GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY ERTEC B.V.
Article 1. General
1.1 These general terms and conditions apply to all offers and agreements, whether written or verbal, of the seller for the delivery of goods such as: machines, tools, capital and consumer goods, parts and service in the form of labour and/or services, subject to changes that both parties explicitly agree upon in writing. The present conditions are an integral part of all offers and all subsequent agreements for the sale of products and services, in the broadest sense of the word.
1.2 Any conditions to the contrary are expressly excluded, except if and insofar as these conditions have been accepted by the seller in writing.
1.3 The general terms of delivery shall also apply to all contracts for maintenance, installation and repair work.
1.4 In so far as applicable, the term ‘machinery’ in these terms and conditions shall also be understood to mean: devices, supplied installations, machine accessories and similar goods, in the broadest sense of the word.
Article 2. Offers
2.1 All offers are without obligation and may be revoked without delay. The seller shall only be bound after the seller has accepted and confirmed an order in writing.
2.2 In the case of sales from stock or a non-written order confirmation, the contract shall be concluded when the seller has commenced work and/or fulfilled a request for delivery by the purchaser, or has sent an invoice for delivery.
2.3 No change to the order shall be valid unless expressly agreed between the parties. Any modification to the order gives Ertec B.V. the right to make a price adjustment.
2.4 The offers contain only the goods and services listed therein.
2.5 Ertec B.V. is entitled to make the delivery of goods or the performance of work dependent on an advance payment which is to be agreed.
2.6 Unilateral cancellation by the purchaser without serious reason attributable to Ertec B.V. cancels the contract, and the purchaser shall be liable to pay Ertec B.V. a fixed and irreducible indemnity, estimated at 10% of the amount of the contract, without prejudice to Ertec B.V.’s right to be additionally indemnified for the entire loss.
2.7 The Seller shall not be liable for errors and deviations in illustrations and statements of specifications, sizes and weights in general product information such as brochures and leaflets.
2.8 Property designated as such by the Seller in advance, such as drawings, illustrations, processing proposals and time studies provided by the Seller, may not be copied or made available to third parties without its permission.
Article 3. Prices
3.1 Unless otherwise agreed, the prices are in Euros, net, exclusive of VAT, for deliveries within Belgium and the Netherlands. The prices quoted are always based on these terms of delivery and on at least the quantities specified by the applicant (purchaser). In the case of orders concerning smaller quantities than those stated in the request/offer, the seller is not (automatically) bound by the price quoted.
3.2 If after the date of the offer or the confirmation of the order, the prices of raw materials, changed value of currencies in relation to the Euro and other cost-determining factors undergo an increase, the seller shall be entitled to increase the prices accordingly after written notification until delivery. The foregoing also applies to cost increases resulting from government measures.
3.3 Any change to an already accepted order at the request of the purchaser may justify a price increase and an extension of the delivery period.
Article 4. Payments
4.1 All agreements with the purchaser are entered into by the seller under the condition that the purchaser proves to be sufficiently creditworthy.
4.2 If the purchaser is unable to provide sufficient securities with regard to his obligations arising from the purchase, the seller shall be entitled, without notice of default or legal intervention being required, either to suspend the execution of this/these agreement(s) for a maximum period of 6 months, or to dissolve this/these agreement(s) in full or in part, without being obliged to pay any compensation or provide any guarantee, and without prejudice to the seller’s other rights. During the suspension, the seller shall be entitled, and at the end of the suspension he shall be obliged, to choose either to execute or to fully or partially dissolve the suspended agreement(s).
4.3 All payments must be in the possession of the seller, unless otherwise agreed in writing, within 30 (thirty) days after the date of delivery within Belgium or the Netherlands, or after the goods have been reported ready for delivery. Payments shall be made without any deduction of discounts and without set-off. In the event of non-payment on the due date, interest at the conventional rate of 8% per annum shall be payable on the amount owed by operation of law and without notice of default until the date of full payment.
4.4 In the event of non-payment of an invoice on the due date, conventional flat-rate damages equal to 10% of the invoice amount, with a minimum of EUR 90.00, shall be payable ipso jure and without notice of default.
4.5 In the event of non-payment of an invoice on its due date, all possible deadlines granted shall expire and all other invoices, even those not yet due, shall become immediately due and payable by operation of law.
4.6 The Seller shall be entitled to demand security for the fulfilment of the payment obligations, partial or full payment in advance or to deliver exclusively on the basis of cash on delivery.
4.7 Complaints concerning invoices must be submitted in writing within 14 (fourteen) days of the invoice date on penalty of forfeiture. Failing this, the Seller will not be obliged to honour these complaints.
4.8 In the event of bankruptcy, death or placement under guardianship of the purchaser, as well as in the event of attachment by way of conservatorship or execution of all or part of his assets or income, or in the event of suspension of payments and if a receiver is appointed over him, the entire claim or contract sum or the remainder thereof shall be immediately due and payable in full.
