1.1Unless expressly stated and/or agreed otherwise, these general terms and conditions apply to all offers, quotations, agreements and deliveries of goods and/or services by Metech Sweepers & Scrubbers, having its registered office and place of business in Barneveld, or any of its subsidiaries (hereinafter to be referred to as: "Metech").
1.2Any general terms and conditions applied by the other party or buyer (hereinafter referred to as "Buyer") of Metech, however called, are expressly rejected and do not apply to this Agreement, unless these terms have been expressly accepted by Metech in writing.
1.3 Amendments to the agreement entered into between Metech and the Buyer and deviations from these general terms and conditions shall only be effective if they have been agreed in writing between Metech and the Buyer.
1.4If one or more provisions of these general conditions are found to be invalid, or are set aside by a court, the remaining provisions shall remain in full force and effect.
2.1 All offers or quotations made by or on behalf of Metech are without obligation, unless a concrete period for acceptance is stated in the offer. The offers or quotations do not automatically apply to repeat orders.
2.2If the Buyer provides Metech with data, drawings and the like, Metech may assume that these are correct and complete and shall base its offer or quotation on them.
2.3The prices mentioned in the offer or quotation are based on delivery ex works, 'Ex Works' (in accordance with the relevant provisions in the latest version of the Incoterms), place of business of Metech unless stated otherwise in the offer or quotation. The prices are exclusive of turnover tax and other government levies, assembly and commissioning costs. An estimate made by Metech of the costs associated with an order (such as transport, packaging and/or packing costs) is always without obligation. The Buyer can never derive any rights from such an estimate.
2.4Direct orders from the Buyer are only binding on Metech when they have been accepted by Metech in writing.
2.5If the Buyer places an order with a stipulation of any price or condition which deviates, albeit on any minor point, from the offer or that which has been further agreed between the parties, the intended agreement shall not come into being, unless this is subsequently confirmed in writing by Metech within five working days.
2.6Between Metech and the Buyer an agreement is only formed after the Buyer's agreement to Metech's offer has reached the Buyer.
3.1The Buyer cannot derive any rights from advice and information provided by Metech which does not relate to goods or services delivered by Metech to the Buyer.
3.2Metech will be entitled to rely on the accuracy and completeness of the information provided to it by the Buyer in the performance of the contract.
4.1The delivery term stated by Metech commences after the formation of the agreement, after Metech has all the (delivery) materials, documents and data to be provided by the Buyer and after any agreed advance payment has been received by Metech or security for payment has been provided for the benefit of Metech.
4.2The Buyer is obliged to provide Metech with the necessary instructions required for shipment or acceptance at least two days before delivery.
4.3 Delivery periods stated by Metech are indicative and shall never be regarded as deadlines. If the delivery term is exceeded, the Buyer is never entitled to claim compensation for additional or replacement, direct or indirect loss or to non-performance or suspension of any obligation arising from the Agreement or to termination or dissolution of the Agreement. After the expiry of the delivery term stated by Metech, the Buyer is entitled to give Metech a new reasonable period, in the event of which the Buyer is exceeded, it is entitled to terminate or dissolve the agreement by giving written notice of this to Metech within fourteen days, without this leading to any obligation to pay compensation on the part of Metech.
4.4The delivery time specified by Metech is extended by the time that the performance of the Agreement is delayed by force majeure (as specified in Article 10 of these terms and conditions).
4.5Unless otherwise agreed, delivery takes place ex works (in accordance with the relevant provisions in the latest version of the Incoterms). This means that Metech delivers its goods by making them available to the Buyer on its premises (workshop, warehouse, shed, factory). The Buyer is therefore responsible for all costs and risks associated with packing, loading, transporting from Metech's premises to the desired destination.
4.6If the Buyer must set or arrange for the means of transport, it is obliged to take possession of the items at the time to be notified in advance by Metech. If Metech must set the means of transport, it shall timely notify the Buyer of the date of departure and/or the expected time of arrival from the destination location of the means of transport.
4.7Metech is entitled to engage third parties for the performance of the agreement, or parts thereof.
