Delivery and Payment - P.J. Construction Equipment B.V. in Nijkerk, The Netherlands
1.1 These general terms and conditions of P.J. Construction Equipment, Chamber of Commerce nr 61763896, located Sloterweg 303, 1171 VC Badhoevedorp, The Netherlands. These terms apply to all our offers and to all agreements entered into by us, irrespective of what said documents are called.a
1.2 Whenever the term “buyer” is mentioned in these general terms and conditions, it refers to any natural person or legal entity that received an offer from us, or has or had any type of agreement with us.
1.3 Deviations from these general terms and conditions (for instance terms and conditions as used by buyer) are binding us solely when accepted by us explicitly and in writing.
1.4 These general terms and conditions can be found on our website, and are being sent to (potential) buyers per regular or e-mail, with offers, pro forma invoices and the like. If they have been sent once, they continue to be part of our offer, even if they are not resent in a second e-mail. They are part of all our offers, and accepting our offer explicitly or implicitly, accepting our goods, or making a (partial) payment, all mean that buyer has accepted these general terms and conditions. Once applicable between buyer and us, they continue to be part of all legal relations between buyer and us, until altered explicitly and in writing.
1.5 Where “Goods” are mentioned in these general terms and conditions, it also means the delivery of related goods, of services, and work of any nature whatsoever.
1.6 We have the right to alter these general terms and conditions. If so, we send the new general terms and conditions to all (existing and new) buyers. Buyers that reject the new terms and conditions need to inform us hereof in writing within two weeks. As then, we will decide together with this buyer, if we end the agreement, or continue it under the previous terms. Without written and timely rejection of the new terms and conditions, buyer is deemed to have accepted them.
2.1 All our quotes should be considered legally as an invitation to the (potential) buyer to make an offer. We are in no way bound by the quotes, unless it is explicitly and unambiguously stated in writing in the quote itself. The order received by us is deemed to be an offer by the buyer, which may be accepted by us, with a written confirmation (the so called order confirmation, which legally is to be considered the acceptance). As then an agreement comes into being, but our legal obligation to deliver, in subject to the suspensive condition as described in article 3.1.
2.2 A quote includes: designs, drawings, models, samples, descriptions, illustrations and the like, as well as possible attachments and other items which are related to our quotes. All of this, just as the tools made for this contract, remains our property and must be returned to us within a week on our request. None of the above may be copied and/or given to third parties without our explicit written permission. We retain all rights flowing from our intellectual and industrial property.
2.3 Should the order (with regards to the quote) not be placed within 3 weeks after the day that we have produced our quotation, we may (or may not, at our discretion) claim the costs from the buyer. These costs are for producing the quotation and for producing the tools that were mentioned in the previous paragraph.
2.4 If we confirm an order, and buyer does not inform us in writing of the incorrectness of the confirmation within 48 hours, this (also) is evidence that buyer has placed an order.
3 The contract comes into being
3.1 A contract with us comes into being only after we have accepted in writing an order that was placed with us. Nevertheless, the moment at which the legal obligation to deliver goods to buyer comes into being, is when we have received the total amount of the pro forma invoice on one of our bank accounts. Payment in full is thus a suspensive condition, although we have the right (at our discretion) to deliver earlier. As many orders are being cancelled because buyers cannot borrow/get the finances for our goods, we have the right, until the moment we have received full payment, to dissolve the agreement. This right is essential to our business model, as it allows us to keep prices low, even though many orders are being cancelled. We have the right to dissolve any agreement (before payment in full), without being liable for any form of damage. Deposits of course will be refunded to buyer.
3.2 Notwithstanding what is mentioned in article 3.1, the buyer is legally bound to his order after our confirmation, no matter how the order was placed. If buyer cannot borrow/get the finances for our goods and cancels the order before full payment, we may or may not, at our discretion, retain (up to) half the deposit. If the buyer cancels the order after payment in full, we may or may not, at our discretion, retain (up to) twice the deposit.
