General conditions of sales and delivery Proshar Europe BV

established in (2181 MG) Hillegom, at the Satellietbaan 13E Netherlands

Article 1 – General

  • 1.1 These General Terms and Conditions (hereinafter: Conditions) apply to all quotations, assignments and/or agreements between PRO­SHAR EUROPE BV and its Clients, for the sale and delivery of products and/or conducting services and their implementation. Deviations or changes to these conditions must be confirmed in writing by PRO­SHAR EUROPE BV and shall be applicable only for the respective quotation/assignment/agreement.
  • 1.2 “Client” is defined below, each person or legal entity to which products are delivered by PRO SHAR EUROPE BV and/or services are conducted, including its representatives, agents, successors and assigns.
  • 1.3 Any General Terms and Conditions used by the Client are not binding for PRO­SHAR EUROPE BV, unless PRO­SHAR EUROPE BV has consented to this in writing.
  • 1.4 If PRO­SHAR EUROPE BV has agreed in writing with the applicability of one or more deviating conditions, these conditions remain otherwise unaffected.
  • 1.5 If and as far as any (partial) provision in these conditions shall be deemed invalid and/or unenforceable, the remainder of these conditions remain otherwise unaffected, and, instead of the void and/or unenforceable provision, a provision which applies as closely as possible to the void provision will be established.

Article 2 – Agreement and changes

  • 2.1 An assignment commissioned by the Client shall be considered by PRO­SHAR EUROPE BV as irrevocable.
  • 2.2 PRO­SHAR EUROPE BV is solely bound vis­à­vis the Client to an assignment placed with PRO­SHAR EUROPE BV if and as soon as this assignment is confirmed in writing by PRO­SHAR EUROPE BV, or if PRO­SHAR EUROPE BV has commenced with the implementation of this assignment. PRO­SHAR EUROPE BV expressly reserves the right to determine the delivery date upon the aforesaid confirmation.
  • 2.3 Any changes in the implementation required by the Client after placing an assignment, shall be communicated by the Client to PRO­SHAR EUROPE BV in a timely manner and in writing. In the case of specified assignments and/or changes in the implementation made verbally or by telephone, the Client bears the risk as to whether the implementation thereof is correct or not.
  • 2.4 Any Changes in an assignment commissioned by the Client, of any kind, which entail higher costs than the original quotation provided by PRO­SHAR EUROPE BV will be borne by Client. If such changes result in reduced costs, the Client cannot derive any rights with regard to reduction of the purchase price. PRO­SHAR EUROPE BV may however at its own discretion decide that these changes result in payment of a lower purchase price.
  • 2.5 Any changes made may result in exceeding the delivery time indicated by PRO­SHAR EUROPE BV before the changes. This cannot be invoked to the detriment of PRO­SHAR EUROPE BV.

Article 3 – Offers and price quotations

  • 3.1 All quotations from PRO­SHAR EUROPE BV are without obligation, unless expressly stated otherwise in the quotation. Prices are subject to change until the time of receipt of the assignment by PRO­SHAR EUROPE BV or an order confirmation from the Client.
  • 3.2 Descriptions and prices in quotes are made under reservation and represent only approximations. The Client may not derive any right whatsoever from any mistakes in a quote.
  • 3.3 The quotations of PRO­SHAR EUROPE BV are given based on the details and specifications provided by the Client. Quotations are based on production and delivery within normal timeframes and under normal circumstances.
  • 3.4 Even after conclusion of the agreement PRO­SHAR EUROPE BV is entitled to amend the agreed price if changes in market prices and/or prices increases by suppliers or other developments, such as change of transport, raw material, material costs and labour costs, government measures, currency exchange rates, taxes, rights, levies etc., give reason to do so. If the Client does not rescind the agreement within 24 (twenty four) hrs after PRO­SHAR EUROPE BV has announced the price increase in writing, the Client will be deemed to have agreed to the price increase.

