General Terms and Conditions
General delivery and payment conditions issued by *MJS referred to as conditions *MJS under Trade Register number KvK Harderwijk 08087735 . Deposited on 1 January 2012 in Harderwijk.
* Machinebouw Jansen Stroe v.o.f., Stroe, hereinafter referred to as “*MJS”.
Article 1: Applicability
1.1 These conditions apply to all offers made by *MJS, to all agreements they conclude and to all agreements that may result from them. The provider/supplier is *MJS that uses these conditions. It is referred to as the contractor or seller. The other party shall be referred to as customer or purchaser. 1.2 These conditions may only be used by *MJS. 1.3 General conditions of the customer shall not apply and are expressly rejected.
Article 2: Offers
2.1 All offers are made without engagement. 2.2 If the customer supplies data, drawings etc. to the contractor, the contractor may assume them to be correct and may base his offer on them. 2.3 The prices referred to in the offer are based on delivery ex works, in accordance with Incoterms 2000. The prices are exclusive of turnover tax and packaging. 2.4 If his offer is not accepted, the contractor shall be entitled to charge the customer for all costs incurred in order to submit the offer.
Article 3: Intellectual property rights
3.1 Unless otherwise agreed, the contractor retains the copyrights and all industrial property rights to all tenders, designed submitted, illustrations, drawings, trial models, programs, etc. 3.2 The rights to the data referred to in paragraph 1 shall remain the property of the contractor irrespective of whether the customer has been charged for their production. Such data may not be copied, used or shown to third parties without the express consent of the contractor. In the event that this provision is violated, the Client will be liable to pay the Supplier a penalty of €25,000. This penalty may be claimed in addition to any damages awarded by law. 3.3 The customer must return the data supplied to him, as referred to in paragraph 1, at the contractor’s first request and within the period specified by him. If this provision is violated, the Client is liable to pay the Supplier a penalty of EUR 1,000 per day. This penalty may be demanded in addition to any damages awarded by law.
Article 4: Advice, designs and materials
4.1 The customer cannot derive any rights from advice and information obtained from the contractor if they do not relate directly to the order. 4.2The customer is responsible for the drawings and calculations made by him or on his behalf and for the functional suitability of the materials prescribed by him or on his behalf. 4.3 The customer shall indemnify the contractor against any claim by third parties relating to the use of drawings, calculations, samples, models, etc. supplied by or on behalf of the customer. 4.4 The Client may, at its own expense, examine (or arrange for the examination of) the materials which the Supplier intends to use before they are processed. If the contractor suffers damage as a result, this shall be borne by the customer.
Article 5: Delivery time
5.1 The delivery period is fixed by the contractor on an approximate basis. 5.2 In fixing the delivery period the contractor assumes that he can execute the order in the circumstances known to him at that time. 5.3 The delivery period starts when agreement has been reached on all technical details, all necessary data, final drawings etc. are in the possession of the contractor, and the work is finished. The delivery period starts when agreement has been reached on all technical details, all necessary data, final drawings, etc. are in the possession of the contractor, the agreed payment or instalment has been received and the conditions necessary for the performance of the order have been fulfilled. 5.4 a. If circumstances occur other than those known to the contractor when he fixed the delivery period, the contractor may extend the delivery period by the time necessary to execute the order in the circumstances. If the work cannot be fitted into the Supplier’s work schedule, it shall be carried out as soon as the Supplier’s schedule permits. b. In the event of contract extras, the delivery deadline shall be extended by the time required to supply (or arrange for the supply of) the materials and parts necessary for those contract extras and to carry them out. If the contract extras cannot be fitted into the Supplier’s work schedule, they will be carried out as soon as the Supplier’s schedule permits. c. In the event that the Supplier’s obligations are suspended, the delivery deadline will be extended for the duration of the suspension. If resumption of the work cannot be fitted into the Supplier’s work schedule, the work will be carried out as soon as the Supplier’s schedule permits. d. In the event of weather conditions that prevent work being carried out, the delivery period will be extended for the term of the delay that has occurred as a result. 5.5 If the delivery period is exceeded, that circumstance does not under any circumstances confer entitlement to compensation, unless that is agreed in writing.
