General terms and conditions of Big Machinery B.V.
ARTICLE 1 – DEFINITIONS
In these general terms and conditions and the contracts that are subject to these general terms and conditions, the following terms have the following meanings:
BM: Big Machinery B.V. and Big Trucks B.V., private limited companies listed in the Commercial Register under number 11057440 and 24367007, having its principal place of business at Schiemerik 1 in (5334 NL) Velddriel, the Netherlands, hereinafter both referred to as “BM”, which declares these terms and conditions applicable within the context of a quotation and/or offer issued to or Contract concluded with a Client.
Client: The natural person or legal entity giving an assignment for the purchase/delivery of Machines or receiving a quotation for this.
Contract: The Contract, in the form of a pro forma invoice between BM and the Client.
Machines: The Machines delivered or to be delivered by BM to the Client, as specified in the Contract.
Working Days: The days on which banks are open in the Netherlands
ARTICLE 2 – APPLICABILITY
2.1. These general terms and conditions apply to all deliveries of Machines by BM to the Client and form part of all Contracts concluded with the Client and also apply to all non-contractual situations between BM and the Client, including negotiations and quotations, even if these do not result in the conclusion of a Contract.
2.2. Any different terms and conditions only apply if they have been explicitly accepted by BM in writing and only apply to the relevant Contract(s).
2.3. Any changes and supplements to any provision of the Contract are only valid if they have been laid down in writing and have been signed by both parties.
2.4. The Contract, including all terms and conditions applicable thereto, sets out the entire contents of the parties’ rights and obligations and replaces any and all previous written and oral agreements, declarations and/or statements made by the parties.
2.5. If any provision of these general terms and conditions is invalid for whatever reason, the remaining terms and conditions will continue in force and the parties will conduct negotiations on the contents of a new provision, which provision will approximate the contents of the original provision as closely as possible.
ARTICLE 3 – OFFER
3.1. All offers made by BM are always without obligations in terms of price, content and execution and in terms of delivery time and availability. If the offer is accepted by the Client, BM will be entitled to withdraw the offer within two Working Days of receipt of the acceptance.
3.2. The contents of all price lists, brochures and other information issued with an offer are specified as precisely as possible. The relevant information will only be binding on BM if the information has been expressly confirmed by BM in writing.
3.3. A combined quotation does not oblige BM to perform part of the assignment for a corresponding proportion of the price mentioned in the offer. Any offers and/or quotations do not automatically apply to future orders.
ARTICLE 4 – INSPECTIONS AND TESTS
4.1.BM will give the Client the opportunity to inspect or test the goods (or to have them inspected or tested by a third party). Inspections and tests will only be performed at BM’s premises. BM may be present during the inspection or test. The costs related to the inspection or test will be borne by the Client. BM is not liable for the contents of the inspection or test reports. If any repairs or other work need to be performed on the goods following the inspection or test, the relevant costs will be borne by the Client, unless the parties have agreed otherwise in writing.
ARTICLE 5 – TRADE-IN
5.1. If the parties have agreed that the Client will also trade in certain goods when purchasing a Product from BM, the goods to be traded in or to be purchased by BM will continue to be at the Client’s risk and expense until the moment of delivery. Within the context of these general terms and conditions, “moment of delivery” is understood to be: the moment when the goods to be traded in or purchased arrive at BM’s premises, or earlier if BM has the goods at its disposal.
5.2. Until the moment of delivery, the Client will be liable for all costs of maintenance, any damage to, loss and/or decrease in value of the goods to be traded in or purchased.
5.3. BM will not be bound by the price agreed upon if the goods to be traded in are actually delivered later than agreed or expected, whether or not due to a delay in the delivery of the goods purchased by the Client, the delivery time of which has been stated by BM on the basis of an estimate. In that case, a percentage that the parties agreed upon in advance may be used by way of depreciation of the trade-in or purchase price.
5.4. The Client guarantees that the goods to be traded in or to be sold by it are free from third-party rights and claims, are free from damage or have only suffered damage as agreed between the parties, are in a proper and safe condition (in terms of road and occupational safety) and have not been manipulated in terms of odometer readings or hours of operation, for example.
5.5. The Client must provide BM with all relevant information about the goods to be traded in or sold, the Client knows or should reasonably know to be important for BM.
5.6. The Client must also provide BM with all documents, keys and other accessories pertaining to the goods to be traded in or sold.
ARTICLE 6 – PAYMENT
6.1. All prices quoted are exclusive of turnover tax (VAT) and exclusive of all other levies, duties or charges due in connection with the execution of the Contract. Prices are also exclusive of costs of transport, completion, disassembly and service/maintenance, unless the Contract explicitly provides otherwise.
