M&C, Aalsbergen 20, 6942 SE Didam, The Netherlands
+31 316 292 881
KVK/CoC 09153795 | Arnhem | The Netherlands
TERMS & CONDITIONS
General Sales and Delivery Conditions of M&C Protect B.V., having its registered office in Didam, the Netherlands
1.1.1 To all offers, deliveries and legal relationships between the Client on the one side and the private company with limited liability under Dutch law M&C Protect B.V., hereinafter referred to as: “M&C”, having its registered office in Didam, the Netherlands, on the other side, as well as to the pre-contractual relationships, no other provisions shall apply than those stated in these General Conditions, unless M&C has expressly laid down one or more deviating provisions in writing.
1.1.2 In case of such deviations, the other provisions of these General Conditions shall remain applicable in full. Deviations shall only be binding for the offers and agreements to which they expressly apply. With respect to any other offers and agreements, these General Conditions shall remain in full force and effect unchanged.
1.1.3 If an offer of M&C contains any provisions that conflict with any provisions in these General Conditions, the provisions in the offer shall prevail.
1.1.4 If any provision of these General Conditions is void or annulled, the other provisions of these General Conditions will remain in full force and effect and the Parties shall be held in proper mutual consultation to draw up a replacement provision that is valid and that approaches the original intentions of M&C as much as possible.
1.1.5 In these General Conditions the terms “in writing” and “written” mean: by letter, by fax or by any other electronic means.
1.1.6 If these General Conditions have also been drawn up in a language other than Dutch, the Dutch version will in case of any differences always be decisive.
1.2 Offers and Agreement
1.2.1 Each offer made by M&C, either orally or in writing, shall entirely be without engagement, even if an offer contains a term of validity.
1.2.2 All images, drawings, models and dimensions contained in any offer and any specifications of whatever nature contained in catalogues, brochures, price lists or other printed matter shall be as accurate as possible, but are for reference only. These indications and specifications shall only be binding, however, if and in so far as this has expressly been confirmed by M&C in writing.
1.2.3 All offers, drawings, designs, calculations, models, schemes and schedules shall remain the property of M&C, and may not be copied, changed, forged or handed over or made available for inspection to any third parties without the written permission of M&C. M&C shall not be held to provide any details.
1.2.4 Orders provided to M&C shall be irrevocable.
1.2.5 An agreement shall be concluded when M&C accepts the order in writing or when M&C commences the execution of the order.
1.3.1 Unless agreed otherwise in writing, all prices are excluding VAT, import duties and other taxes, charges, levies, duties and other additional costs. The prices shall be based on delivery ex works Didam, the Netherlands (EXW, Incoterms® 2010), unless stated otherwise in writing.
1.3.2 Prices shall be based on the cost-determining factors as applicable at the time of the offer, including without limitation purchase prices, price ratios, import duties, sales tax, raw material and material prices, production costs and currency fluctuations.
1.3.3. If after the date of the offer but before delivery one or more of the cost-determining factors undergoes any change, even if this is the result of foreseeable circumstances, M&C shall be entitled to charge a correspondingly higher price or to cancel the order, without the Client having any entitlement to compensation or damages in respect thereof.
1.4 Delivery Terms
1.4.1 Delivery terms will be agreed per transaction. All delivery terms shall be in accordance with Incoterms® 2010.
1.4.2 The Client shall be held to buy and accept delivery of the ordered goods. If the Client does not accept delivery of the ordered goods on the agreed date, the Client shall be in default and M&C may, at its own option (1) dissolve the agreement without judicial interference being required; (2) send the goods to the Client for the risk and account of the Client; (3) keep the goods in its custody for the risk and account of the Client. All costs arising from the above circumstances, including any loss of revenues, shall be for the account of the Client. The above provisions shall apply without prejudice to the other rights accruing to M&C.
1.5 Delivery Times
1.5.1 The stated delivery times are as accurate as possible, but are only an indication and can never be considered to be fatal or of the essence. M&C shall not be in default with regard to the delivery time until after it has been placed in default in writing by the Client and the Client has given M&C the opportunity yet to deliver within a reasonable period and M&C has failed to do so.
1.5.2 The delivery time will not start to run until after all information that is necessary for the execution of the agreement has been received by M&C and after M&C has received the agreed advance payment from the Client.
1.5.3 If and as soon as M&C suspects that the specified delivery time will be exceeded, M&C will contact the Client. In that case, the obligations of the Client will remain unchanged. Only in case of substantial excess (more than six (6) weeks) of the agreed delivery time the Client shall have the right to cancel the agreement, unless the excess is caused by force majeure. The Client shall never be entitled to compensation of any penalties or to any damages, however.
1.5.4 M&C shall at all times have the right at or after the conclusion of the agreement and before commencing or continuing its performance to demand that the Client will forthwith provide a payment security in a form to be determined by M&C. If the Client fails to provide the required security (in time), M&C shall have the right, without prejudice to its other rights, immediately to suspend the further performance of the agreement, or to dissolve the agreement in full or in part without any notice of default or judicial intervention being required, this without prejudice to its entitlement to compensation of any damage suffered by it. In addition, all that is due to M&C by the Client for any reason shall as then be immediately due and payable.
