GENERAL CONDITIONS OF SALE AND DELIVERY OF JACARANDA TRADING B.V.
with registered office at Rotterdam, Holland.
Art. 1 General
These general conditions shall apply to all our offers and to all contracts entered into by us or on our behalf, including contracts for sale, hire, the supplying of things and/or the performance of services. Any stipulations at variance with or additional to these general conditions shall be of no effect unless accepted by us in writing and shall apply only for that particular case or that particular contract. In the event of these conditions of sale conflicting with conditions of the other party, our conditions of sale shall prevail, the conditions of the other party being at all times explicitly rejected.
Art. 2 Offers
All offers and quotations shall be free of engagement, unless an offer contains a period for acceptance in which case the offer shall cease to be valid after expiry of such period.
All our specifications in respect of weight, speed, fuel or power consumption, etc. are approximate only, and shall in no way be binding upon us.
All order numbers or manufacturer's numbers contained in an offer, order acknowledgement or correspondence are by way of indication for our internal staff only, and shall in no way be binding upon us. These shall not entitle the other party to any rights or claims whatsoever in whatever form.
Art. 3 Formation of Contract
If our offer is free of engagement, the contract shall come into existence as soon as our offer has been accepted in writing by the other party. However, we reserve the right to withdraw our offer within 2 days of receipt of the written acceptance, except when the other party is a natural person not acting in the course of a profession or business (consumer purchase) and the right to withdraw the offer is not also contained in the offer itself and it can no longer be required from that person to be so bound.
If our offer is irrevocable, the contract shall come into existence as soon as we have received the written acceptance from the other party within the stipulated period.
If an acceptance by the other party deviates from the offer, this acceptance shall be regarded as a new offer from the other party and as a rejection of our entire offer, also when such acceptance differs only in minor details.
If the other party makes an offer and/or gives an instruction, such offer or instruction shall be deemed as accepted by us only if such offer or instruction has been accepted by us in writing or when we have commenced execution of the order or instruction.
Staff members not holding explicit written powers to sign on our behalf, are not authorized to enter into a contract in our name and on our behalf.
The risk in respect of the correct reception of orders/instructions placed or given by telegram or telephone shall be for the other party. The execution of orders/instructions so placed or given, as well as the costs attaching thereto, even if such orders or instructions are later found to have been incorrectly received, shall be for the account and at the expense of the other party.
Art. 4 Payment
Unless otherwise agreed in writing, payment by the other party shall be made in cash no later than upon delivery of the things, or after execution of the work, respectively. These terms of payment must be regarded as deadlines on expiry of which the other party shall be in default.
We reserve the right at any time to require payment in advance of part of the purchase price and/or amounts otherwise invoiced by us under the contract, or to require a bank guarantee for the same, without prejudice to our right of retention. The balance remaining must be paid in cash no later than upon delivery of the things, or after execution of the work, respectively. These terms of payment must be regarded as deadlines.
If payment after completion or delivery has been agreed, the other party must pay the amount owing within 30 days of the invoice date, which term of payment must also be regarded as a deadline.
Deduction or setting off debts shall not be permitted, unless otherwise agreed in writing. This provision shall not apply in the case of a consumer purchase insofar as it relates to set-off.
Payment must be made in Dutch currency unless it has been agreed in writing that payment may be made in foreign currency. If it has been agreed that payment will be not be made in Dutch currency, the risk of devaluation of the currency in which the sale was effected in relation to the guilder at the time of payment to us, shall be for the other party unless explicitly agreed otherwise, and the other party may thus be obliged to pay afterwards the price difference resulting from such devaluation.
In case of non-payment within the time stipulated in the first paragraph of this article, we shall be entitled to charge a contractual interest at the rate of 1% per month, a part of the month being calculated as a full month, accruing from the first day of the term of payment referred to above in the first paragraph.
In case of non-payment within the times stipulated in paragraphs 1, 2 and 3 of this article, we shall be entitled to increase the amount owing by the other party with collection expenses, as soon as we are forced to pass on the claim to third parties for collection. The extrajudicial collection expenses shall be equal to the collection rates of the Netherlands Bar Association, with a minimum of NLG 70.00, plus V.A.T..
Payments made by the other party shall always first be applied to all interest and costs owing, and thereafter to the debts longest outstanding.
