Condiciones de Uso

Conditions of Use

GENERAL DELIVERY CONDITIONS

The following General Delivery Conditions are employed by the limited liability company

Smarte Partz Benelux B.V.
Ekkersrijt 1106
5692 AC SON.
The Netherlands

Article 1  -  Validity of General Delivery Conditions

1. These conditions shall be valid for each offer and each contract concluded between Smarte Partz Benelux B.V..,hereinafter called S.P.B.B.V., and a Buyer for which S.P.B.B.V. has declared applicable these General Delivery Conditions unless the parties deviate from them expressly and in writing.

2. These General Delivery Conditions shall likewise be valid for all contracts concluded with S.P.B.B.V., the performance of which contract requires involvement of third parties.

Article 2  -  Offers

1. Our offers shall all be subject to change without notice unless the offer states a time for acceptance.

2. In the event of a composite price quotation we shall neither be obligated to supply a part of the goods included in the offer against a corresponding part of the price quoted nor shall our offer automatically be valid for repeat orders.

3. The offers sent out by S.P.B.B.V. shall be valid for a period of 30 days unless otherwise stated. S.P.B.B.V. shall be bound to the offers only if Buyer's acceptance is confirmed by S.P.B.B.V. within 30 days in writing. The prices quoted in an offer shall be exclusive of value added tax unless otherwise stated.

4. Any details on measures, weights, presentation, etc. of the goods offered provided by us in illustration, catalogues, diagrams or otherwise shall be considered approximate details.

Article 3  -  Deliveries

1. Unless otherwise agreed, delivery shall be effected ex warehouse in Son, Netherlands. Transport risk and carriage shall be borne by Buyer unless otherwise agreed.

2. Customer shall be obligated to accept the goods on delivery to Customer's house or upon the goods having been made available to him as per agreement.

3. If Customer refuses acceptance or is negligent in providing information or instructions required for the delivery, the goods shall be put into storage at Customer's risk. Customer shall in that case bear all additional costs which will include the cost of storage in each case.

Article 4  -  Period of Delivery

1. The periods of delivery quoted by S.P.B.B.V. shall always be considered approximate and never be preclusive periods.

2. In the event of delivery not within the period stipulated, Buyer shall hence remind S.P.B.B.V.  in writing on account of delayed performance and grant S.P.B.B.V.  a reasonable period within which S.P.B.B.V.  may yet meet its obligations.

3. The period of delivery quoted by S.P.B.B.V. shall not begin until the moment where S.P.B.B.V.   has available all pertinent data.

Article 5  -  Part Shipments

1. S.P.B.B.V.  shall be permitted to effect part shipments of goods sold. This shall not apply if a part shipment does not have any value of its own. If the goods are shipped in parts, S.P.B.B.V.  shall have the right to effect separate invoicing.

Article 6  -  Technical Specifications etc.

1. If the goods to be delivered in the Netherlands are planned to be used outside the Netherlands, S.P.B.B.V.  shall not be liable for the goods to be delivered complying with the technical specifications, standards and/or regulations subject to laws or regulations of the country in which the goods are intended to be used. This shall not apply if the planned use of the goods abroad is stated on conclusion of the contract by submission of all pertinent data and specifications.

2. Any and all other technical demands made by Buyer on the goods to be delivered and that deviate from normally applicable demands shall be expressly mentioned by Buyer on conclusion of the sales contract.

Article 7  -  Samples, Patterns and Examples

If S.P.B.B.V.  present or quote a pattern, sample or example this shall be considered to be a suggestion only; the properties of the goods to be delivered may deviate from the sample, pattern or example unless express mention has been made that delivery would be effected as per sample, pattern or example shown or quoted.

Article 8  -  Cancellation of Contract

1. A contract concluded between S.P.B.B.V.  and a Buyer may be cancelled with immediate effect in the following instances:

- if, upon conclusion of the contract, S.P.B.B.V.  gain knowledge of circumstances providing S.P.B.B.V.  with sound reason to fear that Buyer will not meet its obligations;

- if S.P.B.B.V., on conclusion of the contract, asked Buyer to provide collateral security for performance of the contract and this security is not provided or inadequate despite reminder;

- in the event of bankruptcy of Buyer or legal extension of time for payment granted to Buyer.

In the cases quoted above S.P.B.B.V.  shall have the right to defer further performance of the contract or proceed to cancel the contract, both without prejudice to the right of S.P.B.B.V.  to demand payment of damages.

