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TERMS AND CONDITIONS OF SALE

 

MACHINERY M.D BV

Afrikalaan 5-A in (7681ND) Vroomshoop

Registered in the Dutch Chamber of Commerce under number: 83232192

 

Article 1 Definitions

In these terms and conditions, the following terms are meant to be understood as follows:

‘Machinery md bv’: vendor and supplier providing Things and/or services to the Other Party;

‘Other Party’: each party concluding an Agreement with Machinery md bv, or with whom Machinery md bv is in negotiation with about the conclusion of an Agreement;

‘Agreement’: the Agreement to deliver Things and/or the provision of services;

‘Things’: the (building) constructions, vehicles and/or components of vehicles to be delivered by Machinery md bv.

 

Article 2 Applicability of these conditions

These conditions apply to all (precontractual) legal relationships for which Machinery md bv acts in the capacity of vendor, supplier of Things or service provider. The applicability of the (purchase) terms and conditions used by the Other Party is hereby expressly ruled out.

 

Article 3 Offers and formation Agreement

  1. All offers of Machinery md bv are without obligation and subject to approval and also subject to availability, even though a period for acceptance is stipulated in the offer.
  2. Machinery md bv may not be obligated to its offers if the Other Party may reasonably understand that the offers, or a part thereof, comprise an obvious error or clerical error. No rights may be derived from texts and photos of the Things delivered by Machinery md bv.
  3. The prices specified in an offer are excluding VAT and other government levies as well as excluding any (additional) costs incurred in the context of the Agreement, including travel and accommodation, dispatch and transport costs, installation and assembly costs, unless expressly indicated otherwise in writing.
  4. If the acceptance (whether or not in minor respects) deviates from what is set out in the offer, then Machinery md bv will not be obligated to it. The Agreement will, in that case, not be formed in accordance with this deviating acceptance, unless Machinery md bv expressly specifies otherwise in writing.
  5. Offers do not automatically apply for future offers and orders.
  6. The deviating acceptance of the Other Party applies as an entirely new offer to Machinery md bv.
  7. In case the Agreement is formed with multiple Other Parties, these are in all cases jointly and severally liable towards Machinery md bv.
  8. Contact of Other Party expressly states to be competent to conclude Agreements with Machinery md bv and to represent Other Party in a legally valid manner.

 

Article 4 Delivery and complaint

  1. Unless agreed upon otherwise, delivery expressly takes place Ex Works, in accordance with Incoterms 2010. The delivery will only take place after the agreed upon purchase price is received by Machinery md bv.
  2. Regardless of article 4.1, parties may agree that Machinery md bv handles the transport. Only what is set out in writing between parties applies. However, the risk of storage, loading, transport and unloading resides with the Other Party at all times. Other Party will expressly insure themselves against these risks. Machinery md bv is never liable for the damage and loss following from aforementioned risks.
  3. Other Party is obligated, after the formation of the Agreement, to take possession of the purchased Things within no more than 72 hours.
  4. If the Other Party does not take possession of the Things within the period specified in article 4.2 or refuses to take possession of the Things or is in default with the provision of information or instructions, necessary for the delivery, Machinery md bv may dissolve the Agreement and the advance payment will be owed as amount of the loss.
  5. The Other Party is allowed to do extensive testing and checking of the Things prior to the formation of the Agreement. Machinery md bv does not guarantee visible and non-apparent defects as well as the service life of the delivered Things after delivery.
  6. Other Party accepts the purchased Things expressly in the condition, including any known and hidden defects, as it was at the time of delivery. After receipt of the Things, Other Party may therefore no longer invoke any defects of the Thing. To the extent that there is to have been an unsound delivery, Machinery md bv is at all times entitled to request return of the deliver Things and to then deliver new Things or to dissolve the Agreement.

 

 

 

  1. In addition, Machinery md bv is at all times entitled to further examine the complaint of Other Party (also at the location of Other Party) or to have the examination be carried out by an expert on location. In this context, Other Party always needs to provide necessary cooperation in order to enable the expert and Machinery md bv to carry out the inspection or the examination on the terrain of Other Party.
  2. Exchange of purchased Things is not possible, unless agreement in writing from Machinery md bv is given.

 

Article 5 Delivery period

An agreed upon delivery period is never a strict deadline, unless expressly agreed upon otherwise. Other Party always needs to put Machinery md bv in default in writing and provide a reasonable period for delivery, for which the reasonable period will amount to at least 14 days. If Machinery md bv then remains in default to deliver in a timely manner, then Other Party is entitled to dissolve the Agreement. The Other Party does not have this last right if the Other Party is in (creditor’s) default.