4.8 If - at Metech's discretion - there is reason to believe that the Buyer will not be able to perform the Agreement or will not be able to perform it in full, Metech is entitled to require advance payment or the provision of security before delivering, transporting, ordering transport or proceeding with further delivery. If the Buyer fails to do so, Metech has fulfilled its delivery obligation by offering the items to the Buyer against simultaneous payment.
4.9The Buyer is obliged to take delivery of all the items as agreed in the Agreement. Uncollected items are stored by Metech at the Buyer's expense and risk.
5.1Unless otherwise agreed, the prices quoted by or agreed with Metech are net Ex Works (in accordance with the relevant provisions in the latest version of the Incoterms). The prices are therefore, inter alia, exclusive of VAT, exclusive of import and export duties, excise duties and other taxes or levies imposed or levied in respect of the Goods and exclusive of transport costs.
5.2 Prices quoted by Metech or agreed with Metech are based on the cost price of the goods, applicable at the time of the conclusion of the agreement. If the cost price after the conclusion of the agreement, but before delivery of the goods, undergoes an increase over which Metech cannot reasonably exercise any influence, for example due to government measures, due to changes in exchange rates or changes in subsidies, raw material prices, freight rates, energy costs, import and export duties or excise duties or as a result of inflation, Metech is entitled to increase the prices accordingly.
5.3 If Metech has taken on packaging, packing, loading, transport shipping, unloading or insurance of the goods, it is entitled to charge the Buyer the actual costs and/or Metech's usual rates for this.
5.4Payment must be made without any discount within 14 days of the invoice date. Deviations from the aforementioned payment term are only possible if this has been further agreed in writing between Metech and the Buyer. Metech is at all times entitled to demand full or partial advance payment and/or otherwise obtain security for payment at its discretion, in the form of a bank or corporate guarantee. The Buyer is obliged to comply with this.
5.5Metech is always authorized to set off all that it owes the Buyer against that which the Buyer owes Metech, whether or not due and payable, under conditions or time provisions.
5.6The Buyer waives any right to set off amounts owed mutually. The submission of a complaint or claim does not suspend the Buyer's payment obligation with respect to the items in dispute.
5.7If the Buyer has not paid in full within 14 days of the invoice date, the Buyer shall owe interest of 1.5% per calendar month on the outstanding amount from the date of default, which shall be immediately due and payable, without notice of default being required, from the date on which the payment period expired. Part of a month shall be counted as a full month.
5.8As soon as the Buyer is in default with any payment of a payable invoice, all other claims of Metech against the Buyer are immediately due and payable and in respect of those claims too, the default takes effect without notice of default.
6.1The Buyer is obliged to carefully inspect the delivered goods (or have them inspected) immediately upon arrival at their destination or by a third party acting on his instructions, whichever is earlier. Any complaints about defects to the delivered goods which are attributable to material or manufacturing defects, as well as differences in quantity, weight, composition or quality between the delivered goods and the description given for them on the order confirmation and/or invoice, must be notified to Metech in writing at the latest within eight days of the arrival of the delivered goods, stating the alleged defect. Defects, which could not reasonably have been observed within the above term, must be reported to Metech in writing immediately after observation and at the latest within six months of the arrival of the delivered goods.
6.2After the discovery of any defect, the Buyer is obliged to immediately cease the use, treatment, processing or installation of the items in question.
6.3The Buyer is not free to return the delivered items without prior consultation with Metech. The costs of returning are for the Buyer and the delivered items remain at its risk.
6.4Every right to complain lapses, in addition to the cases mentioned in paragraphs 1 to 3, if:
a.the items have been transported, handled, used, processed or stored by or on behalf of the Buyer improperly or contrary to the instructions given by or on behalf of Metech;
b.the Buyer does not, does not properly or does not timely perform any obligation to Metech under the underlying agreement.
6.5 The Buyer loses all rights and powers available to it on grounds of defectiveness if it has not complained within the aforementioned periods and or has not given Metech the opportunity in writing to remedy the defects within a reasonable period of time.