1.5.5 M&C shall have the right but not the obligation to deliver the goods in parts, in which case all (payment) conditions provided hereinafter will also apply in full to each partial delivery.
1.6 Force majeure
1.6.1 M&C shall not be held to perform its obligations if it is prevented from doing so by reason of force majeure.
1.6.2 In these General Conditions force majeure inter alia, but without limitation, means: government measures, transport difficulties, boycotts, sanctions, embargoes, wars or risk of war, riots, acts of terrorism, epidemics, floods and storms, sudden increases of import duties and excise duties, delays or failures in deliveries by suppliers, failures to obtain necessary permits, work strikes, sickness of employees, fires, machine failures and other operational disturbances, either at M&C or at suppliers of goods and services of M&C.
1.6.3 If M&C at the commencement of the force majeure situation has already partially performed its obligations or can only perform its obligations in part, it shall have the right to invoice the already delivered or deliverable part separately, and the Client shall be held to pay that invoice as if it regarded a separate agreement. M&C shall furthermore also have the right to change the content of the agreement in such a way that it can be performed.
1.6.4 If a force majeure situation has continued for more than 120 days, both M&C and the Client shall have the right to terminate the agreement by dissolution. In that case, the Client shall not be entitled to any damages.
1.7.1 All goods delivered to the Client shall remain the property of M&C or its suppliers until the moment of full payment of all amounts, including any interest and costs, that the Client is due to M&C for the goods delivered or to be delivered under any agreement and/or any failure in the performance of any such agreement.
1.7.2 The Client shall be held to ensure that the goods are handled with all due care and to insure them against the usual risks, and shall not have the right to encumber, lease out, alienate, hand over for use and/or establish any (undisclosed) lien on the delivered goods other than with the written permission of M&C as long as the Client has not fully fulfilled his obligations towards M&C. The Client shall be permitted, however, to use or alienate the goods within his normal course of business, on the understanding that M&C has the rights of the Client towards his customers until the Client has paid the goods in full and has performed his other obligations under similar agreements with M&C. The Client shall as then, in so far as necessary, transfer those rights to M&C, which transfer M&C accepts. However, the Client shall not be permitted to alienate the goods in his normal course of business if the Client has filed a petition to be granted a suspension of payments or if the Client has been declared bankrupt.
1.7.3 M&C shall at all times have the right without any notice of default or judicial intervention being required to (let others) take back the goods delivered by it, irrespective of whether those goods have already been affixed, assembled or otherwise connected with other goods. The Client already now for then authorizes M&C for that purpose to enter any premises of or used by the Client. All costs connected with the retrieval of the goods shall be for the charge of the Client.
1.7.4 If the same kind of goods have been delivered on one or more unpaid invoices, the goods present at the Client shall be deemed to have been delivered on the unpaid invoices.
1.8 Warranty and Complaints
1.8.1 For goods and parts of goods, the warranty does not extend beyond the free delivery of replacement goods, parts of goods or repair or crediting of the invoice amount, this at M&C’s choice, during a period of 12 (twelve) months after the date of delivery, unless another period has been confirmed by M&C in writing. The above warranty exclusively covers faults in material and workmanship. Repairs and replacement deliveries do not extend the warranty period.
1.8.2 The Client shall be held immediately after receipt to check the delivered goods, including the packaging, for any defects and/or damage. Any discovered shortcomings, visible defects and/or damage must be stated by the Client on the transport document or delivery note. Complaints must be lodged with M&C as soon as possible and in writing within 8 (eight) days after delivery, failing which the Client shall be deemed to have accepted the delivered goods. The taking in use of the goods shall be regarded as acceptance.
1.8.3 The Buyer shall not have any claim under the warranty if the defects are the result of any modifications or repairs not performed by or on instruction of M&C, any unprofessional assembly, any use of keys/blanks for cylinders not delivered by M&C, as well as any use otherwise than as prescribed or otherwise than as generally accepted.
1.8.4 The warranty will also expire if the Client fails to perform any obligation towards M&C in time, properly or at all, including payment of the agreed performance.
1.8.5 If in fulfilment of the warranty obligations new goods or parts of goods are delivered, the ownership of the originally delivered goods will be transferred to M&C by the sole delivery of those new goods or parts of goods. If repair or replacement to meet the warranty obligations in the opinion of M&C is not possible, the price originally paid by the Client will be reimbursed.
1.8.6 If the complaint regards invisible or otherwise unrecognizable defects, the complaint can still be enforced within 2 weeks after the Client has discovered the defect, but never later than 1 month after the invoice date.
1.8.7 Minor deviations in quality, colour, model, finish and the like that are deemed to be acceptable in the trade or otherwise, shall not constitute a valid reason for a complaint.