3.3 The order confirmation or the pro forma invoice, which is send to the buyer by us, is deemed to represent the agreement accurately and in full. The buyer is deemed to be in agreement with the content of our order confirmation or the pro forma invoice, unless he notifies us in writing within 48 hours after the order confirmation or the pro forma invoice, that he is not in agreement with the content.
3.4 Additional offers or agreements or promises made by our employees or representatives or the like, are only binding us, if they have been confirmed in writing by the directors who are authorised to represent us.
3.5 If buyer requests delivery of goods before payment in full, we have the right to demand any form of financial certainty with regards to payment in full.
3.6 Our contracts never entail any transfer of intellectual property rights, unless stated explicitly and in writing.
4.1 Our prices exclude value added tax and unless specified explicitly in writing, exclude: packaging, transport costs, insurance, travel charges and any other costs.
4.2 The prices in quotations, contracts and order confirmations are based on the cost factors at the time or the quote, not the time of the order confirmation. These cost factors include among others: exchange rates, manufacturer prices, prices of raw materials and other materials, labour and transport costs, insurance premiums, taxes, import duties, other taxes and charges imposed by the State.
4.3 We reserve the right to bill (at our sole discretion, and partly or in whole) the buyer for any increases in the cost factors if such an increase occurred after the date of the quote, but before the delivery date. If such a (demonstrable) increase leads to a total price increase of more than 5%, buyer may dissolve the contract, but we may (or may not) retain (part of the) deposit for costs incurred by us (but not for loss of profit).
4.4 If the buyer exercises this right (as stated in article 4.3), he should terminate the contract by registered letter, within 5 days after receiving the notification on price increase from us.
5 Delivery and Supply periods
5.1 Delivery time will be set or communicated after we have received payment in full (and thus, after we become legally obligated to deliver). Delivery times (communicated both before and after payment) are always indicative. The delivery times supplied by us should never be seen as a legal deadlines (‘fatale termijn’ under the Dutch Civil Code), unless explicitly states otherwise in writing. When delivery is not made in the indicated (estimated) time, we should be provided per registered letter with a reasonable time period to deliver, stating explicitly that this will be a (legal) deadline, with an explanation of the damage that will occur if this new deadline is not met.
5.2 In case of a legal deadline (because such has been agreed explicitly in writing, or after a registered letter), neither penalties nor damages are payable if late delivery is due to a Force Majeure as described in article 10 of these General Terms.
5.3 Delivery of goods is always ex-works, unless explicitly agreed otherwise in writing (usually in the order confirmation). Goods are expedited at the expense and risk of buyer. In case of a foreign buyer, we may arrange custom clearances, but this also is being done at the expense and risk of buyer.
5.4 For reasons of efficiency, goods are shipped in a manner we choose and by an expediter of our choice, unless the buyer arranges his own shipping. Both is as the expense and risk of buyer.
5.5 We have the right to make partial deliveries, and to consider these partial transactions.
5.6 The buyer is obligated to take over / accept that which he has purchased, within the agreed period of time. If the buyer does not fulfil these obligations, we may or may not, at our discretion, dissolve the contract or store the goods at the expense and risk of buyer. In either case, all costs incurred by us resulting from this have to be paid by buyer.
6 Conformity, inspection, duty to complain and claims
6.1 Second hand goods are purchased as is. We guarantee that we inform buyer of all the shortcomings that we are aware of, but second hand goods are only non-conform (i) if they cannot be used and cannot be repaired or (ii) if in reasonableness we must have known about the shortcomings.
6.2 All services provided, concern an effort commitment, never a result commitment, unless explicitly agreed otherwise in writing.
6.3 Minor differences (different from the offer, the order confirmation or previously delivered goods) with regards to measurement, quantities, colour and the like, do not constitute non-conformity.
6.4 Upon receipt of the goods, buyer needs to properly inspect the goods within one week after delivery.
6.5 Shortcomings that could have been detected by proper and timely inspection need to be reported to us within two weeks after delivery. Shortcomings that could not have been detected by proper and timely inspection need to be reported to us within one week after detection.
6.6 Shortcomings in goods refused by buyer, stored at the expense and risk of buyer according to article 5.6, cannot be non-conform or the non-conformity is the risk of buyer.
