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General Terms and Conditions of:
OEM Motorparts
Lutterveldweg 5-A
4005 LD Tiel
Netherlands
Rabobank
International Bank Account number (IBAN): NL817922003B01
S.W.I.F.T. Bank Identifier Code (BIC): RABONL2U
Chamber of Commerce No. for Midden-Nederland: 11069010
Article 1: Applicability, definitions
1. These Terms and Conditions apply to any offer and to any agreement
of sale and purchase that is concluded via the website(s) www.oemmotorparts.com
of Moto Group bv., established in Tiel, hereinafter to be referred
to as: “O.E.M.”.
2. The buyer shall be referred to as “the Other Party”.
3. A number of provisions in these General Terms and Conditions
relate to a natural person who does not act in the capacity of a
profession or a company. The Other Party shall be referred to as
“the Consumer” in the context of these provisions.
4. “In writing” for the purposes of these General Terms
and Conditions shall mean: by letter, e-mail, fax or any other mode
of communication that is regarded as equivalent to writing in view
of advances in technology and conventional practices.
5. “The website” for the purposes of these General Terms
and Conditions shall mean: the website(s) of O.E.M. referred to
in the first paragraph of this Article.
6. The possible invalidity of (any part of) a provision contained
in these General Terms and Conditions shall not affect the validity
of the remaining provisions.
7. In the event of a discrepancy or conflict between these General
Terms and Conditions and a translation hereof, the Dutch text shall
prevail.
8. These General Terms and Conditions shall also apply to subsequent
orders and part orders flowing from the agreement.
9. If O.E.M. has already submitted these General Terms and Conditions
to the Other Party several times – whether or not via the
website – there is a sustainable trading relationship. O.E.M.
will then not have to submit the Terms and Conditions again to have
them apply to the following agreements.
Article 2: Offers, proposals, prices
1. Each offer and each proposal by O.E.M. is in force during the
term referred to in the offer or proposal. An offer or proposal
without a validity term is without engagement. O.E.M. is entitled
to withdraw an offer or a proposal if this offer or proposal is
without engagement, within 2 working days after receipt of the acceptance
at the latest.
2. The prices stated in the offer, price lists, on the website,
etc. are exclusive of BTW and any other taxes and costs, such as
transport and shipping costs, administrative charges, costs related
to international payments, import duties and other local government
levies. The website clearly states the BTW amount applicable per
item as well as any transport and shipping costs or administrative
charges.
3. A composite offer or proposal does not oblige O.E.M. to deliver
part of the offered items against a corresponding part of the price.
4. If the offer or proposal is based on information provided by
the Other Party and this information appears to be incorrect or
incomplete or should change at a later date, O.E.M. shall have the
right to adjust the prices and/or delivery terms stated.
5. The offer, the proposal and the prices do not automatically apply
to repeat or partial orders.
6. The samples and models shown and/or provided, specified colours,
dimensions, weights, capacities and other descriptions in brochures,
promotion material and/or on the website of O.E.M. are as accurate
as possible, but given as indication only. The Other Party may not
derive any rights from this.
7. The samples and models provided shall remain the property of
O.E.M. and must be returned to O.E.M. on demand at the expense of
the Other Party.
a. If (cost) price increasing circumstances occur at the expense
of O.E.M. between the date of concluding the agreement and the execution
thereof, due to legislation and regulations, government measures,
currency fluctuations or price changes of the required materials
and/or raw materials, O.E.M. shall have the right to increase the
agreed prices and charge these to the Other Party.
b. In the event of price increases within three months of establishing
the agreement, the Consumer shall be entitled to dissolve the agreement
giving notice in writing. If the Consumer does not inform O.E.M.
of its intention to use its right to dissolve the agreement within
14 days of notification of the price change, O.E.M. may assume that
the Consumer has agreed to the price change.
Article 3: Establishing agreements
1. The agreement is established after the Other Party has accepted
the offer of O.E.M., also if this acceptance deviates on secondary
issues from this offer. However, when the acceptance of the Other
Party shall deviate in essential aspects, the agreement shall only
be concluded if O.E.M. has explicitly agreed with these deviations
in writing.
2. If the Other Party places an order via de website, O.E.M. shall
only be bound to this order after it has confirmed it to the Other
Party. All this, unless otherwise stated on the website.
