GENERAL TERMS AND CONDITIONS OF SALE AND SUPPLY M&D TRUCKS B.V.
(applicable to Business – to – Business transactions)
1.To the exclusion of any terms by the client / purchaser, these conditions apply exclusively to all offers, purchase/sale and supply agreements of, as well as to the provision of services, howsoever named, by M&D Trucks B.V., with its registered office in Breda, hereinafter referred to as M&D TRUCKS, in so far as not otherwise stipulated in the offers provided by M&D TRUCKS or in agreements concluded with M&D TRUCKS.
2.Every referral to general terms and conditions of client / purchaser are expressly rejected.
3.If, one time on the basis of the current conditions, a contract is concluded with a client / purchaser, then the conditions concerned will also apply to future offers, agreements, deliveries and/or services provided by M&D TRUCKS for the benefit of the client / purchaser concerned.
4.Additions or derogations from these conditions must be agreed in writing; these additions or derogations only apply to the agreement for which they have expressly been made.
5.The rights and obligations under agreement between M&D TRUCKS and client / purchaser cannot be transferred by client / purchaser to third parties, unless with the written permission of M&D TRUCKS.
6.The provisions of Part 1 Title 7 of Book 7 Civil Code (assignment), with the exception of Section 412, do not apply to the current legal relationship, unless expressly stated otherwise in the agreement or in these conditions.
7.These conditions can be cited as AVW-M&D TRUCKS.
All offers and quotes by M&D TRUCKS are to be deemed as an invitation to the potential client / purchaser to make an offer. They do not bind M&D TRUCKS, unless the contrary is stipulated expressly and unambiguously in the offer itself.
An offer that contains a period of time as well as a quote can nevertheless be withdrawn by M&D TRUCKS, even after acceptance thereof, provided that this takes place within five days from receipt of the acceptance referred to.
1.An agreement comes into effect on the suspensive condition that M&D TRUCKS has approved and confirmed the order or assignment, by issuance of a pro forma invoice or in another manner, or as the case may be when the execution of the order or assignment has started. If M&D TRUCKS disputes the approval and confirmation of the order or assignment, evidence thereof must be delivered by client / purchaser.
2.The contents of the agreement are determined by the offer and/or confirmation of the assignment of M&D TRUCKS and these general terms and conditions.
3.Client / Purchaser is bound to his order, in whatsoever form, during a period of eight days after the order was notified to M&D TRUCKS. A statement by the client / purchaser that he wishes to cancel or alter his order, submitted within this period of eight days cannot prevent an agreement from coming into effect if M&D TRUCKS has accepted / confirmed the order within the period referred to.
4.Every payment by client / purchaser to M&D TRUCKS, including a down payment or a partial payment of an invoice or pro forma invoice issued by M&D TRUCKS, applies as proof of the unconditional approval and confirmation of the order or assignment and of the acceptance by client / purchaser of the applicability of the current conditions with regard to the transaction to which the payment relates as well as with regard to all transactions connected thereto.
5.The confirmation of the assignment, except in the case of written notice to the contrary from client / purchaser to M&D TRUCKS prior to the actual delivery, is deemed to reflect the order / assignment correctly and fully.
6.Agreements with subordinate members of staff of M&D TRUCKS are exclusively binding if they were confirmed in writing by M&D TRUCKS or were expressly accepted by an authorised representative superior within M&D TRUCKS.
7.Any supplementary arrangements or alterations made later, as well as arrangements or promises by staff of M&D TRUCKS, not made by authorised representative superiors, only bind M&D TRUCKS if they have been confirmed in writing by M&D TRUCKS.
8.Client / purchaser is bound toward M&D TRUCKS by all that which, with its knowledge, is agreed by persons who, toward M&D TRUCKS, state to act on behalf of client / purchaser, unless prior to the concluding of the agreement concerned it is made apparent that the person concerned is not authorised to represent client / purchaser.
9.M&D TRUCKS retains the right to refuse deliveries, assignments and/or orders, without stating reasons.
1.All quotes and the prices that M&D TRUCKS charge, are based on the, at the time of the offer or coming into effect of the agreement, applicable factors determining prices, from business location Breda, excluding VAT and excluding other costs, duties and rates applying to the agreement. Unless agreed otherwise, any export and import, mounting, service, repair, inspection and transport and landing charges, as well as the costs of insurance and roadworthy preparation fees, are not included in the price.