6.2. BM’s invoices must be paid in the currency shown in the relevant invoices, within three calendar days of the invoice date, without any discount, deduction or set-off, unless a different payment term has been
agreed upon in writing, in which case the payment term agreed upon in writing must be observed. The Client is not entitled to suspend its payment obligations and/or to set off payments against any other claim it has against BM. The value day stated in BM’s bank statements is considered to be the day of payment.
6.3. If the Client fails to meet its obligations towards BM within the payment term agreed upon, the Client will be in default by operation of law, without any notice of default being required. From the moment the Client is in default until the day of payment in full, the Client will owe default interest of 1% per month or part of a month on the amount due, without prejudice to BM’s right to full compensation pursuant to the law.
6.4. All costs of collection of the amount owed by the Client, judicial as well as extrajudicial costs, are borne by the Client, the minimum costs being € 2,500. These costs include costs of attachment, winding-up petitions, collection costs as well as fees of lawyers, bailiffs and other experts to be engaged by BM.
6.5. When entering or after having entered into the Contract, the Client will always be obliged, at BM’s first request to that end, to pay advance amounts to be indicated by BM. BM is not obliged to pay any interest on the advance amounts.
6.6. BM is entitled to require that the Client provide security for compliance with its obligations to the satisfaction of BM and will be entitled to suspend its own obligations arising from the Contract pending the provision of the security.
6.7. Invoices are deemed to have been accepted and approved by the Client if BM has not received any written objection to an invoice by e-mail or registered letter within three Working Days of the invoice date.
6.8. If the Client wants to pay in cash, BM may set additional conditions/requirements pursuant to the law, insofar as customer due diligence and the duty to report are concerned in connection with the Money Laundering and Terrorist Financing (Prevention) Act (or any related legislation) which may be or may become applicable to the Contract
ARTICLE 7 – DELIVERY/RISK/TRANSPORT
7.1.BM is entitled to have the Machines delivered in consignments.
7.2. Until delivery has been effected pursuant to Article 7.5, the Machines will be at BM’s risk and expense and, after that, at the Client’s risk and expense, even if title to the Machines has not yet transferred to the Client in view of the provisions of Article 8.
7.3. The expiry date of the delivery period agreed between BM and the Client will never be a final deadline. If a period is exceeded, the Client must therefore give the BM written notice of default, granting BM a reasonable period in which it can as yet perform the Contract.
7.4. If BM needs any information from the Client in order to execute the Contract, the execution period will only start after the Client has provided this information to BM in a correct and complete manner.
7.5. Delivery of the Machines is effected ex works at BM’s premises in Velddriel, the Netherlands, unless the parties have agreed otherwise.
ARTICLE 8 – RETENTION OF TITLE
8.1.All Machines remain the property of BM until the Client has paid all amounts it owes BM in full, including any claims due to a failure to perform a Contract (e.g. interest, costs and penalties), as referred to in Article 92 of Book 3 of the Dutch Civil Code.
8.2. The Client is not entitled to sell or transfer the Machines or to encumber them with any limited right or to rent out the Machines or otherwise make them available to any third party or to relocate or transport them as long as BM retains title to the Machines.
8.3. As long as the Machines are subject to BM’s retention of title, the Client will be required to leave the Machines in their original form and the Client will not be entitled to change them, not even by specification, accession or confusion.
8.4. The Client is required to inform third parties (such as liquidators and attaching creditors who claim any right with respect to the Machines to which BM retains title) in writing of BM’s retention of title. In such a case, the Client must inform BM of this in writing immediately.
ARTICLE 9 – INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
9.1.The Client is not allowed to remove or alter any designation with respect to copyrights, brands, trade names, patents or other rights from the Machines delivered. If the Client violates this provision, the Client will owe BM a penalty of € 10,000 for each violation, without prejudice to BM’s right to claim full compensation
ARTICLE 10 – COMPLAINTS/GUARANTEE
10.1. The Client must inspect the Machines immediately upon delivery, as soon as possible. Any complaints about defects in the Machines must be reported and substantiated to BM by e-mail within five Working Days of delivery, failing which the right of complaint will lapse. Any defects that cannot reasonably be discovered within the above-mentioned period must be reported and substantiated to BM in writing immediately after discovery. If a complaint is not submitted in time, any and all claims of the Client with respect to defects in the Machines will lapse.
10.2. If and insofar as BM considers a complaint to be well-founded, BM will only be required to remedy the defect(s) or replace the defective Machines, at its discretion, without the Client being able to exercise any right to whatever compensation. Complaints will not be accepted if the defects do not hinder or materially prevent the use of the Machines.
10.3. The filing of a complaint will not release the Client from its payment obligations towards BM.
10.4. The Machines may only be returned after BM has given its prior written permission, under conditions to be set by BM.
10.5. Unless agreed otherwise, BM does not give a guarantee on the Machines and therefore delivers them on an “as is” basis. BM expressly does not guarantee the correctness of the time recording and/or odometer readings of the Machines, as this is not checked by BM in advance.
