General terms and conditions BUFFL (VAEX Truck Trading B.V.)

General terms and conditions BUFFL (VAEX Truck Trading B.V.)

BUFFL Customizers (part of VAEX Truck Trading B.V.)
Heijtmorgen 19
5475 AL Reek
The Netherlands

VAEX Truck Trading B.V.
De Verver 4a
5371 MZ Ravenstein
The Netherlands

T: +31 486 72 50 67
E: buffl@vaex.nl
E: financevtt@vaex.nl (facturen)

VAT: NL007610452B01
Chamber of Commerce: 16049712
IBAN: NL29 ABNA 0477 2093 86
BIC: ABNANL2A

I. GENERAL

1. These terms and conditions apply to all offers, orders, contracts for the purchase/sale of items, contracts for services and other legal relationships, including negotiations regarding such agreements with VAEX Truck Trading B.V., with its registered office in Ravenstein, hereafter referred to as VAEX, both jointly and separately, insofar as not stated otherwise in the quotation or agreement.

2. Additions or deviations from these terms and conditions are possible only when laid down in writing, as part of an agreement between the parties. 

3. The rights and obligations arising from agreements between VAEX and the client cannot be transferred by the client to third parties, unless with the written approval of VAEX.

4. The provisions of Section 1, Title 7 of Book 7 of the Dutch Civil Code (assignment), with the exception of Articles 7:406 and 7:412, do not apply to legal relationships with VAEX, unless explicitly stated otherwise in the agreement or in these terms and conditions.

5. The applicability of additional or different terms or conditions applied by the client or referred to or any other terms and conditions customary in the industry are expressly rejected. 

6. In the event of a conflict between translations of the text of these terms and conditions and the Dutch text, the text in the Dutch language and the interpretation thereof at all times prevail.

7. If VAEX and the client have entered into a separate agreement to which these terms and conditions apply, the provisions of the agreement will prevail in the event of a conflict.

II. OFFER

1. All offers and quotations are without obligation and purely indicative, unless agreed otherwise in writing.  

2. An offer that is limited by an expiry date can be withdrawn by VAEX within 5 days.

3. Indications of weights, speed, fuel, load capacity, energy consumption, etc. are best estimates and do not bind VAEX. The other party cannot derive any rights from this.

III. AGREEMENT

1. An agreement is concluded under the suspensive condition that VAEX has approved and confirmed the order or assignment in writing (which in this case includes electronically), or has commenced execution of the order or assignment. The content of the agreement is determined by the offer and/or order confirmation from VAEX and these terms and conditions.

2. If an agreement between VAEX and the client is concluded electronically, VAEX is not obliged to confirm receipt of the client’s statements and the client is not entitled to terminate the agreement on the grounds of such confirmation of receipt being absent.

3. Orders from and acceptances of the client are deemed irrevocable. The client is only entitled to cancel or change an order or assignment with the permission of VAEX, insofar as this can reasonably be required from VAEX and subject to payment of the cancellation costs amounting to 15% of the purchase price (excluding VAT). If the changes and/or additions required by the client entail additional costs for VAEX, VAEX is entitled to pass these on to the client in full. In that case, VAEX will also be entitled to set a new delivery time. Cancellation is not possible if the order concerns especially adapted, assembled or loaded (including stacking) items, or if it concerns services/work performed specifically at the request of the client.

4. VAEX is at all times entitled to end negotiations with the client and/or to reject an electronic or written order placed by the client, without stating the reasons and without being obliged to pay any compensation.

5. All prices, quotations, advertisements, images and other designations and descriptions of items are made with due care and no rights can be derived from any deviations in the text or graphics. 

6. VAEX is not obliged to check the client’s assignments, orders and/or communications for accuracy. A shortcoming cannot be attributed to VAEX if it is the result of incorrect or incomplete information provided by the client. The client is liable for any damage, loss and costs arising from the fact that the information provided by the client to VAEX is incorrect.