We shall be entitled, in the event of any changes in the personal or business circumstances of the other party (e.g. merger, ceasing of business operations, bankruptcy, involuntary liquidation, suspension of payments, attachment, placing under curatorship, winding-up, insolvency), at our sole discretion, to either declare the contract to be dissolved without application to the court and to take possession of the goods sold, or to require that the other party provide security, and in such event our claim shall in any case be due and payable at once.
Art. 5 Suspension/Right of Retention
If the other party is in default and despite a demand thereto continues to default in respect of the obligation to provide security as requested by us, or in respect of any other obligations towards us, we shall have the right to declare the contract (for sale) to be dissolved without application to the court, and without any liability on our part to pay compensation. Pursuant to our reservation of title as stipulated in art. 6, in case of declaration of dissolution of the contract we shall have the right and the consent of the other party to take possession of the goods sold, the title to which was reserved by us. In such event we shall also be entitled to declare all amounts owing to us by the other party as being due and payable at once and to demand payment of the same.
If the other party fails to fulfil any of its obligations prior to or after the due performance of our obligations, or if circumstances come to our knowledge after the contract has come into existence which give us good grounds to fear that the other party will not fulfil its obligations, without prejudice to any divergent provisions of mandatory law, we shall have the right to suspend our performance.
If the other party fails to pay, in whole or in part, the costs connected with the performance of the contract, or with other contracts entered into with the other party arising from business dealings which we have had with the other party on a regular basis, we may exercise the right of retention on all things to which the performance of the contract relates and which are under our actual control within the framework of the contract. The foregoing shall also apply to any costs which we have had to incur in respect of the due care we were obliged to observe in respect of such things.
We may exercise the right of retention on things of the other party in the event of the latter failing to pay, in whole or in part, the costs relating to work done to a thing, also if these costs relate to earlier work done by us to the same thing. The right of retention will not be exercised if the other party has provided sufficient security for the payment of such costs.
Art. 6 Reservation of Title
Title to things delivered and/or to be delivered by us shall remain vested in us until the other party has fulfilled all its obligations in respect of the things delivered or to be delivered by us to the other party under the contract, or in respect of the services performed or to be performed by us for the other party, or until all sums owed by the other party on account of default in the performance of the contract have been paid to us in full. The other party is explicitly prohibited from pledging, selling, or hiring these things to any third party or from giving any third party in any other way the use of these things.
If any third party wishes to establish or claim any right on or to the things delivered by us under reservation of title, the other party must inform us of this as soon as can reasonably be expected.
The other party is obliged, on demand from us:
A) to insure and keep insured the things delivered under reservation of title against the risks of fire, explosion and water damage, as well as theft, and to submit to us the respective insurance policies for inspection;
B) to pledge to us all claims of the other party against insurers in respect of things delivered under reservation of title, in the manner as prescribed in section 3:239 of the Civil Code;
(C) to pledge to us all claims of the other party against its buyers upon the selling in the course of its normal business operations of things delivered by us under reservation of title, in the manner as prescribed in section 3:239 of the Civil Code;
(D) to regard the things delivered under reservation of title as our property.
Art. 7 Delivery
Stated delivery times and/or completion dates shall never be regarded as deadlines, unless otherwise agreed in writing. Consequently, in the event of late delivery and/or completion we must be given written notice of default stating a reasonable period for compliance. A reasonable period shall in any case be such period as is considered reasonable in our line of business, but shall not be less than 3 weeks. In case of the estimated time of delivery of the thing to be delivered being exceeded, the other party may give us written notice of default. If after 3 weeks of such notice of default we have not yet delivered the thing, the other party shall have the right to declare the contract as being dissolved without application to the court. If we deliver within such period of 3 weeks, any price increase occurring during this period will not be charged on by us.
If the exceeding of the estimated or firm and agreed delivery term of the thing is imputable to force majeure on our part, neither we nor the other party shall be bound any longer to the contract and any trade-in forming part of such contract.
In such event the other party shall have the right, at its sole discretion, either to agree to a later delivery of the thing or to inform us as soon as possible in writing of its decision to cancel the contract.
Stated delivery times and/or completion dates shall be based on the (working) conditions obtaining at the time of the concluding of the contract and on the timely delivery of the materials and/or components ordered by us for the execution of the work.
