Terms and Conditions Business ELBO Bouwgereedschappen en Machines V.O.F., established in Kilder (Municipality of Montferland)
Clause 1. General and definitions
These conditions apply to the formation, the content and the performance of all agreements entered into between the purchaser and ELBO.
General (purchase) conditions of the purchaser or client only apply if it has been expressly agreed in writing that those shall apply to the agreement between the parties to the exclusion of the conditions of ELBO.
In these conditions, the term purchaser includes the client giving instruction to ELBO in respect of services to be rendered by ELBO, more specifically the repair of goods by ELBO and the supervision or starting of mortar works.
Clause 2. Delivery times
Stated and/or agreed delivery times are without obligation and are never (can never be considered to be) a strict deadline unless expressly agreed otherwise.
Exceeding a stated delivery term does not give the purchaser the right to cancel the agreement unless he has as yet given ELBO a reasonable term for the delivery in writing and ELBO has also not complied with its obligations within this term. In that event, ELBO is never liable for direct and/or indirect loss suffered by the purchaser and/or third parties.
Clause 3. Delivery and transport
Unless otherwise agreed, delivery is ex shop or warehouse.
All risks of the goods to be delivered by ELBO transfer to the purchaser the moment the goods are delivered.
The transport of the goods to be delivered by ELBO always takes place in a manner to be determined by ELBO and for the account of the purchaser, unless delivery carriage paid, including insurance, has been agreed.
Return shipments are always for the account of the purchaser, unless this has expressly been agreed otherwise. In this latter case, the purchaser must have the goods transported by a carrier indicated by ELBO.
Clause 4. Guarantee
Unless expressly appears otherwise, the guarantee period is one month after the moment the goods have been delivered or repaired. Through the expiry of the guarantee period, any obligation and liability on the part of ELBO lapses.
For defects in the goods after delivery or repair ELBO is, to the exclusion of any further obligations, liable towards the purchaser to such an extent that ELBO shall repair all parts, in which due to defective material or construction any aggravating defect may arise, during the guarantee period free of charge or replace such by different material, this at ELBO’s discretion. In that case, such defects must be notified to ELBO within eight days from discovery.
All ELBO’s guarantee obligations lapse if the goods are not used in accordance with their intended use or are used improperly, the operating instructions have not been observed, improper repairs have been carried out or changes have been made.
Clause 5. Prices
All stated prices are exclusive of turnover tax (VAT) and other government-imposed levies, unless expressly stated otherwise.
The price stated by ELBO for the performance to be carried out by ELBO applies exclusively for the performance in accordance with the agreed specifications.
In the event of compound offers, there is no obligation to deliver a part of the total performance for the amount stated in respect of this part in the offer or for a proportional part of the price indicated for the whole.
Clause 6. Payment
Unless otherwise agreed, payment must be made within 30 days from the invoice date without discount or compensation.
If the purchaser has failed to carry out his obligations on time and properly, all judicial and extrajudicial collection costs are for the account of the purchaser. In all cases, a sum equal to 15% (excl. VAT) of the outstanding claim can be charged for extrajudicial collection costs with a minimum of EUR 45.38 excl. VAT.
If at a later date a longer credit period than 30 days from the invoice date is permitted or if this is wrongly taken, the purchaser shall, without any demand being required, for each month (or part of the month) of the credit granting or exceeding, pay interest of 1% per month, or if such is higher, interest equal to the statutory default interest.
The purchaser is in default by the mere expiry of a payment term even without any notice of default having been issued.
Each payment is firstly applied to pay the costs and interest due (in this order) and subsequently to pay the principal sums, whereby older claims take precedence over newer ones.
The purchaser is never entitled to offset an obligation on his part, whether or not due and payable, with the obligation on the part of ELBO.
The right of the client to complain about the invoice of ELBO lapses 5 working days from the invoice date. Complaints relating to invoices of ELBO must exclusively be submitted in writing, failing which the client is deemed to have accepted and approved the invoice unconditionally and without any reservations. Complaints submitted in any other way or too late cannot have any effect on the acceptance.
Clause 7. Ownership/retention of title
ELBO remains the owner of all the goods delivered and/or made available to the purchaser until the purchaser has paid all that it owes to ELBO pursuant to all agreements which the purchaser has entered into with ELBO.
The purchaser is never entitled to encumber goods delivered subject to retention of title in any way whatsoever, subject to its normal business operations.
The (potential) purchaser is obliged to return ELBO’s goods delivered on approval or goods which the purchaser has in its possession without this being based on a purchase agreement and which goods are therefore the property of ELBO, on first demand by ELBO. In addition, the purchaser must insure the goods referred to in clause 7(3) and keep them insured.
Clause 8. Liability
ELBO’s liability pursuant to all agreements relating to all goods delivered and/or repaired or services rendered by ELBO is in all circumstances limited to the price for which the relevant good has been delivered and/or repaired or the service has been rendered.
Only damage to the goods themselves is eligible for compensation. Indirect consequential loss, due to loss of production or loss of profit for example as well as compensation for loss of third parties, is never eligible for compensation and is excluded.
ELBO’s liability is in any event always limited to the amount paid out by the insurer in the relevant case.
The purchaser is always obliged to make every effort to limit the loss.
The purchaser shall, insofar as permitted by law, indemnify ELBO against liability towards third parties which has arisen from and/or in conjunction with the performance of the agreement, irrespective of who or what caused or inflicted the loss.
Similarly, the purchaser shall, insofar as permitted by law, indemnify ELBO against liability towards third parties relating to a defect in the delivered products.
Clause 9. Right of recovery
If the purchaser fails to pay the purchase price of the delivered good, ELBO is entitled, even if the purchaser were no longer the owner, in the event of his bankruptcy or moratorium, to reclaim the delivered good within six weeks after the purchase price has become due and payable or within sixty days to be calculated from the day on which the good has been stored at the purchaser or at another party on its behalf, by means of a written statement directed to the purchaser.
This statement terminates the purchase agreement and all the rights of the purchaser in respect of the relevant goods lapse.
Clause 10. Conversion
If a provision in these general conditions or an agreement is void or cannot be applied for a different reason, this provision is automatically replaced (by operation of law) by a valid provision which corresponds as far as possible with the purport of the void provision. If required, the parties are obliged to enter into reasonable consultation on the wording of the new provision.
In this event, the other provisions of the general conditions of the agreement remain in full force as far as possible.
Clause 11. Applicable law and competency
Each legal relationship between ELBO and the other party is governed by Dutch law.
All disputes, apart from the disputes in respect of which the Sub-district Court has jurisdiction, in connection with and/or arising from these general conditions and/or agreements to which these conditions apply shall, to the exclusion of any other court, in the first instance be heard by the District Court of Gelderland, hearing location Zutphen.
ELBO nevertheless remains entitled to bring the claim to the court which would have jurisdiction according to the statutory rules.