Article 6: Transfer of Risk
6.1 In the event of sale, delivery will be ex works, in accordance with the Incoterms 2000; the risk in relation to the goods will pass at the moment when the seller makes them available to the buyer. 6.2 Notwithstanding the provisions of the previous paragraph, the customer and the contractor may agree that the contractor shall arrange for transport. The risks of storage, loading, transport and unloading shall in that case also be borne by the customer. The customer may take out insurance to cover these risks. 6.3 Even if the Seller installs and/or assembles the sold item, the risk in relation to the item will pass at the moment that the Seller makes it available to the Buyer at the Seller’s business premises or at another agreed location. 6.4 If a purchase involves a trade-in and the Buyer continues to use the goods to be traded in pending delivery of the new goods, the risk in relation to the goods to be traded in shall continue to be borne by the Buyer until the time at which he has placed them in the possession of the Seller.
Article 7: Price change
7.1 If four months have passed since the date on which the agreement was concluded and performance has not yet been completed by the contractor, an increase in price-determining factors may be passed on to the customer. 7.2 Payment of the price increase referred to in paragraph 1 shall take place at the same time as payment of the principal sum or the final instalment. 7.3 If goods are supplied by the customer and the contractor is prepared to use them, the contractor may charge up to 20% of the market price of the goods supplied.
Article 8: Impracticability of the assignment.
8.1 Contractor shall be entitled to suspend the performance of his obligations if he is temporarily prevented from performing them due to circumstances that could not be foreseen when the agreement was concluded and which are beyond his control.
8.2 Circumstances which could not be foreseen by the contractor and which are beyond his control are deemed to include failure of his suppliers and/or subcontractors to fulfil their obligations or to do so in good time, weather conditions, earthquakes, fire, loss or theft of tools, loss of processed materials, road blockades, strikes or work stoppages and import or trade restrictions. 8.3 The agreement may then be dissolved in respect of that part of the obligations which have not yet been performed. In that case, the parties are not entitled to any compensation for damage suffered or to be suffered as a result of the dissolution.
Article 9: Scope of work
9.1 The Principal is responsible for ensuring that all licences, exemptions and other decisions that are necessary in order to perform the work are obtained in good time. 9.2 The price for the work does not include the following: a. the costs of earthwork, pile driving, demolition, foundation work, cementing, carpentry, plastering, painting, wallpapering, repairs or other construction work; b. the costs of connecting gas, water, electricity or other infrastructural facilities; c. the costs of preventing or limiting damages to any objects situated on or near the work site; d. the costs of disposing of materials, building materials or waste products; travelling and accommodation expenses. the costs of preventing or limiting damage to goods present at or near the work; the costs of disposing of materials, building materials or waste; travel and accommodation expenses,
Article 10: Changes to the work
10.1 Changes to the work will result in any event in extra work or reduced work if: a. there is a change to the design or specifications; b. the information provided by the Client does not match the actual situation; c. there is a deviation from estimated quantities by more than 10%. 10.2 Contract extras will be calculated on the basis of the value of the price-determining factors applicable at the time when the contract extras are performed. Reduced work will be settled based on the value of the price determining factors which applied at the time of the conclusion of the agreement. 10.3 If the balance of the contract deductions exceeds that of the contract extras, the contractor may charge the customer in the final invoice 10% of the difference in the balances. This provision does not apply to any contract deductions based on requests from the Supplier.
Article 11: Execution of the work
11.1The customer shall ensure that the contractor can perform his activities without interruption and at the agreed time and that in the performance of his activities he has access to the necessary facilities, such as – heating; – lockable dry storage facilities; – facilities prescribed under the Working Conditions Act and other health and safety regulations. 11.2 The customer shall be liable for all damage as a result of the loss, theft or burning of or damage to tools, materials and other property of the contractor located at the place where the work is performed. 11.3 If the customer fails to discharge his obligations as referred to in the previous paragraphs and the work is delayed as a result, the work shall be executed as soon as the contractor’s planning schedule permits this. The Client is furthermore liable for all damages that the Supplier incurs as a result.
