GENERAL TERMS AND CONDITIONS OF EU MOTORCARS
Art. 1 General
1.1. These terms and conditions apply to all offers made by, orders placed with and agreements with EU MotorCars (the trade name of the one-man business of M.J.A. van Ravensteijn, registered in Oss at Bastion 13, Chamber of Commerce no.: 66259835) and the Other Party and all agreements arising thereunder.
1.2 Clauses deviating from these terms and conditions will only be binding upon EU MotorCars if these have been expressly confirmed in writing by EU MotorCars, in which case they will apply solely for that specific case and/or specific agreement.
1.3 The applicability of other general terms and conditions is excluded. These terms and conditions will apply each time to all subsequent agreements concluded between EU MotorCars and the Other Party.
1.4 If one or several provisions in these terms and conditions are invalid or should become invalid, the remaining provisions in these terms and conditions will continue to apply.
1.5 If these general terms and conditions should conflict with other general terms and conditions, the provisions set out in these terms and conditions will prevail.
Art. 2 Offer
2.1 All offers and quotations made by EU MotorCars are without engagement, unless these state a term for acceptance, in which case the offer will expire at the end of this term. An offer expires when the offer is revoked by EU MotorCars.
2.2 Specifications of weight, speed, fuel or energy consumption, emission values etc. are always approximates and are not binding upon EU MotorCars. Samples, models, demos and images are only shown by way of indication. EU MotorCars is not bound by the contents of brochures and/or technical specifications of manufacturers and specifications drawn up by EU MotorCars. EU MotorCars is always entitled to implement changes in the design and/or technical specifications issued by the manufacturer without the Other Party being entitled to make any claims against EU MotorCars in connection with this.
2.4 Prices in quotations are, unless expressly stated otherwise, always made in euros and exclude VAT and private motor vehicle and motorcycle tax and other levies imposed by the government, duties and taxes as well as any costs in connection with storage, dispatch, shipping, repairs, travel, assembly and packaging, if any, unless the parties have expressly agreed otherwise in the agreement. Unless agreed otherwise delivery will be EXW (ExWorks) Oss.
2.5 If EU MotorCars arranges the dispatch of the items purchased EU MotorCars will always charge the additional cost of this separately.
2.6 A composite quotation does not oblige EU MotorCars to perform a part of the order for a corresponding part of the quoted price.
2.7 Offers and/or quotations do not apply to subsequent orders.
Article 3 Customer details
3.1 The Other Party is at all times independently responsible for the correctness and completeness of the details stated in the request or of the details, drawings, calculations and designs provided to supplement these details. EU MotorCars will base the offer on the details provided by or on behalf of the Other Party and is never required to check the correctness and completeness of these details, as referred to in the first clause of this article, itself.
3.2 At all times the Other Party is responsible for acquiring the permits needed for both import and export and for acquiring the permits needed to be allowed to use the goods supplied by EU MotorCars in the place or in the country where the Other Party is established.
3.3 The Other Party is at all times required to provide EU MotorCars with all ID details of the Other Party (legal entity) such as address of registration and head office, deeds of incorporation, registrations in registers and all details relating to and proof of ID of the natural person(s) who is/are (ultimately) the stakeholder(s) at the Other Party (legal entity) or who has/have actual control there over, or to provide EU MotorCars with any other documentary proof that EU MotorCars is obliged to keep in its administrative records under current legislation.
Art. 4 Delivery and risk transfer
4.1 Stated delivery terms and/or stated delivery dates are always approximates and should never be considered to be deadlines, not even if the agreement states a date for release to a shipper, unless it has been expressly agreed in writing that the delivery date is a deadline.
4.2 The stated delivery terms and/or delivery dates are based on the (work) circumstances when the agreement is concluded and on the timely delivery of the vehicles, materials and/or parts ordered for the performance of the agreement. If EU MotorCars needs details from the Other Party within the framework of performing the agreement, the delivery term will start after the Other Party has provided these in full to EU MotorCars.
4.3 Delivery takes place, unless agreed otherwise in writing, at EXW (ExWorks) Oss, and at the times fixed by EU MotorCars, which times will be communicated in plenty of time by EU MotorCars to the Other Party.
4.4 The Other Party is required to accept the goods at the fixed delivery times. When the goods to be delivered are available or are offered for delivery to the Other Party, but are not taken up by the Other Party, which will also be understood to include a failure on the part of the Other Party to provide information or instructions needed for the delivery and/or failure to pay the payment (instalment) agreed for the delivery or the failure to furnish security, delivery will take place by way of a written notification from EU MotorCars and from that moment the Other Party will bear the risk associated with the goods. In which case EU MotorCars is entitled to store the goods at a place to be indicated by EU MotorCars at the Other Party’s risk and any costs arising from this including storage, insurance, freight and garage costs will be payable by the Other Party. In which case any claims that EU MotorCars has against the Other Party will become immediately due and payable. EU MotorCars is then required to actually deliver the goods to the Other Party after the Other Party has fulfilled all the (payment) obligations arising for it under the agreement including the payment of the aforementioned costs.