7.1 If a complaint has been made in good time, correctly and in accordance with the provisions of article 6 and it has been sufficiently demonstrated, in Metech's reasonable opinion, that the delivered goods do not function properly, Metech shall have the option either to re-deliver the products which have turned out to be unsound free of charge against the return of the products which have turned out to be unsound, or to repair the relevant products properly, or to grant the Buyer a discount on the purchase price to be determined in mutual consultation. By fulfilling one of the aforementioned performances, Metech shall be fully discharged in respect of its guarantee obligations and Metech shall not be obliged to any further (compensation).
7.2 If Metech delivers goods to the Buyer which Metech has obtained from its suppliers, Metech is never obliged to any further guarantee or liability towards the Buyer than to which Metech can lay claim towards its supplier. In the event of the sale of products sold under a manufacturer's warranty or parts warranty, there is only a warranty on any defective or faulty individual components or parts of the products delivered by Metech to the Buyer. Any necessary (de)assembly, adjustment and setting costs of the components of/to the sold good and additional costs of services or required materials (hours, oil, filters, etc.) are fully for the account of the Buyer. Also, all possible administration, shipping and delivery costs and all additional costs to negotiate this manufacturer's warranty or parts warranty with Metech's supplier are fully and unreservedly borne by the Buyer. All shipping costs from the Buyer to Metech shall at all times be borne by the Buyer.
7.3Go warranty is given on batteries, accumulators, tires and other wearing parts. Metech reserves the right to provide no or different warranties on discounted or so-called outlet items.
7.4There is only a warranty on the goods sold by Metech if this is unambiguously and clearly stated on the orders, assignments, or invoices. The warranty period commences after delivery.
7.5The products remain fully at the Buyer's risk in the event Metech carries out repair activities on the products, unless the repair is the result of a defective performance by Metech and the Buyer cannot reasonably be expected to insure the products for the above risk. Should the Buyer carry out any repairs or changes without Metech's prior consent or have them carried out by others, Metech shall not be obliged to fulfil its warranty obligations. This also applies if there has been improper use of the products by the Buyer or related parties, which is understood to mean all use for which the good is reasonably and according to the user manual.
7.6 Any guarantee provided by Metech does not apply if and as long as the Buyer is in default towards Metech, the Items have been exposed to abnormal conditions, or have been handled carefully or inexpertly, the Items have been stored for longer than usual or Metech has not been given the opportunity to investigate the defect. Any warranty expires six months after delivery.
8.1Metech remains the owner of the items it has delivered to the Buyer until the Buyer has fulfilled all its obligations, including future ones, towards Metech. Without the knowledge and written approval of Metech, the Buyer is not authorized before payment to pledge, encumber or transfer ownership of the delivered item to a third party and Metech remains the owner of this until the Buyer has fully satisfied its obligations towards Metech.
8.2As long as the items are still the property of Metech, Metech is, in the event of non-performance or a well-founded fear of non-performance by the Buyer of an obligation it has under the purchase agreement, without any notice of default or judicial intervention being required, at all times entitled to regain possession of these items, wherever they are located. The Buyer hereby authorizes Metech to enter the place where these items are or could be located.
9.1 If the Buyer should in any respect be negligent in the performance of its obligations, in particular those to pay and to take delivery of the goods, or if one or more delivery periods have expired without the Buyer having claimed the purchased goods as well as in the event of bankruptcy, suspension of payment, cessation, liquidation, receivership or dissolution of the Buyer, Metech is, without prejudice to its right to demand performance, at all times entitled to do so without notice of default:
a.transport and store the items elsewhere at the Buyer's expense and risk or keep them stored at his own premises;
b.suspend all further deliveries, regardless of which contract;
c.declare all current contracts unilaterally dissolved in whole or in part by written notice to the buyer and take back the delivered goods;
d.claim from the Buyer full compensation for interest, damages and costs.
9.2Metech is also entitled, at its option, to terminate the agreement in whole or in part if any benefit has been or is offered or provided by or on behalf of the Buyer in connection with the formation or performance of the agreement to any person who is part of Metech.