3. O.E.M. shall only be bound to:
a. an order without prior offer thereto;
b. oral agreements;
c. additions to or changes of the General Terms and Conditions or
agreement;
after written confirmation to the Other Party or as soon as O.E.M.
- without objection of the Other Party - has started the performance
of the order or arrangements.
Article 4: Distance purchasing, reconsideration period
1. This article exclusively applies to the Consumer for distance
purchasing in the sense of Article 46a Book 7 of the Netherlands
Civil Code.
2. When purchasing at distance (purchasing via the website), the
Consumer is entitled to a reconsideration period of 14 calendar
days after receipt of the items. The Consumer may terminate the
agreement within this term without having to state a reason. Such
termination shall take place by means of a written notice to O.E.M.
The aforesaid reconsideration period is explicitly excluded by O.E.M.
insofar as it concerns an order for items produced or purchased
via the website at the request of the Other Party.
3. In the event of termination of the agreement, the items must
be returned to O.E.M. in their original packaging, unused and at
the expense and risk of the Consumer.
4. O.E.M. shall pay back to the Consumer the payments it has already
received from the Consumer as soon as possible but within 14 calendar
days after the termination at the latest.
5. O.E.M. has the right to refuse the returned items or to only
pay back part of the received payments if the items are not in their
original packaging or if they are used and/or damaged. O.E.M. shall
inform the Consumer thereof immediately after receipt of the items.
Article 5: Engaging third parties
If required for the proper execution of the agreement according
to O.E.M., it shall have the right to have specific deliveries carried
out by third parties.
Article 6: Obligations of the Other Party
1. The Other Party must ensure that it shall make all information
required for the execution of the agreement available to O.E.M.
in time and in the manner required by it, and that the information
is correct and complete.
2. The Other Party may only sell on items delivered by O.E.M. in
the original packaging from O.E.M. or its supplier. The Other Party
may make no changes to the original packaging and shall prevent
any damage.
3. If the above obligations are not fulfilled in full or on time,
O.E.M. shall have the right to suspend the execution of the agreement
until the time that the Other Party has fulfilled its obligations.
The costs in connection with the delay obtained and the other consequences
arising from this shall be at the expense and risk of the Other
Party.
4. If the Other Party fails to comply with its obligations and O.E.M.
fails to require performance by the Other Party, it shall not affect
O.E.M.'s right to require performance at a later date.
Article 7: Confidential information
1. O.E.M. undertakes not to disclose any confidential information
that it has obtained from and about the Other Party in the context
of the conclusion and execution of the agreement, which information
the Other Party has indicated to be confidential or of which information
it can reasonably suspect that it must be treated in confidence.
O.E.M. shall only provide this information to third parties insofar
as this is necessary for the execution of the agreement.
2. O.E.M. shall take all reasonable precautions to keep the confidential
information secret and guarantees that its employees or other persons
under its responsibility who are involved in the execution of the
agreement shall also maintain their obligation to observe secrecy.
3. The obligation of confidentiality shall not apply if O.E.M. as
a result of legislation and regulations or a judicial decision is
obliged to disclose the confidential information and cannot rely
on a lawful privilege or a privilege permitted by the court. This
exception also applies to employees and other persons referred to
in the previous paragraph.
4. If O.E.M. maintains a privacy statement, the information mentioned
therein shall be exclusively used in accordance with the provisions
of this statement.
Article 8: Delivery, delivery terms
1. Agreed delivery terms shall never be considered as strict deadlines.
If O.E.M. fails to meet its delivery obligations in full or on time,
the Other Party must give notice of default to him and grant reasonable
time to meet these delivery obligations at a later date.
2. Based on agreements with Consumers, the items ordered via the
website shall be delivered 30 days after the order was placed at
the latest. When delivery within this term is impossible, O.E.M.
shall notify the Consumer hereof as soon as possible. The Consumer
shall then be able to claim back any advance payments within 1 week
after this notification. If the Consumer makes use of this possibility,
O.E.M. shall pay back the amount paid by the Consumer within 14
days after the Consumer has requested repayment.
3. O.E.M. is entitled to deliver in phases, whereby each partial
delivery may be invoiced separately.
