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General conditions VAEX Truck Trading B.V.
1.These conditions shall apply to all offers, orders, assignments, agreements for purchase/sale of goods and other legal relationships (including negotiations regarding such agreements) with VAEX Truck Trading B.V., with registered office in Ravenstein and Reek, The Netherlands and its group companies, hereinafter to be jointly and individually referred to as VAEX, insofar as not stipulated otherwise in the offer or agreement.
2. Additions or exceptions to these conditions must be agreed in writing.
3. The rights and obligations arising from agreements between VAEX and client may not be transferred by client to third parties, except with the written consent of VAEX.
4.The provisions of section 1 title 7 of book 7 Dutch Civil Code (assignment), with the exception of Article 7:406 and 7:412 shall not apply to legal relationships with VAEX, unless otherwise specifically provided in the agreement or in these conditions.
5. The applicability of additional or deviating conditions or general conditions used or referred to by client or other conditions customary in the sector is explicitly rejected. 7.In the event a specific agreement between VAEX and client is concluded to which these general conditions apply, the provisions of such specific agreement shall prevail in case of a conflict between the provisions of such specific agreement and the AVW-VAEX.
1.All offers and quotations are without obligation and purely indicative,unless otherwise agreed in writing.
2. An offert hat includes a deadline may nevertheless be revoked by VAEX.
3.Indications of weights, speed, fuel, load capacity, energy consumption etc. are given as a best approximation, but are not binding on VAEX and the other party may not derive any rights from these.
1. An agreement shall be concluded under the condition precedent that VAEX has approved and confirmed the order in writing (also electronically in this case) or when VAEX commences the execution of the order or assignment placed by client. The content of the agreement shall be determined by the offer and/or order confirmation of VAEX.
2.If an agreement between VAEX and client is concluded electronically, VAEX is not obliged to confirm the receipt of the statements of client and client is not allowed to dissolve the agreement based on the absence of such a confirmation of receipt.
3.Client’s orders are deemed irrevocable. Cancellation or amendment of an order is only possible with VAEX’s written consent and to the extent this can reasonable be expected from VAEX and provided client pays cancellation costs in the amount of 15% of the invoice (excluding VAT). If client’s request for amendment or additions imposes additional costs on VAEX, VAEX is entitled to charge these costs in full to client. In that case, VAEX is also entitled to set a new delivery date. Cancellation of an order specifically made, adjusted, designed or loaded for client (e.g. stacking) or of specific services rendered at client’s request is not possible.
4.VAEX is entitled to terminate negotiations with client at any time and/or to refuse acceptance of an order in whole or in partwithout becoming liable to pay costs and/or damages to client and without having to state any reason.
5. All quotations, advertisements, pictures and other descriptions are made with care, but VAEX does not warrant that there will be no deviations, for example regarding color or textual errors.
6. VAEX is not obliged to verify whether the order, information and documents provided by client are correct. Failure or delay by VAEX in the performance of its obligations due to incorrect or incomplete information provided by client cannot be attributed to VAEX. Client is liable for the costs and damage resulting from incorrect or incomplete information.
1. All price quotations and the prices which VAEX charges are the prices applicable at the time of the quotation or of conclusion of the agreement, delivered from Ravenstein, excluding VAT and other costs ensuing from the agreement, such as levies and tariffs.
2. Where after making a quotation a change occurs in one of the factors determining the price, VAEX shall be entitled to adjust the prices accordingly.
1. Client shall be obliged to pay all invoices prior to delivery of the goods in question or before the work in question is carried out (payment in advance), unless agreed otherwise in writing, and without deduction, set-off or discount. VAEX shall not deliver the goods in question or carry out the work in question until the invoice has been paid in full, or, at VAEX’s choice, until adequate security for payment is provided by client.
2. Where invoices are not paid in cash in accordance with sub 1 of this article, client shall be in default simply by the passing of the agreed payment date, without any notification of default being required, irrespective of whether the exceeding of such payment date is attributable to client or not.
3. Notwithstanding VAEX’s other rights and remedies, VAEX shall then be entitled to charge interest on the outstanding amount of 1% per month (whereby part of a month is calculated as an entire month), chargeable from the due date in question.
