GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY GEJE TRUCK HYDRAULICS BV
ARTICLE 1 DEFINITIONS
In these general terms and conditions of sale and delivery, the following definitions will apply:
1. Supplier: the private company with limited liability GEJE TRUCK HYDRAULICS BV Register of Commerce number 01132733
2. Buyer: Any buyer or client of the Supplier
ARTICLE 2 APPLICABILITY
1. Unless expressly agreed otherwise in writing, all agreements concluded with the Supplier, legal relationships with them and offers made by them will be subject to these terms and conditions.
2. Any purchase terms and conditions of the Buyer are expressly rejected, declaring the present general terms and conditions applicable.
3. Should any stipulation in these terms and conditions be void or be nullified, the other stipulations of this agreement will remain applicable in full. The Supplier and the Buyer will then enter into consultations in order to replace the void or nullified stipulation, taking the aim and purpose of the original stipulation into account as much as possible.
4. If stipulations agreed on in writing deviate from these general terms and conditions, the stipulations as agreed on will prevail, but the other stipulations of these general terms and conditions will remain in full force.
ARTICLE 3 OFFERS AND ORDER CONFIRMATIONS
1. All offers and quotations by the Supplier will be without obligation, unless explicitly stated otherwise in writing by the Supplier. A purchase agreement will only be concluded after the Supplier has accepted or confirmed an order in writing or proceeds to deliver the order. All offers and quotations are valid for two weeks from the date of the offer but are made entirely without obligation.
2. Estimates made by the Supplier in pictures, drawings, catalogues, brochures, circular letters, advertisements, illustrations, price lists or any other document concerning the quantity, packaging, dimensions, capacity, consumption, weight, colour, content, composition, price, etc. (all in the broadest sense) are considered to have been provided only by way of an approximation and do not bind the Supplier.
3. The Supplier will not be liable for errors in - and deviations from - images of, drawings of and references to dimensions and weights, which may be found on the Supplier's website and/or in price lists and/or in leaflets and/or in offers and/or order confirmations.
4. The Supplier's offers only relate to the offer of technical products. The Supplier does not provide "engineering" services nor do they provide assistance in assembling, unless specifically agreed otherwise.
5. The pictures, drawings, schedules, price lists, offers, etc. provided by the Supplier will remain the property of the Supplier. Without the written consent from the Supplier, copying and/or reproduction thereof, in full or in part, is not permitted, while third parties will not be allowed the opportunity to inspect. The same applies to technical data supplied by the Supplier.
6. Unless expressly stated otherwise, all offers are based on performance of the agreement by the Supplier under normal circumstances and during normal working hours.
7. Verbal undertakings by and arrangements with the Supplier's employees will not bind the Supplier until and to the extent that they have been confirmed in writing by the Supplier.
ARTICLE 4 COMPLAINTS
1. The Buyer must examine the purchased items, or have them examined, upon delivery or as soon as possible thereafter. When doing so, the Buyer has to verify whether the delivered items comply with the agreement, namely:
- whether the correct items have been delivered;
- whether the items delivered correspond to what has been agreed on in terms of quantity (e.g. number and amount);
- whether the items delivered meet the agreed quality requirements or, in the absence of such requirements, the requirements which may be set for normal use and/or commercial purposes.
2. If any visible defects or shortcomings are established, the Buyer must report them to the Supplier in writing within 8 days from delivery.
3. The Buyer must report any non-visible defects to the Supplier in writing within 8 days from discovery, but no later than 8 days after expiry of the warranty term.
4. Even if the Buyer lodges a complaint in a timely manner, their obligation to pay and take delivery of the orders(s) made will not cease. Items can only be returned to the Supplier following prior written consent.
5. A complaint cannot include:
- previously delivered items,
- items to be delivered,
not even if those items were or will be delivered in the performance of the same (purchase) agreement.
ARTICLE 5 WARRANTY
1. Items that are obtained by the Supplier from manufacturers and suppliers and that are resold to the Buyer without further processing or treatment, will be covered by the warranty provided by the respective manufacturer or supplier. Any warranty claims in respect of the above-mentioned items will be forwarded by the Supplier to the manufacturer or supplier, to whose opinion the Supplier will be entitled to refer.
