General conditions of Lumi Parts B.V. in Nieuwkoop, filed on 28 February 2018 at the Registrar of the Court of Law in The Hague under number 7/2018.
1.1 LP: Lumi Parts B.V., established in (2421 LR) Nieuwkoop at the address Nijverheidsweg 2; Chamber of Commerce: 28071932.
1.2 Counterparty: the natural and/or legal person, acting from the exercise of a profession or business addressed by LP with its offers, to whom matters are delivered, i.e. sold and/or services provided by LP, as well as their representative(s), delegate(s), legal successor(s) and/or heirs.
1.3 Agreement: the agreement concluded between LP and the Counterparty regarding the sale, i.e. delivery of goods and/or the provision of services which are subject to the underlying general conditions.
2.1 These general conditions are applicable to all offers, quotations, legal relationships and agreements which regard the sale and/or delivery of matters and/or services by LP.
2.2 The general conditions also apply to other agreements, including follow-up and supplemental agreements, to which LP and the Counterparty, or the latter’s legal successor(s), are a party.
2.3 By placing an order, the Counterparty indicates it accepts these general conditions.
2.4 All offers and/or quotations of LP are non-committal, unless it is emphatically indicated otherwise by LP in writing. A written offer and/or quotation is effective for the term specified in it and in the absence of such the validity-term is 14 days.
2.5 All pictures, specifications and/or data in offers and/or quotations of LP are indicative and cannot constitute grounds for compensation of damages or rescission of the Agreement.
2.6 Offers and/or quotations of LP do not automatically apply to back-orders as well.
2.7 LP reserves itself the right to correct errors and/or typing mistakes in offers and/or quotations. No liability is accepted for the consequences of errors and/or typing mistakes. LP cannot be kept to its offer in case the offer and/or quotation, or a part of those, contained an error or typing mistake.
2.8 Third parties cannot derive any rights from information in offers, quotations, product brochures, drawings and/or price lists of LP.
2.9 Supplemental (verbal) agreements and/or commitments as may have been made consecutively by or on behalf of LP are only binding if emphatically confirmed by LP in writing.
2.10 The application of conditions as may be applied by the Counterparty is hereby emphatically rejected.
2.11 The Counterparty is at liberty to determine its own sales prices upon the resale of the delivered matters. LP advises the Counterparty, however, to apply the (non-binding) recommended sales prices as indicated by LP. LP reserves itself the right to alter the (non-binding) recommended sales prices. In such case, the Counterparty will be accordingly informed in writing. LP also reserves itself the right to apply (reasonable) maximum prices in the event of resale of the delivered matters. In case of resale on-line i.e. through the internet of the delivered matters and/or services, the Counterparty must remove and/or leave out any reference and/or inference to LP and the item numbers used by LP from their offer, to the extent the Counterparty applies a sales price which deviates from the recommended sales price communicated by LP.
2.12 If any provision of these general conditions is void or is annulled, the remaining provisions of these general conditions will remain effective fully and entirely.
2.13 In case the Counterparty consists of more than one (legal) person, each of these (legal) persons is severally and jointly liable towards LP for the obligations pursuant to the Agreement.
2.14 LP has the right to modify and/or supplement these general conditions.
2.15 Without the written permission of LP, Counterparty is not authorised to transfer any right or obligation pursuant to the Agreement to third parties.
2.16 The Dutch text of these general conditions prevails over any translation thereof.
3.1 The Agreement is adopted through written approval by the Counterparty of the valid offer and/or quotation with the applicable general conditions of LP, or by LP having commenced with the delivery of the service or matter. In case of verbal approval of the offer and/or Quotation by the Counterparty, the Agreement is only concluded if LP follows up on it by effectively starting with its implementation or if it has confirmed the Agreement in writing.
3.2 LP reserves itself the right to revoke its offer and/or quotation within two business days after receipt of the written acceptance by the Counterparty. In such case, no Agreement is concluded.
3.3 In case the acceptance by the Counterparty deviates from the offer and/or quotation, this will be considered a new proposal of the Counterparty and as a rejection of the entire offer of LP, also if there only is a deviation on minor points.