2.The prices given by M&D TRUCKS are based on delivery from its business address in Breda. If M&D TRUCKS, on the request of client / purchaser, delivers elsewhere, then the extra costs ensuing therefrom will be on the account of client / purchaser.
3.Any disposal contribution owed is on the account of client / purchaser.
4.The proof concerning an agreed price can exclusively be delivered by client / purchaser by submission of a written confirmation of the assignment or agreement.
5.If, after making the offer, a change in one of the factors determining prices occurs, M&D TRUCKS will be entitled to adjust the price accordingly, even if the agreement has meanwhile come into effect.
6. Price changes of more than 10% give client / purchaser the right to terminate the agreement, provided that this takes place in writing within seven days from receipt of the announcement concerned. A termination as aforementioned does not give client / purchaser the right to compensation of any damage.
1.Unless otherwise agreed in writing client / purchaser is obliged to pay all that it owes to M&D TRUCKS prior to the delivery of the matters concerned, respectively prior to the carrying out of the work assigned by it, in euro (payment in advance) in the manner to be determined by M&D TRUCKS. M&D TRUCKS retains the right to not deliver the matters concerned earlier, respectively not to carry out the work concerned earlier, than after receipt of payment in full.
2.Payment is deemed to have taken place at the time that the amount owed is factually and actually received by M&D TRUCKS.
3.If a payment term was agreed, this applies as a final deadline and client / purchaser will be in default by the sole expiry thereof without payment having taken place. Notice of default is not required for this, irrespective of whether the exceeding of the payment term can be attributed to client / purchaser or not.
If there is a transaction for cash payment and no payment term was agreed, a payment term of fourteen days from the invoice date will apply.
4.In no event whatsoever does a right of suspension accrue to client / purchaser.
5.Client / purchaser is not entitled to setoff of any amount owed to M&D TRUCKS.
6.M&D TRUCKS is at all times entitled to demand a down payment from client / purchaser up to an amount to be determined by it.
7.M&D is at all times entitled to request surety from client / purchaser for the payment of all that which client / purchaser might owe it. By bringing matters under its control a right of pledge thereto is vested in favour of M&D TRUCKS for all that which client / purchaser owes or will owe it.
8.M&D TRUCKS is entitled to transfer its claims on the basis of any or all transactions to a credit insurer of its choice.
9.Incoming payments are applied to settlement of the oldest outstanding items – interest due and costs incurred including – even if client / purchaser states otherwise in this regard.
VI.DELIVERY DATE / DELIVERY / RISK
1.The delivery period stated in any offer and/or confirmation of the assignment or agreement, applies as an estimate and is solely indicative. This period never constitutes a final deadline, not even if it was expressly accepted by client / purchaser. In the event of late delivery M&D TRUCKS is therefore only in default after it has received a written notice of default from the client / purchaser, and the reasonable period stated therein, determined in consultation with M&D TRUCKS, has expired, without fulfilment of the agreed achievement.
2.The mentioned or agreed delivery period will in all events, but not exclusively, be automatically extended by the period(s) during which:
– there is delay in the supply and/or dispatch and/or any other circumstance that temporarily hinders the delivery, irrespective of whether this can be attributed to M&D TRUCKS;
– client / purchaser fails in the fulfilment of one or more obligations toward M&D TRUCKS or at M&D TRUCKS there exists well-founded fear that he will fail therein, irrespective whether the reasons for this are well-founded or not;
– client / purchaser does not give M&D TRUCKS the opportunity to perform the agreement; this situation occurs, among others, if client / purchaser continues in default of notifying the place of delivery or of making details required for the performance, matters or facilities available.
3.If no delivery period was agreed, as well as in case of delivery on a call-off basis without a period for call-off set, the matters ordered must immediately at the supply or delivery be taken delivery of.
4.Delivery is deemed to have taken place at the time that the matters are made available at M&D TRUCKS to the client / purchaser. If client / purchaser does not take delivery of the matters within the period applicable for this, then they will be, at his expense and risk, stored under a calculation of a payment for garaging / storage, this for a payment of € 150 excl. VAT per week per matter stored, and with due regard to the provisions of article VIII subsection 7.
