Article 1: Applicability
1.1 Unless 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, established and having its place of business in Barneveld, or by one of its subsidiaries (hereinafter: “Metech”).
1.2 Any general terms and conditions used by the counterparty or customer of Metech (hereinafter: “Buyer”), however named, are expressly rejected and do not apply to this agreement, unless Metech has expressly accepted those terms and conditions in writing.
1.3 Amendments to the agreement concluded 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.
1.4 If one or more provisions of these general terms and conditions prove to be invalid, or are set aside by a court, the remaining provisions shall remain in full force and effect.
Article 2: Offers, orders and agreements
2.1 All offers or quotations made by or on behalf of Metech are without obligation, unless a specific period for acceptance is stated in the offer. The offers or quotations do not automatically apply to repeat orders.
2.2 If the Buyer provides Metech with data, drawings and the like, Metech may assume that these are correct and complete and will base its offer or quotation on them.
2.3 The prices stated in the offer or quotation are based on delivery ex works (‘Ex Works’, in accordance with the relevant provisions of the latest version of the Incoterms), at Metech’s place of business, unless stated otherwise in the offer or quotation. The prices are exclusive of turnover tax and other government levies, assembly costs and commissioning costs. Any estimate made by Metech of the costs associated with an order (such as transport, packing and/or packaging costs) is always without obligation. The Buyer can never derive any rights from such an estimate.
2.4 Direct orders from the Buyer are only binding on Metech once they have been accepted by Metech in writing.
2.5 If the Buyer places an order stipulating any price or condition that deviates, even on a minor point, from the offer or from what has otherwise been agreed between the parties, the intended agreement shall not be concluded, unless Metech subsequently confirms this in writing within five working days.
2.6 An agreement between Metech and the Buyer is only concluded once the Buyer’s acceptance of Metech’s offer has reached Metech.
Article 3: Advice and information provided
3.1 The Buyer cannot derive any rights from advice and information provided by Metech that does not relate to goods or services supplied by Metech to the Buyer.
3.2 In performing the agreement, Metech may rely on the correctness and completeness of the information provided to it by the Buyer.
Article 4: Delivery and transfer of risk
4.1 The delivery period specified by Metech commences after the agreement has been concluded, once Metech has all the materials (including delivery materials), documents and data to be provided by the Buyer, and once any agreed advance payment has been received by Metech or security for payment has been provided in favour of Metech.
4.2 The Buyer is obliged to provide Metech, at least two days before delivery, with the instructions necessary for shipment or collection.
4.3 Delivery periods specified by Metech are indicative and shall never be regarded as strict deadlines. If the delivery period is exceeded, the Buyer is never entitled to claim compensation for supplementary or substitute, direct or indirect damage, nor to non-performance or suspension of any obligation arising from the agreement, nor to terminate or rescind the agreement. After expiry of the delivery period specified by Metech, the Buyer is entitled to set Metech a new reasonable period; if that period is exceeded, the Buyer is entitled to terminate or rescind the agreement by written notice to Metech within fourteen days, without this giving rise to any obligation on the part of Metech to pay compensation.
4.4 The delivery period specified by Metech is extended by the time during which performance of the agreement is delayed by force majeure (as specified in article 10 of these terms and conditions).
4.5 Unless otherwise agreed, delivery takes place ex works (‘Ex Works’, in accordance with the relevant provisions of the latest version of the Incoterms). This means that Metech delivers its goods by making them available to the Buyer at its business premises (workshop, storage area, shed, factory). The Buyer is therefore responsible for all costs and risks associated with packing, loading and transporting the goods from Metech’s business premises to the desired destination.
4.6 If the Buyer is to provide or arranges the means of transport, it is obliged to take receipt of the goods at the time to be notified in advance by Metech. If Metech is to provide the means of transport, it will inform the Buyer in good time of the date of departure and/or the expected time of arrival of the means of transport at the place of destination.