 

Article 6 Suspension and dissolution of the Agreement

  1. Machinery md bv is competent to always suspend the performance of the obligations or to dissolve the Agreement, in the following situations:

– the Other Party does not comply with the obligations of the Agreement, or does not do so completely or not in a timely manner, Dissolution will be at issue after the Other Party has been put in default to this end, notwithstanding other circumstances indicated in the present terms and conditions;

– circumstances that Machinery md bv has learned about after concluding the Agreement give good cause for concern that the Other Party will not comply with its obligations;

– the Other Party is request, upon concluding the Agreement, to provide security to comply with the obligations from the Agreement and this security is not forthcoming or is insufficient;

– in the event of bankruptcy, suspension of payment or debt restructuring of Other Party.

  1. Furthermore, Machinery md bv is competent to dissolve the Agreement if circumstances take place which are of such nature, all to the discretion of Machinery md bv, that performance of the Agreement is impossible or if there are otherwise circumstances which are of such nature that unchanged maintenance of the Agreement cannot be reasonably required from Machinery md bv, all at the discretion of Machinery md bv.
  2. If the Agreement is dissolved then the obligations to undo which follow from the dissolution are immediately demandable.
  3. If Machinery md bv has suspended the performance of the obligations, it retains its claims pursuant to the law and Agreement as well as the present terms and conditions at all times.
  4. If Machinery md bv proceeds to suspension or dissolution, then it is in no way obligated to the reimbursement of any (direct or indirect) damage, loss or costs, pursuant to any reason whatsoever.
  5. If it can be attributed to the Other Party that Machinery md bv dissolves the Agreement, then the Other Party is obligated to reimburse the damage and loss (including such things as storage costs, transport costs and lost profits) to Machinery md bv which Machinery md bv directly or indirectly suffers as a result of the dissolution. In this context, regardless of the aforementioned, the Other Party owes, in any case, compensation of 10% of the agreed upon purchase price, and this compensation is directly due and payable, without further notice of default.

 

Article 7 Guarantees and Liability

  1. Information provided by Machinery md bv (including information on the website, printed matter, advertisements, drawings and images of Machinery md bv) pertaining to the Things, is not binding and provided by Machinery md bv in good faith. This provision is also at issue as it relates to provided hour standings, build years and maintenance history. Other Party may never invoke information provided by Machinery md bv in the context of noncompliance or compensation.
  2. Upon concluding the Agreement, the Other Party is considered to be aware of all specification of importance to the Other Party of the purchased Things.
  3. Machinery md bv provides no guarantees whatsoever on Things sold by it and does not accept any liability whatsoever for any (direct or indirect) damage and loss, unless there expressly is a case of willful misconduct or gross negligence on the side of Machinery md bv.
  4. To the extent that there would be any liability on the side of Machinery md bv, the liability is always limited to the amount that the insurer of Machinery md bv wishes to reimburse.
  5. To the extent that Machinery md bv would be liable for any damage and loss pursuant to any reason whatsoever and the insurer does not provide any cover in the matter, then the liability of Machinery md bv is at all times limited to no more than € 5,000 or the net invoice amount with regard to the purchase price specified in the confirmation of assignment.
  6. Machinery md bv is never liable for indirect damage and loss, also including consequential damage and loss, lost profit, lost savings and loss due to business interruption etc.

 

Article 8 Transfer of risk

The risk of loss, damage or decrease in value transfers to the Other Party at the time that the Things are delivered to the Other Party.

 

 

Article 9 Retention of title

  1. The Things delivered by Machinery md bv remains the property of Machinery md bv until the Other Party has fully complied with all obligations from the Agreement concluded with Machinery md bv.
  2. If the Other Party does not perform its obligations or if there is well-founded fear that the Other Party will not do so, Machinery md bv is entitled to pick up the delivered Things on which the retention of title referred to in paragraph 1 resides with the Other Party or third parties (which keep the thing for the Other Party). The Other Party is obligated to provide all cooperation with this, subject to a penalty payment of 10% of the purchase price per day.
  3. Other Party is not allowed to pledge the Things delivered under retention of title or establish other limited rights on these Things for the benefit of third parties.
  4. As long as the property has not transferred to Other Party, Other Party is not competent to alienate the Things delivered to Other Party, in whole or in part.
  5. The Other Party is obligated, upon first request of Machinery md bv.

– to insure the Things delivered under retention of title and keep it insured against fire, explosion and water damage and against theft and to provide the policy of this insurance for inspection;

– to pledge all claims of the Other Party on insurers pertaining to the Things delivered under retention of title to Machinery md bv in the manner prescribed in art. 3:239 of the Dutch Civil Code;

– to also sell the Things delivered under retention of title by Machinery md bv towards its purchasers by requiring a retention of title;

– to the extent that the Things delivered by Machinery md bv cannot be resold under a retention of title by Other Party, Other Party needs to cooperate with establishing a pledge by virtue of article 3:329 of the Dutch Civil Code on the claim of Other Party on its purchaser of the Things.

