GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY TERMS
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERYMIXMASTERS B.V.
MIXMASTERS B.V.
Version April 2018
Article 1 - General
1.1 In these general terms and conditions ("Terms and Conditions") the following terms shall have the following meanings:
- Seller: Mixmasters B.V.
- Buyer: any natural or legal person who negotiates the conclusion of an Agreement with Seller and/or enters into an Agreement with Seller.
- Agreement: an Agreement between the Buyer and Seller pursuant to which Seller delivers Products.
- Products: goods, services and/or advice from the Seller, in the broadest sense of the word.
1.2 These Terms and Conditions apply to all offers, quotations, order confirmations, Agreements and all related documents.
related (legal) acts of the Seller and Buyer. In the event of conflict, the Agreement shall prevail over the Conditions.
1.3 The applicability of Buyer's general terms and conditions, however named, are expressly rejected by Seller.
1.4 Deviations from these Terms and Conditions and from the Agreement shall only be valid if and insofar as they have been expressly laid down in writing by Seller and shall only apply once.
1.5 In the event of nullity, annulment or otherwise not applicable of (part of) one or more provision(s) of
the Conditions, the other provisions shall continue to apply in full. Whenever possible, the meaning of the invalid, annulled or inapplicable provision shall be acted upon.
Article 2 - Formation of Agreements
2.1 All offers, quotations, order confirmations and statements made by or on behalf of Seller are entirely without obligation.
2.2 An Agreement is only realised if a written Agreement, signed by both parties, is concluded or if Seller sends an order confirmation to Buyer by email or in writing, which order confirmation in such a case is considered a correct and complete representation of the Agreement concluded between Seller and Buyer.
2.3 If no written Agreement has been concluded and no order confirmation has been sent either, the parties are nevertheless bound if Seller commences with the performance of the Agreement. The invoice shall in that case be regarded as Buyer's order and as the correct representation of the Agreement between Seller and Buyer.
2.4 Buyer is not entitled to transfer all or part of this Agreement and/or any rights and obligations arising therefrom to a third party without the prior written consent of Seller.
Article 3 - Prices and payment
3.1 Unless otherwise stated, prices are in euros and are exclusive of VAT, other costs, and any statutory duties.
taxes, levies, duties and import and export duties. The Buyer shall bear the exchange rate risk in the event of payment in a foreign currency.
3.2 Prices are based on the cost factors and cost price elements applicable at the time the Agreement was concluded, such as: import and export duties, freight and insurance, unloading costs, levies and taxes, raw materials, electricity and gas, products and services obtained from third parties, salaries, social security charges and insurance premiums. The Seller is entitled to adjust the agreed prices if the price of cost factors has risen in relation to the prices on which the Agreement is based. Buyer undertakes to accept a price increase of 10%.
3.3 Payments shall be made within 14 (fourteen) days of the invoice date. Buyer shall pay the invoiced amounts without any deductions, discounts or set-offs and shall not be entitled to suspend any payment obligation to Seller.
3.4 All payment terms are final. If payment has not been made within 14 (fourteen) days after the invoice date, Buyer shall be in default immediately and all claims of Seller against Buyer, on any account whatsoever, shall become immediately due and payable. In that case, the Buyer shall owe the statutory commercial interest (Section 6:119a of the Dutch Civil Code) above the invoice amount from the due date of the invoice. In addition, in the event of late payment, all judicial and extrajudicial collection costs shall be borne by the Buyer. The extrajudicial collection costs are set at 15% of the principal amount, including VAT, with a minimum of € 250, without prejudice to the Seller's right to demand reimbursement of the actual costs if these are higher and without prejudice to the costs of legal proceedings or arbitration.
3.5 Complaints about an invoice must be submitted to Seller in writing within 8 (eight) days of the invoice date. After this period, complaints will no longer be dealt with and Buyer will have exhausted its rights. A complaint will not suspend the payment obligation.
3.6 Seller is at all times authorised to demand advance payment from Buyer, or any form of security including but not limited to pledges and bank guarantees, to which Buyer is obliged to cooperate.
Article 4 - Delivery and delivery times
4.1 Unless explicitly agreed otherwise, deliveries are made ex works and the Products travel at the expense and risk of the Buyer.
4.2 The seller is entitled to make and invoice partial deliveries separately.
4.3 The delivery times stated are approximate and are not strict deadlines. Exceeding delivery times does not entitle Buyer to compensation, except in the case of intent or gross negligence on the part of Seller.
Article 5 - Advertising and quality
Article 5 - Advertising and quality
5.1 Complaints concerning the quantity of Products delivered and complaints concerning defects or damage must be made immediately after delivery and must be noted by Buyer on the receipt provided to Seller, after which written complaints must also be made within 8 (eight) days of delivery, stating the reasons. Complaints concerning the quality or deviations from the specifications and other complaints must be made in writing within 8 (eight) days of delivery, stating the reasons. After the expiry of these periods, the right to complain shall lapse and complaints shall no longer be considered. Complaints do not entitle the Buyer to suspend its payment.
