General Delivery Terms and Conditions of Network4Cars Trading B.V. in Nieuw-Vennep, registered in the Trade Register of the Chamber of Commerce under number 28094651 version October 2009
Article 1 Definitions
In these General Terms and Conditions the following terms shall be used within the following meaning, unless expressly indicated otherwise:
• User: the user of these General Terms and Conditions, i.e. Network4Cars Trading B.V.
• Other Party: the contractual party of the User, acting in the course of a profession or business.
• Agreement: the agreement concluded by and between the User and the Other Party.
Article 2 General
1. The provisions of these General Terms and Conditions are applicable to each and every offer, proposal and agreement concluded by and between the User and the Other Party to which the User declared these General Terms and Conditions applicable.
2. These General Terms and Conditions are also applicable to all agreements with the User for the execution of which third parties must be hired. The User is entitled to hire third parties.
3. Applicability of the General Terms and Conditions of the Other Party is hereby expressly excluded.
4. If one or more provisions of these General Terms and Conditions is invalid or cancelled the other provisions shall remain in full force. The User shall replace the relevant provision by another provision where if and to the extent possible the objective and the scope of the original provision are taken into account.
5. If these General Terms and Conditions refer to in writing this is understood as: facsimile, (registered) post, email or bailiff’s notification, delivered document provided the receipt is confirmed in writing.
6. The User is entitled to amend and/or supplement these General Terms and Conditions. Amendments or supplements are applicable with regard to new and existing Agreements. If the Other Party does not accept the amendment or supplement the already existing Agreement shall be completed pursuant to the old General Terms and Conditions.
Article 3 Offers and proposals
1. All offers and proposals are without engagement, unless a deadline for acceptance is mentioned in the offer or proposal. Prices are in EUR and are excluding VAT, service and transportation costs and administrative charges.
2. Delivery times of the User are indicative and do in case of overstepping not entitle the Other Party to dissolution or compensation for damages.
3. If the acceptance deviates (on subordinate points) from the offer included in the proposal the User shall not be bound by the same. The Agreement shall in that case not be concluded in accordance with the deviating acceptance, unless indicated otherwise by the User.
4. Offers or proposals are not automatically applicable to repeat orders or future orders.
Article 4 Term and execution of the Agreement
1. The Other Party provides for the timely supply of all information of which the User indicates that it is necessary or of which the Other Party ought to understand that it is necessary for the execution of the Agreement. If not supplied in a timely fashion the User shall be entitled to suspend the execution of the Agreement and pass on the extra costs resulting from the delay.
Article 5 Delivery
1. Delivery takes place Ex Works of the User.
2. The Other Party is obliged to purchase the goods at the moment that the User delivers or has delivered the same or at the moment that these are rendered available to the same in accordance with the Agreement.
3. If the Other Party refuses or fails to supply information necessary for the delivery the User shall be entitled to store the goods at the risk and expense of the Other Party.
4. If it has been stipulated that the Agreement is executed in phases the User can suspend the execution of the next phase (the delivery of ordered cars) until the Other Party has paid the invoice in connection with the preceding phases.
5. The cars must forthwith, yet not later than within 14 days after notification that the cars have been paid and are ready, be picked up failing which the Other Party shall per car be held to pay garage charges for a total amount of EUR 50.00 per week, such without prejudice to the right of the User to claim additional damages such to, among other things, include the costs associated with insurance and transportation.
Article 6 Inspection, right to complain
1. The Other Party is held to inspect (have inspected) the delivered goods on quality and quantity at the moment of the delivery.
2. Visible defects must be reported to the User in writing within 2 working days after the delivery. Invisible defects must be reported forthwith after discovery yet not later than within one month after the delivery.
3. Even if a complaint is lodged in a timely fashion the Other Party shall remain obliged to purchase and pay the cars.
Article 7 Payment
1. Payment must take place in EUR before the cars are picked up by or under the authority of the Other Party. Payment must, however, not take place later than 7 days after the date of the invoice. Payment must take place by bank transfer.
2. The Other Party is not entitled to settlement or suspension.
3. If the Other Party defaults in payment the Other Party shall automatically be in default. The Other Party shall then be held to pay interest of 1% per month, unless the statutory commercial interest is higher in which instance the statutory commercial interest shall be applicable. The interest over the payable amount shall be calculated as from the moment of default up to the moment of complete payment. Apart from interest the Other Party is held to compensate all extra costs incurred by the User as a result of the default of the Other Party. “Extra costs” is understood as, among other things, the extra garage and insurance costs to be incurred. If the Other Party does not pay the complete amount payable to the User within the deadline within the meaning of this article 7 the User shall be entitled to sell the cars to a third party and the difference between the price the Other Party would have paid and the price paid by the relevant third party shall be included under the aforementioned “extra costs”.
4. If the Other Party is in default or fails to comply with one or more of its obligations by virtue of the Agreement all reasonably incurred costs to obtain compliance extrajudicially shall be at the expense of the Other Party. The Other Party is also held to pay interest over collecting costs.
5. The User is entitled to in the first place have payments effectuated by the Other Party extend to reduction of the costs, then the overdue interest and finally the accrued interest and the principal amount. Payments first inure to the benefit to the longest outstanding invoice.
6. The User can, without thus being in default, refuse a payment offer if the Other Party designates a different order for the allocation.
7. The user can refuse complete payment of the principal amount if this does not also include payment of the overdue and accrued interest as well as the costs.