2. Should circumstances arise in regard to persons and/or materials that S.P.B.B.V.  has employed or usually employs for performance of the contract, which circumstances are such that performance of the contract is impossible or rendered difficult and/or unreasonably costly in such a way that performance of the contract can no longer reasonably be demanded, S.P.B.B.V.  shall have the right to cancel the contract.

Article 9  -  Warranty

1. S.P.B.B.V.  shall provide a warranty for a period of 3 months after delivery that the goods delivered by S.P.B.B.V.  are free from material and manufacturing defects. Warranty shall not cover:

- electrical parts and/or electronic components
- synthetic parts.

2. If the goods show any material or manufacturing defects, Buyer shall have the right to demand rectification of the defects of the goods. Seller may proceed to effect substitute delivery of the goods if rectification of the defects meets with problems. Buyer shall have the right to demand substitute delivery only if rectification of the goods is not possible.

3. Warranty shall not apply if the damage was incurred by improper handling or non-compliance with instructions. Improper handling shall, among other things, include use at temperatures above 35 Celsius.

4. If warranty concerns a product manufactured by a third party, the warranty shall be restricted to the warranty for the product provided by the manufacturer in question.

Article 10  -  Retention of Title to Ownership

1. Any and all goods delivered by S.P.B.B.V.  shall remain the property of S.P.B.B.V.  until Buyer has met all subsequent obligations arising from all sales contracts concluded with S.P.B.B.V.

2. Any goods delivered by S.P.B.B.V.  and which are subject to retention of title to ownership pursuant to para 1 may be resold only within the scope of regular operation and must never be employed as means of payment.

3. Buyer shall not have the right to pledge nor otherwise encumber goods falling under the retention of title to ownership.

4. Buyer shall even now give S.P.B.B.V.  or any third party to be nominated by S.P.B.B.V.  the unconditional and irrevocable permission to enter, in all cases in which S.P.B.B.V.  wish to exercise its rights of ownership, any and all premises where the property of S.P.B.B.V.  will then be located and fetch the goods from there.

5. If third parties wish to seize goods delivered under retention of title to ownership or to constitute or assert a real right in them, Buyer shall be obligated to notify S.P.B.B.V.   thereof as promptly as can reasonably be expected.

6. Buyer undertakes to insure and keep insured the goods delivered under retention of title to ownership against the risk of fire, explosion and damage caused by water as well as against theft and to present the insurance policy on first request to do so as well as to notify S.P.B.B.V.  promptly upon occurrence of a loss and assign, upon first request by S.P.B.B.V.  to do so, the claims against insurer to S.P.B.B.V.

Article 11  -  Defects; Time for Lodging a Complaint

1. Buyer shall check (or have checked) the goods upon delivery or as early as possible after delivery. In the process, Buyer shall check whether the goods delivered have been delivered as per agreement, to wit:

- whether the goods delivered have been delivered as per agreement in regard to quantity (e.g. quantity and number);

- whether the goods delivered meet the agreed quality specifications;

- whether, where this is not the case, these goods meet the requirements for normal use and/or commercial purposes.

2. If apparent defects are established, Buyer shall report them in writing to S.P.B.B.V.  within 3 days after delivery.

3. Any defects not apparent shall be reported by Buyer in writing to S.P.B.B.V.  within 3 days after discovery, but no later than 3 months after delivery.

4. Even if Buyer files a complaint in good time, its obligation to effect payment and accept the ordered goods shall subsist.
5. Any goods can be returned to S.P.B.B.V.  only after prior written approval.


Article 12  -  Price / Price Increase

1. Unless something different has been expressly mentioned, prices quoted by us shall be

- in EURO currency
- quoted exclusive of value added tax
- based on minimum quantities fixed by us
- exclusive of carriage
- ex warehouse Son in the Netherlands

2. If S.P.B.B.V.  agree a given price with Buyer, S.P.B.B.V.  shall nevertheless have the right to increase the price if S.P.B.B.V.  can provide evidence to the effect that substantial price changes have occurred between the time of the offer and the time of delivery in regard to raw materials, currency, and/or wages and salaries.

3. If the price increase is in excess of 10 %, Buyer shall have the right to cancel the contract.

4. If the goods delivered concern replacement parts, the parts of the replacement parts returned by Buyer and destined for re-use must be suitable for re-use. If this not the case, such replacement parts shall be subsequently invoiced. Buyer shall be notified of this within 8 days upon receipt by S.P.B.B.V.  of the parts returned.

Article 13  -  Packaging Material

1. Buyer shall be obligated to return loan containers within 14 days empty and undamaged. If Buyer fails to meet its obligations in regard to such containers, any and all costs incurred shall be charged to Buyer. Such costs refer, amongst other things, to costs caused by late return and costs incurred for replacement, reconditioning or cleaning.