2. With regard to repair and overhaul activities carried out by the Supplier, a warranty is only provided on the soundness of the materials used, unless expressly agreed otherwise.
3. In all other cases, the Supplier warrants, for a period of 3 months after delivery, that the item sold by them is free from defects in design, material and manufacturing. If the item shows a defect in design, material or manufacturing, the Buyer is entitled to have the item repaired. The Supplier may choose to replace the item if there are objections to repair. The Buyer will only be entitled to replacement if repairing the item is not possible.
4. Damage caused by a defect in the delivered item will be subject to the liability regime set out in article 11.
5. The warranty lapses if the Buyer:
- does not follow the instructions of the manufacturer when assembling/installing the delivered item, or the Supplier performs work on the delivered item, or arranges work to be performed on it.
- uses the delivered item incompetently and/or inefficiently or has it used or allows it to be used in such a manner.
The warranty also lapses where intent, gross negligence or omission, including incorrect use of the delivered items, or any damage resulting therefrom, is involved.
6. If the Supplier replaces parts to meet their warranty obligations, the replaced parts will become the property of the Supplier.
7. The alleged failure of the Supplier to meet their warranty obligations does not release the Buyer from their obligations arising from any agreement concluded with the Supplier.
8. If the Buyer does not properly or does not in a timely manner meet any one of their obligations arising from the agreement concluded with the Supplier or from any related agreement, the Supplier will no longer be obliged to provide any warranty, regardless of the name, in respect of any of these agreements.
ARTICLE 6 DELIVERY AND RISK TRANSFER
1. Specified delivery times will never be considered strict deadlines, unless explicitly agreed otherwise. Exceeding any delivery period does not entitle the Buyer to compensation nor does it entitle them to cancel the order or to terminate the agreement. If any delivery period is exceeded by more than two months, the Buyer is entitled to declare the Supplier in default by registered letter with a demand to deliver the items within 10 working days. In the event that the Supplier is in default without, in a legally valid manner, invoking force majeure, which prevents the Supplier from delivering within 10 working days, the Buyer is entitled to terminate the agreement in writing after the lapse of the above-mentioned 10 days.
The Supplier will in that case not be obliged to pay any compensation. Termination cannot take place if the Buyer gives the Supplier another time limit to fulfil the obligation to deliver and this time limit is explicitly accepted by Supplier.
2. All deliveries within the Netherlands and within the EU, unless agreed otherwise, will take place Ex Works in accordance with Incoterms 2020 and are deemed to have taken place as soon as the Buyer receives notification from the Supplier that the items have arrived or are present at the Supplier's place of business. The risk of the item is transferred the moment the Buyer receives notification from the Supplier that the items have arrived or are present at the Supplier’s.
3. Unless otherwise agreed, delivery will be made carriage paid to the Supplier’s premises, ground floor.
4. Deliveries outside the EU, unless otherwise agreed, will be made free carrier in accordance with Incoterms 2020. The risk of the item will in that case be transferred the moment the item is transferred to the carrier.
5. If transport is arranged by the Supplier or the Buyer, the items travel at the risk of the Buyer. If the Buyer does not give timely instructions regarding the method of shipment, the Supplier is free to choose the method of transport.
6. If the Buyer requests to handle the delivery of an order in a manner other than usual, e.g. shipped by express or special transport, or if special packaging material is required, the related costs will be charged to the Buyer.
7. The Supplier is allowed to deliver sold items in parts. If the items are delivered in parts, the Supplier is entitled to invoice each part separately.
8. The Buyer is obliged to take delivery of the purchased items either at the time they are delivered to them or at the time they are made available to them in accordance with the agreement. If the Buyer rejects taking delivery or is negligent in providing information or instructions necessary for the delivery, the items will be stored at the risk of the Buyer. The Buyer will then owe any additional costs, in any case including storage costs, without prejudice to the enforceability of the Supplier's claim in respect of the delivered items. Any damage that the Supplier suffers as a result, can be recovered from the Buyer, in which case at least a fixed amount of EUR 250 will be payable in respect of such damage.