– to characterize the Things delivered under retention of title at all times as the property of Machinery md bv;

– to provide cooperation in other ways to all reasonable measures which Machinery md bv wishes to take to protect its ownership right pertaining to the Things.

 

 Article 10 Payment

  1. Payment needs to take place within 7 days after the invoice date, aforementioned date is a strict deadline,

– or by means of legal tender at the offices of Machinery md bv; or by bank transfer of the amount owed to the bank account number of Machinery md bv.

After the lapse of 7 days after the invoice date, the Other Party is in default without further notice of default; the Other Party owes an interest on the amount due and payable from the time of default of 2% per month, for which a part of a month will apply as full month.

  1. In the event of winding-up, bankruptcy or suspension of payment of the Other Party or when application of the debt restructuring scheme is declared in respect of the Other Party, the obligations of the Other Party will be immediately due and payable.
  2. Any disputes between Machinery md bv and Other Party about quality or pursuant to other complaints submitted by the Other Party do not provide the purchaser with the right to suspend the payment. For this, Machinery md bv expressly refers to article 4.

 

Article 11 (Collection) costs

If the Other Party does not comply with one of its obligations, or not in a timely manner, then the following, in addition to the agreed upon price, is at the expense of the Other Party:

– all costs to obtain payment extrajudicially, also including the costs for drawing up and dispatching demands for payment, making a settlement offer and making inquiries. In any case, the Other Party, who cannot be designated as consumer, is owed 10% of the agreed upon purchase price. For consumers, the extrajudicial costs are calculated on the basis of the Extrajudicial Collection Costs (Fees) Decree. If Machinery md bv has incurred higher costs, then these are also eligible for reimbursement.

– all costs to obtain payment judicially.

 

Article 12 Force majeure

  1. Machinery md bv has the right to suspend the performance of its obligations, if temporarily prevented from performing its contractual obligations towards Other Party due to force majeure.
  2. Force majeure is meant to be understood as, among other things, the circumstance that suppliers and/or subcontractors of Machinery md bv do not comply with their obligations, or do not do so in a timely manner, the weather, earthquakes, road blockades, fire, pandemics causing stagnation in transport and delivery, theft and vandalism, lost materials (to be processed), import or trade restrictions, government measures, defects to machines, failures in the provision of power, in short all circumstances outside of the control of Machinery md bv.
  3. Machinery md bv also has the right to invoke force majeure, if the circumstance which prevents (further) performance enters into effect after Machinery md bv should have performed its obligation.
  4. If the period in which performance of the obligations by Machinery md bv is not possible due to force majeure lasts longer than two months, both parties are competent to dissolve the Agreement, without there being any obligation to compensation in that case.

 

 

  1. If Machinery md bv, at the time of the force majeure entering into effect, already complied with part of its obligations, or can only comply with part of its obligations, it is entitled to invoice the part which is already delivered or the deliverable part and the Other Party is obligated to pay this invoice as if it concerned a separate agreement. However, this does not apply if what is already delivered or the deliverable part has no independent value.

 

Article 13 Indemnification

  1. The Other Party indemnifies Machinery md bv for all claims of third parties, which directly or indirectly relate to the execution of the Agreement or follow from the law.
  2. If Machinery md bv would be addressed by third parties for that reason, then the Other Party is obligated to assist Machinery md bv both judicially and extrajudicially and immediately do all which may be expected of Machinery md bv in that case. If the Other Party remains in default in taking adequate measures, then Machinery md bv is entitled to proceed to do so themselves, without notice of default. All costs and damage and loss arising because of it on the side of Machinery md bv and third parties is integrally at the risk and expense of the Other Party.

 

Article 14 Applicable law and competent court

  1. The Dutch law applies exclusively to all (precontractual) legal relationships to which Machinery md bv is a party, also if an obligation is in whole or in part implemented abroad or if the party involved to the legal relationships has its domicile there.
  2. The court in the place of business of Machinery md bv has exclusive jurisdiction to take note of disputes, unless the law prescribes otherwise. Nevertheless, Machinery md bv has the right to submit the dispute to the court competent in accordance with the law.
  3. The provisions of the Vienna Convention on Contracts for the International Sale of Goods do not apply, just like any future international scheme pertaining to the purchase of movable Things, of which the effect may be ruled out by parties.
  4. To the extent possible, Machinery md bv will observe the applicable privacy regulations.

 

Article 15 Translation conditions

The Dutch translation of the terms and conditions is always the determining factor for its interpretation.