2. If Buyer fails to return loan containers upon reminder within the period of time set in the reminder, Seller shall have the right to replace the containers and charge their cost on provided that Seller has announced these measures in its reminder.

Article 14  -  Terms of Payment

1. Payment shall become due promptly upon receipt of invoice in a manner to be specified by S.P.B.B.V.  in the currency in which the invoice was prepared.

2. Upon expiration of 14 days after date of invoice, Buyer shall as of right be in default. Buyer shall, as from the date of default, pay for the amount receivable interest in the amount of 2.5 % per month unless the legal rate of interest is higher, in which case the legal right of interest shall apply.

3. In the event of Buyer going into liquidation, becoming bankrupt or having been granted extension of time for payment, the receivables of S.P.B.B.V.  and the obligations of Buyer vis--vis S.P.B.B.V. shall become due with immediate effect.

4. Payment shall be effected net and without setting off.

5. Any payments made by Buyer shall first serve for paying off all interest and costs owed and only thereafter for settlement of invoices that have been outstanding longest even if Buyer claims that payment refers to a later invoice.

6. If Buyer fails to provide a reaction in writing within 8 days to the invoice addressed to Buyer, this shall be deemed to constitute acceptance of the invoice in question by Buyer.

Article 15  -  Collecting Charges

1. If Buyer is in default for meeting any or a number of its obligations, all reasonable charges for gaining out of court settlement shall be borne by Buyer. In any case, Buyer shall owe

- for the first EUR 3.000.- 15 %
- for an amount of max. EUR 6.000.- 10 %
- for an amount of max. EUR 15.000- 8 %
- for an amount of max. EUR 60.000- 5 %
- for a higher amount  3 %

2. If S.P.B.B.V.  provides evidence of higher charges incurred that were reasonably necessary, even such expenditure shall be taken into account for payment.


Article 16  -  Liability

S.P.B.B.V.  shall be liable vis--vis Buyer exclusively as follows:

1. Any damage as a consequence of defect in the goods delivered shall be subject exclusively to the liability provided for in Article 9 (warranty) in these General Delivery Conditions.

2. S.P.B.B.V.  shall be liable exclusively if damage was caused with intent or gross negligence on the part of S.P.B.B.V.  or their staff.

3. Liability of S.P.B.B.V.  shall be limited to the amount of the payment made by the third party risk insurer of S.P.B.B.V.  in the respective case.

4. Without prejudice to the provisions in paras 2 - 3, any liability as a consequence of the poor quality of the goods delivered shall be limited to max. double the amount of the invoice for the business transactions, at least of that part of the business transaction to which the liability relates.

Article 17  -  Force Majeure

1. In these General Delivery Conditions, force majeure shall be deemed to be apart from what is understood as force majeure by the law and court rulings, any and all foreseeable and unforeseeable causes from outside that we cannot control, but due to which we are not in a position to fullfil our obligations, including strikes conducted in the firm of S.P.B.B.V.  and among their suppliers.

2. For the duration of force majeure the delivery and other obligations of S.P.B.B.V.  shall be suspended. If the period of time in which, due to force majeure, meeting of the obligations is not possible to S.P.B.B.V.  , is longer than 2 months, both parties shall have the right to cancel the contract without, in such a case, giving rise to an obligation to pay damages.

3. If S.P.B.B.V., on occurrence of force majeure, have already met their obligations in part or can meet obligations only in part, S.P.B.B.V.  shall have the right to prepare a separate invoice for the goods already delivered or the deliverable part, and Buyer shall be obliged to settle the invoice as though it concerned a special amount. This shall not, however, apply if the part already delivered or the deliverable part has no value of its own.

Article 18  -  Settlement of Disputes

The judge at the place of residence of S.P.B.B.V.  shall be exclusively competent for disputes unless this is the competence of the judge of a district court (Kantonrechter). Still, S.P.B.B.V.  shall have the right to sue Buyer before the legally competent judge.

Article 19  -  Applicable Law

Each contract concluded between S.P.B.B.V. and Buyer shall be subject to Dutch law. The Vienna Sales Contract shall be expressly excluded.

Article 20  -  Place of Lodgement of General Terms and Conditions

These General Terms and Conditions have been lodged with the office of the Chamber of Industry and Commerce in Eindhoven. The last version lodged or the version valid at the point in time of formation of the pertinent transaction shall be valid.


Thus lodged on October 27, 1997 with the Chamber of Industry and Commerce Eindhoven/ The Netherlands under Number..4733/97

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