Terms and conditions
GENERAL DELIVERY AND PAYMENT CONDITIONS OF ELINEX POWER SOLUTIONS B.V.
ARTIKEL 1. Scope.
1. Every legal relationship between us and the other party is exclusively governed by these conditions.
2. Any divergent conditions used by the other party are exclusively binding upon us only if and insofar as we have agreed to said conditions in writing.
3. Any divergences from these conditions must also be explicitly agreed with us in writing.
4. If we have agreed in writing to the application of divergent conditions, the present conditions shall, for the rest, remain applicable even if this is not expressly stated in writing.
5. The other party cannot derive any rights for the future from any agreed divergences from these conditions.
ARTIKEL 2. Offers.
1. All our offers are made without obligation, unless expressly stated otherwise.
2. All price lists, brochures and other information supplied for or with an offer are as accurate as possible. These are exclusively binding upon us if specifically confirmed by us in writing. No details need to be supplied.
3. All our offers as well as any accompanying drawings and/or appendices remain our property and we may demand their return at any time.
4. We are entitled to demand reimbursement of any costs incurred by us in connection with the offer made.
ARTIKEL 3. Contracts.
1. Contracts are exclusively created by a written acceptance/confirmation of an assignment from us or from the time that we start working on the assignment.
2. Any subsequent additional arrangements or changes, as well as arrangements and/or promises made by our staff or on our behalf by our salespeople, agents, representatives or other intermediaries and/or resellers are exclusively binding upon us only if confirmed by us in writing.
3. The order confirmation is deemed to give an accurate and complete representation of the contract.
4. If our offer states that delivery takes place from stocks, we are exclusively obliged to fulfill the contract insofar as the deliverable items are available in our warehouse.
ARTIKEL 4. Cancellations.
1. If, subsequent to the placement and acceptance of the order, the other party wishes, for whatever reason, to cancel the order, we have the right, at our election, to oblige the other party to fulfill the contract in full or to accept the cancellation on condition that the other party pays a fixed compensation equal to 20% of the order amount within a term set by ourselves.
2. The arrangement contained in the preceding paragraph also applies in cases where the other party refuses to take receipt of a consignment of ordered items. In that event, the other party will also be charged any (additional) transport costs.
ARTIKEL 5. Prices.
1. Prices quoted by us are stated in our price lists which indicate the term during which the prices quoted by us are valid. Upon the expiry of this period, the prices quoted by us are no longer valid and the prices stated in a subsequent price list are valid.
2. If prices are stated by us in a quotation, these prices are valid for the period mentioned in the quotation.
3. The stated prices are based on the cost-determining factors at the time of the offer. Contrary to the provisions in the preceding paragraphs, we reserve the right to charge the other party for all changes in the cost determining factors that occur after the date on which we quoted the prices, even if these cost-increasing circumstances were already foreseeable when the order was accepted.
4. The other party is liable for any costs resulting from additions and/or changes to the assignment or contract.
5. The price is exclusive of turnover tax.
ARTIKEL 6. Supply/delivery.
1. The supply/delivery times stated by us are always without obligation; supply/delivery after the stated date does not entitle the other party to compensation or to suspension or cancellation of the contract.
2. The items sold by us are supplied/delivered from the warehouses and/or storage places where they were at the time of concluding the contract.
3. We are entitled to supply/deliver in partial consignments, which we may invoice separately; the payment conditions as contained in Articles 15 and 16 of these conditions are also applicable to these invoices.
4. If we involve the services of a third party in connection with the order, a delivery date shall be agreed with the other party. If the delivery does not take place on the agreed date at the request or upon the instructions of the other party, the agreed price shall become payable by the other party as of that date and we shall be entitled to charge the other party for storage.
ARTIKEL 7. Transport.
1. In the case of free delivery, the cheapest method of shipment is always used, unless agreed otherwise in advance. If any other method of shipment is used, the extra costs have to be paid by the other party.
2. Items sold in the Netherlands and Belgium are delivered free unless agreed otherwise.
3. The shipment of items always takes place at the other party's risk, even where free delivery has been agreed. This clause even applies if the carrier demands that the bills of freight, transport addresses, etc. contain the clause that all transport damage or loss is for the sender's risk and
ARTIKEL 8. Retention of title.