4. The risk concerning the items to be delivered shall pass to the
Other Party at the time of delivery. This is the moment that these
items to be delivered will leave the premises, the warehouse or
the shop of O.E.M., or the moment that O.E.M. has informed the Other
Party that it may collect the items.
5. Contrary to the previous paragraph, the moment of delivery for
Consumers is the moment that the items are in fact at their disposal.
6. Dispatch or transport of the items shall take place at the expense
and risk of the Other Party in a manner to be decided by O.E.M..
O.E.M. is not liable for any damage of whatever nature – whether
or not to the items themselves – that is related to the dispatch
or the transport.
7. Contrary to the previous paragraph, for Consumers the dispatch
or transport of the items shall take place at the risk of O.E.M.,
but at the expense of the Consumer.
8. If it appears impossible, due to a cause within the risk area
of the Other Party, to deliver the items ordered (in the agreed
manner) to the Other Party, or if these items are not collected,
O.E.M. shall have the right to store the items at the expense and
risk of the Other Party. The Other Party should enable O.E.M. after
giving notice of the storage, within a term to be fixed by O.E.M.,
to deliver the items within the term fixed or collect the items
within this term.
9. If the Other Party still fails to meet its purchase obligation
after the term referred to in the previous paragraph, it shall be
immediately in default. O.E.M. shall then have the right to fully
or partially terminate the agreement with immediate effect by a
written statement and to sell the items to third parties without
O.E.M. being obliged to compensate any damage, cost or interest
arising from this. The aforesaid shall not affect the Other Party’s
obligation to compensate any (storage) costs, loss due to delay,
lost profits or any other damage or the right of O.E.M. to claim
fulfillment at a later date.
10. An agreed delivery term will not take effect until the moment
that O.E.M. has received all information required for the delivery
and the possible agreed (advance) payment of the Other Party. If
delay arises from this, the delivery term shall be extended accordingly.
Article 9: Complaints and returns
1. The Other Party is obliged to check the delivered items immediately
after receipt and to state any visible failures, defects, damage
and/or deviations in numbers, on the consignment note or on the
accompanying note. In the absence of a consignment note or an accompanying
note, the Other Party must report the failures, defects etc. within
2 working days after receipt of the items to O.E.M., followed by
a written confirmation thereof. In the absence of such a report,
the items are deemed to have been received in good condition and
to meet the agreement.
2. Other complaints must be reported to O.E.M. in writing immediately
after discovery – yet ultimately within the agreed guarantee
period. The Other Party shall bear all risks of failing to report
directly. If no explicit guarantee period has been agreed, the period
of one year following delivery shall apply.
3. If a complaint has not been lodged with O.E.M. within the terms
referred to in the previous paragraphs, it is not possible to make
a claim under the agreed guarantee.
4. Items ordered shall be delivered in the (wholesale) packaging
in stock at O.E.M.’s and/or the minimum quantities or numbers.
Small differences in view of specified measures, weights, numbers,
colours etc., acceptable within the industry, are not considered
as failures on the part of O.E.M.. In such event it is not possible
to make a claim under the guarantee.
5. Complaints shall not suspend the Other Party’s payment
obligations.
6. The previous paragraph does not apply to the consumer.
7. The Other Party must give O.E.M. the opportunity to investigate
the complaint and must provide all information to O.E.M. that is
relevant for the complaint. If the items need to be returned for
investigating the complaint, this will be at the expense of the
Other Party unless the complaint appears well-founded. The transport
risk will always be borne by the Other Party.
8. In all cases, returning the items shall take place in a manner
to be determined by O.E.M. and in the original packaging or deposit
packaging.
9. No complaints can be lodged in respect of imperfections in or
characteristics of items produced from natural materials, if these
imperfections or characteristics are inherent to the nature of these
materials.
10. No complaints can be lodged about discolourations and small
colour deviations.
11. No complaints can be lodged about items that have changed in
nature and/or composition or that have been fully or partially treated
or processed.
Article 10: Garantees
1. O.E.M. shall ensure that the agreed deliveries are carried out
appropriately and in accordance with the standards applicable in
its sector, but shall never give further guarantee in respect of
these deliveries than explicitly agreed between parties.
2. O.E.M. shall be responsible during the guarantee period for the
usual quality and reliability of the items delivered.