IV. PRICE

1. All quotations and prices charged by VAEX are the prices applicable as at the time of the offer or the time that the agreement is concluded, excluding VAT and other costs the agreement is subject to, such as levies and tariffs.

2. If after submitting the offer, a change occurs in one of the price-determining factors, VAEX will be entitled to adjust the prices accordingly.

V. PAYMENT

1. The client is obliged to pay all invoices before delivery of the relevant items or before performing the work concerned (payment in advance), unless otherwise agreed in writing, while the client is not entitled to suspension, set-off or discount. VAEX will not deliver the relevant items or perform the relevant work until after full payment of the invoice, or until after satisfactory security for payment has been provided, which will be at the discretion of VAEX.

2. If invoices are not paid in accordance with paragraph 1 of this article, the client will be in default by the mere expiry of the agreed payment term, without a notice of default being required and irrespective of the fact whether or not exceeding the payment terms is attributable to the client.

3. In that case, VAEX, without prejudice to its further rights, will be entitled to charge interest on the outstanding amount of 1% per month (in which part of the month is considered a full month), to be calculated from the relevant due date.

4. VAEX is entitled to postpone new deliveries until the client has fulfilled all its outstanding payment obligations.

5. All judicial and extrajudicial costs incurred by VAEX within the framework of a dispute with the client, either as claimant or defendant, are at the expense of the client. The extrajudicial collection costs are set at 15% of the outstanding amount, subject to a minimum of EUR 100 per case, whereas the judicial collection costs are set at the actual amount paid by VAEX for the proceedings, even if this exceeds the assessed legal costs.

6. Incoming payments serve to settle the oldest outstanding items, including interest and costs, even if the client declares otherwise in this regard.

7. In the event of late payment, any exchange rate differences unfavourable to VAEX will be at the expense of the client. Reference dates are the invoice due date and the payment date.

8. VAEX is entitled to set off all amounts owed by the client to VAEX against amounts owed by VAEX to the client, regardless of whether these amounts are due and payable and regardless of the currency.

VI. DELIVERY TIME, DELIVERY & RISK

1. The delivery time and/or construction period are set by VAEX. 

2. When setting the delivery time and/or construction period, VAEX assumes the assignment is carried out under the conditions known at that time.

3. The delivery time and/or construction period do not commence until an agreement has been reached on all commercial and technical details, until all necessary information and final and approved drawings, etc. are in the possession of VAEX, the agreed payment (or instalment) has been received and the necessary conditions for the execution of the assignment have been met. 

4. If a delivery period is stated or agreed, the delivery period is automatically extended in cases that include, but are not limited to the following: 

- in the event of a delay in the supply and/or dispatch and/or of any other circumstance temporarily preventing the execution, regardless of whether this can be attributed to VAEX or whether this could be foreseen;

- if the client fails in one or more of its obligations vis-à-vis VAEX or if VAEX, in its exclusive opinion, has a well-founded fear that the client will fail to do so;

- if the client does not enable VAEX to execute the agreement; this situation occurs, among other things, if the client, if applicable, fails to communicate the place of delivery or fails to make available the data, items or facilities required for the execution of the agreement;

- in the event of other circumstances that were unknown to VAEX when VAEX determined the delivery time and/or construction period;

- in the event of contract extras. If the contract extras cannot be scheduled into the planning of VAEX, the work will be carried out once the planning allows for it.

5. Delivery in the Netherlands will be ex-workshop in Ravenstein, unless otherwise agreed inwriting. All items are transported at the expense and risk of the client, even if dispatch is carriage paid.

6. If VAEX, at the request of the client, organises dispatch of the items, VAEX will be exclusively entitled to determine the time, method of dispatch and dispatch route. VAEX only takes out transport insurance at the explicit request of the client, with all related costs payable by the client. Items are taken to mean items sold by VAEX only and never the possible load that the client offers to be loaded or which has already been loaded in the item sold. VAEX does not accept any liability or responsibility for any damage or loss during the transport of this load, nor will it ever be covered by any transport insurance.

