General terms and conditions
GENERAL TERMS AND CONDITIONS
SNEW SERVICE PARTS B.V. (SSP)
Art. 1. Definitions.
1.1. In this document :
a. ‘General Terms: means this general terms and conditions;
b. ‘Contracting Party’: each party which purchases the Products, on its own account and at its own expense, not being a consumer;
c. Electronic Communication: means electronically reproducible message, such as email or fax;
d. Agreement: means (sale)agreement between the Contracting Party and SSP, by which SSP is obliged to deliver the Products;
e. SSP: means SNEW Service Parts B.V., a private company with limited liability, with address at Boxtel, The Netherlands;
f. 'Products' or 'Product': all new and recycled ICT communication devices, including telephone systems.
Art. 2. Applicability
2.1 The General Terms apply to the Agreement. Each referral by a Contracting Party to its own general terms is rejected.
2.2 Changes to the General Terms are valid, provided that these are agreed between parties and that the changes are in writing or by Electronic Communication. Otherwise the General Terms are applicable.
2.3 If any of the Contracting Party's terms and conditions are nevertheless (partially)applicable or are declared to be such, the General Terms will prevail in the event of a contrariety.
Art. 3. Agreement
3.1 The Agreement is entered into as follows:
a. by acceptance of an offer, either in writing or by Electronic Communication, on the moment that SSP receives such acceptance;
b. by acceptance of an order and delivery of Products by SSP pursuant to that order,
provided that the General Terms are handed over to the Contracting Party and are accepted by the Contracting Party.
3.2 An offer by SSP is valid for 16 days, all that under loss of rights. An offer of stock Products is subject to sale of the Products in the meantime.
3.3 Separate purchase agreements for Products are entered into:
a. by orders via Electronic Communication;
b. by telephone followed by a confirmation in writing or by Electronic Communication.
3.4 Complementation or alteration to (oral) promises by SSP or one of its staff, representatives, or agents are solely binding pursuant to a confirmation of SSP by a duly representative, which is in writing or by Electronic Communication.
Art. 4. Delivery
4.1 The stated delivery times are in each case deemed as estimated delivery times and shall never be considered as final dates unless explicitly agreed, in writing or by Electronic Communication, otherwise.
4.2 The valid INCOTERMS are applicable to deliveries in respect of cross border (purchase)agreements.
4.3 Unless explicitly agreed otherwise, all deliveries are Ex Warehouse.
4.4 The risk of loss and damage during transportation is for the account of the Contracting Party, unless SSP arranges transportation. In that case additional transportation costs are charged by SSP. The risk of transportation always remains with the Contracting Party.
4.5 Partial delivery by SSP is permitted. In that case the Contracting shall pay the invoice as if it was a separate transaction.
Art. 5. Prices
5.1 The Contracting Party shall provide its VAT-identification number to SSP, as well as the name of company as registered with the tax authorities.
5.2 All prices are in EURO and without VAT and transportation costs.
5.3 SSP may change the prices if the market requires so. Each price change shall become in force at the moment that SSP informs the Contracting Party, either in writing or by Electronic Communication.
Art. 6. Securities. Retention of title
6.1 Prior to each delivery SSP has the right to request a security, which is to SSP's judgment sufficient with respect to the payment obligation of the counterparty.
6.2 All products delivered by SSP remain its property until the Contracting Party has paid all outstanding invoices of SSP, or any other claim of SSP. After delivery the Contracting Party is obliged to store and maintain the Products at its own risk and expense. The counterparty shall sufficiently insure the delivered Products against damages and loss.
Art. 7. Complaints
7.1 After receipt of the Products, the Contracting Party is obliged to immediately inspect whether the products have any defects or damages, and whether the products are in accordance with the order in terms of quantity and type
7.2 Within eight (8) days after receipt of the delivered products, the counterparty shall notify, supported by photos, SSP in writing or by Electronic Communication in case of any complaint relating to visual damages and quantity and type of the Products. In case of undetectable damages the Counterparty has eight (8) days to file a complaint after detection of the damages would be reasonably possible.
7.3 Well-grounded complaints relating to the quantity supplied, will be dealt with by SSP in the form of a subsequent delivery Products or by a (proportional) reduction with the purchase price, such at the exclusive discretion of SSP.
7.4 SSP will deal with well-grounded complaints relating to defects in accordance with the guarantee conditions as set out in article 8.
7.5 Complaints relating to invoices need to be received by SSP within eight (8) days after the invoice date, either in writing or by Electronic Communication. A valid complaint must be well-grounded.
7.6 As the abovementioned terms pass, the Contracting Party accepts the delivery and the invoice. As of this moment SSP does not deal with complaints.
7.7 Regardless of filing a complaint the Contracting Party is obliged to perform its (payment)obligations in respect of the Agreement. Furthermore the Contracting Party does not have the right to suspend, settle or postpone (prior) payment obligations after filing a complaint.
Art. 8. Guarantee
8.1 Unless agreed in writing otherwise, SSP guarantees that the Products fulfill the set requirements, qualities and/or properties which the Contracting reasonably could expect. SSP does not provide a guarantee other than the manufacturer's guarantee, if applicable. Products of Siemens, Alcatel and Nortel do not contain a manufacturer's guarantee
8.2 If to the exclusive judgment of SSP the appeal to the guarantee is justified, SSP shall deliver replacement Products or give a (proportional) reduction to the purchase price, such at its own discretion.