4. VAEX is entitled to postpone delivery of new orders until client has paid all outstanding invoices.
5. All extrajudicial and judicial costs incurred by VAEX by virtue of a dispute with client, both as plaintiff and as defendant, shall be for account of client. The extrajudicial collection costs shall be established at 15% of the outstanding amount with a minimum of EUR 100.- per case and the judicial collection costs shall be established at the actual amount paid by VAEX for the legal proceedings, even if this exceeds the liquidated costs of the proceedings.
6. Incoming payments shall serve to settle the longest outstanding items - including interest and costs - even where client states otherwise in this respect.
7. In case of late payment, any adverse exchange rate difference shall be for account of client. Reference dates are the due date of the invoice and the date on which payment is made.
8. VAEX may at any time set off its obligations towards client, in whatever currency and whether or nor due and payable, against any claims which it may have against client, in whatever currency and whether or not due and payable.
VI. DELIVERY TIME, DELIVERY, RISK
1. The delivery period and/or performance period will be set by VAEX on an approximate basis.
2. In setting the delivery period and/or performance period, VAEX will assume that it will be able to perform the assignment under the conditions known at that time.
3. The delivery period and/or performance period will only commence once agreement has been reached on all commercial and technical details, all necessary data, final and approved drawings and the like are in VAEX possession, the agreed payment or installment has been received and the necessary conditions for performance of the assignment have been satisfied.
4. The time of delivery mentioned or agreed shall in any case be automatically extended by the period(s) during which: - there is a delay in the supply and/or dispatch and/or of any other circumstance temporarily holding up the execution, irrespective of whether this is attributable to VAEX and/or was foreseeable; - client defaults in one or more of its obligations towards VAEX or, to VAEX’s sole opinion, there is good reason to believe that client will default; - client does not enable VAEX to execute the agreement, which shall among others be the case if client fails to state the place of delivery if applicable or fails to provide VAEX with the information, goods or facilities necessary to perform the agreement. - In the event of circumstances that differ from those that were known to VAEX when it set the delivery period and/or performance period, it may extend the delivery period and/or performance period by such period as it needs to perform the assignment under such circumstances. - In the event of any contract addition, the delivery period and/or performance period will be extended by such period as VAEX needs to (cause to) supply the materials and parts for such work and to perform the contract addition.
5. Delivery in the Netherlands shall take place in the Netherlands at a place appointed by VAEX, unless otherwise agreed in writing. All goods shall be transported for account and risk of client, even where the dispatch is made carriage paid to.
6. Where VAEX on request of client is responsible for dispatch of the goods the time and method of dispatch and dispatch route shall be at VAEX’s choice. Goods in transit insurance shall only be taken out by VAEX on the express request of client and all related costs shall be for client's account. Goods only include the goods sold by VAEX and never include any cargo that client offers for loading or which is already loaded in the good(s). VAEX accepts no liability or responsibility for any cargo and cargo is never covered by transport insurance.
7. Delivery shall be deemed to have taken place at the time when the goods are made available to client at VAEX’s premises. If client does not take delivery of the goods, client shall be immediately in default and the goods shall be stored at client’s account and risk. If client does not collect the goods concerned within the newly stipulated term, VAEX is entitled to rescind the agreement in whole or in part, including any cargo provided in relation to the good(s), which is located on VAEX’s premises or present in the good(s) sold, and to dispose of the goods concerned in any manner it deems fit, without any compensation whatsoever being due by VAEX.
8. VAEX shall be entitled to recover its claim on client from the proceeds. Any remainder will be held for client for 1 year after the newly stipulated pick-up term for client and client can request payment from VAEX in writing, under submission of evidence, failing which the remainder will revert to VAEX after 1 year had lapsed.
9. Delivery outside the Netherlands shall be carried under the same conditions as laid out in this article.
10. Partial deliveries shall be permitted and can be invoiced separately by VAEX. The same applies to services rendered.
VII. FAILURE TO TAKE DELIVERY OF GOODS
1. Upon expiry of the delivery period and/or performance period, the Client is obliged to take delivery of the good or goods forming the subject of the agreement.