5.Delivery in the Netherlands takes place from the business address of M&D TRUCKS in Breda, unless agreed otherwise in writing. All matters are transported on the account and risk of client / purchaser, also if the dispatch takes place carriage paid.
6.In case of intended export outside the EU by client / purchaser of the matters delivered by M&D TRUCKS, M&D TRUCKS is entitled to demand a deposit from client / purchaser of an amount to be determined by it, and to retain this until such proof of the fact that the matters delivered have actually left the EU and been delivered by client / purchaser, that on the basis thereof there is no longer any risk in existence for M&D TRUCKS of liability to pay turnover tax
7.If M&D TRUCKS on request of client / purchaser takes care of the dispatch of the matters or if the agreed parity of the ICC Incoterms imposes this care on M&D TRUCKS, the point in time, manner of dispatch and dispatch route are at its choice. Goods in transit insurance is only taken out by M&D TRUCKS on the express request of client / purchaser. All costs attached thereto are on the account of client / purchaser.
8.Delivery within the Netherlands takes place EXW (Ex Works) and delivery outside the Netherlands takes place FCA (Free Carrier) at the location agreed between parties, in the absence of which, at the location of delivery to be determined by M&D TRUCKS, in accordance with Incoterms 2010, unless one of the other Incoterms of the International Chamber of Commerce (ICC) is agreed.
9.Part deliveries by M&D TRUCKS are permitted, in the course of which it has the right to deem each part delivery as a separate transaction.
VII.GUARANTEE / INSPECTION / COMPLAINT
1.Also in connection to the nature of the matters traded by M&D TRUCKS (in particular used vehicles) M&D TRUCKS does not provide guarantee with regard to these matters, and also with regard to work carried out by it on these matters, unless in the purchase contract or from the guarantee certificate provided by M&D TRUCKS it appears expressly otherwise.
2. Client / purchaser is obliged, on own account, to inspect, or let inspect, the matters sold to him or the work carried out for him, no later than at the time of delivery or supply, and to notify in writing M&D TRUCKS forthwith after discovery of external observable defects, such as scratches, dents and such, but in any event still the same day, in the absence of which client / purchaser will be deemed to have accepted the defects concerned without in this connection being entitled to any compensation or price correction. It is the responsibility of client / purchaser to ensure the presence of persons who they wish to burden with the inspection of the sold matter. In the event of delivery outside the Netherlands the delivery or supply is deemed to have taken place, for the application of the present provision, after the sold matters or the matters on which work was carried out by M&D TRUCKS, were delivered at the location of delivery.
M&D TRUCKS is entitled to suspend the delivery or supply until inspection by client / purchaser has taken place.
3.At the risk of forfeiting his right to complain, client / purchaser must report complaints with regard to the invoice amount within three days from receipt of the invoice concerned in writing to M&D TRUCKS, including precise description of the complaints.
4.For all other, not previously mentioned, complaints due to defects or imperfections it applies that these must be brought to the attention of M&D TRUCKS in writing within a period of five days after they became known to client / purchaser or, in case of careful conduct on his part, could have been known by client / purchaser.
5.The matters to which such complaints are expressed, must on first request from M&D TRUCKS be made available for inspection. If such is in its opinion at issue, M&D TRUCKS will instruct an office with a good reputation to investigate the complaint and to issue a binding decision.
6.The burden of proof that the matter delivered by M&D TRUCKS or the service provided by it, already at the time of delivery or supply thereof, lacked the characteristic and/or that this demonstrated the defect for which M&D TRUCKS is challenged rests on client / purchaser.
7.Any guarantee claims accrue exclusively to client / purchaser and are never transferable to third parties.
