General Terms and Conditions of Lumi Parts B.V.
General terms and conditions of Lumi Parts B.V. of Nieuwkoop, filed at the office of the District Court in The Hague on 3 May 2005 under number 39/2005
1.1 In these general terms and conditions Lumi Parts B.V. shall be referred to as “LP”.
1.2 The “other party” shall be understood to mean any (legal) person to whom LP directs its offers, as well as any person who directs its offers to LP or provides it with an order, as well as any person with whom LP has entered into an agreement.
1.3 “Product” or “goods” shall be understood to mean: All goods supplied to the other party under these general terms and conditions.
1.4 “At LP’s premises” shall be understood to mean: LP’s warehouses or offices in Nieuwkoop.
1.5 Where applicable these general terms and conditions shall also apply to services carried out by LP in connection with the goods, such as installation.
2.1 These general terms and conditions apply to all offers from LP, orders given to LP and agreements entered into by LP.
2.2 General terms and conditions used by the other party and/or other terms and conditions are explicitly not applicable to the offers, orders and agreements referred to under 2.1. 2.3 Deviations from and/or additions to these general terms and conditions shall only bind LP if they have been explicitly confirmed in writing by LP.
3.1 All offers, brochures, quotations and estimates from LP are without obligation and do not bind LP. A written quotation applies to the period referred to and otherwise to a period of 14 days.
3.2 All details are given as precisely as possible, but they are only binding in so far as LP has expressly guaranteed their accuracy in writing.
3.3 The agreement shall come into effect when an offer from LP has been accepted by the other party in writing within the period referred to under 3.1.
LP retains the right, however, to rescind its offer within two days of receipt of the written acceptance.
In the case of verbal acceptance of an offer by the other party and if the other party makes an offer and/or gives an order, the agreement will only come into effect if LP complies with it by executing it or by confirming the agreement or offer in writing.
3.4 If an acceptance by the other party differs from the offer, this shall concern a new offer from the other party and a rejection of the whole offer from LP, if it only concerns a difference in the secondary points.
4.1 The prices given by LP are exclusive of sales tax and any other government taxes covering the sale and/or supply and/or execution of the agreement.
4.2 The prices agreed between LP and the other party may be increased after the agreement has been entered into if LP is confronted with a price increase from its supplier before the execution of its obligations under the agreement, or other situations have arisen involving price increases.
If the price increase is more than 15% of the agreed price, the other party may dissolve the agreement in writing in respect of the articles that have increased in price within two working days of receipt of the notification of the price increase.
4.3 Price increases resulting from additions and/or changes to the originally concluded agreement at the request of the other party will be charged to the other party.
4.4 Normal standard packaging is included in the price; special packaging will be charged separately by LP at cost price.
5.1 Stated delivery times and/or delivery dates are merely an indication of the actual time of delivery and must never be considered deadlines, unless agreed otherwise in writing. In the event of late delivery and/or completion LP must be given written notice of default together with a reasonable term for fulfilment. In the event of dissolution due to a delayed delivery the other party does not have any right to compensation, other than restitution of any relevant payment that has already been made to LP in the matter.
5.2 Delivery to the other party will take place carriage paid within the Netherlands if the order stated on the invoice exceeds € 450.00 (excluding VAT), unless its has been agreed otherwise in writing. The costs of transport in relation to deliveries outside the Netherlands are at the expense of the other party, unless agreed otherwise in writing.
The costs of installation of the goods are at the expense of the other party at all times, unless agreed otherwise in writing.
5.3 Delivery shall take place at the place agreed with the other party and at the time determined by LP, of which the other party will be notified by LP in due time. The other party is obliged to receive the goods at the fixed delivery time at the agreed place, failing which any resulting costs will be charged to the other party.
5.4 The risk of the goods transfers to the other party at the point of delivery, even if the ownership of the goods has not yet been transferred by LP.
5.5 LP has the right to deliver the goods in parts, which partial deliveries may be invoiced by separately by LP.
5.6 Delivery of orders smaller than € 450.00 (excluding VAT) is by means of collection at LP’s premises, within seven days of the written or telephone notification by LP that the goods are available for the other party, unless the parties have explicitly agreed a different term.
If the goods are not collected within the stated term, LP is free to dissolve the agreement, without prejudice to LP’s right to demand compensation. LP may charge reasonable) storage costs to the other party if it does not collect the goods within the seven-day term.
5.7 The risk of a reduction in value or perishing of the goods to be delivered to the other party by LP is for the account of the other party from the time of notification to the other party that the purchased goods are available for them.
5.8 If the other party, contrary to 5.6, agrees with LP that LP will transport the goods or have them transported by a third party, the costs and the risk for such transportation will always be for the account of the other party.
5.9 In those cases where it is agreed that LP will bear responsibility for transporting the goods, the method of packaging and transport will be paid by them, unless agreed otherwise in writing.
6.1 Payment shall be in cash upon delivery, unless deferred payment has been agreed. In the latter case payment must be made within 30 days of the date of invoice. This date is the expiration date, which if passed places the other party in default and liable to contractual interest, equal to an interest percentage of 1% per month, or the legal rent if this is higher, whereby part of a month is calculated as a full month, calculated from 30 days after the date of invoice until the time of payment. In the case of payment through the bank the time of payment is the date of entry onto LP’s account.