3. If the manufacturer or supplier provides a warranty for the items
delivered by O.E.M., this warranty shall apply in the same manner
between the parties. O.E.M. shall inform the Other Party in this
regard.
4. Subject to the provisions in the previous paragraph of this Article,
O.E.M. shall not guarantee any statements or promises by the manufacturer
or supplier of the supplied item, for example regarding performances,
such as capacity, fuel consumption, CO2 emissions, etc.
5. If the purpose for which the Other Party wishes to treat, process
or use the items differs from the customary use of these items,
O.E.M. shall only guarantee that the items are suitable for this
purpose if it has confirmed so in writing to the Other Party.
6. No claim can be made under the guarantee until the Other Party
has paid the price agreed for the items.
7. The previous paragraph does not apply to the consumer.
8. If the Other Party rightly makes a claim under the guarantee,
O.E.M. shall take care of the repair or replacement of the items
- at its own discretion - or refund or reduce the agreed price.
If there is any additional damage, the provisions set out in the
Liability Article of these General Terms and Conditions shall apply.
9. Contrary to the previous paragraph, the Consumer may choose between
the repair or replacement of the items, unless this cannot reasonably
be required from O.E.M.. Instead thereof, the consumer may at all
times terminate the agreement by written statement or desire a discount
on the agreed price.
Article 11: Liability
1. O.E.M. shall accept no liability other than the guarantees explicitly
agreed or given by O.E.M..
2. Subject to the provisions of the previous paragraph, O.E.M. is
only liable for direct damage. Any liability of O.E.M. for consequential
damage such as trading losses, loss of earnings and/or losses sustained,
damage caused by delay and/or personal or bodily injury shall be
expressly excluded.
3. The Other Party must take all measures needed to prevent or limit
the damage.
4. If O.E.M. is liable for the damage suffered by the Other Party,
O.E.M.’s liability for compensation shall at all times be
restricted to the maximum amount paid by the insurer where appropriate.
If the insurer does not pay or if the damage is not covered by the
insurance taken out by O.E.M., O.E.M.’s liability for compensation
shall be limited to the invoice amount of the delivered items.
5. The Other Party must sue O.E.M. within 6 months at the latest
after the damage it has suffered has become known to it or should
have become known to it.
6. Contrary to the previous paragraph, a period of 1 year applies
to the Consumer.
7. O.E.M. is not liable and the Other Party cannot make a claim
under the applicable guarantee, if the damage has arisen due to:
a. improper use or use contrary to the purpose for which the items
delivered were intended or the directions, advice, operating instructions,
leaflets, etc. provided by or on behalf of O.E.M.;
b. incompetent safekeeping (storage), maintenance or use of the
items;
c. errors or incompletenesses in the information provided to O.E.M.
by or on behalf of the Other Party.
d. repairs or after repairs or alterations that have been made by
or on behalf of the Other Party;
e. normal wear and tear, erosion or corrosion;
f. obsolescence and/or impairment of the items due to influences
from outside other than influences that the items should normally
be able to withstand.
g. instructions or directions from or on behalf of the Other Party;
h. due to the choice of the Other Party, which deviates from O.E.M.’s
advice and/or what is customary;
i. the choice made by the Other Party in respect of the items to
be delivered.
j. repairs or other work or processing being carried out on the
items delivered by or on behalf of the Other Party without express,
prior, written approval from O.E.M.
2. The Other Party is fully liable for all damage arising from this
in all cases listed in the previous paragraph, and indemnifies O.E.M.
explicitly against any claims from third parties to compensate this
damage.
3. The limitations of the liability stated in this article shall
not apply if the damage is due to intent and/or recklessness by
O.E.M. or its supervisory staff on a management level or if mandatory
legal provisions oppose this. Only in these cases shall O.E.M. indemnify
the Other Party against any third party claims.
Article 12: Payment
1. O.E.M. is always entitled to require (partial) advance payment
or any other security for payment by the Other Party.
2. Payment of a purchase from the webshop must be made according
to the manner indicated on the website. Payment in any other way
is only permitted if parties have explicitly agreed so in writing.
3. Payment for purchases other than purchases via the webshop is
made in cash on delivery/order. If parties have agreed payment after
receipt of an invoice, payment must take place within an expiry
period of 14 days after the invoice date, unless parties have agreed
a different payment term in writing. The correctness of an invoice
is established if the Other Party has not objected against it within
this payment term.