2. The Client must lend all cooperation that can be reasonably expected from it to enable VAEX to make the delivery.
3. If the Client does not take delivery of goods, such goods will be stored at the risk and expense of the Client.
4. Upon breach of the provisions in paragraphs 1 and/or 2 of this article, the Client will owe VAEX a penalty of € 250 per day, to a maximum of € 25,000. This penalty may be claimed in addition to damages pursuant to the law.
VIII. ADVICE AND INFORMATION PROVIDED
1. The Client cannot derive any rights from advice or information it obtains from VAEX if this does not relate to the assignment.
2. If the Client provides VAEX with data, drawings and the like, VAEX may rely on their accuracy and completeness in the performance of the agreement.
3. The Client indemnifies VAEX from and against all liability to third parties relating to use of the advice, drawings, calculations, designs, materials, samples, models and the like provided by or on behalf of the Client.
IX. INTELLECTUAL PROPERTY RIGHTS
1. Unless otherwise agreed in writing, VAEX retains the copyright and all industrial property rights in the offers made by it and in the designs, pictures, drawings, models (including trial models), software and the like provided by it.
2. The rights in the data referred to in paragraph 1 of this article will remain the property of VAEX irrespective of whether the costs of their production have been charged to the Client. These data may not be copied, used or shown to third parties without VAEX prior express written consent. The Client will owe VAEX an immediately payable penalty of € 25,000 for each breach of this provision. This penalty may be claimed in addition to damages pursuant to the law.
3. On VAEX first demand, The client must return the data provided to it as referred to in paragraph 1 of this Article within the time limit set by VAEX. Upon breach of this provision, the Client will owe VAEX an immediately payable penalty of € 1.000,-- per day. This penalty may be claimed in addition to damages pursuant to the law.
1.The goods supplied by VAEX shall meet the specifications as set out in the corresponding agreement. No guarantee shall be given, unless otherwise indicated in the agreement and unless a manufacturer’s warranty is given in which case VAEX gives no further or other warranty than said manufacturer’s warranty. With respect to services, VAEX warrants that the services are rendered properly and to the best of its ability as is customary in the sector and according to the current standards and expertise. If and to the extent VAEX undertakes to load cargo in the good(s) at client’s request, such is done only by order of client and entirely at client’s risk and expense. VAEX does not accept any liability in this respect.
2. Where client calls upon the guarantee given by VAEX in the corresponding agreement and makes a claim, VAEX shall assess the claim and if applicable, deal with the claim taking into account the provisions in the agreement in this respect.
3. Guarantee claims cannot be transferred to third parties.
4. Subject to lapse of its claim, client must inspect the goods and services upon delivery in order to evaluate whether there are visible defects. Claims regarding the invoiced amount or visible defects must be made in writing to VAEX within 3 days after receipt or delivery, giving an accurate description of the complaints. For all other claims, a period of 5 days after the defects became known or should have become known shall apply. If client fails to notify VAEX in time as meant in this article, client looses its right to claim under the warranty. The goods in question must be made available to VAEX upon VAEX’s first request for examination in the state they are in at the time of the claim.
5. Claims under the warranty cannot be made if: - the goods have been used for purposes other than for which they are normally intended, or in the opinion of VAEX have been used or transported improperly or have been repaired, altered or adjusted by client or a third party; - the damage has been caused by negligence of client (for example by insufficient or incorrect maintenance or storage) or by client having acted contrary to instructions, indications and advice of VAEX; the claim relates to parts which are subject to normal wear tear, parts of which the seal has been broken or accessories; - client has not fulfilled its obligations towards VAEX (both financially and otherwise). - client upon discovery of the defect has failed to take all actions and refrain from all actions to prevent further damage from occurring, for example by continuing to use the goods.
6. VAEX never warrants the absence of defects, which are the consequence of complying with any mandatory governmental laws and regulations regarding the nature or the quality of the raw materials and/or materials applied in the delivered goods.
7. Should client file a warranty claim under this article and the claim is found to be justified by VAEX, VAEX shall at its discretion, replace the goods involved free of charge (after which the replaced goods shall become VAEX’s property) or repair them or give a price reduction.
8. The handling of a claim shall not suspend the payment obligation of client.
9. Where apart from the cases described above, consideration is given by VAEX to a complaint, this shall be carried out entirely without obligation and client may not derive any rights there from.