ARTICLE 7 RETENTION OF TITLE
1. The items delivered by the Supplier will remain their property until the Buyer has fulfilled all their payment obligations from purchase agreements concluded with the Supplier. The Supplier also retains the title of those items until any claim for compensation due to the Buyer’s failure to fulfil the agreements referred to in the first sentence has been settled.
2. As long as the title of the items has not been transferred to the Buyer, the Buyer will not be permitted to sell, pledge or grant any third party any right to the items delivered by the Supplier. This stipulation is intended to have effect under property law. Notwithstanding the retention of title referred to above, the risks are transferred to the Buyer at the time of delivery.
3. If the Buyer does not fulfil their obligations or if there are reasonable grounds for suspecting that they will not do so, the Supplier is entitled to take delivered items to which the retention of title applies away from the Buyer or any third party holding those items for the Buyer, or arrange for such items to be taken away. If the items delivered by the Supplier have already been installed in a property belonging to the Buyer, the Buyer will disassemble the sold items at the Supplier’s first request, and place them at the Supplier’s disposal without prejudice to the Supplier’s right to proceed with such disassembly themselves. The costs of this disassembly are to be borne by the Customer.
The Buyer is obliged provide all cooperation in the take-back on pain of a penalty of 10% of the amount owed by them to the Supplier for each day that the items delivered under retention of title are not completely returned to the Supplier, with a minimum of EUR 175 per day.
4. If third parties wish to establish or exercise any right to the items delivered under retention of title, the Buyer is obliged to inform the Supplier thereof as soon as can reasonably be expected.
ARTICLE 8 PRICE
1. The indicated prices apply to delivery from Joure (the Netherlands) and are exclusive of VAT and other government-imposed levies as well as any shipping and packaging costs. The Buyer acknowledges that the above-mentioned taxes and costs are at their expense and can be charged by the Supplier.
2. If, between the dates of the offer and purchase, even if the Supplier has made a binding offer, or between the date of purchase and delivery, a price increase of offered or sold items should occur for reasons beyond the Supplier's control, for example as a result of an increase in price of materials, production costs, import duties, taxes, foreign currency rates, transport costs, etc., the Supplier is allowed to charge them on.
3. The Buyer is required to reimburse any additional costs resulting from a change to the original order, regardless of whether this change is desired by the Buyer.
ARTICLE 9 PAYMENT
1. Unless expressly agreed otherwise and in writing, payment will have to be made within fourteen (14) days from the invoice date.
2. The Supplier will at all times be entitled to require full or partial payment in advance from the Buyer, to send items cash on delivery or to demand that the Buyer furnish security for the fulfilment of their obligations to the satisfaction of Supplier. The Buyer hereby grants the Supplier express and irrevocable authorisation to establish this security for their own benefit on behalf of the Buyer. Any advance payment can only be offset against the final invoice and not against interim invoices.
3. The Supplier reserves the right to postpone the delivery of the items until payment in full has been received.
4. A complaint about or a delay in the performance of the agreement by the Supplier and/or the invoice does not entitle the Buyer to suspend their payment.
5. Complaints concerning invoices must be submitted in writing to the Supplier within 14 days from the invoice date, in the absence of which the Buyer is deemed to have accepted the invoice as correct.
6. If payment has not been received by the Supplier within the agreed period, the Buyer will be in default by operation of law and the Buyer will owe the Supplier an interest of 12% per year, calculated on the amount owed as from the due date, without any warning or notice of default being required, without prejudice to the right of the Supplier to demand immediate payment of the amount owed including interest and extrajudicial or judicial collection costs. The extrajudicial collection costs are fixed between the parties at 15% of the principal sum, with a minimum of EUR 250, without prejudice to the VAT due on these costs, which collection costs, in the event of judicial collection, will be due on top of the costs of the proceedings.
7. All payments of the Buyer to the Supplier will first of all be made to settle any costs due, then to pay (flat-rate) compensation (of damages), then to pay accrued interest and finally to pay the principal sum.
8. In the event of bankruptcy/liquidation, suspension of payment or application of the statutory debt restructuring scheme of or to the Buyer, or an application to that effect, all claims of the Supplier against the Buyer, on whatever basis, will be immediately due and payable.