4.9 The delivered goods shall remain the property of Ertec B.V. until full payment of the invoice price. The purchaser is not authorised to pledge the goods delivered to third parties or to transfer their possession before full payment or settlement.
Article 5. Commissioning and assembly
5.1 The sales prices do not include any costs for commissioning and/or assembly, unless this is stated in the order confirmation or otherwise agreed in writing.
5.2 If the Seller undertakes to commission and/or assemble the sold machine(s), the Seller only accepts liability with regard to the operation of the machine(s) insofar as:
• Commissioning and/or assembly shall take place under the supervision and responsibility of the Seller. All travel and accommodation expenses shall be borne by the purchaser.
• The local conditions, where the commissioning and/or assembly is to be carried out, have been prepared by the purchaser in such a way that no hindrances can occur. Entrance doors must be sufficiently large. Foundations, floors and walls on which the machines will stand or to which the machines will be attached must be installed in good time and are the sole responsibility of the purchaser.
The performance of all additional work is at the expense of the purchaser. The purchaser must provide sufficient auxiliary
materials and manpower at its own expense for the delivery and installation of the machine(s).
5.3 If the local conditions, where the commissioning and/or assembly is to be carried out, have not been prepared as mentioned in Article 5.2, and hindrances occur, the resulting costs and the costs of the fitter(s) can be charged to the purchaser.
Article 6. Complaints
6.1 Taking into use or processing of the delivered goods shall be considered final acceptance and shall imply renunciation of all claims for visible defects. All complaints and remarks concerning the delivered goods shall be notified to the seller by registered letter under penalty of cancellation within 8 (eight) days after receipt of the goods or completion of the works, and in any case before the use or resale of them. After putting into use, Ertec B.V. is no longer responsible for the damage caused by bad or inefficient use.
Article 7. Packaging and transportation
7.1 Any packaging will be provided by the seller, will be charged at cost price and will not be taken back.
7.2 All goods that are not delivered carriage paid shall be transported at the risk of the purchaser.
7.3 If, at the request of the purchaser or due to force majeure, the goods cannot be transported to the delivery address, the goods shall be stored at the expense and risk of the purchaser. Payment may then be demanded as if the goods had been delivered.
7.4 The Seller shall not be liable for any delay in transportation.
Article 8. Delivery and delivery period
8.1 All prices apply to delivery within Belgium. The agreed delivery period is not binding, but shall be fulfilled by the seller to the best of his ability and in good faith. Ertec B.V. cannot be held responsible for delivery or implementation that is late through no fault of its own.
8.2 The delivery period shall start at the latest of the following times:
a. The day of the conclusion of the agreement.
b. The day of receipt by the seller of the documents, data, records etc. necessary for the execution of the order.
c. The day on which the formalities necessary for the commencement of the delivery or work are completed.
d. The day of receipt by the seller of that which is to be paid in advance pursuant to the agreement prior to commencement of the delivery or work.
8.3 Exceeding the delivery period shall not entitle the purchaser to dissolve the contract in whole or in part, unless such exceedance is more than 16 weeks or will be more than 16 weeks according to the seller’s notification. In the event of the latter delay, the purchaser may dissolve the contract by notifying the seller in writing and, where applicable, shall be entitled to reimbursement of the price (or part thereof) already paid for the product and to compensation for the damage he has suffered, up to a maximum of 15 percent of the agreed price for the delivered product. Unless the purchaser makes use of his aforementioned right to dissolve the agreement, exceeding the delivery time – for whatever reason – does not give the purchaser the right to perform work, or have work performed, for the execution of the agreement without judicial authorisation. Liability for consequential loss, in whatever form, is expressly excluded on the part of the seller.
8.4 Any change requested by the purchaser, insufficient information on the part of the purchaser or any obstacle beyond its control shall entitle Ertec B.V. to stop the work and/or to extend the deadlines. Delay in delivery due to the fault or negligence of the purchaser gives Ertec B.V. a right to compensation for storage costs, which are payable per day.
8.5 Cases of force majeure shall not give rise to any complaint, annulment or compensation on account of delay in delivery.
8.6 Cases of force majeure shall entitle Ertec B.V. to cancel the contract wholly or partly, without the latter being obliged to pay any compensation.
8.7 Delivery and taking possession shall always be deemed to have taken place in the buildings of Ertec B.V. As from the delivery all risks are for the purchaser’s account. He is responsible for the guarding of the delivered goods. Ertec B.V. is not liable for theft or damage of the delivered goods.
8.8 If, on delivery, the purchaser refuses to take possession of the goods, this refusal shall be regarded as a unilateral termination of the contract, and the purchaser shall owe Ertec B.V. a lump-sum indemnity in accordance with article 2.6, without prejudice to Ertec B.V.’s right to compensation for costs incurred.