4.5 If EU MotorCars delivers the goods to the Other Party this will always be to the delivery address most recently known to EU MotorCars. If the goods are delivered otherwise than EXW Oss at the request of the Other Party, EU MotorCars is entitled to charge any accompanying additional costs to the Other Party. The risk of transporting and delivering goods outside the business terrain of EU MotorCars is, regardless of whether the transport is done by EU MotorCars or by third parties, for the account of the Other Party.
4.6 The risk of the good transfers to the Other Party at the time of delivery, even if the ownership of the goods has not been transferred by EU MotorCars to the Other Party.
4.7 If there is an exchange, the amount payable by EU MotorCars to the Other Party, which will be deducted on the date of delivery from the purchase price of the good purchased by the Other Party, will be based on the details provided by the Other Party with regard to year of manufacture, number of kilometres driven and damage and/or accident history and furthermore based on the assumption that the goods to be exchanged are completely free of damage on the date of the exchange and completely free of third party claims on whatsoever grounds. The risk of the goods to be exchanged will only transfer to EU MotorCars when EU MotorCars accepts the delivery of this goods. Until such acceptance by EU MotorCars, the goods to be exchanged are fully for the account and risk of the Other Party.
4.8 If on the date of the actual exchange it emerges that a detail provided by the Other Party pertaining to essential matters such as the year of manufacture or the number of kilometres driven or damage and/or accident history of the goods to be exchanged is incorrect or if it emerges that the goods to be exchanged are damaged at the time of the actual delivery or that there are third party claims to the goods or if the goods to be exchanged are in a worse condition than was agreed at the time of the exchange, the exchange will either be dissolved or will go ahead at a lower amount than has been agreed with the Other Party, such at the discretion of EU MotorCars.
4.9 The dissolution of the exchange under Article 4.8 will not affect in any way the Other Party’s obligation to comply with the purchase agreement and to pay the full price agreed for this without deducting any counter value of the good to be exchanged.
Art. 5 Reservation of ownership
5.1 Goods delivered and/or to be delivered by EU MotorCars will continue to be the property of EU MotorCars until the Other Party has fulfilled all its obligations towards EU MotorCars, including any claims due to failure to comply with any agreement with EU MotorCars, in full.
5.2 The Other Party is expressly not allowed to pledge the goods falling under the reservation of ownership, or to otherwise encumber, sell or rent these goods or to make them available in any way for use by third parties.
5.3 If third parties seek to seize or establish or claim any right to the goods subject to the reservation of ownership, the Other Party is required to notify EU MotorCars of such as quickly as is reasonably possible and also to notify the third parties in question that EU MotorCars is the owner of these goods and to do everything possible to prevent or stop such attachments or established rights.
5.4 In the event that EU MotorCars wants to exercise its ownership rights set out in this article, the Other Party hereby gives its unconditional and irrevocable permission to EU MotorCars or to third parties designated by EU MotorCars, to access any sites where the property of EU MotorCars is being kept and to collect these goods and to take possession of them and the Other Party will lend its full cooperation to this collection.
5.5 At the first request of EU MotorCars the Other Party is required:
- A) to insure the goods delivered subject to reservation of ownership and to keep these insured against fire, damage caused by an explosion or by water, and against theft and to make this insurance policy sheet available for inspection.
- B) to pledge all claims the Other Party has against insurance companies relating to the goods delivered subject to reservation of ownership to EU MotorCars in the manner prescribed in Article 3:239 of the Dutch Civil Code.
- B) to pledge all claims the Other Party has against its customers relating to its sale of the goods delivered subject to reservation of ownership within the framework of its usual business operations, to EU MotorCars in the manner prescribed in Article 3:239 of the Dutch Civil Code.
- D) to mark the goods delivered subject to reservation of ownership as being the property of EU MotorCars.
Art. 6 Force majeure
6.1 EU MotorCars is not required to fulfil any obligation if it is prevented from doing so due to circumstances that are not caused by gross negligence or intent on the part of EU MotorCars and that are not for EU MotorCars’ account pursuant to the law, a legal act or generally accepted standards.
6.2 In these terms and conditions, in addition to what is understood in the law and case law, force majeure is understood to mean all external causes, foreseen or unforeseen, over which EU MotorCars has no control and as a result of which EU MotorCars is unable to fulfil its obligations.
This includes strikes at EU MotorCars or its suppliers, computer and electricity supply disruptions, traffic jams, bad weather conditions, import and export delays, theft, fire and stagnation in the delivery of goods and parts by suppliers.
6.3 EU MotorCars can suspend the obligations while the force majeure lasts. If this takes longer than three months, both parties are entitled to dissolve the agreement, with no requirement to pay compensation for damages to the other party.
6.4 To the extent that at the time the force majeure started EU MotorCars has fulfilled part of its obligations under the agreement or can fulfil these, and there is some value attached to the fulfilment or the future fulfilment, EU MotorCars is entitled to charge the obligations already complied with or to be complied with, separately.
Art. 7 Price
7.1 All price quotations made by EU MotorCars are without engagement, unless parties have agreed otherwise. The price quotations apply for delivery EXW Oss.