4.7 Metech is entitled to engage third parties for the performance of the agreement or parts thereof.
4.8 If – in Metech’s judgement – there is reason to assume that the Buyer will not be able to fulfil the agreement, or not in full, Metech is entitled to demand advance payment or the provision of security before proceeding to delivery, transport, issuing a transport order or further delivery. If the Buyer fails to comply with this, Metech has fulfilled its delivery obligation by offering the goods to the Buyer against simultaneous payment.
4.9 The Buyer is obliged to take delivery of all goods as agreed in the agreement. Goods not taken delivery of will be stored by Metech at the Buyer’s expense and risk.
Article 5: Price, payment and security
5.1 Unless otherwise agreed, the prices quoted by or agreed with Metech are net Ex Works (in accordance with the relevant provisions of the latest version of the Incoterms). The prices are therefore, among other things, exclusive of VAT, exclusive of import and export duties, excise duties and other taxes or levies imposed or charged in respect of the goods, and exclusive of transport costs.
5.2 Prices quoted by or agreed with Metech are based on the cost price of the goods applicable at the time the agreement is concluded. If, after the agreement has been concluded but before delivery of the goods, the cost price increases in a way over which Metech cannot reasonably exert any influence, for example as a result of government measures, 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 undertaken the packing, packaging, loading, transport, shipment, unloading or insurance of goods, it is entitled to charge the Buyer the actual costs and/or Metech’s usual rates for this.
5.4 Payment must be made without any discount within 14 days of the invoice date. Deviation from the aforementioned payment term is 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 guarantee or group guarantee. The Buyer is obliged to comply with this.
5.5 Metech is always entitled to set off everything it owes the Buyer against everything the Buyer owes Metech, whether or not due and payable, subject to conditions or subject to a time stipulation.
5.6 The 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 in respect of the goods in dispute.
5.7 If the Buyer has not paid in full within 14 days of the invoice date, the Buyer shall, without notice of default, with effect from the date on which the payment term expired, owe immediately payable interest of 1.5% per calendar month on the outstanding amount from the moment of default. Part of a month is counted as a full month.
5.8 As soon as the Buyer is in default with any payment of a due invoice, all other claims of Metech against the Buyer become immediately due and payable, and default also occurs in respect of those claims without notice of default.
Article 6: Claims or complaints
6.1 The Buyer is obliged to inspect the delivered goods carefully, or have them inspected, immediately upon arrival at the place of destination or, if this is earlier, upon receipt by the Buyer itself or by a third party acting on its instructions. Any complaints about defects in the delivered goods attributable to material or manufacturing faults, 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, stating the alleged defect, no later than eight days after arrival of the delivered goods. Defects that could not reasonably have been detected within the above period must be reported to Metech in writing immediately after detection and no later than six months after arrival of the delivered goods.
6.2 After discovering any defect, the Buyer is obliged to cease the use, processing, treatment or installation of the goods concerned without delay.
6.3 The Buyer is not free to return the delivered goods without prior consultation with Metech. The costs of returning the goods are borne by the Buyer and the delivered goods remain at its risk.
6.4 In addition to the cases mentioned in paragraphs 1 to 3, any right to complain lapses if:
a. the goods 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 fails to fulfil, or fails to fulfil properly or on time, any obligation towards Metech arising for it from the underlying agreement.
6.5 The Buyer loses all rights and powers available to it on the grounds of defectiveness if it has not complained within the periods stated above and/or has not given Metech the opportunity in writing to remedy the defects within a reasonable period.
Article 7: Warranty
7.1 If a complaint has been made in time, correctly and in accordance with the provisions of article 6, and it has been sufficiently shown, in Metech’s reasonable opinion, that the delivered goods do not function properly, Metech shall have the choice either to redeliver the products found to be defective free of charge against return of the products found to be defective, or to repair the products concerned properly, or to grant the Buyer a discount on the purchase price to be determined by mutual agreement. By performing one of the aforementioned options, Metech shall have fully discharged its warranty obligations and shall not be liable for any further compensation (for damage).