8.9 If it is agreed that the delivery of goods takes place in several successive deliveries, Ertec B.V. shall be entitled to demand payment for each part already delivered and accepted. In the case of non-payment or incomplete payment Ertec B.V. shall be entitled to suspend the next delivery until after payment of the parts already delivered or until after the legal decision in this respect. The resulting costs of storage may be charged to the purchaser by Ertec B.V..
Article 9. Retention of title
9.1 All goods delivered by the Seller and in the possession of the purchaser or the other party shall remain the property of the Seller until the time of full payment of all that which the purchaser owes the Seller under the Agreement or other similar Agreements. Until payment has been made in full, the goods may not be pledged or used as security for a claim by third parties.
9.2 In the event of failure to pay all that the purchaser owes the seller under the agreement or other similar agreements, the seller is entitled to take back all goods delivered by him or have them taken back. At the same time, any claim the seller may have on the purchaser shall be immediately due and payable.
Article 10. Force Majeure
10.1 Force majeure includes all circumstances that occur beyond the seller’s control, even if they were foreseeable at the time the agreement was concluded, and which prevent the agreement from being fulfilled on time. If the seller has not received the goods intended for the transaction or has not received them on time, the seller has the choice of postponing the delivery or cancelling the purchase agreement.
Article 11. Warranty
11.1 The seller guarantees all delivered new machines and/or tools for a period of 12 (twelve) months after delivery. If the machines and/or tools have not been paid for, the granting of warranties may be suspended until the agreed payment conditions have been fulfilled.
11.2 The warranty is valid in cases where a defect has arisen due to faulty construction and/or manufacture, provided that the goods have been used competently. Normal wear and tear is excluded. The warranty period is shortened to 6 months when machines and/or tools are used in shift work.
11.3 All parts that have to be replaced as a result of a defect as mentioned in clause 11.2 will be reimbursed and fitted free of charge, provided that the defect is reported to the seller in writing within 14 days of discovery and in any case within the warranty period. All goods for a repair or guarantee treatment must be sent to the seller carriage paid, without charge.
11.4 The seller shall never, except in the case of gross negligence on the part of the seller, be liable to the purchaser, whether in contract, tort (including, without limitation, negligence), error or otherwise howsoever arising, for any loss of profit, loss of anticipated profit, loss of business, loss of an agreement, repayment of overhead costs, anticipated savings, loss of data, loss of production, depletion of goodwill, product recall, nor for any other special, indirect or consequential loss, or otherwise for any cost, expense or claim in respect thereof. Subject to the foregoing, the total liability of Ertec B.V. under the agreement shall be limited to the price paid or to be paid by the purchaser under the agreement.
11.5 The Purchaser shall indemnify the Seller against any claim or demand from third parties.
11.6 If the seller has not fulfilled its obligations under this Article within a reasonable time, the purchaser may, in a written communication, set a final and appropriate time for the seller to fulfil these obligations. If the seller fails to perform its obligations within such final time, the purchaser may, at the seller’s expense and risk, either carry out the necessary remedial works itself or have them carried out by a third party. In the event that the remedial works are successfully carried out by the purchaser or a third party, the seller shall be discharged from all liability for the defect in question by reimbursing the reasonable costs incurred by the purchaser, subject to a maximum of 15 percent of the agreed price for the delivered product.
11.7 If the repair work according to paragraph 6 is not carried out successfully,
a. the purchaser shall be entitled to a reduction of the agreed price for the delivered product in proportion to the reduced value of the product, provided that such reduction shall not exceed 15 per cent of the agreed price for the delivered product, or
b. if the defect is so serious as to significantly deprive the purchaser of the benefit of the contract, the purchaser may rescind the contract by written notice to the seller. The purchaser shall then be entitled to reimbursement of the price paid for the delivered product and to compensation for the damage he has suffered up to a maximum of 15 per cent of the agreed price for the delivered product.
Article 12. Disputes
12.1 All disputes that may arise as a result of an agreement to which the present general terms and conditions of delivery apply in whole or in part or as a result of further agreements resulting from such an agreement are the exclusive competence of the courts of Limburg for deliveries or performances in Belgium and of Oost-Brabant for the Netherlands.
Article 13. Applicable law
13.1 The contract between the parties is governed by Belgian law for deliveries or performances in Belgium with Belgian counterparties, by Dutch law for deliveries or performances in the Netherlands and for all deliveries or performances with Dutch counterparties.
13.2 The contract between the parties is governed by Belgian law for deliveries or performances within the Netherlands or Belgium with counterparties who do not have a registered office in the Netherlands or Belgium and by Dutch law for deliveries or performances in the Netherlands.
13.3 The agreement between the parties is subject to Belgian law for deliveries or performances outside the Netherlands or Belgium. In this case, the Belgian courts as stipulated in Article 12.1 shall be competent.
Copyright reserved to: Ertec BV, Biesveld 2, 5673BN, Nuenen, The Netherlands, Telephone 0031 (0)40 2982036, E-mail email@example.com, Registration KvK Eindhoven with number 17264612