Article 4 – Payment

  • 4.1 Unless otherwise agreed in writing, payment must be made without any discount and/or deductions and/or set­off.
  • 4.2 Payment shall be made in cleared funds, unless another form of payment has been agreed in writing. If the parties have agreed on payment after receipt of an invoice, payment has to be made within a period of 14 days unless parties have agreed on another payment term in writing. The correctness of the invoice has been established if the Client has not objected within this payment term.
  • 4.3 From the first date of default the Client is liable to pay interest at the rate of 1% per month on the immediately due and payable amount, unless the legal interest rate is higher, in which case said legal interest is payable. All (extra) judicial costs which PRO­SHAR EUROPE BV makes to obtain extra judiciary payment – both in and out of court – from that moment shall be borne by the Client. In that case the Client is liable to pay a compensation of 15% of the outstanding amount, with a minimum of € 150.00 (in words: one hundred fifty euros).
  • 4.4 If the Client has not fulfilled its payment obligations in time, PRO­SHAR EUROPE BV is authorised to suspend the compliance of the obligations to deliver or implement the work vis­à­vis the Client until payment has been made or proper security has been provided for this. The same shall apply even before the other party is in default if PRO­SHAR EUROPE BV has reasonable grounds to suspect that there are reasons to doubt the creditworthiness of the Commissioning party.
  • 4.5 In the event of liquidation, bankruptcy, debt restructuring or moratorium of the Client or an application for this purpose, the claims of PRO­SHAR EUROPE BV and the obligations of the Commissioning party vis­à­vis PRO­SHAR EUROPE BV are immediately payable.
  • 4.6 Payments made by the Client shall always be used in the first instance to settle all interest and costs owed, in the second instance those which have been outstanding for the longest, even if the Client states that the payment relates to a later invoice.

Article 5 – Delivery

  • 5.1 Deliveries shall take place based on Incoterms 2010
  • 5.2 All risks involving the goods delivered shall pass to the Client at the time of delivery. In the context of these General Terms and Conditions delivery entails:
  • 5.2.1. if there is an EXW delivery: the moment the loading of the products by the Commissioning party has commenced. If loading is conducted by PRO­SHAR EUROPE BV, the risk shall pass to the Client when the products have been loaded;
  • 5.2.2. if there is a DDP delivery to a delivery address specified by the Client: the moment when the products to be delivered are unloaded at the delivery address. If the unloading is conducted by the Client or a third party appointed by the Client, the risk shall pass to the Client when the unloading of the products has commenced.
  • 5.3. If PRO­SHAR EUROPE BV specifies a delivery time, this will only apply by approximation and not as a guarantee. PRO­SHAR EUROPE BV shall not be in default by a mere delay in delivery. If a delay occurs, for whatever reason, the delivery time is extended for the duration of that delay.

Article 6 – Retention of title

  • 6.1 All products delivered and to be delivered remain the exclusive property of PRO­SHAR EUROPE BV, until all claims which PRO­SHAR EUROPE BV has or will acquire vis­à­vis the Client, including in any case the claims referred to in Article 3:92, Paragraph 2 BW, are paid in full.
  • 6.2 As long as ownership of the goods has not been transferred to the Client the latter may not pledge or grant third parties any rights thereto, except in the ordinary course of its business. The Client is obliged to cooperate on first request from PRO­SHAR EUROPE BV in establishing a right of pledge on the claims that the Client acquires or will acquire on his Clients on account of re­delivery of products.
  • 6.3 After delivery the risk of all products delivered by PRO­SHAR EUROPE BV shall pass to the Client. The Client is obliged to store the products that are delivered under retention of title with due care and marked recognisably as being owned by PRO­SHAR EUROPE BV.
  • 6.4 The provisions included under 6.1 ­ 6.3 leave the other future rights of PRO­SHAR EUROPE BV unimpaired.

Article 7 – Return of delivered goods

  • 7.1. Products sent to the Client by PRO­SHAR EUROPE BV may only be returned after the written consent of PRO­SHAR EUROPE BV and in accordance with the conditions imposed by PRO­SHAR EUROPE BV. The costs of returning of the products sent to the Client by PRO­SHAR EUROPE BV shall be borne by the Client.

Article 8 – Quality and conformity

  • 8.1 PRO­SHAR EUROPE BV shall ensure that all products delivered by them of the usual quality are suitable for their purpose and meet the requirements explicitly agreed between the parties. Drawings, technical descriptions, colour samples, samples, colours, dimensions and material specifications, are provided by PRO­SHAR EUROPE BV in good faith and specified as precisely as possible. This informative data is however not binding. Deviations of the delivered products margin usual in in the industry have to be accepted and do not give the Client right to complain, replacement, compensation for damage or any other right, unless in the Agreement a narrower margin for deviations has been explicitly agreed.