9.The Buyer waives any right to settlement, discount, suspension and/or set-off.
10. The Buyer is obliged to reimburse any costs reasonably incurred by the Supplier in connection with any legal proceedings in which the Buyer has been either completely or predominantly unsuccessful. Such costs will in any event include the costs of external experts, bailiffs and lawyers, even if those costs exceed the amount awarded by the court in this regard.
ARTICLE 10 CANCELLATION AND RETURNS
1. Cancelling items is only possible if agreed in advance in writing with the Supplier, without prejudice to the other conditions set out in this article. Products can be returned without a cancellation charge until 1 month after shipment date. If the Supplier receives the products back 1 month or later after the shipment date, a cancellation fee of 15% of the net selling price will be charged. If the Supplier receives the articles back 2 months after the shipment date, this will be 25%. After 3 months, articles can no longer be returned.
2. Products that are not taken back by the Supplier are products:
- which are damaged,
- which have already been fitted before,
- the packaging of which has been damaged, is dirty or missing,
- of which it cannot be proven that they were delivered by the Supplier,
- with a sales value of less than € 25 net excluding VAT per unit.
3. If the Buyer wishes to return items, they must inform the Supplier in writing, accompanied by purchase invoices/reference.
4. The return shipment will be dealt with by the Supplier, provided that it is in their possession, carriage paid, within 14 days from the delivery date.
5. Items erroneously ordered by the Buyer may be returned within 14 days from the delivery date, provided they are unopened, in their original packaging, unused, accompanied by all the related documents and provided with the packing slips. In the event of a return, the Supplier reserves the right to charge the Buyer handling and administrative costs.
6. The delivery of products and/or items that are specifically ordered by the Supplier for the Buyer cannot be cancelled.
ARTICLE 11 LIABILITY
1. The Supplier's liability will at all times be limited to the amount covered by their insurance if and to the extent that liability is covered by their insurance. In the event that the insurance does not pay out or if the damage is not covered by the insurance, the liability of the Supplier is at all times limited to the amount of the invoice.
2. The Supplier will in no event be liable for any indirect damage suffered by the Buyer or by third parties as a result of any defects in the items delivered, including consequential damage, lost profit, loss incurred, lost savings and damage caused by business interruption.
3. In no event can the Supplier be held liable for damage caused by incorrect instructions given by an employee or representative of the Supplier.
4. The Supplier is not liable either for the operation of machines and/or installations if items delivered by the Supplier are used and/or assembled.
5. In no event will the Supplier be liable for any (drawing) errors in drawings, diagrams, etc. that may be made available to the Buyer. Nor will the Supplier ever be responsible for the designs and/or engineering and/or operation of machines, unless the Buyer and the Supplier have explicitly agreed otherwise in writing.
6. Only in the event that the damage is the result of intent or gross negligence on the part of the Supplier or their management, will the limitations of the Supplier's liability laid down in these terms and conditions not apply.
7. Any claim of the Buyer against the Supplier will become time-barred after a period of 1 year and will expire after 2 years calculated from the moment the claim arose.
ARTICLE 12 INDEMNITY
1. The Buyer will indemnify the Supplier against any claims from third parties suffering damage in connection with the performance of the agreement, the cause of which being attributable to parties other than the Supplier.
2. If the Supplier should be held liable by third parties for that reason, the Buyer is obliged to assist the Supplier both in and out of court and to do whatever may be expected of them in that event without delay. If the Buyer fails to take adequate measures, the Supplier is entitled to do so themselves without notice of default. All costs and damage on the part of the Supplier and third parties arising as a result are fully at the risk and expense of the Buyer.