4. If an invoice is not fully paid after expiry of the term referred
to in the previous paragraph or if it was not possible to pay the
amount by direct debit, the Other Party is due to O.E.M. a default
interest of 2% per month, to be calculated cumulatively over the
principal sum. Parts of a month are computed as a full month.
5. If the Other Party still fails to pay after receiving notice,
O.E.M. will furthermore have the right to charge the extrajudicial
collection costs to the Other Party.
6. The extrajudicial collection costs referred to in the previous
paragraph amount to the following in respect of principal sums of
maximum € 25,000.00:
a. fifteen per cent of the amount of the principal sum for the first
€ 2,500.00 of the demand (with a minimum of € 40.00);
b. ten per cent of the amount of the principal sum over the next
€ 2,500.00 of the demand;
c. five per cent of the amount of the principal sum over the next
€ 5,000.00 of the demand;
d. one per cent of the amount of the principal sum over the next
€ 15,000.00 of the demand.
7. If the principal sum exceeds € 25,000, O.E.M. shall have
the right to charge the extrajudicial collection costs to the Other
Party over the first € 25,000.00 in accordance with the previous
paragraph and to charge extrajudicial collection costs of 10% on
that surplus to the Other Party.
8. For calculating the extrajudicial collection costs, O.E.M. shall
after one year be entitled to increase the principal sum of the
demand by the cumulatively built up late payment interest in that
year according to paragraph 4 of this article.
9. In case of full non-payment by the Other Party, O.E.M. shall
have the right to terminate the agreement without further notice
of default by a written statement or to suspend its obligations
under the agreement until the Other Party has made full payment
or provided appropriate security. O.E.M. shall also have the aforementioned
right of suspension if it has legitimate grounds to doubt the Other
Party’s creditworthiness even before the Other Party enters
into default regarding payment.
10. Payments made by the Other Party will first be deducted by O.E.M.
from all interest and costs due and then from the due and payable
invoices that have been outstanding longest, unless the Other Party
has stated in writing on payment that it concerns a later invoice.
11. a. The Other Party may not deduct any claims of O.E.M. from
any reclamations that it has on
O.E.M.. The aforesaid also applies if the Other Party applies for
a (temporary) suspension of payment or is declared bankrupt.
b. The provision under paragraph a. does not apply to agreements
with the Consumer.
Article 13: Retention of title
1. O.E.M. shall retain title of all items delivered and to be delivered
up until the point at which the other party has completely fulfilled
all payment obligations towards O.E.M..
2. The payment obligations referred to in the previous paragraph
consist of payment of the purchase price of the items, increased
by claims relating to work performed in connection with that delivery,
as well as claims relating to any damage due to the Other Party’s
attributable failure to meet its obligations, including payment
of damages, extrajudicial collection costs, interest and possible
penalties.
3. If this refers to the delivery of identical, non-individualized
items, the consignment of items relating to the oldest invoice shall
be considered to have been sold first. Therefore, retention of title
always remains with the items delivered that are still in stock,
in the shop and/or form a part of the inventory and equipment of
the Other Party on invoking retention of title.
4. All items in which title is retained, may not be sold on by the
Other Party in the framework of the ordinary business operations,
unless it has also stipulated retention of title with its suppliers
to the items delivered.
5. As long as the title is retained in the items delivered, the
Other Party may not pledge the items in any manner or bring items
under the (actual) control of a financer by means of lists containing
items pledged.
6. The Other Party must notify O.E.M. immediately if third parties
pretend to have ownership or other rights to the items in which
title is retained.
7. The Other Party must safekeep the items carefully and as identifiable
property of O.E.M. for as long as title is retained in them.
8. The Other Party has to take out a business interruption or home
contents insurance to ensure that the items delivered which are
subject to retention of title are included in the policy and the
Other Party will allow O.E.M. inspection on demand into the insurance
policy and the accompanying proofs of premium payments.
9. If the Other Party contravenes the provisions of this article
or if O.E.M. claims retention of title, O.E.M. and its employees
shall have the irrevocable right to enter the Other Party’s
premises and take back the items subject to retention of title.