7.2 If Metech delivers goods to the Buyer that Metech has obtained from suppliers, Metech shall never be bound towards the Buyer by any warranty or liability that goes further than what Metech can claim from its supplier. In the case of the sale of products that are sold under a manufacturer’s warranty or parts warranty, the warranty covers exclusively the individual components or parts of the products delivered by Metech to the Buyer that are defective or faulty. Any necessary removal and installation, adjustment and setting costs of the parts of/on the item sold and additional costs of services or required materials (hours, oil, filters, etc.) are entirely for the Buyer’s account. Furthermore, all administration, shipping and delivery costs and all additional costs of claiming this manufacturer’s warranty or parts warranty from Metech’s supplier are entirely and unreservedly for the Buyer’s account. All shipping costs from the Buyer to Metech are at all times for the Buyer’s account.
7.3 No warranty is given on rechargeable batteries, batteries, tyres and other wear parts. Metech reserves the right to give no warranty, or a different warranty, on reduced-price or so-called outlet items.
7.4 Warranty applies to goods sold by Metech only if this is unambiguously and clearly stated on the orders, assignments or invoices. The warranty period commences after delivery.
7.5 The products remain entirely at the Buyer’s risk if repair work is carried out on the products by Metech, unless the repair is the result of defective performance by Metech and the Buyer cannot reasonably be expected to insure the products against the above risk. Should the Buyer carry out repairs or modifications, or have them carried out by others, without Metech’s prior consent, Metech shall not be obliged to fulfil its warranty obligations. The same applies if improper use of the products has been made by the Buyer or affiliated parties, meaning any use other than the use for which the item is reasonably intended according to the user manual.
7.6 Any warranty from Metech does not apply if and for as long as the Buyer is in default towards Metech, if the goods have been exposed to abnormal conditions or have been handled carelessly or improperly, if the goods have been stored for longer than usual, or if Metech has not been given the opportunity to investigate the defect. Every warranty expires six months after delivery.
Article 8: Retention of title
8.1 Metech remains the owner of the goods it has delivered to the Buyer until the Buyer has fulfilled all its obligations, including future obligations, towards Metech. Without the knowledge and written approval of Metech, the Buyer is not authorised, prior to payment, to pledge or encumber the delivered item or to transfer ownership of it to a third party, and Metech remains its owner until the Buyer has fulfilled its obligations towards Metech in full.
8.2 As long as the goods are still the property of Metech, Metech is at all times entitled, in the event of non-performance or well-founded fear of non-performance by the Buyer of an obligation arising for it from the purchase agreement, to repossess these goods wherever they are located, without any notice of default or judicial intervention being required. The Buyer hereby authorises Metech in advance, for that event, to enter the place where these goods are or may be located.
Article 9: Default by the Buyer
9.1 If the Buyer should be negligent in any respect in fulfilling its obligations, in particular those of payment and of taking receipt of the goods, or if one or more delivery periods have expired without the Buyer having called off the goods purchased, as well as in the event of bankruptcy, suspension of payments, shutdown, liquidation, guardianship or dissolution of the Buyer, Metech is, without prejudice to its right to demand performance, at all times entitled, without notice of default:
a. to transport the goods elsewhere and store them, or to keep them stored in its own business, at the Buyer’s expense and risk;
b. to suspend all further deliveries, irrespective of the contract under which they are due;
c. to declare all current contracts rescinded, in whole or in part, unilaterally by written notice to the Buyer and to take back the delivered goods;
d. to claim full compensation of interest, damage and costs from the Buyer.
9.2 Metech is also entitled, at its option, to rescind the agreement in whole or in part if, by or on behalf of the Buyer, any advantage is or has been offered or provided, in connection with the conclusion or performance of the agreement, to a person who forms part of Metech.