Article 12: Completion of the work
12.1If the customer puts part of the work into use, that part will be deemed to have been completed; c. the contractor has notified the customer in writing that the work is finished and the customer has not communicated, within 14 days after than notification, whether or not the work has been approved; d. the customer does not approve the work on grounds of minor defects or missing parts that can be repaired or provided within 30 days and that do not prevent the work from being put into use. 12.2 If the customer does not approve the work, he shall notify the contractor thereof in writing, stating the reasons, and the contractor shall inform the customer of any defects or missing parts that can be repaired or provided within 30 days and that do not prevent the work from being put into use. 12.3 If the customer does not approve the work, he shall give the contractor the opportunity to complete the work again. The provisions of this Article shall then apply anew.
Article 13: Liability
13.1 However, only loss or damage for which the contractor is insured, or for which he should reasonably have been insured, will be eligible for compensation. 13.2 The following damages are not eligible for compensation: a. trading losses, including losses caused by delays and loss of profits; b. supervision damages, which are understood to include damages caused, during or as a result of the performance of the work commissioned, to objects on which work is being carried out or to objects situated in the vicinity of the work site; c. damages caused by intent or gross negligence on the part of the contractor or his subordinates; d. damages caused by gross negligence on the part of third parties, including 13.3 The Client indemnifies the Contractor against all third-party claims for product liability stemming from defects in products supplied by the Client to third parties that consisted of or included products and/or materials supplied by the Contractor.
Article 14: Guarantee
14.1 The contractor warrants the proper execution of the agreed performance for a period of six months after delivery or completion. 14.2 If the agreed performance consists in the carrying out of contracted work, the contractor warrants the soundness of the delivered construction and the materials used in the construction for the period referred to in paragraph 1, provided that he was free to choose such materials. If the construction delivered or the materials used prove to be unsound, the Supplier will repair or replace them. Those parts that are to be repaired at the Supplier’s place of business or are to be replaced by the Supplier must be sent to the Supplier carriage paid. The dismantling and assembly of these parts and any travelling and accommodation expenses incurred shall be borne by the customer. 14.3 If the agreed performance consists in the processing of materials provided by the customer, the contractor warrants the soundness of the processing for the period referred to in paragraph 1. If it transpires that processing has not been carried out in a sound manner, the contractor shall choose whether – repeat the processing. In that case the customer must supply new material at his own expense; – to repair the defect. In that case the customer must return the materials to the contractor carriage paid; – to credit the customer for a proportionate part of the invoice. 14.4 If the product or service stipulated consists of the delivery of an object, the Supplier guarantees the soundness of the object delivered for the period specified in Article 14.1. If it transpires that the delivery has not been sound, the item of goods must be returned free of charge to the contractor: – repair the object; – replace the object; – credit the customer for a proportionate part of the invoice. 14.5 If the agreed performance consists in part or in whole of the installation and/or assembly of a supplied object, the contractor warrants the soundness of the installation and/or assembly for the period referred to in paragraph 1. If it transpires that the installation and/or assembly has not been carried out in a sound manner, the Supplier will repair it. Any travelling and accommodation expenses shall be borne by the customer. 14.6 Factory guarantees apply to those parts for which the customer and the contractor have explicitly agreed in writing. If the customer has had the opportunity to take cognisance of the content of the factory warranty, this shall take the place of the warranty under this article. 14.7 The customer must in all cases offer the contractor the opportunity to repair any defects or to carry out the processing anew. 14.8 The customer may only invoke guarantees after all obligations in respect of the contractor have been fulfilled. 14.9 a. No guarantee is given for defects that are a result of – installation, assembly, modification or repair by the customer or by third parties. b. No guarantee is given for delivered items that were not new at the moment of delivery.