5.2 The right of complaint lapses if Buyer has treated the Products in the broadest sense of the word, for example processed or mixed them.
5.3 If the complaint is well-founded, Seller shall, at its discretion, either issue a credit note or deliver a replacement (similar) Product, only after the originally delivered Products have been returned. The Seller shall not be obliged to pay any (further) damages. Credit notes shall, in principle, only be offset against outstanding invoices and shall only be paid by the Seller if no outstanding invoices or other offsetting claims exist.
5.4 Legal actions must be brought by the Buyer within 6 (six) months after the timely claim under penalty of expiry.
Article 6 - Force majeure
6.1 If Seller is prevented by force majeure from fulfilling its obligations to Buyer, the period within which Seller must fulfil its obligations will be extended by the duration of the force majeure situation. Force majeure shall in any case be understood to mean any circumstance beyond the Seller's control, such as, but not limited to, exceptional weather conditions, illness of persons employed by the Seller, strikes, government measures, wars, failure of machinery and/or breakdowns, delays on the part of the Seller or impossibility of procuring raw materials, semi-finished products, equipment, fuel or transport, changes in the product range of suppliers, import and export bans or barriers, transport impediments, all this if they occur at the Seller's company as well as at its suppliers.
6.2 If the force majeure situation has lasted longer than 2 (two) months, or if it is certain that it will last longer than 2 (two) months, both parties are entitled to dissolve the Agreement for the part which has not yet been fulfilled by Seller.
6.3 In the event of force majeure, Buyer is not entitled to compensation.
Article 8 - Retention of title
Article 8 - Retention of title
8.1 The Seller will retain ownership of all Products delivered until all its claims against the Buyer in respect of each Contract or otherwise have been paid in full to the Seller.
8.2 As long as ownership of the Products has not been transferred to the Buyer, the Buyer may not sell, pledge or grant any other right to the Products to third parties, except within the normal course of its business.
8.3 Seller is entitled to unhindered access to the Products it owns. Buyer shall cooperate fully with Seller in order to give Seller the opportunity to exercise its retention of title by retrieving the Products, including any necessary dismantling.
8.4 The Buyer is obliged to keep the Products delivered under retention of title with due care and as the Seller's recognisable property.
8.5 If the Buyer is in default of payment and the Seller repossesses the delivered Products on the basis of the retention of title as a result, the costs thereof are to be borne by the Buyer.
8.6 If and as long as Seller is the owner of the Products, Buyer will immediately inform Seller if they are (impending) seized or any other claim is made on (any part of) the Products. Buyer shall also inform the third party of Seller's (ownership) rights.
Article 9 - Suspension and dissolution
9.1 If Buyer fails to perform any of its obligations to Seller, or if Seller may reasonably expect that Buyer will fail to perform any of its obligations to Seller, for instance if it learns that Buyer's credit rating is falling, Seller has the right to suspend the (further) performance of its obligations under the Agreement by means of a written notification, without Seller being obliged to pay any compensation, all this without prejudice to its other rights.
9.2 In the event that the Buyer:
- becomes insolvent, is declared bankrupt, is admitted to the Legal Debt Rescheduling Scheme for Natural Persons, applies for his own bankruptcy or suspension of payments or admission to the Legal Debt Rescheduling Scheme for Natural Persons, renounces assets, or has all or part of his assets attached;
- is placed under guardianship or otherwise loses the power of disposition over its assets or parts thereof;
- proceeds to discontinue or transfer his business or a part thereof, including the contribution of his business to a company to be founded or already existing, or proceeds to change the objective of his business;
- dies;
- does not comply, does not comply on time and/or does not comply properly with any obligation incumbent on him by virtue of the law or pursuant to the Agreement or Conditions;
the Seller shall be entitled to dissolve the Agreement in whole or in part with immediate effect, without notice of default or judicial intervention, by means of a written notification, all this without prejudice to its other rights.
Article 10 - Liability
10.1 Seller is not liable for damage suffered by Buyer or third parties except in so far as this damage is the direct result of intent or deliberate recklessness on the part of Seller.
10.2 Without prejudice to the provisions of the previous subsection, Seller's liability shall be limited to the invoice value of that part of the Agreement from which the liability ensues.
10.3 Seller shall in no case be liable for indirect damage such as consequential damage, damage caused by delay and loss of profit or turnover.
10.4 The Purchaser shall indemnify and hold harmless Seller against all third party claims, directly or indirectly related to (the use of) the Products and shall compensate Seller for all damage suffered as a result of such claims.
Article 11 - Disputes and applicable law
11.1 These Conditions, as well as the Agreement, are governed by Dutch law.
11.2 All disputes that may arise from the Agreement or these Terms and Conditions shall be settled exclusively by the District Court of Gelderland, Arnhem, or another competent court at the discretion of the Seller.
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