7. Delivery is deemed to have taken place the moment that the items have been made available to the client at VAEX. If the client does not take delivery of the items, the client will immediately be in default and the items will be stored at its expense and risk. If the client refuses to take delivery of the items within the period specified by VAEX, VAEX will be entitled to terminate the agreement in whole or in part and sell the items located within the grounds of VAEX or which are present in the item(s) sold, including any load that is offered in connection with the item(s), in a manner that suits VAEX, without being obliged to pay compensation. 

8. VAEX is entitled to recover its claim against the client from the proceeds.

9. Delivery outside the Netherlands is made in accordance with the terms and conditions laid down in Article VI.

10. VAEX has the right to deliver in parts or to carry out work in parts and to invoice these separately.

VII. FAILURE TO TAKE DELIVERY OF ITEMS

1. After the expiry of the delivery time and/or construction period, the client is obliged to take delivery of the item or items that are the subject of the agreement, at the agreed location. 

2. The client must render cooperation to the extent that can be reasonably expected from the client in order to enable the seller to make the delivery. 

3. Items that have not been taken delivery of will be stored at the expense and risk of the client. 

4. In the event of a violation of the provisions of paragraphs 1 and/or 2 of this article, the client owes VAEX a penalty of € 250 per day, subject to a maximum of € 25,000. This penalty can be claimed in addition to compensation by virtue of the law. 

VIII. ADVICE AND INFORMATION PROVIDED

1. The client cannot derive any rights from advice and information it receives from VAEX, if not directly related to the actual assignment. 

2. If the client provides VAEX with data, drawings, etc. VAEX may assume the correctness and completeness thereof when executing the agreement. 

3. The client indemnifies VAEX against any third-party claims with regard to the use of advice, drawings, calculations, designs, materials, samples, models, etc. provided by or on behalf of the client. 

IX. INTELLECTUAL PROPERTY RIGHTS

1. Unless otherwise agreed in writing, VAEX retains the copyrights and all industrial property rights to the offers made by VAEX and to the designs, images, drawings, (test) models, software, etc. provided by VAEX. 

2. The rights to the data referred to in paragraph 1 of this article remain vested in VAEX, regardless of whether the client has been charged for the creation thereof. These items may not be copied or shown to third parties without the explicit, prior and written approval of VAEX. The client owes VAEX an immediately due and payable penalty of € 25,000 for every breach of this provision. This penalty can be claimed in addition to compensation by virtue of the law. 

3. The client must return the items referred to in paragraph 1 of this article immediately on request, within the term set by VAEX. In the event of a breach of this provision, the client owes VAEX an immediately due and payable penalty of € 1,000 per day. This penalty can be claimed in addition to compensation by virtue of the law.

X. WARRANTY & COMPLAINTS

1. The items delivered by VAEX meet the specifications laid down in the corresponding agreement. No warranty is provided, unless otherwise specified in the agreement and except to the extent that a manufacturer’s warranty applies, in which case VAEX does not provide any warranty other than or beyond the relevant manufacturer’s warranty. 

2. If the client relies on the warranty or right to complain provided by VAEX under the relevant agreement, VAEX will assess the warranty claim or the complaint and, if necessary, settle it with due observance of the relevant provisions of the agreement. 

3. Warranty claims are not transferable to third parties.

4. At the risk of forfeiting its right to claim, the client must inspect the items and work for visible defects upon delivery. Complaints regarding the amount of the invoice amount and visible imperfections must be submitted to VAEX in writing within 3 days after receipt or delivery, supported by a detailed description of the complaint. As regards all other complaints, a period of 5 days applies after the defects have become known or could have been known. In the absence of timely submission as referred to in this article, the right to warranty/complain lapses. The relevant items must be made available to VAEX for investigation in the condition which they were in at the time of the complaint, immediately on request.