3.4 To the extent the Counterparty carries out any performance or makes preparations for such in the apparent expectation that an agreement will come about or that an agreement has been concluded, the Counterparty will do so at their own risk.
3.5 LP has the right to carry out the Agreement in different stages.
3.6 Each agreement is adopted under the suspensory conditions of sufficient availability of the relevant matters.
4.1 All prices (including rates) on the part of LP are listed in Euros and exclusive of VAT and other government charges. The VAT due is billed to the Counterparty separately. To the extent LP has had to incur expenses in connection with the delivery of the matter and/or service to the Counterparty, such as transport costs, storage costs, safekeeping, removal charges and other (government) charges, etc., those costs will be borne by the Counterparty. LP is authorised to bill these costs to the Counterparty separately.
4.2 The prices established by LP with the Counterparty may be increased after the adoption of the Agreement, if LP is confronted with a price increase by its supplier before the implementation of its obligations pursuant to the Agreement, or in case other price-increasing circumstances have occurred. In case the price increase amounts to more than 15% of the invoice amount, the Counterparty may rescind the Agreement (exclusively) regarding the matters the price of which is increased within 2 business days after receipt of the announcement of the price increase, in writing.
4.3 In case the prices established in the Agreement are in any manner linked to a price index, and the price index drops resulting in the prices having to be adjusted downward, LP has the right to terminate and/or rescind the Agreement. The Counterparty does not have the right in that case to claim compensation of damages.
5.1 An established delivery term is a target term, unless established otherwise in writing. LP is only in default with regard to the delivery if it still fails to deliver within a reasonable further term set for it by the Counterparty following the original delivery term. The reasonable further term amounts to at least two (2) calendar months. If LP still has not delivered within the reasonable further term, the Counterparty has the right to terminate the Agreement with regard to the non-implemented part by way of registered mail. In such case, LP is only obligated to refund what has already been settled by the Counterparty with reference to the non-implemented part. The Counterparty does not have said right of termination in case it has defaulted on the part of its own obligations.
5.2 LP has the right to deliver in batches the matters to be delivered, which partial deliveries may be invoiced separately by it.
5.3 In case of force majeure, as well as if due to actions or inaction, whether or not culpable, on the part of the Counterparty or of a third party, a delay has occurred, the delivery time is extended with a minimum of the duration of the delay.
5.4 The cost of installation of the delivered matter is always borne by the Counterparty, unless otherwise established in writing.
5.5 Unless established otherwise in writing, place of delivery is considered the warehouse of LP.
5.6 Transport and delivery of matters takes place, in accordance with the Incoterms 2010, Ex Works at LP, unless parties establish otherwise in writing. The delivered matters are at the expense and risk of the Counterparty from the moment they are made available to the Counterparty, its representative, or the transporter indicated by LP or the Counterparty, also in the event that the property of the matters has not yet been transferred to the Counterparty at that time. The matters are also at the risk and expense of the Counterparty if LP has offered the matters for delivery or has had them stored upon request of the Counterparty but the Counterparty, its representative or the transporter indicated by LP or the Counterparty does not take them on for whatever reason. The cost and damage resulting therefrom, such as from storage, safekeeping and insurance, will then be entirely borne by the Counterparty.
5.7 In those cases where it was established in writing that LP takes care of the shipping of the delivered matters, the manner of packaging and transportation is determined by LP exclusively, unless it was established otherwise in writing.
6.1 Payment takes place within 30 days after invoice date, unless established otherwise in writing. This term applies as a strict time limit.
6.2 In case of non or non-timely payment by the Counterparty, LP is authorised to suspend its obligations pursuant to the Agreement, and the Counterparty owes, from the day on which payment to LP was supposed to have been made at the latest until the day of full settlement, immediately and legally interest over the outstanding sum to the amount of 8% of the invoice amount per month, whereby a month started is counted as a full month. In case the Counterparty continues to fall short in settling the claim, LP may hand it over to third parties, in which case the Counterparty will also be held, besides the amount owed then and the interest, to compensate all (effective and entire) extrajudicial and judicial (collection) cost, or otherwise to pay a lump-sum compensation set at 15% of the relevant invoice amount, with a minimum of EUR 1,000. And all matters at the discretion of LP.