1. We retain title to the items supplied/delivered to the other party, including supplied materials, whether pre-processed or not, and parts until the other party satisfies its obligations in relation to the items supplied/delivered or to be supplied/delivered by us pursuant to the contract and/or any work performed or to be performed for the other party pursuant to such a contract, as well as until the other party settles any claims resulting from the failure to fulfill any such contract.
2. The other party is entitled to resell and process the items in the conduct of its normal business activities.
3. If the item supplied/delivered by us is subject to any further treatment, processing or mixing by or at the other party, we obtain co-ownership rights to the newly created item (items) or the main item up to a value equal to the value of the items (originally) supplied/delivered by us.
4. If the other party sells the items supplied/delivered by us, it already hereby transfers to us its existing or future rights of its own suppliers, including any attached rights and/or security. We can require the other party to notify its customers of the transfer of these rights and to give us all information and details necessary for the exercise of our rights.
5. Until the time of payment, the other party is required to store the items in such a manner that they are clearly recognizable as our property whenever we may require this.
6. In the case of default on a payable amount, suspension of payments, moratorium, request for a moratorium, bankruptcy, bankruptcy petition, application of the Personal Debt Clearance Act or a request for the application of said Act, placement under financial curatorship, death or liquidation of the other party's assets, we shall be entitled, without serving notice of default and without court intervention, to cancel the contract or the part thereof that is still to be supplied/delivered and to demand the return of any items supplied/delivered but not yet paid or not yet paid in full as our own property, subject to settlement of any amounts already paid, but without prejudice to our rights to demand compensation for any loss or damage. In such cases, every claim that we may have on the other party shall be payable on demand.
7. The exercise by us of any of the rights to which we are entitled on the grounds of the retention of title, including the placement of the items under attachment, cannot in any way be considered as an action resulting in the cancellation of the contract.
ARTIKEL 9. Claims.
1. Any claims must take place in writing within fourteen days of the receipt of the items or performance of the services. The other party, who has not properly inspected the soundness of the supplied/delivered items within fourteen days of receipt, is deemed to have approved the supplied/delivered items or performed service.
2. Claims can only be taken into consideration if the items are still in the condition in which they were supplied/delivered. In case of doubt, the burden of proof rests with the other party.
3. The supplied/delivered items can exclusively be returned after our prior permission in writing and subject to conditions to be determined by us.
4. If we find that a claim is justified, we can, at our election, repair or replace the items in question, or give the other party a refund, subject to the exclusion of any other right of the other party to compensation.
5. A claim does not lead to the suspension of any payment obligations.
ARTIKEL 10. Guarantee.
1. Except for the provisions in paragraph 2 of this Article, we guarantee the soundness of the items/work supplied/delivered by us exclusively in such a manner that all faults of which the other party can prove that these arose within the term of 6 months after delivery or completion and that these arose as a result of errors in the work performed by us or due to poor finishing or the use of poor materials, will be repaired by us free of charge. Instead of repairing the item, we may opt, exclusively at our election, to replace items delivered/supplied by us or to repay the purchase price of these items.
2. Insofar as items supplied/delivered by us were obtained from third parties, we never give a more extensive guarantee than our suppliers give us, unless agreed otherwise.
3. In the case of delivery/supply of used materials or items, no guarantee is given unless expressly agreed otherwise, in which case the agreed guarantee is applicable.
4. If, to satisfy our guarantee obligations, we replace items or repay the purchase price, the items in question become our property.
5. Our guarantee obligations are immediately cancelled in the following cases:
1. If repairs or changes are made by or for the other party during the guarantee term without our prior permission.
2. If the other party fails to meet its payment obligations.
3. If the other party does not use or has not used the items delivered/supplied by us in accordance with the user instructions sent with the items.
ARTIKEL 11. Non-culpable non-fulfillment.
1. In these conditions non-culpable non-fulfillment is understood to refer to: Any circumstance that is independent of the will of parties or unforeseeable, as a result of which the other party cannot reasonably require us to full the contract.
2. "Non-culpable non-fulfillment" at least includes: strike action, excessive absenteeism of our staff, transport difficulties, fire, government measures (including import and export bans), contingencies and interruptions of our own business operations and/or our those of our suppliers, involuntary interruptions or obstructions that make fulfillment of the contract more expensive and/or onerous, such as storm damage and/or other natural disasters, as well as culpable non-fulfillment by our suppliers, as a result of which we are not/no longer able to fulfill our obligations to the other party.
