General terms and conditions of sale and delivery of MacLean BV
Filed with the Chamber of Commerce under Chamber of Commerce number: 18039063.
Article 1: applicability
- The following general terms and conditions apply to all - including future - agreements in the context of which MacLean BV, with its registered office and principal place of business in (4817 ZK) Breda at Minervum 7093, registered with the Chamber of Commerce under number 18039063, hereinafter referred to as: "seller ", under whatever title supplies goods and/or performs services and/or performs any performance, as well as to statements to be made and/or offers to be made in that context. The seller's counterparty is hereinafter referred to as "buyer".
- These general terms and conditions can be invoked against the customer by anyone engaged by the seller in the context of the implementation of the agreement.
- The general terms and conditions that the customer presents to the seller at any time are expressly rejected.
- If any stipulation that forms part of these general terms and conditions is null and void or is annulled, the rest of the general terms and conditions will remain in effect as far as possible and the stipulation in question will be replaced immediately in consultation between the seller and the buyer by a stipulation that has the purport of the original one. provision as closely as possible.
- Deviations from or additions to these general terms and conditions only apply if and insofar as they are confirmed in writing by the seller to the buyer.
- The messages referred to in these general terms and conditions can, unless otherwise indicated, be sent in writing, by e-mail or by fax.
Article 2: offer
- The offers of the seller are without obligation and are valid for 30 days after their date, unless stated otherwise. The seller has the right, without being liable to pay compensation, to revoke a non-binding offer up to and including the third working day after receipt of the acceptance. In the event that the seller does not send an offer or order confirmation, the delivery note or, if it is not drawn up either, the invoice will apply as such.
- The data that form part of the offer (such as prices, delivery terms, sizes, dimensions, weights, content, composition, colours, technical data, descriptions, designs, models, images, etc.) are as accurate as possible, but are not binding and remain – insofar as relevant – (intellectual) property of the seller. It is not permitted to use, copy or make these documents available to third parties in any way whatsoever without written approval from the seller.
- If the customer does not accept the offer, it is obliged to immediately return the information referred to in the previous paragraph to the seller and to pay the seller a reasonable fee for the work performed by the seller.
- All offers and quotations from the seller in catalogs and other printed matter or otherwise are without obligation, in particular with regard to prices, delivery terms, sizes, dimensions, weights, content, composition, colours, technical data, descriptions and images. This information is always provided by way of approximation.
- Changes and/or promises made after the offer/quotation, either verbally or in writing by the seller, constitute new offers, whereby the previous offer will lapse.
- When providing offers / quotes, the seller assumes that the agreement can be performed under normal circumstances and during normal working hours. Furthermore, the seller bases its offer / quotation on circumstances known to it when making the offer / quotation.
Article 3: agreement
- An agreement between the seller and the buyer is concluded at the moment that the seller has received written acceptance from the buyer of the seller's offer or at the moment that the seller has started to perform the agreement.
- If circumstances arise after the conclusion of the agreement that affect the agreed price, the seller is entitled to charge these (price) changes separately and additionally to the buyer.
- If an acceptance by the buyer deviates from the seller's offer, even if there is only a deviation on minor points, this will be regarded as making a new offer by the buyer and as a rejection of the seller's original offer. If the buyer makes a (new) offer, there will only be an acceptance on the part of the seller if the seller accepts this offer in writing, or if the seller has started to perform the agreement.
- Additional agreements, changes and/or commitments made after the agreement, whether orally or in writing by personnel of the seller, representatives, sellers or other intermediaries, are not binding unless they are confirmed in writing by the seller to the buyer.
- The seller always has the right to demand the provision of sufficient security prior to concluding the agreement. Even after the agreement has been concluded, the seller has the right to do so if it has a reasonable suspicion that the buyer will not fulfill its obligations. This is in any case the case if the buyer does not fulfill any due and payable obligation towards the seller, despite notice of default. In the event that the buyer, despite notice of default, does not provide security, the seller has the right to dissolve the agreement by means of a written statement or to suspend the (further) performance of the agreement, or to immediately pay all that the buyer owes to it. is due to be claimed.