Article 9 – Liability

  • 9.1. Liability of PRO­SHAR EUROPE BV vis­à­vis the Client for incorrect performance or any other shortcoming of PRO­SHAR EUROPE BV, or for (consequential) damage to the Client or third parties, on any grounds whatsoever (except in the event of intent or gross negligence) is explicitly excluded. The Client is obliged to indemnify PRO­SHAR EUROPE BV and to compensate against all claims from parties commissioned by the Client vis­à­vis PRO­SHAR EUROPE BV in respect of the performance of the agreement, unless there is intent or gross negligence on the part of PRO­SHAR EUROPE BV. Furthermore, the Client is obliged to indemnify PRO­SHAR EUROPE BV and to compensate against all claims from parties commissioned by the Client that are related to or arise from the Client’s use of the products delivered, or services conducted, by PRO­SHAR EUROPE BV.
  • 9.2. Any employees of PRO­SHAR EUROPE BV and/or third parties commissioned by PRO­SHAR EUROPE BV held liable for the performance of the agreement can appeal to the provisions in this article, as if they were a party to this agreement between PRO­SHAR EUROPE BV and the Client.

Article 10 – Intellectual property rights

  • 10.1. PRO­SHAR EUROPE BV is and remains entitled to all rights of intellectual property which are vested in or are related to or belong to the products made by, or commissioned by, PRO­SHAR EUROPE BV and the underlying Documents made by, or commissioned by, PRO­SHAR EUROPE BV and such. All unless parties have explicitly agreed otherwise in writing.

Article 11 – Suspension, termination, force majeure

  • 11.1. If the Client fails to fulfil any obligation in any way vis­à­vis PRO­SHAR EUROPE BV, as well as in the event of an application for a moratorium, is granted (provisional) moratorium, application for bankruptcy, report or claim, bankruptcy, liquidation or suspension of the business of (a part of) the company of the other party, is PRO­SHAR EUROPE BV, without prejudice to its other future rights and without any obligation for compensation, without notice of default or judicial intervention authorised to:
    • ­- suspend the performance of the agreement until payment of all that the Client is owed to PRO­SHAR EUROPE BV has been sufficiently secured; and/or
    • - to suspend all its own payment obligations ; and/or
    • - to rescind any agreement with the Client in whole or in part;
    all without prejudice to the Client’s obligation to pay for products and/or conducted services already delivered and without prejudice to the other rights of PRO­SHAR EUROPE BV, including that for compensation.
  • 11.2. In the event of inability on the part of PRO­SHAR EUROPE BV the performance of the agreement due to force majeure, PRO­SHAR EUROPE BV is entitled to suspend the performance of the agreement or to rescind the agreement in whole or in part without judicial intervention without being liable to pay damages.
  • 11.3. Force majeure applies to events of any independent circumstance that is beyond the control of PRO­SHAR EUROPE BV as a result of which the performance of the agreement is permanently or temporarily impossible, as well as, in so far as they are not already included, war, risk of war, civil war, riot, strikes, fire and any other operational failures in the company of PRO­SHAR EUROPE BV or its suppliers. Force majeure applies to events when a supplier, from which PRO­SHAR EUROPE BV purchases products with regard to the performance of the agreement with the Client, remains in default with temporary and/or proper delivery.

Article 12 – Transfer of rights and obligations

  • 12.1. The Client shall not transfer his rights and/or obligations under any agreement with PRO­SHAR EUROPE BV to third parties or to provide security against third­party claims without the prior written consent of PRO­SHAR EUROPE BV.

Article 13 – Applicable law and jurisdiction

  • 13.1. These conditions, as well as on all affairs between PRO­SHAR EUROPE BV and the Client are governed by Dutch law.
  • 13.2. Insofar as the rules of mandatory law do not prescribe otherwise, in the first instance the District Court in Amsterdam shall have exclusive jurisdiction to try any disputes arising from (the performance of) any agreement between PRO­SHAR EUROPE BV and the Client as well as disputes concerning (any provision in) these conditions, also to seek provisional relief.

Article 14 – Dutch text prevails

  • 14.1. In the event of a conflict between a translation and the Dutch version of these General Terms and Conditions the Dutch version prevails.
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