5. The right to complain lapses if: 

- the items have been used for a purpose other than for which they are normally intended or, which is at the discretion of VAEX, have been used or transported improperly or have been repaired, modified or changed by the client or a third party; 

- the damage has been caused by negligence on the part of the client (for example, due to insufficient or incorrect maintenance or storage), or on account of the client acting contrary to the instructions, directions and advice from VAEX; 

- it concerns parts of which the seal has been broken or which are to be regularly replaced during maintenance or servicing or which are accessories; 

- the client has failed to fulfil its obligations towards VAEX (both financially and otherwise);

- the client has failed to do everything necessary to prevent further damage to the item delivered, for example, by continuing to use the item.

6. VAEX never guarantees the absence of errors that are the result of having to comply with any mandatory legal provisions regarding the nature or property of raw materials and/or materials used in the items delivered.

7. In the event that the client submits a complaint with due observance of the provisions of this article and that complaint is upheld by VAEX, VAEX will replace the relevant items free of charge (after which the replaced items become the property of VAEX), repair them or grant a price reduction. VAEX is entitled to decide which products or materials are used for replacement.

8. Handling a complaint does not suspend the client’s obligation to pay.

9. If a complaint is handled outside of the cases described above, this is entirely without obligation and the client cannot derive any rights from this.

10. All claims, based on the assumption that the items or services provided do not correspond with the provisions of the agreement, expire one year after the date of delivery or effective termination of the service.

XI. INSPECTION

 1. The client, at its expense, has the right to inspect the items before delivery, at a time and place as determined by VAEX.

XII. NON-PERFORMANCE, DISSOLUTION & SUSPENSION

1. VAEX is entitled to partly or fully dissolve the agreement or to suspend the performance thereof with immediate effect and without judicial intervention and without prejudice to any of its other rights (to compliance or compensation), if:

- the other party acts contrary to any provision of the agreement between the parties;

- (foreign) statutory provisions are applied with the aim of winding up the other party or rescheduling the debts the other party, such as liquidation, a (provisional) moratorium and similar statutory provisions;

- the business of the other party is shut down or wound up or the other party offers a private agreement to its creditors;

- the other party, after being requested to do so in writing, has failed to provide satisfactory security within seven days, which is at the discretion of VAEX.

2. In these cases, all claims against the other party become immediately due and payable, without VAEX being obliged to pay compensation or fulfil any other obligation whatsoever. If the other party fails to pay and/or take delivery for more than fourteen days or if the other party wishes to cancel the agreement, VAEX, without further notice, will be entitled to resell the items sold, in which case the down payment made to VAEX will lapse as compensation for the damage and loss suffered by VAEX.

3. In that case, VAEX is entitled to dissolve the agreement.

XIII. RETENTION OF TITLE

1. Delivery is made subject to retention of title. This restriction applies to claims for payment of all items delivered or to be delivered by VAEX to the client under any agreement and/or within the framework of work performed, as well as to claims on account of the client’s failure to comply with these agreements.

2. In the event of non-compliance by the client, as well as in the event that VAEX has good grounds to fear that the client will not comply, VAEX is authorised to take back the items delivered that have remained its property in accordance with the previous paragraph. The act of taking back will be deemed equal to terminating the agreement(s) concluded with the client. The client irrevocably authorises VAEX and its representatives to remove the relevant goods (or have them removed) from the location where they are stored and to access these locations and will further stipulate this right for VAEX and its representatives from the customers of the client. In addition, the client must provide all necessary cooperation. All costs in respect of taking back the items will be at the expense of the client.

3. If and insofar as is necessary within the framework of its normal business operations, the client has the right to retain items in its possession which are subject to retention of title, but is explicitly not entitled to create a limited right to said items, including pledge (under the law of obligations and under property law). If the client exercises this right, it is obliged to deliver the items that are subject to retention of title to third parties under VAEX’s same rights of ownership. The client is furthermore obliged to grant VAEX an undisclosed pledge (ranking first) on the claims it has or will have against these third parties, to declare in the deed of pledge that it is authorised to pledge or that the claims to be pledged are not subject to any limited rights. In the event that the client refuses, this provision applies as an irrevocable power of attorney to VAEX to create this right of pledge.