6.3 In case of bank transfers, considered the moment of payment is the moment of crediting to the bank account of LP.
6.4 Payments always serve for the reduction of the cost and interest owed (in this order) and subsequently for the reduction of the principal sums, whereby older amounts take precedence over more recent ones.
6.5 It is not permitted to the Counterparty to appeal to a suspensory or retention right, or to apply any discounts, deductions, or set-offs. The Counterparty waives these irrevocably and unconditionally.
6.6 LP has the right to invoice immediately after the offer and/or quotation has been approved by the Counterparty, prior to the provision of services and/or the delivery of matters, unless LP, pursuant to Article 6.7, invoices intermediately, or in the event LP and the Counterparty emphatically establish otherwise in writing.
6.7 LP has the right to implement the Agreement in different stages and to invoice the parts thus implemented separately. In such case, LP invoices immediately after the relevant stage of the Agreement has been implemented, or respectively after the offer and/or quotation has been confirmed by the Counterparty.
6.8 Upon an Agreement with the Counterparty, LP has the right to demand full advance payment of the invoice amount.
6.9 If, in the reasonable opinion of LP, the financial position of the Counterparty gives rise to this, the Counterparty is obliged, upon first request by LP, to forthwith present a bank guarantee and/or letter of credit as a (further) security for compliance with their payment obligations towards LP, covering the amount due. If the Counterparty does not comply, it is considered attributable non-compliance vis-a-vis LP and the latter will have the right to terminate and/or rescind the Agreement. This provision applies equally in case credit has been stipulated.
6.10 Complaints about an invoice must be submitted within 3 business days after invoice date to LP, failing which the invoice is considered to have been approved.
7.1 All goods delivered to the Counterparty remain the property of LP until all amounts which the Counterparty owes for the goods delivered pursuant to the Agreement, as well as all amounts on account of any possible shortcomings with regard to payment obligations, have been paid to LP in full. For as long as the property of the delivered goods has not been transferred to the Counterparty, the latter may not pawn the goods, transfer their property to third parties, nor grant any other title to them to third parties, barring the provisions in the following section.
7.2 It is permitted to the Counterparty to sell and deliver the goods delivered under retention of property within the framework of its regular business to third parties. The Counterparty is obliged to keep the goods delivered under retention of property with due care and separately as the identifiable property of LP and to also impose said obligation on third parties to which it has sold the delivered goods under retention of property.
7.3 If the Counterparty fails to comply with what is stipulated in the preceding section, the assumption will be that goods present of the kind delivered by LP, belong to LP.
7.4 In case third parties wish to exercise any right to the matters delivered under retention of property, for example by way of seizure, upon suspension of payment or in case of bankruptcy, the Counterparty is obligated to forthwith inform LP accordingly.
7.5 The Counterparty is obligated to insure the delivered goods for the duration of the suspended property against the risk of fire and explosion, water damage, as well as against theft, the insurance policy of which may be requested and perused by LP upon their first request.
7.6 The Counterparty is obligated upon the first request of LP:
a) To pledge i.e. cede all entitlements and/or claims of the Counterparty on insurance companies with regard to the goods delivered under retention of property to LP, and all matters at the discretion of LP;
b) To pledge i.e. cede the entitlements which the Counterparty obtains vis-a-vis its suppliers on account of the sale of matters delivered by LP under retention of property to LP, and all matters at the discretion of LP;
7.7 In the event of default on the part of the Counterparty – also including non-compliance with any obligation pursuant to these general conditions – or in the event there are reasonable grounds in the opinion of LP to fear that the Counterparty will not fulfil its obligations, LP has the right to recover or have picked up the delivered matters without further notice from the Counterparty, or from third parties holding the matters for the Counterparty. The Counterparty is obligated to give its full cooperation thereto, on pain of an immediately payable and deductible fine of 10% of the amount owed by it at that moment, for every day that its refusal to cooperate continues.
7.8 The Counterparty authorises LP i.e. pre-emptively grants LP permission to enter its premises and buildings for the benefit of exercising the latter’s retention of property.