Delivery shall be ex our premises, unless otherwise agreed in writing and at such times as shall be set by us, of which times the other party will be informed in good time. The other party is under the obligation to take delivery of the thing at the delivery times set by us, in default of which all costs arising therefrom (which shall include the costs of building insurance, freight and garaging), in conformity with our current rates, or the locally obtaining rates, shall be charged to the other party. In case of delivery elsewhere, at the request of the other party, we shall have the right to pass on the additional costs attaching thereto to the other party. The risk for the delivery of things elsewhere than at our premises, regardless of whether the transport is carried out by us or by third parties, shall be for the account of the other party. We shall be obliged to insure the transport risk only upon written instructions thereto timely received from the other party. We shall have the right to demand security for payment of the costs attaching to such insurance.
The risk in the things shall pass to the other party upon delivery, even though we have not yet transferred the title to the thing.
If essential information in respect of the thing to be traded in, such as year of construction or mileage, are found to be incorrect or if at the time of the trade-in the condition of the thing to be traded in is found to be poorer than was agreed, we shall be at liberty to either cancel the trade-in or to reduce the trade-in value accordingly, on the proviso that the contract for the sale by us of the new or used thing shall continue to be binding upon the other party.
If upon the sale of a thing, another thing is traded in by the buyer, the risk in the thing to be traded in shall not pass to us until we have received and accepted the thing to be traded in. All costs, damage and decrease in value of the thing to be traded in shall consequently be for the account and risk of the other party until the moment of receipt and acceptance of the thing to be traded in by us.
Exchange engines shall be sold only against receipt of an identical engine (same make, type and year of construction) exhibiting no fractures, cracks, welding or any other damage or missing parts, and provided that the main components, such as engine block, cylinder head, crankshaft and camshaft(s) are capable of being reconditioned in a normal manner. If an engine is traded in with the defects as specified above, then the costs of repairing the defects shall be for the account of the other party.
Any materials or goods replaced during repair shall be placed at the disposal of the other party only if such has been explicitly requested on giving the instruction for repair. Otherwise, these materials shall be destroyed without the other party being entitled to claim payment of the scrap value.
Art. 8 Complaints
The other party shall be obliged to inspect the things as soon as it has received the same, and/or to inspect the work as soon as it has been carried out, and to ascertain whether the things are in order, and/or the work has been carried out according to the instruction given.
Complaints, both in respect of motor vehicles and/or other things delivered by us, or in respect of work carried out by us, or in respect of invoice amounts, must be lodged by the other party with us, within 14 days of receipt of the thing or of performance of the work, or of receipt of the invoices, in writing stating in detail the facts to which the complaint relates.
If it is not reasonably possible to discover the existence of the defect within the period mentioned above, the other party must lodge a complaint in writing with us within 14 days after it has discovered or could reasonably have been expected to discover the existence of the defect.
Minor deviations and differences in quality, quantity, dimensions, weight or finish, or deviations or differences that are customary in our line of business, shall not provide grounds for complaint.
Complaints in respect of a particular product shall leave the obligations of the other party in respect of other products and/or parts of the contract intact.
Art. 9. Warranty
Our warranty in respect of new motor vehicles and things delivered, and new parts delivered, shall not extend beyond the manufacturer's warranties, if any. In all other cases the other party shall have a claim under the warranty only insofar as this has been explicitly agreed in writing. No claims can be made under the warranty in respect of defects that have developed through normal wear and tear or have been caused by accidents and/or calamities such as fire and/or water damage. Warranty shall never be given for parts delivered separately.
All repair work carried out by us is warranted for a period of 3 months, to be calculated from the date of completion of the repair work. Upon the discovery of a defect the other party must forthwith give notice to us of such defect in writing affording us the opportunity to remedy the defect. Any claim under this warranty shall become invalid if the complaint has not been notified in writing and/or if the other party or third parties, without our foreknowledge or consent has/have already carried out any work to remedy the defect. We shall not have the right to claim the invalidity of this warranty if the absolute necessity of immediate repair has been demonstrated without our having been able to carry out the repair ourselves, and the repair is otherwise covered by a valid claim under the warranty.
In respect of services performed or work carried out by third parties the warranty conditions as agreed between us and such third parties shall apply.
Claims under the warranty referred to above shall further be invalid in the event of improper use, which shall be understood to include: overloading, use of types of fuel or oil other than those appropriate for the vehicle, maintenance other than as prescribed by us, and improper operation and/or use of the vehicle. The warranty shall further include emergency repairs for which no instruction has been given.