7.2 EU MotorCars may charge price increases occurring after it makes its quotation if price changes in excess of 5% in respect of for example social costs, turnover tax, exchange rates, wages, resources, semi manufactured goods or packaging materials have occurred between the time the quotation or offer was made and the time the agreement is performed/the goods are delivered.
Art. 8 Payment
8.1 Unless agreed otherwise in writing the Other Party should effect payment in cash before delivery of the goods or before delivery of the work performed. These payment terms are deadlines and on the expiry thereof the Other Party is in default.
8.2 EU MotorCars is at all times entitled to require payment in advance of all or part of the purchase price and/or any amounts invoiced by EU MotorCars under the agreement, or to require a bank guarantee or some other kind of security that EU MotorCars requests, without prejudice to EU MotorCars’ right of retention.
8.3 If it is agreed that payment will be effected after the delivery, the Other Party is required to pay the amount owing within 14 days of the invoice date, which term is also a deadline.
8.4 Any right to suspension, discount and/or setoff by the Other Party is expressly excluded, unless otherwise agreed in writing.
8.5 Payment should be made in EURO, or at least in the currency on the invoice, unless it has been agreed in writing that payment may be made in another currency.
8.6 If payment is not made within the terms set out in this article, contractual interest is payable equal to a rate of 1% per month, whereby part of a month will count as a full month, starting on the first day of the payment terms set out above in this article.
8.7 If payment is not made within the terms set out in this article, all reasonable expenses incurred out of court to collect payment are payable by the Other Party in accordance with the scale set out in Article 2 of the Decree on the compensation of out of court expenses, subject to a minimum of EUR 40.
8.8 Payments made by the Other Party will first be allocated to pay any outstanding interest and costs and subsequently towards paying off the principal amount due whereby the claims that have been due and payable for the longest will be paid first.
Art. 9 Liability
9.1 Without prejudice to the provisions on warranty EU MotorCars is never liable for damage unless this is caused by intent or gross negligence on the part of EU MotorCars or managerial employees of EU MotorCars.
9.2 In the event that EU MotorCars might be liable for damage, such liability is at all times limited to direct damage to goods or persons and never extends to include any operational damage or other consequential damage, also including loss of profit or income, unless the Other Party can prove that this is due to intent or gross negligence on the part of EU MotorCars or a managerial employee of EU MotorCars.
9.3 Furthermore, in the event that EU MotorCars might be liable for damage, the liability of EU MotorCars is always limited to that damage and will not exceed the amounts for which EU MotorCars is insured or, in view of what is customary in the sector, ought to have been insured for. If EU MotorCars is insured, the liability is limited to the amount that is actually paid out under the relevant insurance.
9.4 To the extent that the provisions set out in the above paragraph cannot be a standard for a limitation of liability on the part of EU MotorCars, for example because no insurance has been taken out and because such insurance is not customary or could not reasonably have been acquired, the amount of the liability will be limited to the invoice amount charged to the Other Party for the relevant performance.
9.5 The provisions set out in Article 9.2 through 9.4 only apply inasmuch as the liability is not limited further pursuant to the law or agreement (including the provisions set out in these general terms and conditions), in which case this more far reaching limitation of liability will prevail.
9.6 EU MotorCars is never liable for any damage, theft (including loss) to or of goods belonging to the Other Party and/or third parties, including but not limited to loads, stocks, mobile means of communication, computer equipment, paper documents, securities, cash and electronic payment means, that are kept in or on the good that EU MotorCars has in its possession for whatsoever reason, with the exception of damage to motor vehicles and trailers, except when the Other Party is able to prove intent or gross negligence.
Art. 10 Indemnity
10.1 The Other Party indemnifies EU MotorCars in respect of all claims in connection with the goods delivered resulting from any damage incurred by third parties due to or relating to the possession or use of such goods, in whatsoever way and in whatsoever form, inasmuch as this exceeds the liability of EU MotorCars towards the Other Party pursuant to the provisions set out in these general terms and conditions.
10.2 The Other Party indemnifies EU MotorCars in respect of all claims of the Other Party and third parties caused by a defect in the goods delivered, which is partly due to an act of the Other Party or of a person for whom the Other Party or the injured party is liable, including the manufacture or adjustment of goods by EU MotorCars in conformity with the instructions issued by the Other Party.
10.3 If, during court proceedings this article is declared to be unreasonably burdensome, then only the damage in respect of which EU MotorCars is insured will be eligible for compensation, and in that case the liability is limited to a maximum amount equal to the amount in respect of which EU MotorCars is insured and in that case to the amount that is paid out in the case in question under the insurance or to the amount in respect of which EU MotorCars ought reasonably to have been insured, also taking into account what is customary in the sector.
Art. 11 Disputes and applicable law
11.1 The law of the Netherlands applies exclusively to all offers made by, orders placed with and agreements concluded with EU MotorCars, with the exclusion of the Vienna Sales Convention.
11.2 All disputes arising under an agreement with the Other Party or under agreements relating thereto will be heard exclusively by the competent court within the jurisdiction of the Court of Rotterdam.
Art. 12 Translations
The Dutch text of these General Terms and Conditions will take precedence over any translation(s) thereof.