8.Complaint is not possible, or the right to complain lapses, also with regard to guarantees expressly provided, if:
– Client / purchaser cannot demonstrate that he has fulfilled his obligation stated previously in subsection 2, to inspect the matters delivered no later than at the delivery or supply thereof and to report defects in time to M&D TRUCKS;
– the matters are used in conflict with the regulations applicable for their use or for a purpose other than that for which they are intended or, in the opinion of M&D TRUCKS, are used or transported in an improper manner as well as if, without permission from M&D TRUCKS, repairs or alterations were carried out on the matter by client / purchaser;
– the damage is caused by negligence on the part of client / purchaser (for example through insufficient maintenance) or because client / purchaser has acted in conflict with instructions, directions and advice from M&D TRUCKS;
– Client / purchaser has not offered the opportunity to M&D TRUCKS to conduct an inspection into the merits of the complaint;
– Client / purchaser has continued the use of the matter, with regard to which the complaints were expressed, after the defects or imperfections were known to him;
– it concerns parts or accessories that must be regularly replaced during maintenance or services;
– client / purchaser has not fulfilled his obligations toward M&D TRUCKS (financially as well as otherwise);
– the complaints were made known to M&D TRUCKS in the prescribed manner and with the period applicable thereto but, since the delivery of the matter, more than six months have passed;
9.In the event that client / purchaser, with due regard to the provisions of this article, complains and his complaint is found to be well-founded by M&D TRUCKS, M&D TRUCKS will, at its discretion, replace the matters concerned by similar matters (following which the replaced matters will become its property) or repair the defects on its account or as the case may be provide a price reduction or compensation.
10.M&D TRUCKS exclusively takes back matters sold if it has stated in writing to agree thereto. If this is the case, then the matters to be taken back must in a proper manner, and in case of dispatch, carriage paid, be delivered to the business address in Breda. Matters then are returned to M&D TRUCKS, and without the express concurrence of M&D TRUCKS remain at the risk of client / purchaser and will be stored at his expense at the rate applicable for this at M&D TRUCKS.
11.The processing of a complaint does not suspend the payment obligation of client / purchaser.
12.If, outside the cases described above, M&D TRUCKS process a complaint, this will take place entirely without obligation and client / purchaser cannot derive rights from this.
VIII.NON-PERFORMANCE / TERMINATION / SUSPENSION
1.M&D TRUCKS is entitled to terminate the agreement, as well as any other agreements with client / purchaser, with immediate effect, without judicial intervention, wholly or in part, to suspend the (further) performance thereof or to demand advance payment, surety for the (further) performance or cash on delivery for the delivery / supply, such without prejudice to other rights accruing to it (to fulfilment and/or compensation), if:
– client / purchaser acts in breach of any provision of the agreement between parties;
– client / purchaser applies for moratorium or applies for a liquidation order;
– a petition for bankruptcy of client / purchaser is filed;
– the company of client / purchaser is closed down or liquidate ;
– a private composition is offered;
– in the assessment of M&D TRUCKS there exists cause on other grounds for the well-founded fear that client / purchaser will not, not fully or not within the applicable period fulfil any obligation toward M&D TRUCKS – including obligations on other bases than those on the basis of the agreement concerned .
In these cases the claim against client / purchaser is forthwith and fully due and payable, without M&D TRUCKS being bound to compensation or guarantee.
2.The provisions of subsection 1 of this article applies mutatis mutandis if client / purchaser, after having been requested to do so in writing, does not provide the surety demanded by M&D TRUCKS for the fulfilment of its obligations within seven days.
3.Without prejudice to the other rights accruing to it, M&D TRUCKS, in case of exceeding of the applicable payment term, is entitled to charge interest over the outstanding amount of 1% per month or a part of a month, to be calculated from the last payment date to the time of payment.
4.Client / purchaser will owe M&D TRUCKS all extrajudicial and judicial costs incurred by it in furtherance of or ensuring of the performance of the obligations by client / purchaser as well as the costs in connection to the dispute with client / purchaser, if M&D TRUCKS is claimant as well as if it is defending party.
The extrajudicial collection charges will be calculated in conformity with the collection rates of the Netherlands bar Association, this with a minimum of € 250. The judicial collection charges will be calculated on the actual costs incurred by M&D TRUCKS, also if these are paid by third parties and also if they exceed the assessed legal costs.
The costs incurred by M&D TRUCKS for the purpose of provision of security by client / purchaser, also if this provision of security takes place on the request of M&D TRUCKS, as well as the costs of a petition for bankruptcy, are expressly included in the costs mentioned previously.
5.In case of late payment all detrimental exchange differences will be on the account of client / purchaser. Reference dates for the calculation of the exchange differences are the due date of the invoice and the date on which payment is made.
