General Delivery Terms of Electro-Cirkel Marine and Industry B.V. established in Rotterdam, filed with the Chamber of Commerce on 6 December 2016 under number 24334173.
The present terms of delivery form part of all our offers and also of any transaction concluded with us in so far as not expressly departed from by both parties in writing. A reference by the customer to its own conditions of purchase will not be accepted by us unless confirmed by us to the contrary in writing beforehand.
All of our offers are always without engagement. We are bound by transactions only if these have been confirmed by us in writing or from the point at which we have made a start on their execution; this also applies particularly to the offers and commitments made by our representatives or other persons in our employment and to any agreements reached by them.
3. Dimensions, weights, drawings, illustrations and technical details
The dimensions, weights and technical details, as well as any associated drawings and illustrations, contained in our offers, guides, catalogues, stock lists, circulars and other advertising material are only by way of approximation and are without engagement, unless a guarantee has expressly been provided in writing. The copyright on the illustrations, drawings, diagrams and designs provided by us, as well as in general on any matter published by us, is vested solely in ourselves, irrespective as to whether or not any costs have already been charged in this regard; these publications or their contents may not be provided to third parties either in their entirety or in part, in whatever form, without our consent.
The prices we have specified are without engagement in the sense that they are based on the factory prices, foreign exchange rates, import duties and equivalent levies, insurance rates, freight, taxes, margin regulations and other such factors prevailing at the time in question. If a change takes place in one or more of these factors before delivery has taken place, we are authorised to make fair adjustments, at our discretion, to the aforementioned prices. Unless otherwise indicated our prices are quoted per unit and exclusive of turnover tax and other government charges pertaining to sale and delivery.
Any trade discounts granted by us shall apply only to orders with a gross value (excluding turnover tax) in excess of a limit to be laid down by ourselves.
All our deliveries within the Netherlands are “carriage paid to delivery address”. In the case of ordersbelow an invoice amount (excluding turnover tax) to be determined in each case by ourselves we however reserve the right to charge freight costs and will calculate a small delivery surcharge according to the applicable surcharge rate at the time of delivery.
The risk in respect of goods to be delivered by ourselves is transferred to the customer upon physical delivery of the goods to the delivery address specified by ourselves. Our prices are based on this arrangement. For internal administrative reasons a separate sum is quoted in this connection with regard to offers and invoices, etc., which sum does however form part of the price.
Unless we deliver the goods in factory packaging for which our supplier does not charge us separately, we will be able to make an additional charge for the packaging costs; the packaging invoiced by us will be fully reimbursed provided it is returned in good condition carriage paid within one month of date of delivery.
All cable reels remain our inalienable property, and must be returned to us by the customer carriage paid within three months of date of delivery.
7. Delivery dates
Unless a particular delivery date has been expressly guaranteed by us in writing, the delivery dates specified by us are by way of approximation only.
Apart from cases in which we have issued a guarantee, compliance with the specified delivery date will depend on our possibilities.
In the case of force majeure and other circumstances of a corresponding nature as a result of which reasonable fulfilment of the transaction cannot be demanded of us – including the case that our own suppliers do not make it possible for us to deliver – the delivery date will be extended by a period equal to the persistence of those circumstances.
Apart from gross negligence on our part, failure to meet the delivery date does not provide the customer with any right in respect of the total or partial dissolution of the transaction or to any indemnification.
If delivery has not taken place within six months after the transaction was agreed, we ourselves and the customer have the right to annul the transaction. That right also applies if the transaction has since been partly executed.
We are authorised to deliver an order in its entirety or in instalments as the goods become available in stages. If we deliver in instalments, we are nevertheless authorised to demand payment in accordance with the applicable payment conditions in respect of invoices for part deliveries. Without prejudice to the previous provisions in this article in the case of transactions on demand, the purchased goods will as far as possible be divided into equal quantities and intervals during the period agreed for the purchase; if that is not the case the customer shall, without any warning or notice of default on our part, be in default, thereby providing us with the power defined in 8 below.
8. Customer’s obligations
In the event of unforeseen non-compliance by the customer with its obligations, including cases in which the customer refuses acceptance or fails to make a payment on the agreed date, we are at all times authorised, without need for warning or notice of default, to declare the transaction dissolved without need for legal intervention, without prejudice to our entitlements to compensation, while we shall then also be authorised to cancel all other current transactions with the customer in question, in so far as not yet executed, under the same conditions; and any cancellation shall result in the payability on demand of any amount owing to us.
Payment of the invoice amounts must be in our possession no later than 30 days from invoice date or earlier if so agreed. Payment will have taken place as soon as Electro-Cirkel Marine and Industry B.V. has disposed over the money.
Payment in any other manner, especially the handing over of payment to our employees, shall be valid only after written confirmation by ourselves.
Unless expressly agreed otherwise by us with the customer, a payment by the customer shall apply to and be deducted by us against the most overdue invoice(s), subject to the proviso that we shall at all times be authorised to apply payments in reduction or settlement of an outstanding invoice or outstanding invoices of our choice.
The customer shall be entitled, in so far as agreed and stated on the invoice, to a discount for prompt payment of 2% of the invoice amount if payment is made within 30 days of invoice date. Once payment is overdue the customer shall be liable to pay credit charges on the invoice amounts in question. This means that the customer may no longer deduct the discount for prompt payment shown on the invoice if payment in full of the invoice amount is not made within 30 days of the invoice date. In addition credit charges may be imposed on the customer if the invoice amount has not been paid within 60 days of the invoice date.
