General Delivery Terms and Conditions of the private company with limited liability Powercom B.V., having its registered office and its place of business in Bergharen
Article 1 - General
For the purpose of these terms and conditions the following is understood as:
a. General terms and conditions: these general terms and conditions;
b. The supplier: Powercom B.V. in Bergharen;
c. The buyer: the contracting party of the supplier, not being a consumer or end user;
d. Order: the agreement between the supplier and the buyer with regard to the purchase of goods by the buyer;
e. Goods: the products / goods that are offered for sale by the supplier.
Article 2 - Applicability
The present terms and conditions form an integral part of the agreement as also of all offers of the supplier. Deviation from the applicability of these general terms and conditions and from the general terms and conditions is only possible in writing. They are applicable with the exclusion of all general terms and conditions present on documents originating from the buyer, to the extent that these latter terms and conditions are in violation of the former.
Article 3 - Offers
a. All offers are subject to contract. The supplier shall only be bound after an offer has been accepted by the same in writing or when the supplier has started the delivery and/or implementation. Deviations from a written confirmation of an order shall only be binding on the supplier after it has equally confirmed the same in writing.
b. The supplier shall at all times be intited to, without stating reasons, refuse an order either in whole or in part, without thus being liable to pay any compensation. The provisions set forth in this paragraph are equally applicable if a buyer has already purchased products from the supplier on an earlier occasion.
c. Additions and/or changes possibly stipulated later as well as (oral) promises on our part or on the part of our staff, representatives, agents or other intermediaries shall only be binding if they have been confirmed in writing by a thereto authorised person.
d. Deliveries for which, having regard to their nature or scope, an offer or order confirmation is not sent, the delivery receipt and/or the invoice shall also be considered as the order confirmation, which is also deemed to correctly and completely represent the agreement.
Article 4 - Prices
a. The indicated prices are excluding turnover tax, transport costs, packaging and possible insurance.
b. The offered prices are only applicable to the offered quantities.
Article 5 - Payment
a. Unless stipulated otherwise, payment must, at the discretion of the supplier, take place either net cash upon delivery or by means of a deposit or remittance to a bank account designated by the supplier. The complete payment should be on suppliers bank account before the goods will be released for pick-up, unless supplier agreed a payment term with the buyer. The payment must be effectuated without discount or compensation.
b. If the buyer does not pay in a timely fashion the buyer shall, without any further notice of default being required, be liable to pay an interest equal to two percent over a month or part of a month, to be calculated over the still outstanding amount. Possible judicial and extrajudicial costs shall be at the expense of the buyer. The extrajudicial collection costs amount to at least 15%, 20% for international buyers, over the principal amount payable by the buyer, with a minimum of € 150 (in words: one hundred and fifty Euros) in addition to the legal interest over the invoiced amount, calculated as from seven days after the date of the end of the invoice date.
c. If the buyer does not pay in timely fashion, the supplier shall be intitled to suspend the further implementation of the delivery and/or installation until the buyer has complied with its payment obligations. If the buyer does not comply with its payment obligation within a time limit then imposed by the supplier in writing, the supplier shall also be intitled to in writing declare the agreement dissolved, without any judicial intervention being required.
d. Each and every payment is primarily applied to satisfaction of the payable interest and the collection costs incurred by the supplier.
Artical 6 - Reservation of title
a. Goods delivered by the supplier shall remain the property of the supplier up to the moment of payment in full of its claims by the buyer, with the understanding that the buyer bears the liability and risk for the goods delivered by the supplier as from the moment that they are put at the disposal of the same.
b. The buyer shall not be entitled to sell the goods that have not been paid yet or to create (have created) any security rights in the same or to process (have processed) these goods.
Article 7 - Delivery
a. The stipulated delivery time takes off on the day that the supplier disposes of all necessary data and documents.
b. The delivery times indicated by the supplier shall never be considered as fatal deadlines, unless expressly stipulated otherwise. In case of untimely delivery the supplier must therefore be given notice of default if the buyer wishes dissolution.
c. An overstepping of the delivery time shall not entitle the buyer to compensation of any nature whatsoever or not to comply any obligation of the buyer vis-à-vis the supplier.
Article 8 - Complaints / Acceptance
a. Possible complaints are processed if they are received by the supplier directly in writing within eight days after delivery. With regard to latent defects applies that complaints must be submitted within the warranty period.
b. If complaints are deemed to be justified, such at the discretion of the supplier, the supplier can either remedy the defect or repay the net invoiced amount.
c. Complaints about invoices must be submitted in writing within eight days after the despatch date of the invoices.
d. If the buyer did not submit a written complaint to the supplier within eight days after the delivery or the despatch date of the invoices then the buyer is deemed to have accepted the delivery or the invoices. Complaints shall in that case no longer be processed by the supplier.
e. The submission of complaints shall not release the buyer from the obligations by virtue of the sale and purchase agreement vis-à-vis the supplier.