10.Any claim and/or defense, based upon facts that would justify the claim that the goods delivered or services rendered do not comply with the agreement, expires one (1) year after the date of delivery or the date of termination of the services.
1. Client has the right, for its own account, to inspect the goods prior to delivery at a time and place determined by VAEX. XII. NON-FULFILMENT/CANCELLATION/SUSPENSION 1. VAEX is authorized to cancel the agreement with immediate effect, without judicial intervention, in full or in part or to suspend the performance, without prejudice to the other rights falling to it (to fulfillment and/or compensation), if: - the other party contravenes any provision of the agreement between parties; - a (foreign) statutory regulation is applied with the purpose of liquidating the other party or clearing the burden of debt of the other party, such as bankruptcy, (provisional) suspension of payment and similar statutory regulations; - the business of the other party is shut down or liquidated or a private agreement is offered to creditors by the other party; - the other party, after being asked to do so in writing, has not provided suitable security within seven days in the opinion of VAEX
2. In these cases any claim on the other party is immediately payable, without VAEX being obliged to compensation or any other obligation whatever. If the other party remains in default with payment and/or purchase for more than fourteen days or wishes to cancel the agreement VAEX is without further notice entitled to resell the goods sold, in which case the down payment made to VAEX lapses as compensation for the damage suffered by it, except for delivery by client of evidence that this damage is less and without prejudice to the right of VAEX to recover the damage actually suffered by it from the other party.
3. VAEX is in that case authorized to cancel the agreement.
XIII. RESERVATION OF OWNERSHIP
1. Delivery shall take place under retention of title. This retention of title applies with respect to all payment obligations for all goods delivered or to be delivered by VAEX to client by virtue of any agreement and/or services rendered as well as with respect to all claims based on breach of these agreements.
2. VAEX shall be authorized to take back the goods which have remained its property in accordance with the previous paragraph if client breaches its obligations or if VAEX has good reason to believe that client will breach its obligations. Execution of its retention of title shall be deemed to qualify as rescission of the agreement(s) concluded with client. Client authorizes VAEX and its representatives irrevocably to enter all premises and to remove the goods in question (or have the goods in question removed) from where they are located and shall ensure this right of VAEX and its representatives with client’s customers. Client shall provide all cooperation necessary in order to effect VAEX’s retention of title. All costs related to the removal of the goods are for client’s account.
3. Client shall be authorized, if and to the extent necessary in the ordinary course of its business, to dispose of the goods which are subject to retention of title but this does explicitly not include the right of client to pledge or otherwise encumber the goods (both contractually and in rem). Should client make use of this authority, client shall be obliged to deliver the goods which are subject to retention of title to third parties subject to this retention of the title of VAEX. Client shall also be obliged to grant VAEX on its first request a non-possessory first ranking pledge on all claims which client has or shall obtain on these third parties and to state in the deed of pledge that client is authorized to pledge and that the claims to be pledged are unencumbered. Should client refuse to do so, this provision shall be deemed to include an irrevocable power of attorney for VAEX to create this pledge.
4. The property law aspects of retention of title to the goods shall be governed by Dutch law or, at VAEX’s discretion, by the laws of the country of destination of the goods, provided that (i) the laws of such country in respect of retention of title provide better protection to a creditor than Dutch law and (ii) the goods are actually imported in that country of destination.
5. If a creditor of client levies execution against, forecloses on, or takes possession of, all or any part of the goods owned by VAEX or if client files for an application or an application is filed with regard to client for bankruptcy or if client is declared bankrupt, if an application for a (preliminary) suspension of payments with regard to client is made or granted, of if client is made subject to the WSNP, client shall immediately inform VAEX and shall inform the party making the attachment that it has obtained the goods subject to retention of title.
XIV. RETENTION RIGHT
1. VAEX is authorized to suspend the fulfillment of its obligation to return goods owned by client, which VAEX has in its possession by virtue of the agreement, until the claim of VAEX with regard to this agreement has been paid in full, including interest and costs.
1. If client continues to use an exchanged motor vehicle in anticipation of the delivery of the motor vehicle ordered by him, such use takes place at client’s risk and all costs regarding the first mentioned motor vehicle and any decrease in value thereof are for client’s account.