3. If a situation of non-culpable non-fulfillment occurs, we are entitled to suspend the fulfillment of the contract or declare the definite cancellation of the contract.
4. We are entitled to demand payment for items delivered/services rendered under the contract before the circumstance resulting in non-culpable non-fulfillment has come to light. We also have the right to invoke non-culpable non-fulfillment if the circumstance causing the non-culpable non- fulfillment occurs after our items/service should have been delivered or performed.
ARTIKEL 12. Liability.
1. Liability on our part which is attributable to failure to honor the agreement shall be limited for each incident or series of connected incidents to compensation for direct damages to the maximum of the sum that may be paid out by the insurers under the companies liability insurance concluded by us. We are willing to supply information about the said insurance at the request of the other party. Should the insurers for any reason whatsoever fail to pay and we are nonetheless liable, the liability shall be limited to the maximum of the price paid on the basis of the agreement. If the agreement is essentially a running contract for a period of one year or longer, the price paid shall be based on the total payments made to us by the other party during the three months preceding the incident or series of connected incidents that caused the damages. In no case, however, shall the total compensation for direct damages amount to more than EUR 50,000 (fifty thousand euros) per incident or series of connected incidents.
2. At no time are we liable for indirect damages including consequential loss, loss of profit, missed savings, loss of data and/or damages due to standstills and downtime.
3. Apart from the case stipulated in Article 12.1 we are not liable for any damages, irrespective of the grounds upon which a compensation claim is based. The maximum sums quoted in Article 12.1 shall no longer apply if and insofar as the damages are the result of willful intent or gross negligence on our part and/or on the part of our managing subordinates.
4. The other party is liable for any and all damages resulting from loss, theft, fire or damage to any of our property, tools and materials as soon as these are at the workplace.
ARTIKEL 13. indemnity.
1. The other party is obliged, pursuant to the contract, to indemnify us for all claims that third parties may make against us for compensation in relation to the fulfillment of the contract (delivery/supply of goods, performance of work or services, advice etc.) on account of any cause whatsoever and is liable for all costs resulting from this.
2. As for any items in our possession in connection with the fulfillment of a contract, the other party is obliged to fully indemnify us against any third-party claims, also if said claims relate to compensation of loss or damage which can be alleged to have a direct relationship with these items.
ARTIKEL 14. Security, creditworthiness.
1. Every contract entered into by and with us is subject to cancellation in the event of insufficient creditworthiness of the other party, even if partial supply or delivery has already taken place.
2. The other party is obliged to provide us, at our first request, with satisfactory security for the fulfilment of its payment and other obligations. We are entitled to suspend our supply/delivery obligations until the security has been provided. The security to be provided may consist of: a cash deposit, a bank guarantee, assignment, pledging, mortgage rights, transfer of ownership or surety.
ARTIKEL 15. payment.
1. Payment of our invoices must take place within fourteen days after invoice date.
2. All payments must take place at our office or into an account to be designated by us.
3. Payments must be made in the currency in which the agreed prices are expressed.
4. Every payment made by the other party serves in the first instance for the settlement of any interest that it owes as well as any court and out-of-court costs as determined in the following articles and are subsequently deducted from the oldest outstanding receivable.
5. The other party is automatically in default by the expiry of the aforementioned term of fourteen days after invoice date. No notice of default need be served for this purpose.
ARTIKEL 16. interest.
1. If the other party fails to pay the amounts due within the term stipulated in Article 15.1, the other party shall be liable to pay the legal rate of interest on the outstanding amount as contemplated in Section 6:119a of the Dutch Civil Code without notice of default being required.
ARTIKEL 17. costs.
1. If we are compelled to use the services of a third-party to secure the collection of our receivable from the other party , the latter is liable to pay all court and out-of-court collection costs.
2. In the case of late payment, the out-of-court collection costs will amount to at least 15% of the collectible amount, subject to a minimum of EUR 125.
ARTIKEL 18. applicable law.
All contracts between us and the other party will exclusively be governed by Netherlands law. The applicability of the Uniform Laws on the international purchase of moveable goods is expressly excluded.
ARTIKEL 19. competent court.
All disputes arising between us and the other party in connection with any legal relationship falling within the scope of the present conditions shall in the first instance exclusively be settled by the Court of Rotterdam, provided that the dispute is within the competence of a court. Filed March 2005 at the court registry of the Court of Rotterdam under number 32/2005.