Article 8 Reservation of title
1. All the goods delivered by the User shall remain the property of the User until the Other Party has complied with all its obligations by virtue of the Agreements concluded with the User.
2. The Other Party is not authorised to pledge the goods delivered under reservation of title or to encumber (have encumbered) the same in any other manner whatsoever.
3. If third parties impose an attachment on the goods delivered under reservation of title or if they intend to vest or exercise rights in connection therewith the Other Party is obliged to forthwith inform the User accordingly.
4. The Other Party undertakes to insure and keep insured the goods delivered under reservation of title against fire, explosion and water damage as also against theft and to on demand provide insight into the policy of this insurance. In case of a possible payment under this insurance the User shall be entitled to the same.
Article 9 Warranty
1. A manufacturer’s warranty is by default applicable to cars (as applicable in the country of the original supplier). The time limit of the warranty expires 1 year after delivery.
Article 10 VAT zero rate
1. If a car is sold to another Member State of the European Union and at the request of the Other Party invoicing takes place in accordance with the VAT zero rate the Other Party undertakes to comply with all required conditions in order to realise a valid intraCommunity transaction. The Other Party indemnifies the User against all damages deriving from the noncompliance with said conditions.
2. If applicability of this rate appears to for any reason whatsoever be impossible the Other Party shall yet be held to pay an amount equal to the sum that would have been payable in case there would have been question of a domestic delivery.
3. In case of delivery to another Member State of the European Union the Other Party must moreover sign a destination declaration drawn up by the User for the benefit of the VAT verification by the Dutch Tax Authorities.
Article 11. Suspension, termination, cancellation and modification
1. The User is authorised to suspend the fulfilment of the obligations deriving from the Agreement – without any obligation on the part of the same to pay any costs or compensation for damages – or to dissolve the Agreement where all claims of the User visàvis the Other Party shall be due and payable if:
a. the Other Party does not, untimely or incompletely comply with the obligations on account of the Agreement;
b. after the conclusion of the Agreement the User is informed of circumstances that give good cause to fear that the Other Party shall not comply with the obligations;
c. upon the conclusion of the Agreement the Other Party was requested to provide security for the compliance with the obligations on account of the Agreement and this security fails to materialise or is insufficient;
d. as a result of a delay on the part of the Other Party it can no longer be expected of the User that the same shall comply with the Agreement under the originally stipulated conditions;
e. a windingup petition is filed for the Other Party or if the insolvency has been pronounced or a liquidator has been appointed;
f. the Other Party filed for suspension of payment or suspension of payment has been granted to the Other Party;
g. there is question of liquidation, attachment or an essential change in the control over the Other Party.
2. An order accepted by user or an (executed) agreement cannot be cancelled or terminated, unless both parties cancel or terminate the agreement by way of extrajudicial further written agreement. Unilateral termination by the other party is excluded in all cases. When the other party gives a written motivation why he/she wants to cancel and user indicated to agree with the cancellation of the order. The cancellation costs will be at least 15% or more as user indicates and are for the account of the other party if the other party is accountable for the cancellation.
3. It is also excluded that the other party has the authority to annul the agreement due to vitiated consent in the sense of art. 3.44 BW jo 6:228 Civil code c.a. Other party is a professional market party who has an extensive research obligation that due to the nature of the agreement goes beyond the information obligation of the user. Other party is also not authorised to modify (have modified) the consequences of the agreement based on art. 6:230 Civil Code.
4. The agreement can be terminated prematurely by the user. User will then ensure for thorough transfer of already performed work activities to third parties, unless the other party is accountable for this termination.
Article 12 Liability and indemnification
1. The liability of the user towards the other party is in all cases limited to direct damage and also maximised to the amount for which he/she is insured.
2. Direct damage is: the reasonable costs, made:
a. To establish the cause and the scope of the damage;
b. To make the faulty performance of the user meet the agreement, unless the user cannot be held accountable for this fault based on the agreement;
c. To prevent or limit the damage.
3. User is not liable for indirect damage, consequential damage, loss of profit, missed savings, damage caused by breach of intellectual property rights of third parties and damage due to company stagnation.
4. A communication of damages to cars delivered by the User shall only be processed if the User is informed of the damages in writing within 24 hours after the delivery by means of an annotation on the CMR consignment note and by means of the presentation of documented pictures (licence registration number / chassis number / feature visible).
5. Damages are understood as, among other things, damages to the lacquer (scratches that cannot be removed through polishing, visually detectable from all sides; compensation at most EUR 150.00 per panel) and indents (visually detectable at a 3metre distance from the car of each side; the level of the damages is determined by an expert of the User).
6. The Other Party indemnifies the User against possible claims of third parties in instances in which the cause of the damages cannot be blamed on the User.
Article 13 Confidentiality
1. The parties are bound by confidentiality with regard to all confidential information of which they back and forth dispose within the framework of the Agreement when this has been communicated by the User or the Other Party or when this derives from the nature of the information.
Article 14 Disputes and applicable law
1. The District Court in The Hague is exclusively competent to take cognisance of disputes concerning these General Terms and Conditions.
2. Dutch law is applicable to each and every Agreement. The applicability of the Vienna Sales Convention is expressly excluded.
The Dutch General terms and conditions are always binding. The translations that we provide to you have been produced with the greatest possible care but only serve as a tool to which no appeal can be made in court.