Article 9 - Transport and handling fees
a. The transport of all goods that are related to the assignment takes place at the expense and risk of the buyer, also if the consignment note indicates otherwise. If so desired insurence is provided at the requist of the buyer.
b. Return shipments are exclusively accepted by the supplier if the supplier granted prior approval for this and if this takes place postage paid
c. We are entitled to charge a surcharge for orders with a minor invoiced value on account of handling fees.
Article 10 - Force majeure
a. If the supplieris unable to perform the assignment regularly on account of force majeure, the supplier shall be entitled to implement the agreement at a later time or to, either in whole or in part, declare the agreement dissolved, without judicial intervention being required. Force majeure is, in any case, understood as injudicious use of the delivered goods, such at the discretion of the supplier, industrial action, excessive sickness absence of the staff, transport difficulties, fire, government measures, discontinuation of the production by suppliers or the implementation of changes in the goods to be delivered. In the latter instance the supplier shall be entitled to deliver changed goods, if the changes represent, at the discretion of the supplier, only minor deviations from the originally offered goods.
b. In case of dissolution as intended under a. the buyer shall be held to take receipt of that which is available within the framework of the order and to pay the purchase price proportionately.
c. If the supplier needs to incur additional costs on account of force majeure for the implementation of the order, the supplier shall be entitled to charge these additional costs to the buyer.
Article 11 - Liability
a. Failing, untimely or improper delivery as well as failing or incorrect functioning of the delivered goods shall not entitle to compensation and/or dissolution, to the extent that there is question of force majeure on the part of the supplier.
b. Basically the supplier accepts liability for direct damages. The supplier shall not be liable for indirect damages, including trading losses and consequential damages.
c. The liability of the supplier is also assessed in pursuance of the product and professional liability insurance of the supplier. Barring the cover thereof, the obligation to pay compensation vested in the supplier pursuant to the previous paragraphs of this article shall in any case be limited to a general maximum of € 2,000.00 (in words: two thousand Euros) per claim.
d. The supplier shall not be liable for product failure, product licence violations, brand/name/product copy violations or any similar situations.
Article 12 - Warranty
a. Unless expressly stipulated in writing, the supplier does not provide any warranty on the delivered goods.
b. If the supplier has provided a warranty it shall expire if the goods to which the warranty is related are or have not been used in accordance with their designated use and/or injudiciously, the user instructions are not complier with, injudicious repairs were carried our, changes were implemented or numbers and seals were mutilated or removed.
c. If the supplier has provided warranty, the warranty period totals, unless expressly stipulated otherwise in writing, the number of months during which a possible manufacturer's warranty is granted by the manufacturer. The warranty period shall, however, never exceed more than two weeks.
d. The buyer who intends to rely on a possible warranty stipulated in writing must communicate this to the supplier in writing. The buyer must do this within eight days after the buyer has detected or should within reason have detected the defects. After the submission of the complaints the goods must be kept in an unaltered state by the buyer until the supplier has examined the complaints.
e. On account of a warranty provided by the supplier with regard to goods that are located outside of the Netherlands the supplier can only be hold liable for the costs of repair or replacement up to at most an amount that these costs would represent in case of implementation in the Netherland.
f. The buyer must inspect the goods delivered by the supplier upon delivery. The buyer is deemed to have taken receipt of the delivered goods in accordance with the arrangements and free from defects in a good state, unless the buyer informs the supplier in writing of possible defects within eight days after the goods have been delivered by the supplier.
Article 13 - Dissolution
The supplier is entitle, without prejudice to the right to claim compensation for costs, damages and interest, to suspend the implementation of the order or to in writing declare the agreement dissolved, if the buyer:
a. is declared insolvent, assigns its assets, submits a requist for (temporary) suspension of payment or when an attachment is imposed or all or a part of its assets;
b. passes away or is placed under guardianship;
c. does not or untimely comply with any obligation pursuant to the law, the agreement or these general terms and conditions;
d. fails to pay an invoiced amount or a part thereof within the imposed time limit;
e. proceeds with discontinuation or transfer of its business or an important part thereof, including the transfer of its business to an already existing or still to be incorporated company, or proceeds with changes in the objectives of its company.
Article 14 - Evidence
In case of possible dispute the data occuring in the administration of the supplier shall be decisive, without prejudice to evidence to the contrary.
Article 15 - Applicable law
Dutch law is applicable to all agreements
Article 16 - Disputes
Disputes that originate from deliveries by the suppier that cannot be settles amicably can be brought to the cognisance of the competent court of the District Court in Arnhem to the extent that the Subdistrict Court lacks jurisdiction.