- If the buyer of the seller wishes to cancel an agreement once it has been concluded, and the seller agrees to this, this will always take place on the condition that the buyer compensates the damage suffered or to be suffered by the seller. This damage amounts to at least an amount equal to 50% of the agreed price. The seller has the right to prove that it has suffered a higher damage, in which case the buyer owes the higher damage.
- The customer and its personnel are bound to secrecy vis-à-vis third parties who are not involved in the execution of the agreement with regard to all information of the seller of a confidential nature (including specific product information, factory information and further company information and know-how), all this in the broadest sense of the word that has been made available or has become known to it by the seller. If the customer violates this confidentiality clause, the customer will forfeit an immediately due and payable fine of EUR 5,000, without prejudice to the seller's right to claim full compensation.
Article 4: price
- The prices quoted by the seller are net prices and are exclusive of turnover tax, delivery costs, service costs and other government charges and/or charges of third parties applicable to the sale and/or delivery and/or performance of the agreement.
- The prices stated by the seller are quoted in euros or in another currency agreed in writing by the seller. Any exchange rate differences are at the risk of the customer, unless further agreed in writing.
- The prices quoted by the seller are based on the current prices and specifications applicable at the time of concluding the agreement.
- The prices quoted by the seller are based on the circumstances known to the seller when the agreement was entered into.
- The prices quoted by the seller are based on the performance of the agreement under normal and customary circumstances.
- The seller reserves the right to charge the buyer a proportional price increase if, after the conclusion of the agreement, an increase occurs in one or more price-determining factors, including wages or premiums, materials and price changes.
- The provisions of sub 4.6 of these general terms and conditions also apply if the changes in the price-determining factors referred to there are the result of circumstances already foreseeable at the time of the conclusion of the agreement.
- If the application of Article 4.6 should lead to a price increase of 10% or more and the price increase does not arise from the law, the customer has the right to dissolve the agreement by registered letter within 1 week after the seller has announced that he will increase the agreed price. . This right lapses if the customer does not dissolve the agreement in the prescribed manner within 1 week. The seller can deprive this dissolution of its effect by still honoring the agreement at the original price.
- If circumstances arise after conclusion of the agreement that can be attributed to the buyer as a result of which costs have arisen for the seller, the buyer is obliged to pay these to the seller.
Article 5: deliveries risk
- Specified delivery times and/or specified delivery dates are only indicative and never fatal, unless otherwise agreed in writing. If and insofar as a written strict deadline has been agreed, and the seller does not meet this term, the seller will only be in default after the buyer has given it written notice of default, and in connection therewith set a reasonable period to be determined after consultation with the seller, and seller allows that period to expire unused.
- The stated delivery times and/or completion dates are based on the (working) conditions applicable at the time of the conclusion of the agreement and assume timely delivery of the materials and/or parts ordered by the seller for the implementation of the agreement, failing which the delivery times and/or delivery dates are extended in consultation with the customer by a period to be reasonably determined by the seller.
- Unless otherwise agreed in writing, the transport/shipment will be at the seller's expense for an order value of more than € 550.00. If the order value is less than € 550, the seller will charge the buyer for transport and packaging costs. The actual delivery to the delivery address is at the risk of the customer. The delivery address of the goods must, in the opinion of the seller, be accessible by truck.
- The method of transport/shipment as well as the method of packaging the goods is determined by the seller.
- Seller is entitled to deliver in parts. In that case, the seller will always state the delivery times for each partial delivery.
- If the buyer refuses acceptance of the goods, the return freight, storage costs and other costs will be borne by the buyer. The seller is not obliged to insure himself for the storage of these items.
- The seller will inform its buyer as soon as possible of a (threatened) exceeding of a term.
- Subject to evidence to the contrary, the goods are deemed to have been delivered in accordance with the information on the shipping documents in terms of number, weight, type and size. Deviations and other defects immediately visible upon delivery must be noted immediately on the receipt document to be issued to the carrier and must be reported to the seller by registered letter within two working days after delivery, failing which no further appeal can be made to these deviations and defects. can be done.
- The risk of the goods to be delivered is transferred to the customer at the time of delivery, regardless of what has been agreed between the seller and the customer regarding costs of transport and insurance.
- The customer is obliged to fully cooperate with the delivery and to ensure a prompt unloading of the goods from the means of transport, whereby waiting times must be avoided.