8.1 The Counterparty is obligated to (let) inspect the delivered matters at the moment of delivery immediately. If it turns out that the delivered matter is wrong, inadequate, or incomplete, the Counterparty must immediately report visual defects or goods delivered incorrectly to LP in writing. Any possible invisible defects must and can be reported until no later than 3 days after delivery to LP in writing. The preceding applies on pain of the lapsing of the right to file complaint.
8.2 The commissioning after the identification of defects, damage occurring after the identification of defects, the encumbering and/or resale after the identification of defects all make fully lapse the right to file complaints and to make returns.
8.3 The warranty term of LP amounts to 36 months, counting from the moment of delivery. LP is never responsible, however, for the ultimate suitability of the delivered matters for each individual application by the Counterparty, nor for any possible advice with regard to the use or application of the delivered matters.
8.4 Minimal deviations in quality, colour, size, etc. of the delivered matter cannot constitute grounds for complaints.
8.5 Returns only take place after the written permission of LP, and only under the accompaniment of the return form of LP and under (clear) specification of the return-order number (R-number). LP reserves itself the right to refuse returns which are not offered in the prescribed manner. In such case, the return is not taken into consideration and will be shipped back at the expense of the Counterparty.
8.6 If the complaint of the Counterparty with regard to a delivered matter is well-founded and falls under the warranty arrangement, LP will, at its discretion, either:
a) Repair or replace the delivered matters or – if possible - the defective part (by a repairer indicated by LP), or;
b) Make a written arrangement with the Counterparty regarding compensation of damages, under the proviso that the amount of the compensation is always limited to a maximum of the invoice amount for the relevant (defective) matters. LP is, however, only liable in all cases within the boundaries of what is stipulated in Article 9 of these general conditions.
8.7 In case the complaint of the Counterparty with regard to a delivered matter located abroad is well-founded and falls under the warranty arrangement, LP will compensate the delivered matters or – if possible – replace the defective part or compensate the cost of the defective part. And all these matters at the discretion of LP.
8.8 The warranty in the preceding section lapses in case:
a) The Counterparty itself has repaired and/or processed the delivered matters or has had them repaired and/or processed by third parties;
b) The defects are the result of normal wear;
c) The delivered matters have been exposed to abnormal circumstances or have been otherwise treated negligently or have been handled in violation of the indications of LP and/or any other regulation;
d) The inadequacy is completely or partially the consequence of regulations (to be) established by the authorities with regard to the nature or the quality of the materials applied.
8.9 Upon first request of LP the replaced parts must be made available to LP free of charges. Any possible costs of transport, i.e. shipping are borne by the Counterparty.
8.10 The transport for replacement or repair takes place at the expense and risk of the Counterparty, unless agreed otherwise in writing.
8.11 Non-compliance by the Counterparty with one or more of the obligations pursuant to the Agreement or the general conditions relieves LP from all their warranty obligations.
9.1 The liability of LP – as that of its representatives and/or delegates, employees and third parties deployed by LP – is always limited to the amount which is disbursed under the applicable (corporate) liability insurance of LP, increased by the amount of the deductible which, according to the applicable policy conditions, is borne by LP. If for whatever reason no disbursement were to take place pursuant to the insurance intended above, any liability of LP is always limited to the amount which is paid by the Counterparty to LP on account of the Agreement, or of the part of the Agreement in connection with which the liability has arisen, until a maximum of EUR 2,000.
9.2 LP is never liable for indirect damage, including, but not limited to, consequential damage (to persons or matters), business damage, lost profit or income, missed savings and/or damage due to operational stagnation.
9.3 LP is not liable for damage, of whatever nature, occurring due to or on behalf of third parties deployed by LP and/or due to material used by it.
9.4 LP is not liable for damage, of whatever nature, caused by inaccurate and/or incomplete information provided by or on behalf of the Counterparty or by persons or matters made available by the Counterparty.
9.5 In all cases in which LP is entitled to an appeal to what is stipulated in Article 9, any employee(s) and sub-contractor(s) as may be addressed may also appeal to the same, as if what is provided for in Article 9 had been stipulated by the employee(s) and sub-contractor(s) involved.