6.If M&D TRUCKS, on the basis of one or more of the circumstances mentioned in subsection 1, proceeds to termination of the agreement concluded with client / purchaser, then it has claim to prompt return of the matters delivered by it, as well as to compensation at the amount of 15% (fifteen per cent) of the achievement owed by client / purchaser, without prejudice to the right of M&D TRUCKS to compensation of further damage, if it argues convincingly the existence and extent of this further damage. M&D TRUCKS is entitled to setoff money of client / purchaser that it has in its control, on whatsoever basis, with the aforesaid compensation.
7.If client / purchaser, after expiry of the applicable period for take-up, receives written demand from M&D TRUCKS for take-up, and during more than fourteen days from said demand remains in default of payment in full and/or take-up, M&D TRUCKS has the right to terminate the agreement. Any delivery will then be deemed not to have taken place, or the matters delivered will be deemed to have been returned to M&D TRUCKS without payment, and M&D TRUCKS is, without further notification, entitled to sell the sold matter(s) to third party/parties. Any payment made by client / purchaser in that case reverts to M&D TRUCKS as payment for the damage suffered by it, except for proof to the contrary to be provided by client / purchaser that this damage amounts to less and without prejudice to the right of M&D TRUCKS to compensation for the further damage suffered or to be suffered by it.
IX.RETENTION OF TITLE
1.Delivery takes place under retention of title. This proviso applies with regard to claims for payment for all matters delivered and/or work carried out in the context of aforesaid delivery by M&D TRUCKS to client / purchaser pursuant to any agreement, as well as with regard to claims due to the failure of client / purchaser of the fulfilment of his obligations toward M&D TRUCKS on the basis of the aforesaid agreements.
2.M&D TRUCKS is, in the cases mentioned in article VIII, entitled to take back the matters delivered that, in accordance with the previous subsection, remained its property. Such repossession applies as a termination of the agreement(s) concluded with client / purchaser. Client / purchaser irrevocably authorises M&D TRUCKS, in so far as is necessary, to remove (let remove) the matters concerned, and to enter its business premises and sites for this. He will then promptly inform M&D TRUCKS of the location of the matters, and also further provide his full cooperation in the repossession of the matters by M&D TRUCKS.
3.Client / purchaser is not entitled to dispose of matters to which the right of retention of title is attached, to apply these as security for the payments of claims by third parties, establish any commercial or personal rights in favour of a third party thereto, or to make use of these in another manner, if this could cause impairment to the rights of M&D TRUCKS, as owner of the matters concerned.
4.Client / purchaser is obliged to promptly inform M&D TRUCKS of every event or circumstance that could harm the interest of M&D TRUCKS in the matter delivered under retention of title.
5.The matters delivered under retention of title are, until the time of repossession, entirely on the risk and account of client / purchaser, who is obliged to insure and keep insured the matters concerned for the duration of the retention of title, against comprehensive and third party liability. Client / purchaser will, no later than within three days from request thereof by M&D TRUCKS, submit a certified copy of the relevant insurance policy, as well as proof of payment of the premiums owed thereon, in the absence of which M&D TRUCKS is entitled to, on the account of client / purchaser, take out the aforesaid insurance.
Client / purchaser provides irrevocable authorisation to M&D TRUCKS to, on behalf of client / purchaser, collect or setoff claims against the insurer concerned applying to payment loss, theft, damage or decline of the matters delivered under retention of title, with that which client / purchaser owes to it.
6.If as a result of the processing or treatment by client / purchaser the right to retention of title of M&D TRUCKS has been lost, client / purchaser is obliged to provide in favour of M&D TRUCKS, on first request, an undisclosed pledge on the matters that have arisen through the processing or treatment.
7.Client / purchaser is obliged, on first request, to provide an undisclosed pledge on the claims that he has on third parties or will acquire, if he, in breach of the provisions of subsection 3, has made use of the matters delivered under retention of title. In the event that client / purchaser refuses this, this provision will apply as irrevocable authorisation to M&D TRUCKS to bring this right of pledge into effect unilaterally.
8.All costs attached to the exercise of its right to retention of title by M&D TRUCKS are fully on the account of client / purchaser.
X.RIGHT OF RETENTION
M&D TRUCKS is entitled to suspend the fulfilment of the obligation to deliver a matter to client / purchase, which it retains in the context of an assignment, until the claim of M&D TRUCKS with regard to the matter is paid in full including interest and costs, including the costs incurred during the retention period for the purpose of storage or retention of the matter.