1.9.1 The liability of M&C towards the Client shall be limited to performance of the obligations set out in Clause 1.8.
1.9.2 Except in case of intent or gross negligence of M&C and subject to legal liability under mandatory statutory provisions, M&C shall never be liable for any damage suffered by the Client. Liability for indirect damage, consequential damage, both foreseeable and unforeseeable and both material and immaterial, loss of turnover, loss of profits and damage caused by delays, and damage resulting from liability towards third parties, is expressly excluded.
1.9.3 Subject to statutory liability under mandatory law, M&C accepts no liability for any acts or omissions of (legal) persons called in by it.
1.9.4 Any liability of M&C, including liability regarding which the above provisions cannot be invoked, shall in any case be limited to the amount of the net invoice value of the relevant goods, on the understanding that M&C will be liable at most and exclusively for an amount of € 500,000.00 per event, where a series of related damage-causing events will be qualified as one single event.
1.9.5. Any claim for damages will prescribe if it has not been submitted to M&C in writing within 1 year after delivery.
1.9.6 Unless the damage is a direct consequence of intent or gross negligence of M&C, the Client will indemnify M&C against all third party claims directly or indirectly related to (the use of) the delivered goods, and will compensate to M&C any damage that M&C suffers from such claims.
1.9.7 The Client will indemnify M&C against all third party claims for product liability as a result of any defects in a product delivered by the Client to a third party that (also) consisted of goods and/or materials supplied by M&C. The Client shall be held to compensate to M&C all damage suffered by M&C in connection with that, including the (full) costs of any defence.
1.10.1 Payment will be made without suspension, setoff, compensation and/or reduction within 14 days after the invoice date.
1.10.2 If the Client fails to pay any amount that is due by him, he shall automatically be in default, without any further notice of default being required for that. M&C shall not be held to deliver any performance to the Client as long as the latter is in default.
1.10.3 For each late payment the Client shall be due an interest of 1% per month, calculated as from the payment due date, without any payment reminder or notice of default being required. No payment can be suspended.
1.10.4 All costs, both judicial and extrajudicial, incurred for the collection of any amount that is due by the Client under these General Conditions shall be for the account of the Client. The extrajudicial costs shall be at least 15% of the amount to be claimed with a minimum of € 200.00 per claim.
1.11 Intellectual Property Rights
1.11.1 M&C reserves all its rights in the field of intellectual property in connection with any goods delivered by it. M&C is and will remain the exclusive proprietor of all copyrights, model rights and other intellectual property right in respect of its goods.
1.11.2 Without the written permission of M&C the Client shall not be permitted to copy or change the goods in full or in part.
1.11.3 The Client shall not be permitted to place another brand name on the goods, or to use the relevant brand name in any other way or to register the same in his own name.
1.12 Suspension and Dissolution
1.12.1 M&C shall have the right to suspend the agreements existing between it and the Client, without any notice of default and without judicial intervention being required, with due observance of a reasonable period, or to dissolve the agreement without any liability for damages, if the Client does not perform its (payment) obligations arising for him from any agreement concluded with M&C in time or in full, or if there are grounds to fear that the Client will not perform his obligations in time or at all, as well as in case of bankruptcy or suspension of payments of the Client or if his enterprise is stopped or liquidated.
1.12.2 Suspension and cancellation shall not affect the payment obligation for the already delivered goods. In addition, M&C shall as then have the right to claim compensation from the Client of any damage, costs and interests, including any profits lost by M&C. These claims shall be due and payable immediately.
1.12.3 If the Client fails to perform or is in default with performing one or more of his obligations, all reasonable costs for obtaining payment, both in and out of court, including the costs of legal assistance that M&C has to incur as a consequence of the failure of the Client to perform his obligations properly, in time or at all, shall be for the account of the Client.
1.13 Order Cancellation
1.13.1 In principle, cancellation of an order by the Client shall not be possible. However, if the Client nevertheless cancels an order in full or in part as a result of any cause, he shall be held to compensate to M&C all costs reasonably incurred by M&C to execute the order (including costs of preparation and the like), without prejudice to the entitlement of M&C to compensation of any loss of profits and other damages. Furthermore the Client shall be held to compensate the costs arising from the cancellation.
1.13.2 In case of cancellation, also a cancellation fee will be due by the Client. The cancellation fee shall be 50% of the principal amount plus VAT.
1.14 Choice of Law and Competent Court
1.14.1 With respect to the pre-contractual relations, the agreement and any further agreements arising therefrom, solely Dutch law shall apply. The applicability of the Vienna Sales Convention (CISG) is excluded.
1.14.2 All disputes and petitions in respect of claims shall be submitted to the competent court in ‘s-Hertogenbosch, the Netherlands. This choice of court shall not prejudice the right of M&C to summon the Client before a court that has jurisdiction in the place where the Client has its registered office or residence.
1.14.3 Any disputes between M&C and any non-EU Clients shall be settled definitively by means of arbitration before the International Chamber of Commerce (“ICC”) in accordance with the ICC Arbitration Rules by one or more arbitrators appointed in accordance with those Rules. The language used shall be English. The arbitration proceedings will take place in ‘s-Hertogenbosch, the Netherlands.
These General Conditions have been deposited with the Chamber of Commerce.