10.6. In no case will the Client file any claim against BM after it has put all or part of the delivered goods into use, has processed them or has allowed a third party to do so. The same applies in case of improper storage of the delivered Machines by the Client.
ARTICLE 11 – INDEMNIFICATION
11.1. The Client must indemnify BM against any and all costs incurred or to be incurred and damage or loss suffered or to be suffered by BM due to third-party claims resulting from the use of Machines by the Client.
11.2. If BM is called to account by third parties in connection therewith, the Client will be obliged to assist BM both in and out of court and to immediately do everything that may be expected of it in such a case. Should the Client fail to take adequate measures, BM will be entitled to take such measures itself, without a notice of default being required. All costs incurred and loss suffered by BM and third parties as a result will be at the full risk and expense of the Client.
ARTICLE 12 – LIABILITY
12.1. BM will only be liable for direct damage or loss resulting from wilful misconduct or gross negligence – to be demonstrated by the Client – on the part of BM during the performance of its obligations arising from the Contract concluded between the parties. BM will not be liable for any trading loss and consequential loss, which is in any case understood to be loss suffered and lost profit.
12.2. In no case will BM be liable for the consequences of any incorrect information provided by or on behalf of the Client. Nor will BM be liable for any incorrectness or incompleteness caused by the incorrect or improper use of the Machines delivered by BM to the Client.
12.3. BM’s liability will in any case be limited to (i) a period of one year after delivery of the Product by BM, (ii) claims insofar as they have been filed with BM as soon as possible, but in any case within one month after BM has taken note of such claim(s) or could reasonably have been aware of such claim(s) and (iii) twice the invoice value of the order the Client has placed with BM, or in any case to the part of the order to which the liability pertains. BM’s liability will always be limited to the amount paid out by its liability insurer in the relevant case. All claims that a Client has against BM based on a Delivery of a Product by BM or the use of a Product delivered by BM or may have against BM for another reason will lapse one year after delivery of the Product by BM to the Client.
12.4. BM is not liable for any damage or loss if, within one month after having become aware of the damage or loss, the Client does not offer BM the opportunity, by registered letter, to investigate the cause of the damage or loss.
12.5. The limitations of liability included in this article are stipulated for the benefit of BM and its employees as well as for the benefit of all other parties affiliated with BM and their employees (whether or not engaged during the performance of the work).
12.6. The Client is fully responsible and liable for the use of Machines without CE marking. The Client will be liable for all damage and loss and government-imposed penalties related to the absence of the CE marking, even if the Client is no longer the owner of the Product. If any government authority and/or third party claims payment of compensation and/or a monetary penalty from BM in connection with a machine it has sold to the Client, the Client must indemnify BM in full.
ARTICLE 13 – FORCE MAJEURE
13.1. If a permanent or temporary situation of force majeure prevents BM from performing the Contract (any further), depending on whether the situation of force majeure could be foreseen, BM will be entitled, without being obliged to pay any compensation, to dissolve the Contract in whole or in part, without any judicial intervention, by means of a notice to that effect, without prejudice to BM’s right to be paid by the Client for any performance already delivered by BM before the situation of force majeure arose, or to suspend the (further) performance of the Contract in whole or in part. BM will inform the Client of a situation of force majeure as soon as possible. In case of a suspension, BM will as yet be entitled to dissolve all or part of the Contract.
13.2. Force majeure includes all circumstances which temporarily or permanently prevent BM from complying with its obligations, such as fire, strike or lock-out, riot, war, government measures such as import and export restrictions, failures by suppliers, transport problems, natural disasters, operational breakdowns at the premises of BM or of suppliers, power failures, theft or embezzlement from BM’s warehouses or workshops and also all circumstances where BM cannot reasonably be required to comply with its obligations towards the Client (any further). Force majeure on the part of BM’s suppliers is also considered to be force majeure on the part of BM.
ARTICLE 14 – SUSPENSION AND TERMINATION
14.1. If the Client fails to meet any obligation arising from the contract concluded between the parties or any other obligation towards BM (or fails to do so properly or in time), BM will be entitled to dissolve the contract if the Client as yet fails to meet all its obligations within 14 days after having received a demand to that effect. BM is entitled to retain any advance amounts already paid, for example to cover any loss it suffered in that case as a result of, inter alia, loss of interest, storage costs and/or loss of margin, and without prejudice to its right to full compensation if this exceeds the advance to be retained. BM will ensure that the goods are stored, at the risk and expense of the Client. The costs of storage will be at least € 250 per week per machine.
ARTICLE 15 – STANDARDS APPLICABLE TO BUSINESS OPERATIONS
15.1. The customer will comply with all applicable laws, rules, regulations, and sanctions relating to the Agreement, in particular as regards human rights, bribery, corruption, money laundering, accounting and financial controls and anti-terrorism.