- The buyer of the seller is obliged to provide the necessary cooperation for the performance, including the cooperation to take delivery of the purchased item. If the seller's buyer refuses to take delivery of the item, he will be in creditor default at the moment of this refusal and the seller will retain the item at the buyer's expense and risk. The seller does not have to insure the item in question and can charge the costs of storage and the like at its applicable rates.
Article 6: payment
- Unless agreed otherwise in writing, payment must be made by the customer within 30 days of the invoice date. This term is a strict deadline, upon expiry of which term the customer is in default by operation of law and without further notice of default being required. Settlement against claims that the buyer claims to have against the seller is excluded.
- In the event of non-payment within the period referred to in Article 6.1, contractual interest is due, equal to an interest rate of 1.5% per month or the statutory interest if this is higher, whereby part of the month is counted as a full month, with effect from the first day after the expiry of the payment term referred to in Article 6.1.
- In the event of non-payment within the period referred to in Article 6.1, the customer will owe collection costs. The extrajudicial collection costs are set at 15% of the amount due with a minimum of € 150.00.
- If the seller is found in the right in legal proceedings, in addition to the extrajudicial collection costs, all costs incurred by it in connection with these proceedings (including lawyer's fees and internal costs) will also be borne by the customer.
- Payments made by the customer always serve to settle all interest and costs owed and subsequently to settle claims from the agreement that have been due and payable the longest, even if the customer states that the payment relates to another claim.
- The customer is not entitled to refuse or suspend the fulfillment of its payment obligation on the basis of alleged defects in the item and for any other reason.
- In the event of liquidation, insolvency, application for bankruptcy or suspension of payment of the buyer, the seller's claims, for whatever reason, are immediately due and payable with the buyer.
- At all times, the seller has the right to demand security from the buyer, in whatever form, for the fulfillment of all its obligations under the agreement.
Article 7: suspension
The seller is authorized to suspend its performance (including future partial deliveries) if the buyer does not fulfill one or more of its obligations or if the seller has become aware of circumstances that give it good grounds to fear that the buyer will not fulfill its obligation. will comply with, subject to deviating mandatory legal provisions. In that case, the seller is also authorized to unilaterally change the agreed payment conditions.
Article 8: warranty
- Seller provides no further or other warranty on the goods sold by it than the warranty provided by the manufacturer of the goods.
- In the event that defects occur in an item, no warranty applies at all if these defects are the result of normal wear and tear, incorrect operation or improper treatment, abuse, use contrary to the instructions given by the seller, negligence, accident, failure to compliance with the maintenance instructions and/or normal maintenance care or if the item has been repaired or modified without prior written permission from the seller or if it is used for purposes other than normal.
- Transport costs incurred in the context of invoking the guarantee shall be borne by the customer
- For RetroFix LED products, the warranty period stated in the warranty certificates supplied separately applies.
- Unless agreed otherwise in writing, any (installation) costs involved in the removal and/or replacement of the defective or defective RetroFix LED products and/or the installation of the new LED products are at all times for the account of the customer.
Article 9: Complaints
- The customer is obliged to inspect the item as soon as it has received it and to determine whether the item is sound and in accordance with the provisions of the agreement or whether the work has been carried out in accordance with the provisions of the agreement.
- Any complaints with regard to the goods delivered by the seller and with regard to work carried out as well as with regard to invoice amounts must be submitted to the seller in writing within five working days after receipt of the goods or after the work has been carried out or after receipt of the invoice. submitted, accurately stating the facts to which the complaint relates. Goods collected from the seller's warehouse must be inspected by the buyer upon receipt for external defects, shortcomings and the like and these must be reported to the seller without delay.
- If the applicable warranty described in Article 8 is found to be justified, the seller will assist the customer in invoking the customer's rights against the manufacturer.
- Goods sold can be returned to the seller, for whatever reason, only after prior written approval, accompanied by shipping or other instructions, from the seller.
Minor deviations and differences in quality, number, size or finish, or differences in the performance of the work, which are customary in the sector, cannot constitute grounds for complaints.
- Complaints with regard to a certain item or with regard to certain activities do not affect the obligations of the customer with regard to other items, parts and/or activities of the agreement.