In the event that the customer has not been granted a discount for prompt payment, Electro-Cirkel Marine and Industry B.V. is authorised to impose credit charges on the customer from the payment date of the invoices in question. The credit charges shall amount to 1.5% per month on the total amount stated on the invoice. The compensation rate may be increased or reduced at the discretion of Electro-Cirkel Marine and Industry B.V. The latter is authorised at all times to suspend the delivery of goods or the performance of services forming part of the transactions in question or other transactions.
If in the event of late payment we consider it necessary to place our claim(s) in the hands of third parties for collection, we will advise the customer accordingly in writing; in general we will provide the customer with a brief period as determined by ourselves within which the customer may still discharge its obligations, unless we consider collection measures to be required forthwith in a particular case. If we decide to take collection measures, the associated costs will be fully for thecustomer’s account; at our discretion we may charge the customer for all costs actually incurred byourselves or for a sum equal to fifteen percent calculated on the sum owing to us (principal, including discount for prompt payment, and credit charges).
We reserve the right to demand security at any time for timely payment in respect of deliveries already or still to be performed, which security may at our discretion take the form of prepayment, bank guarantee, mortgage, pledge or suretyship.
10. Retention of title and right of pledge
We reserve retention of title until the customer has settled any claims arising from this or comparable agreement for goods that have been or are to be delivered and/or services that have been or are to be performed, as well as in respect of claims on account of non-compliance by the customer with this or a comparable agreement, including interest and costs. Despite our retention oftitle the items delivered by us will be held by the customer at the latter’s own account and risk.
The customer is obliged to provide us at first request with access to the delivered items or any components and newly formed items. The customer already now irrevocably authorises us to enterthe buyer’s sites with a view to recovering delivered items, without prejudice to our rights to fullcompensation. As long as the customer has not fully discharged all its debts to us it shall be prohibited from establishing a right of pledge on or otherwise encumbering in favour of a third party the items delivered by us.
If the customer makes delivery to a third party of the items delivered by us to it under retention of title, the customer shall be obliged to retain title over the items. We transfer title to the items subject to a right of pledge in favour of ourselves in respect of claims by us on the buyer other than as referred to in the first clause of this article. The customer is obliged to co-operate at our first request in any action required.
In no circumstances do we accept more obligations or extend more guarantees going beyond the obligation (at our discretion) to replace, credit or repair the delivered products subject to material defects; in particular we can in no circumstances be held liable to indemnify any loss incurred, of whatever nature. Nor can we be held liable to identify any loss incurred, of whatever nature, if goodshave been delivered subject to any factory or importer’s guarantee; the processing of any claimunder a guarantee shall in such cases be a matter solely for the manufacturer or importer concerned. Our customer indemnifies us against any losses, costs and interest that we might be required to bear as a result of claims by third parties relating to the goods delivered by us.
Our liability as a result of an attributable failure to perform shall in no circumstances exceed the net sales amount or net invoice amount for the goods or services in question. The liability for loss is furthermore limited to direct personal loss or material damage. Liability for indirect or consequential loss (including lost earnings and lost turnover) is expressly excluded.
12. Claims and return of goods
Without prejudice to the provisions below our customer shall be obliged immediately upon delivery to check that the goods correspond with the order in question, irrespective of the place where the goods were delivered in accordance with the order.
In the event of claims the goods delivered by us will only be re-collected or accepted back after prior consultation with one of our sales staff; the foregoing also applies if we have signified our agreement that goods are to be returned to us for repair, without question of any claim.
In the case of claims for wrongly delivered or packaged goods that have been delivered in damaged condition, the claim will need to be submitted to us by the customer in writing, accompanied by the packing list in question, no later than the seventh day from the date of delivery; the claim is only valid if the packaging is still in original condition. If the goods have been assembled or processed by the customer, claims on whatever grounds, including incorrect delivery, will no longer be permitted, even if such claim has been submitted within the set period; in such cases we shall not be obliged to pay any compensation of whatever kind.
Oral claims and claims submitted after the aforementioned period has elapsed will not be accepted. In the case of goods collected from our warehouses, claims made immediately upon delivery only will be processed. Any unpackaged goods, if damaged upon delivery, must be rejected by the customer. If goods delivered under a factory or importer’s guarantee are returned for assessment of theguarantee by the manufacturer or importer in question, any costs incurred by ourselves may be charged to the customer.
lf goods are returned to us for repair without any question of claim, these goods shall be treated as having been delivered to the customer with all the associated consequences, while any costs of repair and transport will be charged to the customer.
In cases solely at our discretion, we may for reasons other than those given above take back and credit goods supplied by ourselves, provided that the date of delivery goes back no more than 30 days, the goods are still in their original condition and packaging and they form part of our stock range; goods specially ordered for our customer will therefore not be taken back in anycircumstances. In a case as referred to above, we will charge the customer for “crediting costs”,consisting of 3% per consignment with a minimum of € 80 (the sum being rounded off downwards to the nearest € 2.25), subject to the proviso that for appliances with a value in excess of € 225 a fixed sum of € 11 per appliance will be charged.
A single sum will be charged with the description “crediting costs” (comprising freight andadministration costs). The submission of claims does not exempt the customer from payment as per invoice.
The provisions in this article are without prejudice to the other provisions of these general delivery terms.
13. Hallmarks and limiting installation or other regulations upon use or sale in another country
Products bearing a hallmark under the Dutch regulations are delivered by us in the configuration for which the hallmark was issued. In addition we carry products that do not bear a Dutch hallmark. The products we offer are in principle intended for sale on the Dutch market. Sale or installation of these products in other countries may be subject to limitations or be prohibited and shall be at thecustomer’s risk.
Any disputes that may arise between customers and ourselves will be resolved at our choice by the competent court in Rotterdam or the competent court in the place where the customer has domicile, except of course where imperative rules of law apply.