15.2. The customer guarantees, agrees and undertakes in accordance with the Agreement not to enter into, make, offer, promise or allow any bribes or facilitating payments via improper or illegal payments, gifts, benefits or other things of value, either directly or indirectly, to any third party.
15.3. BM may at any time, at its own expense and having issued written notification in a timely manner, conduct integrity assessments and audits of the customer to ensure compliance with the provisions of this article. The customer will fully cooperate with any audit to be conducted on BM’s instructions and comply with all reasonable requests for access to facilities, information, persons and documentation, if written notice is given in advance.
15.4. BM may suspend its obligations arising from the Agreement following written notification to the customer if and to the extent that BM reasonably considers that the customer has breached the obligations set out in this provision or has not properly performed them. BM is also entitled to terminate the Agreement with immediate effect without being liable for damages to the customer if the customer has materially breached or has not properly performed its obligations under this provision.
ARTICLE 16 – SANCTIONS
16.1. The customer affirms to and guarantees BM that, on the date of this Agreement, it: (i) is not a person or entity included on the sanctions list of a sanctioning body (such as, but not limited to, the United Nations Security Council, the European Union, and any competent sanctioning body in BM’s country of domicile) that is directly or indirectly affected by sanctions imposed by such sanctioning body; (ii) is not in breach of any applicable sanctions; and (iii) has not involved any persons or entities listed in paragraph (i) above in negotiating or entering into or performing the Agreement.
16.2. If an incident giving rise to a sanction as referred to in the preceding paragraph occurs at the customer’s premises after the Agreement has been concluded but before it has been performed and/or terminated (i.e. the date when all obligations under the Agreement have been fully and finally fulfilled), (i) the customer will immediately notify BM in writing with full details of the incident giving rise to a sanction together with any other information reasonably requested by BM, in accordance with that request; (ii) BM will be entitled, without prejudice to the provisions of (iii), to suspend performance of the Agreement at any time during the period in which the incident giving rising to the sanction occurs and to notify the customer of this. In that case, neither party will be liable for the non-performance of its obligations during the period of suspension provided that the customer does everything in its power to resolve the incident giving rise to a sanction and it keeps BM informed of developments in that regard. The parties will resume performance of the obligations under the Agreement as soon as is reasonably and legally possible after the incident giving rise to a sanction ends, and (iii) BM will be entitled to terminate the Agreement with immediate effect at any time for the duration of the incident giving rise to a sanction without being liable for damages to the customer.
ARTICLE 17 – OBLIGATION TO PROVIDE INFORMATION/CONFIDENTIALITY
17.1. The Client must maintain confidentiality with respect to all confidential information it received from BM within the context of the Contract. Information is considered to be confidential if such has been communicated by a party or if this follows from the nature of the information.
ARTICLE 18 – GOVERNING LAW/COMPETENT COURT
18.1. The Contract is governed by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
18.2. Any and all disputes arising from or connected with a Contract will, in the first instance, be submitted exclusively to the competent court in the district of Gelderland, without prejudice to BM’s right to submit a dispute to the competent court of the district within which the Client is established.
18.3. If the Client is established outside the European Economic Area, any and all disputes arising between BM and the Client will be settled exclusively in accordance with the Arbitration Rules of the International Chamber of Commerce. The arbitration tribunal will consist of one or more arbitrators, depending on the provisions of the Arbitration Rules. The place of arbitration will be Arnhem, the Netherlands. The proceedings will be conducted in English.
ARTICLE 19 – MISCELLANEOUS
19.1. BM is entitled to change these general terms and conditions. The Client is deemed to have accepted the relevant changes if BM has not received a written objection thereto within fourteen days after BM has given written notice of the relevant changes.
19.2. These terms and conditions have been filed with the Chamber of Commerce in The Netherlands under number 11057540.
19.3. The interpretation of these general terms and conditions is always based on the Dutch text thereof.
19.4. If ‘Client’ refers to several persons and/or businesses, these persons and/or businesses will be jointly and severally liable to comply with the obligations arising from the Contract.
19.5. BM collects and processes information about the Machines, the Client and officials, employees, relations or representatives of the Client (personal data) in connection with the management of the relationship with the Client and the performance of the Contract. BM stores the personal data in strict confidence and only uses the personal data for the above-mentioned purposes. The Client also agrees that BM will provide personal data to its suppliers or to third parties if this is necessary within the context of the above-mentioned purposes. In connection with the above, the Client will indemnify and safeguard BM against any third-party claims (including any claims filed by the above-mentioned officials, employees, relations or representatives and/or supervisory and other authorities). The Client may, at any time and by means of a written request to the management board of BM, ask that the Client’s data be deleted from BM’s files.