- Complaints do not suspend payment obligations.
Article 10: retention of title, pledge and retention
- Goods delivered and/or to be delivered by the seller remain the property of the seller until the buyer has paid the seller for the goods delivered or to be delivered pursuant to the agreement, as well as the claims for failure to comply with such an agreement.
- The customer is not permitted to alienate, pledge or grant a third party any other right to the goods delivered under retention of title.
- The customer is obliged to store goods delivered under retention of title with due care and as recognizable property of the seller.
- If the buyer fails to fulfill its payment obligation towards the seller or if the seller has good reason to fear that the buyer will fail to fulfill its obligations, the seller is entitled to take back the goods delivered under retention of title.
- The seller is not obliged to indemnify the buyer against any liability as holder of the item.
- The buyer indemnifies the seller against claims that third parties have against the seller and which can be related to the retention of title.
- In the event that the seller wishes to exercise its property rights referred to in this article, the buyer gives unconditional and irrevocable permission in advance to the seller and third parties to be designated by the seller to enter all those places where the property of the seller is located and to take back those goods.
- Between the seller and the buyer, a right of pledge is established for the benefit of the seller on movable - non-registered - property - which the seller acquires from the buyer - as security for the claims that the seller has or will acquire against the buyer, for whatever reason. . The right of pledge is established without further formality at the moment that the seller takes possession of the item in question.
- The seller is also entitled to exercise a right of retention accruing to it for the payment of all that the buyer owes it for whatever reason.
Article 11: force majeure
- In the event that force majeure delays or prevents the execution of the agreement, both the seller and the buyer are authorized to terminate the agreement in writing, without the buyer being entitled to any compensation, except insofar as the seller would enjoy an advantage as a result of this dissolution. that the seller would not have had if the agreement had been properly fulfilled.
- Force majeure on the part of the seller also includes any circumstance that has arisen through no fault of the seller as a result of which the normal performance of the agreement is prevented. Circumstances such as force majeure are in any case: loss, damage and/or delay during and due to transport, extreme absenteeism of staff, actions/measures at customs, internet/computer malfunctions, fire, serious malfunctions in the seller's or at the seller's suppliers.
Article 12: liability
- Without prejudice to article (8) of these general terms and conditions, the seller is never liable for direct and indirect damage, unless there is intent or gross negligence on the part of the seller.
- If, contrary to Article 12.1, the seller is liable for any damage, the seller's liability is always limited to direct damage to property or persons and it never extends to any trading loss or other consequential damage/indirect damage, including loss of income.
- In the event that, contrary to the provisions of Article 12.1, the seller should be liable for damage, the seller's liability is furthermore limited to the price for which the buyer bought the item that caused the damage, or to the amount paid by the buyer for the agreement. is payed.
- In the event that a court decision that has become final and binding deems the provisions of sub 14.3 to be unreasonably onerous, the seller's liability is limited to that damage and at most to those amounts against which the seller is insured and up to which amount the insurer actually pays out, or would reasonably have been insured, in view of the practice applicable in the industry.
Article 13: indemnification
The buyer indemnifies the seller against any damage suffered by a third party as a result of the use of products supplied by the seller to the buyer.
Article 14: dissolution
- If the customer does not, not in time or not properly, despite warnings stating a reasonable term, meet any payment obligation arising from any agreement concluded with the seller, as well as in the event of suspension of payment, bankruptcy, placing under guardianship or liquidation of the buyer's company, the seller is entitled to dissolve the agreement or part thereof without judicial intervention.
- Due to the dissolution, existing claims on both sides become immediately due and payable. The customer is liable for damage suffered by the seller, including interest, loss of profit and transport costs.
Article 15: disputes and applicable law
- Dutch law applies to all agreements to which these terms and conditions apply in whole or in part.
The provisions of the Vienna Sales Convention are not applicable, nor are any future international regulations on the sale of movable property, the effect of which can be excluded by the parties.
- All disputes arising from offers made by the seller and agreements concluded by the seller, by whatever name, will in the first instance be exclusively submitted to the District Court of Zeeland-West-Brabant, Breda location, without prejudice to the right of the seller to take legal action against its customer. before an otherwise competent court, without prejudice to the right of appeal and cassation.