8.3 The guarantee becomes void if the Products are used incorrect, breach of user requirements, incompetent repairs, alterations are made to Products, as well as removal of numbers and/or identification on the Products.
8.4 The guarantee expires after twelve (12) months as of the delivery date of the Products. The guarantee becomes void upon expiry.
8.5 If the Contracting Party sells the Products with a more exhaustive guarantee, such guarantee is for the account of the Contracting Party.
Art. 9. Liability
9.1 The liability of SSP is limited to fulfillment of the guarantee as set out in article 8.
9.2 Unless in case of purpose or gross negligence, SSP is exclusively liable for direct damages and not for consequential loss, immaterial damage, company damage, environmental damage, or loss of profit.
9.3 The liability of SSP is judged based on the product- and company's liability insurance. In case the insurance company does not cover the damage the liability of SSP is limited to a general maximum of € 3,000.00 (three thousand euro) per case of damage or related series of incidents.
9.4 Claims of damaged must be submitted to SSP within seven (7) days, or as early as possible after the moment the Contracting Party has been able to identify the damage, under penalty of lapsing of any right to compensation.
9.5 The Contracting Party indemnifies SSP for all claims of third parties, including damages, interests and costs, which are related to the delivered Products to the Contracting Party.
9.6 If SSP is unable to fulfill its obligations pursuant to the Agreement due to force majeure, such as fire, strike, environmental disaster, et cetera, each of parties has the right to postpone its obligations. If the event lasts longer than 3 months, SSP and the Contracting Party are entitled to wholly or partially dissolve the Agreement, without any right for compensation whatsoever.
Art. 10. Suspension. Rescission
10.1 If the Contracting Party does not fulfill one or more of its obligations pursuant to the Agreement or the General Terms, SSP has the right to suspend its obligations. In such case the Contracting Party is liable for all damages suffered by SSP, including loss of profit.
10.2 In case the Contracting Party:
a. is declared bankrupt, has filed for suspension of payment, otherwise loses the control over its assets;
b. dies or has become legally incompetent;
c. does not fulfill one or more of its obligations pursuant to the Agreement;
d. does not pay an invoice of SSP within the term of payment, wholly or partially;
e. dissolves its company, or proceeds to discontinue or transfer its business, or a major part thereof, including incorporating its business in a company, or by legal merger,
SSP has the right to rescind the Agreement in writing with immediate effect, whilst the Contracting Party is fully liable for all incurred damages, costs and interest incurred by SSP.
Art. 11. Payment
11.1 Unless agreed otherwise, payment should be made, at the discretion of SSP:
a. in cash at the delivery;
b. by transfer to the designated bank account of SSP within fourteen (14) days after the invoice date.
11.2 If the Contracting Party does not pay within the term of payment as set out in the foregoing paragraph, and after a written demand still refuses to pay, the Contracting Party will be legally in default without notice of default being required. In that case all receivables will be immediately due and payable. Moreover, the an interest of 2% per month is due from the date of expiry of the payment term until the date of full settlement.
11.3 Each payment by the Contracting Party is primarily deducted from the outstanding interest and other costs (including legal and out of court collection costs), and subsequently deducted from the eldest outstanding invoice.
11.4 All reasonable costs incurred by SSP with respect to the payment obligation of the Contracting Party, such as legal and out of court collection cost, which are at least 15% for domestic collections and 20% for international collections, with a minimum of EUR 500.00, are for the account of the Contracting Party.
Art. 12. Cancellation.
12.1 The Contracting Party has to right to cancel an order of Products, provided that the cancellation is received by SSP on the date of the order. The right to cancel lapses if the Products are already prepared pursuant to the order.
12.2 Upon expiry of the term for cancellation as set out in the foregoing paragraph, SSP is not obliged to accept any cancellation. In case SSP accepts the cancellation, SSP has the right to a fixed damage being fifty percent (50%) of the invoice amount, to be accrued with the costs of the suppliers of SSP.
Art. 13. Intellectual Property Rights
13.1 SSP retains all intellectual and industrial property rights with respect to its trademarks, trade names, models, designs, pictures, drawings, software, texts, et cetera.
13.2 Unless with prior written or by Electronic Communication received approval, it is the Contracting Party prohibited to damage or use the intellectual and industrial property rights, for example by reproduction or publication.
Art. 14. Miscellaneous
14.1 If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part shall to that extent be deemed not to form part of the Agreement but the legality, validity or enforceability of the remainder of the Agreement shall not be affected, and SSP and the Contracting Party shall use reasonable efforts to agree a replacement provision that is legal, valid and enforceable to achieve so far as possible the intended effect of the illegal, invalid or unenforceable provision.
14.2 Save as expressly otherwise stated, this agreement does not contain any stipulation in favor of a third party.
14.3 The Contracting Party is prohibited to transfer any rights derived from this agreement to a third party without the prior written consent of SSP.
Art. 15. Governing law. Dispute resolution
15.1 The Agreement is solely governed by Dutch law.
15.2 Disputes arising from the Agreement shall be resolved by negotiation, reasonable and fair.
15.3 If parties are unable to resolve the dispute in accordance with the foregoing paragraph, the dispute shall be resolved by the authorized court in 's-Hertogenbosch, The Netherlands.
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