6.2 In the case of non-payment within the terms referred to under 6.1, LP retains the right to increase the amount owed by the other party with collection costs. These collection costs include both the extrajudicial and the full judicial costs, even if the latter exceed the costs of any proceedings apportioned by the court. The extrajudicial collection costs are all costs that need to be made by LP to recover its debt against the other party. These are set at 15% of the sum of the debt with a minimum of € 100.00.
6.3 Payments made by the other party shall in every case in the first instance serve to meet all interest and costs due and subsequently the debts arising from the agreement that are due the longest, even if the other party states upon payment that the payment relates to another debt.
6.4 In the case of default, liquidation, insolvency, (application for) bankruptcy,
(application for) suspension of payment (by the company) of the other party all obligations of the other party shall be due and payable forthwith.
6.5 LP retains the right to require part of the purchase price by prepayment and to request the other party to provide security for meeting all of its obligations arising from the agreement. This condition also applies if credit has been agreed.
6.6 LP is entitled to suspend the observance of its obligation if the other party does not fulfil all its obligations or if, after concluding the agreement, circumstances that have come to its attention give LP good grounds to fear that the other party will not fulfil its obligations.
7.1 LP remains the owner of the delivered goods, so long as the other party has not or not sufficiently met its payment obligation:
a. concerning any item delivered under any agreement;
b. under such agreement also any work carried out or to be carried out for the other party;
c. concerning that which is owed by the other party in connection with its failure to observe such agreements.
7.2 The other party is only entitled to sell on goods which by virtue of paragraph 1 fall under the retention of title in the framework of normal business practice. The other party is expressly prohibited from pledging these goods or to establish any rights to them, or to provide a third party with a personal right in relation to the goods.
7.3 If third parties want to lay any claim to the goods delivered under retention of title, for instance via seizure, suspension of payment, or bankruptcy, the other party is obliged to inform LP immediately.
7.4 The other party is obliged at LP’s first request:
1. to insure the goods delivered under retention of title and to keep them insured against fire, explosion and water damage, as well as against theft and to make these insurance policies available for inspection;
2. to pledge or cede any of the other party’s rights on insurers in relation to the goods delivered under retention of title to LP in advance;
3. to pledge or cede any debts obtained by the other party in respect of its customers through selling, in the framework of its normal business operations, goods supplied by LP under retention of title;
4. to mark the goods delivered under retention of title as the property of LP;
5. to provide assistance with all reasonable measures that LP wishes to take to protect its right of ownership in relation to the goods and which do not unreasonably hinder the other party in the normal execution of its business;
7.5 In every case of default by the other party and if there is reasonable fear that the other party will not fulfil its obligations, LP is entitled to collect the supplied goods, on which the retention of title referred to in subparagraph 7.1 rests, without further notification to the other party or third parties who are holding the goods for the other party, or to have them collected. The other party is obliged to provide full assistance to this end under penalty of a fine of 10% of the sum owed by them at that time, per day. The other party authorises LP in advance to enter any property belonging to them or being used by them so that LP can take possession of the reclaimed goods.
8.1 The other party must on receipt immediately check the supplied goods for soundness. Any claim to rectification or replacement will only exist only if the other party:
- in the event of visible defects informs LP immediately;
- in the event of non-visible defects informs LP of such defects in writing, within two working days after the day on which the other party discovered the defects, or should reasonably have discovered them, and can demonstrate that LP’s instructions for use, maintenance and operation have been followed, and the defects are not the result of normal wear and tear, misuse, negligence, accident, exceeding any limits set by LP or statutory safety regulations, or if the product has been repaired or changed without the permission of LP or a service engineer recognised by them, there is no right to repair or replacement.
8.2 A guarantee, as referred to in Article 8.1, consists in respect of the product in the Netherlands of free replacement or repair (at the discretion of LP) of the defective part by LP or a service engineer
assigned by them and does not cover the transport costs of goods or persons in connection with the fulfilment of the guarantee. In the case of a product outside the Netherlands this guarantee only covers the costs of the defective part.
8.3 The replaced parts must be made available to LP free of charge.
8.4 Non-fulfilment by the other party of one or more of their obligations shall discharge LP of all its guarantee obligations.
9.1 Notwithstanding the provisions of Article 8, LP will never be liable for damage, unless it is attributable to gross negligence or intention on the part of LP or its managing subordinates.
10.1 Without prejudice to that which is determined elsewhere in these terms and conditions, LP shall at no time be liable for any shortcoming in the observance of an agreement in the event of a force majeur.
10.2 Force majeure on the part of LP shall also include every circumstance arising through no fault of theirs, thereby preventing the normal performance of the agreement. Such circumstances causing a force majeure include in any event, for whatever reason, failure of LP’s own suppliers to deliver, strikes, lockouts, interruption in the power supply, traffic disruption, machine breakage, government measures, as well as the effects of these, loss or damage during transport and excessive sickness absence of its employees.
11.1 The other party undertakes to bserve secrecy with regard to all confidential information provided oto it by LP. Confidential information means in any case data concerning a new product to be developed, for example put forward by LP in the negotiation phase. The other party is also obliged to refrain from using the above-mentioned data for its operational management.
12.1 Netherlands law shall apply to all agreements to which these conditions wholly or partially apply.
12.2 The provisions of the Vienna Sales Convention do not apply, nor any future international regulation concerning the sale of movable goods, the operation of which can be excluded by the parties.
12.3 All disputes arising from offers and agreements, however named, will be subject to the opinion of the district court of Amsterdam, unless mandatory law confers jurisdiction on another court.