6.7 Complaints on shortcomings need to be communicated to us by registered mail, containing (i) the invoice nr (ii) data of buyer (iii) the exact complaint and (iv) one or more proposed solutions.
6.8 Buyer needs to provide proper and timely access to the non-conform goods that he has filed a complaint on, if such is requested. Buyer needs to cooperate in returning or repairing the goods, or in finding other reasonable solutions.
6.9 A lack of proper and timely inspection, a lack of clear and timely complaints or a lack of cooperation in finding a solution to solve the non-conformity, all lead to a loss of claim.
6.10 Each claim from the buyer concerning goods delivered by us lapses:
- if buyer has not properly and timely inspected the goods
- if buyer has not filed a claim in accordance with this article 6
- if buyer gave no or insufficient cooperation in our investigation of the complaints;
- if buyer incorrectly set up, treated, used, stored or maintained the goods concerned;
- if buyer continued to use the goods concerned;
- If buyer, without our written consent has carried out repairs and/or changes of the good concerned.
6.11 In case of non-conformity and if buyer has followed the instructions of this article 6, we have the free choice to:
- Repair the defects (free of charge);
- Replace the goods or parts hereof, (if requested) after the return of the faulty goods/parts;
- Refund the received purchase price (or part of it), with (partial) annulment of the contract;
- Or any other solution that does justice to the interests of both parties.
7.1 If under any legal system a third party such as an expeditor or a manufacturer is liable towards buyer concerning or related to our goods, buyer is obligated to claim damages from this third party first. This specifically (but not solely) applies to all additional parts and components we may deliver as a service, not as core business.
7.2 We are not liable if buyer is in breach of the contract or these general terms and conditions, in particular article 6 hereof.
7.3 We are not liable for any loss or damages, unless in cases of intent or gross negligence.
7.4 We are never liable for more than our liability insurance pays out for the case concerned.
7.5 We are never liable for consequential damages or trading loss, direct or indirect damages, loss of profit (whoever it is called) and damage by standstill suffered by buyer or parties related to buyer. We are also never liable for immaterial damages or sorrow money.
7.6 The buyer is not authorised to return our goods without justified claims. If this still happens without any valid reasons, then all the return costs will be billed to the buyer. In such a case we are at liberty to store the goods at the expense and risk of the buyer.
7.7 The buyer is required to indemnify us against all claims from third parties regarding the execution of the contract, in as much as it does not conflict with the law.
7.8 The buyer is legally responsible for the accuracy and the completeness of the information that he provides us.
8 Assertion of Ownership and Certainty
8.1 The goods delivered to buyer, remain our property until the moment of full payment of everything buyer owes us (because of the contract concerned and all other contracts).
8.2 Buyer does not have the right to pawn or pledge the unpaid goods, or to establish rights on behalf of a third party on or through the unpaid goods.
8.3 Without prejudicing the provisions of this article 8, the buyer is allowed to sell the goods to a third party, but only if this is part of his normal trading. In that case the buyer is obliged to transfer the received amounts to us without delay. If the received amount is a claim, then this should also be transferred to us without delay.
8.4 If our right of ownership, on the goods delivered by us that have not been paid in full, is lost as result of processing or rework by the buyer, the buyer is obliged to grant us an un-propertied right of distraint, pledge or pawn on the processed or reworked goods.
8.5 We are, at all times, entitled to repossess goods of which we have ownership, which are located at the buyer (or third party) as soon as we can reasonably assume that there is a real chance that the buyer will not meet his obligations. This in no way diminishes our other rights under Dutch law or these general terms; specifically we also reserve the right to claim damages from the buyer after repossessing goods of which we have ownership.
8.6 The buyer is required to insure unpaid goods against the risk of fire and theft, and must be able to produce proof of this insurance upon request.
8.7 All property of buyer in our possession for repair, services or the like, are subject to a lien for any sums, from any contract owed by buyer to us. If the buyer is more than three months overdue with any monies that buyer owes us, we may without further notice sell the goods of buyer in such a manner and such terms as we think fit and may, from the sales proceeds, pay the amounts owed to us, and pay the expenses of the sale.