1. VAEX shall not be liable for damage caused as a result of any default in the fulfillment of its obligation(s) towards client.
2.The fulfillment of the obligations under guarantee/claim as described in these general terms and conditions serves as sole and full compensation. Any other claim for compensation, including claims for trading losses (losses due to stoppage, loss of income, incurred losses, lost profits), personal accidents, damage to or loss of or delay in connection with client’s cargo meant to be transported with the good(s), and any other consequential or immaterial losses of whatever nature, including damage as a result of liability in relation to third parties is explicitly excluded, unless in case of willful intent or gross negligence of VAEX or its directors.
3. VAEX shall not be liable for willful intent or (gross) negligence of (non-managerial) subordinates or other parties which are engaged by VAEX under the agreement and for which VAEX can be held liable by law.
4. VAEX accepts no liability for advice given by or on behalf of VAEX.
5. VAEX shall not be liable for damage to motor vehicles of client and/or of third parties which are located on its premises.
6. VAEX obligation to pay damages, irrespective of the legal basis, is limited to damage for which VAEX is insured under an insurance policy taken out by it or on its behalf, but will never exceed the amount paid out under this insurance in the relevant case.
7. If, for any reason whatsoever, VAEX cannot invoke the limitation in paragraph 1,2,3 or 4 of this article, the obligation to pay damages will be limited to a maximum of 15% of the total assignment amount (excluding VAT). If the agreement comprises parts or partial deliveries, the obligation to pay damages is limited to a maximum of 15% (excluding VAT) of the assignment amount of that part or that partial delivery.
8. Client shall indemnify and hold VAEX harmless against any and all claims of third parties related to the delivered goods or services rendered. Client shall indemnify and hold VAEX harmless against any and all claims for personal injury or death of employees of client or of third parties and/or damage to property of client and/or of third parties to the extent the event leading to such claim takes place at VAEX’s premises. The foregoing shall not apply to the extent the damage is caused by willful intent or gross negligence of VAEX or its directors.
9. VAEX stipulates all legal and contractual defenses that it can invoke in respect of its liability towards client also for the benefit of its employees and agents for which it can be held liable by law.
10. The foregoing provisions do not affect liability based on mandatory law
XVII. FORCE MAJEURE
1. VAEX is entitled to suspend performance of its obligations if it is temporarily prevented from performing its contractual obligations to the client due to force majeure.
2. Force majeure shall mean any circumstance outside the will and control of VAEX, whether or not foreseeable at the time of entering into the agreement, as a result of which VAEX can reasonably no longer be held to fulfil its obligations towards client, such as war, import or export restrictions, governmental measures, lack of raw materials, factory or transport disruptions of any nature whatsoever, strikes, trade prohibitions, lockout or lack of personnel, quarantine, epidemics, hold-ups due to frost, default of suppliers or of third parties engaged by VAEX for the performance of the agreement, late delivery by client of cargo that client wishes to transport with the good(s), etc.
3. In the event of force majeure, VAEX shall not be obliged to fulfil its contractual obligations. In such case, VAEX is entitled to perform within a reasonable period or to rescind the agreement in whole or in part, without being liable to pay damages. Client is in the event of force majeure for VAEX entitled to rescind the agreement, after client has granted VAEX a reasonable period within which to perform.
XVIII. PARTIAL NULLITY
1. In the event that any of the provisions contained in these general conditions VAEX or in the agreement with client are (partly) invalid and/or unenforceable, the remaining provisions shall continue to be in force to the fullest extent permitted by law. The invalid or non-binding part shall be replaced by provisions which are valid and binding and which come nearest to the intention of the parties and the aimed economic result.
XIX. PLACE OF FULFILLMENT, APPLICABLE LAW, COMPETENT COURT
1. Only Dutch law applies to all offers and agreements of VAEX.The applicability of the Vienna Sales Convention Treaty is excluded.
2. Alldisputes, that arise in response to the agreement signed between the other party and VAEX, or further agreements that may arise there from, are settled by the competent court in Oost-Brabant (Netherlands).
3. These general terms and conditions were drawn up in Dutch and Englisha. In case of a dispute about (the interpretation of) the text of these general terms and conditions the Dutch version takes precedence