10.1Metech is entitled, without being in default, to suspend the delivery of the items purchased by the Buyer, if as a direct or indirect consequence of one or more causes mentioned in Article 10.2 - regardless of whether they could have been foreseen at the time of entering into the contract - the items cannot reasonably be delivered or cannot be delivered on time.
10.2There is a question of force majeure on the part of Metech if, after the conclusion of the purchase agreement, Metech is prevented from fulfilling its obligations under this agreement as a result of war, threat of war, civil war, riots, terrorist attacks, riots, strikes, sit-down strikes, lockouts, fire, environmental and water damage, floods, government measures including import and export measures, extreme weather conditions disruption in the supply or supply of raw and auxiliary materials, disruptions in the supply of energy and operating supplies, non-performance by a supplier from whom Metech procures its goods, defects to machines and installations, defects to means of transport, transport impediments, the withdrawal or non-renewal of required permits, certificates, licenses and the like and furthermore as a result of all other causes which originate outside the fault or the sphere of risk of Metech.
10.3If, due to force majeure as referred to in article 10, the delivery is delayed by more than two months, both Metech and the Buyer are authorized to unilaterally terminate the Agreement by means of a written statement to the other party for that part of it which has not yet been performed.
11.1 All intellectual and industrial property rights relating to delivered goods and/or rendered services are vested in Metech or third-party right holders and are not transferred to the Buyer by the agreement with Metech, even if the goods and or services have been designed, developed or compiled specifically for the Buyer.
11.2Metech declares that, to the best of its knowledge, the goods delivered do not infringe any third party intellectual property rights applicable in the Netherlands. Metech cannot indemnify the Buyer for any infringements of intellectual property rights of third parties. The Buyer guarantees that it will not infringe (nor allow or enable third parties to infringe) any intellectual property rights of Metech, or its suppliers, in respect of the delivered goods.
12.1The liability of Metech in connection with any shortcomings in respect of goods delivered by it and related services is limited to the amount of a maximum of€ 1,000, as evidenced by the invoice to which the delivery relates.
12.2Metech will never, except in case of intent or deliberate recklessness, be liable for a defect in a delivered good or an error in service, which is the result of any defect in or treatment of a raw material delivered to it by a third party or a finished or semi-finished product delivered to it by a third party.
12.3Metech does not accept any liability in the context of delivery or service to the Buyer for indirect loss, such as but not limited to trading loss, consequential loss, or idle loss and loss of income and profits, loss of customers, environmental damage, damage to name and/or goodwill, which the Buyer shall suffer as a result of the fact that the delivered goods show or have a defect, unless the Buyer demonstrates that there was intent or conscious recklessness on the part of Metech or it proves that Metech was aware of the defect and the Buyer can specify and prove the amount of its loss.
12.4Every claim against Metech, except those recognized by Metech, shall lapse by the mere expiry of 12 months from the occurrence of that claim.
12.5The employees of Metech or auxiliary persons engaged by Metech for the performance of the agreement may rely against the Buyer on all defenses to be derived from the agreement as if they themselves were parties to that agreement.
12.6The Buyer shall fully indemnify Metech, its employees and the auxiliary persons engaged by it, against any form of liability in connection with the performance of the Agreement. In connection with the obligation to indemnify, the Buyer is, inter alia, obliged to pay the reasonable costs of defense against third-party claims.
13.1 All agreements concluded between Metech and the Buyer are exclusively governed by Dutch law.
13.2 The Vienna Convention on Contracts for the International Sale of Goods (Vienna U.N. Convention 11 April 1980) shall not apply to the agreements concluded between Metech and the Buyer.
13.3Every dispute arising from the agreement or further agreement entered into between Metech and the Buyer, including the collection of a claim, shall exclusively be subject to the opinion of the competent Dutch court of the District Court of Gelderland. The foregoing does not affect Metech's right to submit the dispute to the court with jurisdiction according to normal competency rules, such at Metech's discretion.