Article 15: Complaints
The Client may not invoke defects in the product or service unless a written complaint has been submitted to the Supplier within 14 days after the defect was detected or should, within reason, have been detected.
Article 16: Uncollected goods
If goods have not been taken delivery of after the delivery period has expired, they shall remain available to client. Uncollected goods shall be stored at the client’s expense and risk. Contractor may always make use of the authority of article 6:90 of the Dutch Civil Code.
Article 17: Payment
17.1 Payment must be made at the place of business of the contractor or to an account designated by the contractor. 17.2 Unless otherwise agreed, payment shall be made as follows: cash on delivery; if payment in instalments has been agreed – 40% of the total price at the time the order is placed; – 50% of the total price upon delivery of the materials; – 10% of the total price upon completion; c. In all other cases, within 30 days of the invoice date. 17.3 Notwithstanding the agreed payment conditions, the customer shall be obliged, at the request of the contractor, to provide such security for payment as the contractor deems sufficient. If the customer fails to do so within the specified period, he shall be deemed to be immediately in default. The contractor shall in that case have the right to rescind the agreement and recover his losses from the customer. 17.4 The customer’s right to set off claims against the contractor is excluded, except in the event of the contractor’s bankruptcy. 17.5 The full claim for payment shall be immediately due and exigible if: a. a payment period has been exceeded; b. the customer has been declared bankrupt or requests suspension of payments; c. any of the customer’s assets or claims are seized; d. the customer (being a company) is dissolved or wound up; e. the customer (being a natural person) is made the subject of a guardianship order or dies. 17.6 If payment has not been made by the payment deadline specified, the principal shall immediately owe interest to the contractor. The interest rate shall be 10% per year or the statutory rate if that is higher. For the purposes of calculating the interest, part of a month shall be treated as a full month. 17.7 If payment has not been made by the payment deadline specified, the Client is immediately liable to pay the Supplier all extrajudicial costs, to a minimum of €75. The costs are calculated on the basis of the following table: over the first €3,000 15% over the remainder up to €6,000 10% over the remainder up to €15,000 8% over the remainder up to €60,000 5% over the remainder from €60,000 upwards 3% If the extrajudicial costs actually incurred are higher than those which result from the above calculation, the costs actually incurred are payable. 17.8 If the contractor is held to be in the right in legal proceedings, all costs which he has incurred in connection with those proceedings shall be borne by the customer.
Article 18: Retention of title and pledge
18.1 After delivery, the contractor shall retain title to the goods supplied for as long as: a. the customer fails or will fail in the fulfilment of the obligations stemming from this agreement or any similar agreements; b. the customer fails or will fail to pay for any work performed or to be performed under such agreements; c. the customer has not paid any claims arising from non-fulfilment of those agreements, such as compensation for damages, penalties, interest and costs. 18.2 As long as title to delivered goods is retained by the contractor, the customer may not encumber them other than in the normal course of his business. 18.3 After the contractor has invoked his reservation of title, he may retake possession of the delivered goods. The customer shall allow the contractor to enter the place where the goods are located. 18.4 If the contractor is unable to invoke his reservation of title because the delivered goods have been mingled, distorted or changed by way of accession, the customer shall be obliged to grant the contractor a lien on the newly created goods.
Article 19: Dissolution
If the Client wishes to dissolve the agreement without the Supplier having failed in the performance thereof and if the Supplier so agrees, the agreement will be dissolved by mutual consent. The contractor shall in that case be entitled to compensation for all financial losses, such as any loss suffered, loss of profits and costs incurred.
Article 20: Applicable law and choice of forum
20.1 Dutch law shall apply. 20.2. The Vienna Convention on Contracts for the International Sale of Goods (CISG) does not apply, nor does any other international regulation the exclusion of which is permitted. 20.3. Only the civil court that has jurisdiction in the place of establishment of the contractor may take cognizance of disputes, unless this is at odds with any mandatory rules of law. The Contractor may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction. 20.4 The parties may agree on another form of dispute settlement, such as arbitration or mediation.