In the event that, for the purposes of complying with our warranty obligations, parts are replaced, the parts to be replaced shall become our property, unless otherwise agreed.
Art. 10 Force Majeure
In the event that we are faced with force majeure, by which is meant any circumstance which we could not foresee at the time of entering into the contract and as a result of which the normal performance of the contract cannot in reason be required by the other party, such as in the event of fire, theft, strike, late delivery of things by suppliers as a result of which are unable to meet our delivery times, or are able to do so only by incurring considerably higher costs, and which also includes plant occupation, government measures, loss or damage during transport, we shall have the right to dissolve the contract in whole or in part without application to the court, and without being liable to pay any compensation.
Art. 11 Liability
Without prejudice to the provisions in respect of warranty, we shall in no circumstance be liable for damage, unless such damage can be imputed to gross negligence or intent on our part or on the part of our managerial staff.
In the event that we are held liable for damage and such damage cannot be imputed to gross negligence or intent on our part or on the part of any of our managerial staff, our liability shall at all times be limited to direct damage caused to things or persons and shall never extend to any loss of profits or other consequential loss, including loss of income.
In the event that we are held liable for damage and such damage cannot be imputed to gross negligence or intent on our part or on the part of any of our managerial staff, our liability shall further be limited to the damage in question and shall never exceed the amounts for which we are insured or for which, taking into account what is custom and practice in our line of business, we ought reasonably to have been insured.
Insofar as the provisions of the foregoing paragraph cannot serve as a criterion for any limitation of our liability (for instance because we have neither taken out an insurance nor is such insurance customary), we shall reduce the damages to be paid if the price to be paid by the other party is small in relation to the extent of the damage suffered.
The provisions of paragraphs 3 and 4 of this article shall apply only insofar as the liability under the law or under the contract (including the provisions contained in these general conditions) has not already been limited further than as shall result from the mere application of paragraphs 3 and 4.
Further, we shall in no circumstance be liable, except in the case of gross negligence or intent, for any damage to or theft (including loss) of any property belonging to the other party and/or to third parties to be found in or on the thing and under our control on whatever account, with the exception of damage to motor vehicles, trailers and semi-trailers. Property belonging to the other party shall be understood to be, amongst other things, the cargo (for instance on a trailer), inventory, papers and valuable documents.
Art. 12 Indemnity
The other party shall hold us harmless from and against all claims in respect of any damage caused to third parties, directly or indirectly, in whatever manner and in whatever form, by or in connection with the product or the possession or use thereof, to the extent that such damage exceeds our liability as against the other party pursuant to the provisions contained in these general conditions.
The other party shall hold us harmless from and against all claims from itself and third parties arising from a defect in a product partly caused by an action or omission of the other party or its subordinates, and shall include the manufacture or modification by us of products in conformity with instructions from the other party.
Should in any legal proceedings the provisions of this article be held to be unreasonably onerous, then our liability shall be limited to that damage against which we are insured and shall never exceed the amounts for which we are insured or for which, also taking into account what is custom and practice in our line of business, we ought reasonably to have been insured.
Art. 13 Euro Clause
In the event that on the 1st of January 1999 or at any time whatsoever guilders and/or any other currencies are converted into Euros, their introduction shall not have any material effects on contracts entered into with the other party.
Art. 14 Disputes and Applicable Law
All our contracts with other parties shall be governed by and construed in accordance with Dutch law. All disputes with other parties arising from contracts entered into with such other parties shall only be adjudicated by the competent Court in the district of Rotterdam, without prejudice to our right to apply to any otherwise competent Court and except for disputes which pursuant to the law fall within the exclusive competency of the Lower District Court. The natural person not acting in the course of a profession or business shall likewise be bound by this provision, after we have notified this person in writing that we have relied upon this provision and have allowed him/her a period of at least one month within which to choose a court competent according to the law for the adjudication of the dispute.
The provisions of the Vienna Sales Convention shall not be applicable, and neither shall any future international regulation concerning the sale of goods the application of which can be excluded by the parties, be applicable.
Art. 15 Translations
In the event that a translation is made of these general conditions and should any differences in interpretation arise between the Dutch text and the text in the foreign language, the Dutch text shall have exclusive precedence.