1.M&D TRUCKS is not liable for damage arisen as a result of any shortcoming in the fulfilment of its obligation(s) toward client / purchaser, except if client / purchaser demonstrates that the damage is the direct and exclusive result of an intentional act on the part of superiors with representative authority of M&D TRUCKS.
2.M&D TRUCKS is not liable for intentional or gross fault of (non-superior) subordinates or of others that it engaged in the context of the performance of the agreement.
3.M&D TRUCKS is never liable for consequential loss or trading loss, direct damage, consequential damage, whatsoever named, loss of profits and loss owing to stoppage included.
4.The fulfilment of the obligations from guarantee/complaint as described in article VII applies as sole and entire compensation. Any other obligation to compensation, including the obligation to compensation of damage as a result of liability toward third parties, is expressly excluded, unless it is demonstrated that this is the direct and exclusive result of an intentional act on the part of the superior with representative authority of M&D TRUCKS.
5.M&D TRUCKS does not accept liability for the advice provided by or on behalf of it.
6.M&D TRUCKS is not liable for damage to the person or for damage to matters of third parties who are present on its site.
7.The period during which claims can be made against M&D TRUCKS for compensation of damage is in all cases and at the risk of forfeiting the right limited to a period of one year from the occurrence of the event causing damage.
8.The amount for which claims for compensation of damage can be made against M&D TRUCKS is in any event limited to the amount received by M&D TRUCKS from its insurer in that respect.
9.M&D TRUCKS is entitled to setoff any obligation of payment of compensation to client / purchaser with that which it, on whatsoever basis, might be able to claim from client / purchaser.
10.Client / purchaser is obliged to indemnify M&D TRUCKS for all claims that third parties may make against it with regard of the agreement with client / purchaser or the (non)performance thereof, in so far as the law does not object to these claims of third parties for damage and costs ensuing being on the account of client / purchaser.
1.Force majeure on the part of M&D TRUCKS has the consequence that it – at its discretion – can terminate the agreement or suspend the performance thereof, without the obligation to payment of any compensation to client / purchaser or to third parties.
2.If the aforesaid suspension lasts longer than six weeks, then the client / purchaser has the right to terminate the agreement, without entitlement to any compensation from M&D TRUCKS.
If M&D TRUCKS prior to the occurrence of the force majeure already fulfilled part of its obligations toward client / purchaser, it is entitled to invoice separately to client / purchaser for the part already delivered or the deliverable part, client / purchaser is obliged to pay this invoice as if it concerned a separate transaction.
3.Force majeure in the meaning of these general terms and conditions includes any circumstance outside the intention or fault of M&D TRUCKS, whether or not foreseeable at the time of the entering into the agreement, as a result of which the (further) performance cannot reasonably be expected of M&D TRUCKS, such as natural force, (civil) war, riot, whole or partial mobilisation, hindrances caused by government measures, fire or other disruptions in its business, scarcity of raw materials, import and export restrictions or prohibitions, manufacturing and transport disruptions of whatsoever nature, industrial actions, lockout, lack of or excessive absenteeism of personnel, quarantine, epidemics, time lost through frost, theft or embezzlement of matters delivered, failures of computers and/or information systems, shortcomings and/or breach of contract by third parties, who are engaged by M&D TRUCKS for the performance of the agreement, etc.
XIII. PARTIAL NULLITY
If one, or more, provisions of this agreement with client / purchaser are not, or not wholly legally valid, the remaining provisions will not be affected. In place of the invalid provisions a suitable arrangement will apply, that approaches the intention of parties and the economic result strived for by them, in a legally effective manner as far as is possible.
XIV.PLACE OF PERFORMANCE, APPLICABLE LAW, COURT WITH JURISDICTION
1. The place of business of M&D TRUCKS is the place where client / purchaser must fulfil his obligations toward M&D TRUCKS.
2. The law of the Netherlands applies exclusively to all offers and agreements of M&D TRUCKS, with the exception of Part 6:5.3 Civil Code and, in so far as necessary, with the exclusion of the United Nations Convention on international contracts of sale.
3. All disputes that arise by reason of the agreement concluded between client / purchaser and M&D TRUCKS or as the case may be other agreements, that might be the result thereof, will be exclusively adjudicated by the court with jurisdiction in Breda.
These conditions are deposited at the Chamber of Commerce Breda under number 20120998.