. from or on behalf of the Customer to execute an agreement with the Customer and sues the Supplier for infringement of an industrial or intellectual right in connection with the use of materials, drawings, models , instructions, etc. from or on behalf of the Customer, he will immediately inform the Customer of this. The Supplier leaves the handling and settlement of the third party's claim to the Customer, who will bear all costs and damages related to the third party's claim, both for itself and for the Supplier. The Supplier is entitled to either suspend the execution of the agreement in question pending the result of the Customer's actions towards the third party, or to terminate the agreement in question with immediate effect without being liable for any compensation.
Article 12 Liability for damage
12.1 The following provisions apply to the liability of the Supplier towards the Customer for damage that the Customer suffers as a result of a shortcoming in the performance or tort of the Supplier:
For damage consisting of injury or damage to health, whether or not resulting in death, and damage resulting therefrom, the Customer is entitled to compensation insofar as the Supplier can obtain a payment in this regard under a liability insurance policy, with the understanding that per damage case a maximum of Euro 1,125,000 applies.
For damage consisting of damage to or complete or partial loss of an item and damage resulting therefrom, the Customer is entitled to compensation insofar as the Supplier can obtain a payment in this regard under a liability insurance policy, on the understanding that a maximum limit applies per damage case or series of related damage cases. of Euro 45,450 applies.
For damage other than under a. and b. The Customer is not entitled to compensation unless this is the result of intent or deliberate recklessness on the part of the Supplier's managerial staff alone.
The Supplier is not liable for damage that becomes apparent twelve (12) months after the event causing the damage, which is legally attributable to the Supplier. Without prejudice to the provisions of the previous sentence, a claim for damages lapses if no legal action has been brought against the Supplier within six (6) months after damage has come to light.
The Customer will indemnify the Supplier against all claims from third parties, regardless of the grounds, in connection with the goods and services supplied or the work performed by the Supplier to the Customer, unless and insofar as the Customer demonstrates that there is no connection between the third party's claim and any circumstance that is at the risk of the Customer.
If the Customer sues the Supplier for compensation for damage on the basis of a claim taken over from a third party, the cause of which the Supplier is in any way directly or indirectly involved, the Supplier can also rely on the above provisions vis-à-vis the Customer.
The above provisions also apply to the persons who are in any way involved in the execution of the Supplier's existing obligations towards the Customer.
Article 13 Applicable law; competent court
13.1 The legal relationship(s) between Supplier and Customer is exclusively governed by Dutch substantive law. The Vienna Sales Convention of April 11, 1980, which entered into force for the Netherlands on January 1, 1992, remains inapplicable.
13.2 To the extent that mandatory legal provisions do not provide otherwise and the parties do not agree on arbitration, the court within whose jurisdiction the Supplier has its principal place of business has exclusive jurisdiction to hear disputes arising between the Supplier and the Customer about or in connection with a legal relationship between them. arise and cannot be resolved amicably. However, the Supplier remains entitled to take legal action against the Customer - at the Supplier's option - before the court in whose jurisdiction the Customer's main branch or that branch of the Customer that is closely involved in the dispute is located.
13.3 If the parties still agree to arbitration, then that arbitration will, unless otherwise agreed, be governed by the then applicable arbitration rules of the Arbitration Board for the Metal Industry and Trade in The Hague.