9.1 Payment should be settled in Euro unless explicitly agreed otherwise, and in cash (without any deduction or cash discount) at the location where our offices are located, or through money transfer into bank- or giro account, in both cases directly after acceptance of the quote and receiving the pro forma invoice. Payment can only be made otherwise if agreed to explicitly in writing. When paying by bank- or giro, the day on which the money is credited to our bank- or giro account will be considered as the day of payment.
9.2 If the buyer does not make full payment on time, he is in default without notice thereof having to be served. In that case we are entitled to suspend meeting our obligations with regards to all contracts with the buyer, without us losing other rights we may have under Dutch law or these general terms. Furthermore, we are entitled to require payment in cash, or a guarantee of timely payment of all deliveries still to be carried out, or to annul the agreement without further legal intervention, whereupon the buyer is required to return the delivered goods and revert anything we have accomplished for the buyer, without us losing any rights we may have under Dutch law or these general terms, and in particular without us losing our rights to claim damages.
9.3 If the buyer persists in default of timely payment, then he forfeits to us, or our credit insurer, without any specific legal notification on our part, commencing from the settlement date until the day of full payment, an interest payment equal to the legal trade interest rate (based on article 6:119a Civil Code) plus (at our discretion) 4% per year, calculated over the unpaid amount, which interest payment is immediately claimable, without further notice of default. Buyer is liable for all costs related to the collection of the invoiced amounts (including extrajudicial collection costs). The extrajudicial collection costs will be a minimum of 15% of the principal amount and a minimum of €500,- all exclusive of value added tax. In addition, all adverse consequences of an exchange rate loss or otherwise resulting from late payment or non-payment is for the expense of the buyer, even if the buyer met his payment obligations according to the rules and regulations of his own country or circumstances or measures beyond his control that caused a transfer of funds to us to be disadvantageous to us.
9.4 Payments are administrated in accordance with article 6:44 of the Dutch Civil Code..
9.5 If the financial position of the buyer deteriorates substantially after the contract comes into being, but before delivery of the goods, we are entitled to annul the contract in part or in full, or to demand a change in terms of payment.
9.6 We can transfer all our claims towards buyer with regards to all transactions, to a credit insurer of our choice.
10 Force Majeure
10.1 Force majeure is understood to mean all circumstances that are beyond our control and of which we cannot in all reasonableness be expected to honour our obligations in terms of the contract. Force majeure includes among others: war, riots, and hostility of types, blockade, boycott, natural disasters, epidemics, shortage of raw materials, obstruction and interruption of transport, failures/malfunctions in our company, import and export restrictions or prohibitions, impediments cause by regulations, law or decisions of international, national and regional (government) authorities.
10.2 If, due to Force Majeure, we are unable to deliver, deliver properly or on time, we are entitled, at our own choosing, to annul the contract or to annul the unexecuted part of the contract, or suspend the contract for a determined or undetermined time.
10.3 In the event of Force Majeure the buyer cannot claim damages from us.
11 Relations and Privacy
11.1 Buyer is not allowed to contact our relations (employers, suppliers and the like) for commercial purposes for one year after the (last) contract, unless (i) with our explicit written approval, (ii) such relations existed prior to the (first) contract, or (iii) such commercial relations undoubtedly do not constitute any competition to us.
11.2 Buyer must be very careful (in accordance with the European Privacy Laws) with all our data, and destroy our data as soon as they are no longer needed, or as soon as legally required if such is earlier.
11.3 Buyer must respect our good name and commercial interest, as we will respect buyers good name and interests.
12 Applicable Law and Settling Disputes
12.1 To all our quotes and agreements Dutch Law (Kingdom of the Netherlands) exclusively applies.
12.2 The Vienna Sales Treaty does not apply.
12.3 In case of disputes between (potential) buyers and us, first parties need to find an amicable solution, if necessary with the help of a mediator.
12.4 If, following article 12.1 it is nevertheless during three months impossible to settle the dispute amicably, and in cases of (in reasonableness objective) urgency, disputes can be adjudicated by the competent courts in Central Netherlands (Midden-Nederland).