4. The property-law consequences of retention of title in respect of items are governed by Dutch law or, at the discretion of VAEX, by the law of the country of destination of the items, on the understanding that (i) the law of the country with regard to retention of title offers VAEX better protection than Dutch law and (ii) the items have effectively been imported into the destination country.

5. In the event of seizure of the items owned by VAEX or in the event of a bankruptcy petition, a (provisional) moratorium, statement of application of the Debt Restructuring (Natural Persons) Act by or from the client, the client is obliged to immediately notify VAEX thereof and, in the event of an attachment, to notify the attaching party that the client has received the items subject to retention of title.

XIV. RIGHT OF RETENTION

 1. VAEX is authorised to suspend the fulfilment of its obligation to hand over an item from the client retained by VAEX within the framework of an agreement, until the claim of VAEX with regard to that agreement has been paid in full, including interest and costs.

XV. EXCHANGE

1. If the client continues to use a part-exchange motor vehicle pending the delivery of the motor vehicle it ordered, the client will do so at its own risk, whereas all costs relating to the motor vehicle referred to first and any depreciation thereof will be at its expense. 

XVI. LIABILITY

1. VAEX is not liable for damage or loss caused by any shortcoming in the fulfilment of its obligation(s) towards the client. 

2. The fulfilment of the obligations under the warranty/ complaint provisions as described in these general terms and conditions is deemed to be full and final compensation. Any other claim for compensation, including those relating to consequential damage or loss (loss owing to stoppage, loss of income, losses suffered, loss of profit, loss of and/or (delay-induced) damage to the client’s load) and other indirect or intangible damage or loss of whatever nature, as well as damage or loss as a result of liability towards third parties, is explicitly excluded, unless in the event of intent or wilful recklessness on the part of VAEX or its immediate superiors.

3. Nor can VAEX be held liable for intent or (wilful) recklessness of its subordinates or other parties whom it has engaged within the framework of the execution of the agreement and for whom it could be liable by law.

4. VAEX accepts no liability for advice provided by it or on its behalf.

5. VAEX is not liable for damage to motor vehicles of the client and/or third parties located within its grounds.

6. If for any reason VAEX is unable to rely on the restrictions as referred to in paragraphs 1, 2, 3 and 4 of this article, the damage or loss will be limited to the sum for which VAEX is insured under an insurance policy taken out by or on its behalf and never exceed the sum paid out by this insurance in the relevant case.

7. If for whatever reason, VAEX is unable to rely on the restriction of paragraph 5 of this article, the obligation to pay compensation will be limited to a maximum of 15% of the total contract sum (excluding VAT). If the agreement consists of various parts or partial deliveries, the obligation to pay compensation will be limited to a maximum of 15% (excluding VAT) of the contract sum for that part or that partial delivery. 

8. The client will indemnify and compensate VAEX with regard to all claims or rights of third parties in relation to the delivery of items or the provision of services, insofar as those claims are in excess of or different from those that accrue to the client vis-à-vis VAEX. The client will further indemnify and compensate VAEX in relation to any claim pertaining to the death of or personal injury to personnel of the client or that of third parties and/or to damage to property agreement after it has granted VAEX a reasonable term to remedy and execute the agreement at a later date.

XVIII. PARTIAL NULLITY

1. If one or more provisions of these terms and conditions or an agreement with the client appear to be legally invalid, or only partially valid, the other provisions remain in full force. In lieu of the invalid provision, a suitable and legally effective regulation will apply which will correspond to the original intention of the parties and the economic result pursued by them as closely as possible.

XIX. APPLICABLE LAW

1. All offers from and agreements with VAEX are governed exclusively by Dutch law. The applicability of the Vienna Sales Convention is explicitly excluded. 

2. All disputes arising from agreements concluded between the other parties and VAEX or any ensuing agreements will be resolved by the competent court in East Brabant.

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