This applies without prejudice to O.E.M.'s entitlement to compensation
of damage, lost profit and interest and the right to terminate the
agreement without any notice of default by a written statement.
Article 14: Bankruptcy, loss of power to dispose of property, etc.
1. O.E.M. always has the right to terminate the agreement without
any notice of default by a written statement to the Other Party,
at the time when the Other Party:
a. is declared bankrupt or files for bankruptcy;
b. applies for (temporary) suspension of payment;
c. is affected by enforceable seizure;
d. is placed under guardianship or judicial supervision;
e. otherwise loses the power to dispose of its property or loses
legal capacity regarding all or part of its assets.
2. The Other Party must always notify the guardian or administrator
of the (contents of the) agreement and these General Terms and Conditions.
Article 15: Force majeure
1. In the event of force majeure on the part of the Other Party
or O.E.M., O.E.M. shall have the right to terminate the agreement
by a written statement to the Other Party or to suspend the fulfillment
of its obligations towards the Other Party for a reasonable term
without being obliged to pay any compensation.
2. Force majeure with respect to O.E.M. in the context of these
General Terms and Conditions shall include: a non-culpable shortcoming
by O.E.M., a non-culpable shortcoming of third parties or suppliers
engaged by O.E.M. or other serious grounds on the part of O.E.M..
3. Circumstances which are considered force majeure on the part
of O.E.M. include: war, revolt, mobilization, riots at home and
abroad, government measures, strikes within the company of O.E.M.
and/or of the Other Party, or a threat of these and other circumstances,
disruption of existing exchange rates at the time the agreement
was concluded, operational failures due to fire, burglary, sabotage,
power failure, internet or telephone failures, natural phenomena,
(natural) disasters and suchlike, as well as transport problems
and delivery problems arisen from weather conditions, roadblocks,
accidents, and import and export hindering measures.
4. If force majeure occurs when only part of the agreement has been
executed, the Other Party shall in any case be obliged to fulfill
its obligations towards O.E.M. until that moment.
Article 16: Cancellation, suspension
1. The provisions referred to in this Article are not applicable
to termination within the reconsideration period as provided in
Article 4 of these General Terms and Conditions.
2. If the Other Party wishes to cancel the agreement prior to or
during the execution thereof, it shall be due compensation to be
further determined by O.E.M.. This compensation shall comprise all
costs already incurred by O.E.M. and its damage suffered due to
the cancellation, including lost profits. O.E.M. is entitled to
fix the aforesaid compensation and - at its discretion and dependent
on the deliveries already made - to charge 20 to 100% of the agreed
price to the Other Party.
3. The Other Party is liable towards third parties for the consequences
of the cancellation and indemnifies O.E.M. against any claims from
third parties arising from this.
4. O.E.M. is entitled to settle the amounts paid by the Other Party
with the compensation due by the Other Party.
5. Should the execution of the agreement be suspended at the request
of the Other Party, the costs incurred until that moment shall be
immediately due and payable and O.E.M. will have the right to charge
these to the Other Party. Furthermore, O.E.M. shall have the right
to charge to the Other Party all costs incurred or to be incurred
during the suspension period.
6. If the execution of the agreement cannot be resumed after the
agreed suspension period, O.E.M. shall have the right to terminate
the agreement by a written statement to the Other Party. If the
execution of the agreement is resumed after the agreed suspension
period, the Other Party must compensate any costs of O.E.M. possibly
arising from the resumption.
Article 17: Applicable law/jurisdiction
1. The agreement entered into between O.E.M. and the Other Party
shall be governed exclusively by Dutch law.
2. The applicability of the Vienna Sales Convention (CISG) is explicitly
excluded.
3. Any disputes shall be submitted to the competent court in the
place where O.E.M. is established, although O.E.M. shall always
retain the right to submit a dispute to the competent court in the
place where the Other Party is established.
4. The Consumer may at all times choose to submit the dispute to
the legal competent court, unless he makes his choice known to O.E.M.
in time. The term “in time” shall mean: within one month
of O.E.M. informing the Consumer in writing if its intent to have
the dispute adjudicated by the court in the district where it has
its registered office.
5. If the Other Party is established outside the Netherlands, O.E.M.
shall have the right to choose to submit the dispute to the competent
court in the country or the state where the Other Party is established.
Date: March 11, 2012
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