Article 10: Force majeure
10.1 Metech is entitled, without being in default, to suspend delivery of the goods purchased by the Buyer if, as a direct or indirect consequence of one or more of the causes listed in article 10.2 – regardless of whether these were foreseeable at the time the contract was concluded – the goods cannot reasonably be delivered, or cannot reasonably be delivered on time.
10.2 Force majeure on the part of Metech exists if, after the purchase agreement has been concluded, Metech is prevented from fulfilling its obligations under this agreement as a result of war, danger of war, civil war, riot, terrorist attacks, civil unrest, strikes, occupation of premises, lockout, fire, environmental and water damage, flooding, government measures including import and export measures, extreme weather conditions, disruption in the supply or provision of raw and auxiliary materials, disruptions in the supply of energy and operating supplies, non-performance by a supplier from whom Metech obtains its goods, defects in machines and installations, defects in means of transport, transport obstructions, withdrawal or non-renewal of required permits, certificates, licences and the like, and furthermore as a result of all other causes arising outside the fault or sphere of risk of Metech.
10.3 If delivery is delayed by more than two months due to force majeure as referred to in article 10, both Metech and the Buyer are entitled to rescind the agreement unilaterally, for the part not yet performed, by means of a written statement to the other party.
Article 11: Intellectual property rights
11.1 All intellectual and industrial property rights relating to goods delivered and/or services performed are vested in Metech or third-party rights holders and do not pass to the Buyer by virtue of the agreement with Metech, not even if the goods and/or services have been specifically designed, developed or compiled for the Buyer.
11.2 Metech declares that, to the best of its knowledge, the goods delivered do not infringe any intellectual property rights of third parties applicable in the Netherlands. Metech cannot indemnify the Buyer against any infringements of intellectual property rights of third parties. The Buyer warrants that it will not infringe (nor allow or enable third parties to infringe) the intellectual property rights of Metech, or of its suppliers, relating to the goods delivered.
Article 12: Liability
12.1 Metech’s liability in connection with any shortcomings in respect of goods delivered by it and related services is limited to a maximum amount of €1,000, as evidenced by the invoice to which the delivery relates.
12.2 Except in the case of intent or deliberate recklessness, Metech shall never be liable for a defect in a delivered item or an error in the provision of services that results from any defect in, or method of 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.
12.3 Metech accepts no liability, in the context of delivery or provision of services to the Buyer, for indirect damage, such as but not limited to business, consequential or downtime damage and lost income and profits, loss of customers, environmental damage, damage to name and/or goodwill, which the Buyer will suffer as a result of the fact that the delivered goods show or have shown a defect, unless the Buyer shows that there is intent or deliberate recklessness on the part of Metech, or proves that Metech was aware of the defect, and the Buyer can specify and prove the amount of its damage.
12.4 Any claim against Metech, except a claim that has been acknowledged by Metech, lapses by the mere expiry of 12 months after the claim arose.
12.5 Metech’s employees or auxiliary persons engaged by Metech for the performance of the agreement may invoke against the Buyer all defences derived from the agreement as if they themselves were party to that agreement.
12.6 The 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 this indemnification obligation, the Buyer is obliged, among other things, to reimburse the reasonable costs of defence against claims by third parties.
Article 13: Applicable law and disputes
13.1 All agreements concluded between Metech and the Buyer are governed exclusively by Dutch law.
13.2 The Vienna Sales Convention on contracts for the international sale of goods (UN Convention of Vienna, 11 April 1980) shall not apply to the agreements concluded between Metech and the Buyer.
13.3 Any dispute arising from the agreement or further agreement concluded between Metech and the Buyer, including the collection of a claim, may only be submitted to the competent Dutch court, the District Court of Gelderland (Rechtbank Gelderland). The foregoing is without prejudice to Metech’s right to submit the dispute, at Metech’s option, to the court that has jurisdiction under the normal rules of jurisdiction.