ARTICLE 13 TERMINATION
1. The Supplier is authorised to suspend the fulfilment of their obligations or to terminate the agreement if:
- The Buyer does not fulfil their obligations from the agreement, or does not do so in a timely manner or does not so in full;
- after the conclusion of the agreement, circumstances come to the knowledge of the Supplier which give them good reason to fear that the Buyer will not fulfil their obligations, or will not do so in a timely manner or will not do so in full. In the event that there are reasonable grounds to fear that the Buyer will only comply in part or inadequately, suspension will only be permitted to the extent that it is justified by the shortcoming;
- upon conclusion of the agreement, the Buyer was requested to provide security for the fulfilment of their obligations under the agreement and such security was not provided or is insufficient. As soon as security has been provided, the authority to suspend will cease to apply, unless fulfilment has been unreasonably delayed as a result;
- due to delay on the part of the Buyer, the Supplier can no longer be required to fulfil the agreement on the conditions as originally agreed;- in the event of liquidation, of (filing for) suspension of payment or bankruptcy of the Buyer, of attachment at the expense of the Buyer - if and to the extent that the attachment has not been lifted within three months - of debt restructuring or any other circumstance as a result of which the Buyer can no longer freely dispose of their assets;
2. Furthermore, the Supplier is authorised to terminate the agreement, or have it terminated, if circumstances arise which are of such a nature that fulfilment of the agreement cannot possibly be required, or can no longer be required according to standards of reasonableness and fairness, or if other circumstances arise which are of such a nature that the unaltered maintenance of the agreement cannot reasonably be expected;
3. If the agreement is terminated, the claims of the Supplier against the Buyer will be immediately due and payable. If the Supplier suspends fulfilment of the obligations, they will retain their claims under the law and the agreement.
4. In the event of suspension or termination by the Supplier, the Supplier is not in any way obliged to pay compensation for damage and costs arising in any way as a result. In the event of termination by the Supplier, the Supplier is entitled to compensation for the damage, including costs arising directly and indirectly as a result.
ARTICLE 14 FORCE MAJEURE
1. The Buyer cannot claim fulfilment from the Supplier and the Supplier will not be liable for any damage if the non-fulfilment, late fulfilment or defective fulfilment is the result of an external cause that cannot be attributed to the Supplier (force majeure). Force majeure on the part of the Supplier is in any event, but not exclusively, understood to be all the circumstances as a result of which compliance with the agreement may no longer reasonably be demanded from the Supplier and furthermore any circumstances which the Supplier could not reasonably have foreseen and which are beyond the Supplier’s control, including but not limiteds or their suppliers; lack of feedstock, materials and other items or services required to bring about the agreed performance, as well as price increases of more than 3% of such feedstock, materials and other items or services required for bringing about the agreed performance; unforeseeable stagnation at suppliers or other third parties on which the Supplier depends and general transport problems; circumstances that make it difficult for the Supplier to fulfil the obligation to deliver, including, but not limited to, products to be delivered by third parties not complying with the quality requirements set by the Supplier and the resulting consequences.
2. The Supplier is also entitled to invoke force majeure if the circumstance impeding such (further) fulfilment arises after the Supplier should have fulfilled their obligation.
3. During the period in which force majeure prevents full or partial fulfilment, the Supplier's delivery obligations and other obligations will be suspended. If the period in which fulfilment of the obligations by the Supplier is not possible because of force majeure lasts longer than six months, both parties are authorised to terminate the agreement without any obligation to pay compensation arising in that case.
4. If, when force majeure arises, the Supplier has already partially fulfilled their obligations or is able to partially fulfil their obligations, they will be entitled to invoice separately the items that have already been delivered or that are to be delivered, and the Customer will be obliged to pay this invoice as if it were a separate contract.
ARTICLE 15 MISCELLANEOUS
1. The Supplier not invoking the rights they are entitled to, never means that they waive those rights.
2. All personal data are used exclusively by the Supplier and/or their group companies and are never given to third parties, except when necessary for payment transactions and delivery of the order. The Supplier and its group companies respect the privacy of the Customer and ensure that the Customer's personal information is treated confidentially. The Customer hereby gives permission to use their data to inform the Customer about product offers from the Supplier, all in the broadest sense.
ARTICLE 16 APPLICABLE LAW, DISPUTES
1. All agreements entered into by the Supplier are governed by Dutch law, to which these general terms and conditions apply as a supplement and, in so far as mandatory provisions do not oppose them, as a derogation. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
2. Any disputes between the Buyer and the Supplier will be adjudicated by the competent court of the place of business of the Supplier, including any relief ordered in proceedings, subject to any exceptions under mandatory law.
ARTICLE 17 PRIVACY