10.1 The Counterparty safeguards LP against all possible third-party claims in connection with the implementation of the Agreement, more especially third-party claims with regard to matters and/or services provided by LP to the Counterparty, as a result of which those third parties may have incurred damage, regardless of the cause or time of it coming about.
10.2 The Counterparty is obligated – at its own expense – to support LP both judicially and extrajudicially if LP is addressed by a third party in the manner intended in the preceding section, and to forthwith take all those actions which may be expected of the Counterparty in such case. If the Counterparty persists in failing to take adequate measures, LP has the right, without default notice, to take such itself. All costs arising as a result for LP are borne integrally by the Counterparty.
10.3 The safeguards for LP by the Counterparty pursuant to these general conditions apply fully to group companies of the Counterparty.
10.4 The Counterparty is obligated to timely take out a sufficient corporate liability insurance (‘AVB’), of which it must present a copy to LP upon the latter’s first request.
11.1 In case of force majeure, LP is authorised to suspend compliance with its contract pursuant to the Agreement or with a part of it, and the Counterparty cannot demand compliance or compensation of damage.
11.2 Intended by force majeure is any outside cause, as well as any circumstance, which should not reasonably be at the risk of LP. Delays, negligence at or malpractice by suppliers of LP, as well as of ancillary persons, malfunctions in the internet, power failures, malfunctions in e-mail traffic and failure or modifications in technology supplied by third parties, transport issues, strikes, government measures, delays in supplies, illness of staff, defects to ancillary or transport means are emphatically considered situations of force majeure.
11.3 In the event of force majeure, LP reserves itself the right to suspend its obligations and it is also authorised to completely or partially rescind the Agreement, or otherwise to demand that the substance of the Agreement is modified in such a way that implementation remains possible. In no event is LP bound to pay any fines or compensation of damage.
11.4 If LP when the force majeure enters into effect has already partially complied with its obligations, or if it will only be able to comply with its obligations partially, it has the right to separately invoice what was already delivered or the deliverable part respectively, and the Counterparty will be obligated to settle this invoice as if it was a separate Agreement. This does not apply, however, in the event the part already delivered or the deliverable part respectively does not have an autonomous value.
12.1 LP retains all intellectual absolute rights (including copyrights, patent rights, brand rights, drawings and models rights, etc.) to all their designs, drawings, writings, carriers with data or other information, quotations, pictures, sketches, models, etc., unless established otherwise in writing.
12.2 Without the express written permission of LP, the rights referred to in the preceding section may not be copied, shown and/or made available to third parties nor used in another in a manner other than the way established with LP neither/nor for another purpose than the one for which they were given in use, i.e. delivered.
12.3 The Counterparty is held to non-disclosure with regard to all confidential information made available by LP to it or to one of its subordinates. Intended by confidential information is in any case everything which regards what is listed in the first section, as well as company information of LP.
13.1 LP records the information filled out by you for the acceptance and implementation of the Agreement and to manage their customer relations. LP may also use your data to inform you regarding offers of LP. You have the right at all times to peruse your data and to request modification of these data. Questions or complaints concerning may be addressed to: email@example.com.
14.1 In derogation to the statutory limitation terms, the limitation term of all claims and objections of the Counterparty vis-a-vis LP amounts to 3 months from the moment such claims and objections arise.
15.1 In case the Counterparty is in default with regard to any obligation on account of the Agreement or these general conditions, or in the event of (an application for) bankruptcy, suspension of payment, debt restructuring, work incapacity, strikes, seizure, (company) take-over and or merger, or decease on the part of the Counterparty, LP has the right to terminate and/or rescind the Agreement in writing. In such case, LP will be entitled to payment of the entire invoice amount, minus the (direct) costs saved by it through the termination.
16.1 To all agreements to which these general conditions are applicable fully or partially, Netherlands legislation is applicable. The applicability of the United Nations Treaty regarding international purchase agreements regarding movable property of 1980 (Vienna commercial treaty/CISG) is emphatically excluded.
16.2 All disputes relating to or resulting from this Agreement will be submitted to the competent court in Amsterdam, unless LP has a preference to submit them to the competent court of the place of residence of the Counterparty.