General Terms of Payment and Delivery Becker Druk- en Vacuümpompen B.V.
Article 1: Various provisions
- The present terms hereinafter refer to Private Limited Company Becker Druk- en Vacuümpompen B.V. (Chamber of Commerce number 01075531) as "Becker". The other party, i.e. to whom the offer is addressed and/or with whom Becker has formed a legal relationship, shall be referred to as the Principal.
- In the event that, at any time, all or part of one or more provisions of the terms are null and void or annulled, the other provisions of the general terms shall remain fully in force. With respect to void or, where appropriate, annulled provisions, the parties shall enter into consultation in order to agree on new provisions that replace the void or annulled provisions while observing insofar as possible the objective and effect of the void or annulled provision. Buyers of Becker’s goods shall also be considered Principals.
- Becker’s head office is located on Eurolaan no, 11 in (8447 SM) Heerenveen (the Netherlands), which is also its visiting address. Becker’s email address is email@example.com, Becker can be reached via telephone on (+31) 0513 – 65 18 00. Becker’s VAT identification number is NL805142101B01,
Article 2: Applicability of the provisions
- These terms shall apply to all offers, agreements and other legal relationships (including those formed electronically, such as through Becker’s online store) between Becker and the Principal to which Becker has made applicable the terms, except to the extent that the parties have explicitly derogated from the terms in writing. A tender is understood to mean electronic offers as well, including through Becker’s webshop.
If a legal relationship is formed electronically, Becker will be entitled to send the text of these terms and conditions to the Principal via the internet, including in such a way that the Principal can save these on a durable medium.
- The terms shall also apply to the execution of agreements with Becker for which Becker must involve third parties. The said third parties may also invoke the terms.
- Becker explicitly declines the applicability of the Principal's general terms and conditions unless Becker has explicitly accepted such terms in writing.
Article 3: Offers and agreement
- All Becker's offers, in whatever form they have been made, shall be non-binding.
- Indications and specifications that Becker makes regarding measurements, weight, capacity, performance or results on websites, in online stores, in illustrations, drawings, catalogues, price lists, advertisement, etc. shall not be binding for Becker, unless such information is explicitly reproduced in a written or electronic agreement between the parties or in an order confirmation. Becker shall never be bound by obvious mistakes and/or errors.
- Becker shall not be bound by the offers and agreements its employees make, unless Becker has confirmed them in writing.
- All offers are based on the assumption that Becker can execute the contract in normal conditions and during normal working hours.
- The offer shall not give rise to any rights in the event that the object or service that the offer refers to is no longer available.
- Prices in offers shall be the prices on the date that the offer was made. In the event of a price increase, for whatever reason, after the offer was made or after the agreement was reached but before the delivery, Becker shall be entitled to pass it on to the Principal, if and provided that Becker is reasonably unable to influence the circumstances giving rise to the price increase.
- Unless otherwise indicated, the prices are excluding VAT and other government charges, where appropriate, as part of the contractual costs to be made, including shipping, transport, administration and importing or exporting costs. The prices shall apply ex works, in accordance with the Incoterms that are applicable at the day of the offer or, in default of an offer, on the date that the contract was concluded, unless explicitly otherwise stated in writing. All prices, including those in Becker’s online store, are given subject to the correction of obvious mistakes and/or errors. Whether or not an obvious mistake and/or error is present shall be determined by Becker. In case of an obvious mistake and/or error, Becker shall not be obliged to deliver goods or services according to the incorrect price.
- Written agreements shall apply either from the send date of Becker's written order confirmation or from the day when both Becker and the Principal have signed a written agreement and Becker is informed thereof, except when Becker immediately revokes a non-binding offer that the Principal has accepted.
If the Principal has accepted an electronic offer, Becker will confirm receipt of the offer’s acceptance as soon as possible. If a relationship is formed electronically, Becker shall take technical and organisational measures to make the transfer of electronic data secure. If the Principal prefers to pay electronically, Becker shall take all relevant security measures,
- Every relationship is formed under condition precedent of sufficient availability of the relevant products. In the event Becker is already executing a contract, it is deemed to have been reached.
- Becker does not provide goods or services to private individuals, but only to legal or natural persons acting in the context of their commercial, corporate or professional activity, directly, or through another person who is acting on their behalf. The Principal cannot exercise any right to withdrawal.
Article 4: Delivery and deadlines
- The delivery time shall take effect at the following times, whichever is later:
- the day of conclusion of the contract;
- the day when Becker receives the documents, information, authorizations and the like, required for the execution of the contract;
- they day when the required formalities to start the works have been observed;
- the day when Becker has received the contractual advance payments to be paid before the beginning of the works.
When ordering through Becker’s online store, the delivery deadline of each product will be indicated separately. These deadlines are indicative (see also Article 4, Paragraph 2),
- The (delivery) times that Becker has indicated are deemed to be approximative, unless they have been expressly qualified as final in writing. The mere fact of exceeding the said time limits shall not bring Becker in default.
- Becker shall not be bound by the deadlines it has failed to meet due to circumstances beyond its control that have occurred after the conclusion of the contract.
- If the delay in delivery is the result of either obligations from the contract that the Principal has failed to meet or of its required collaboration regarding the execution of the contract, the delivery time shall be extended by the duration of the delay.
- In the event that Becker exceeds any deadline, it will not be liable to compensate any damages the Principal may suffer or to pay the contract penalty. Neither shall the Principal be entitled to suspend its obligations towards Becker nor to terminate all or part of the contract when any delivery time is exceeded, unless it exceeds 16 weeks or if Becker announces that it shall exceed 16 weeks.
- In the event that the delivery time is exceeded by over 16 weeks or in the event that Becker informs that it shall exceed 16 weeks, the Principal may terminate the contract by written notice. When applicable, the Principal shall be entitled to a refund of the price, or of the part thereof already paid, and to a compensation of the damages suffered. Such compensation however shall not exceed 15 percent of the price agreed for the goods or services to be supplied. However, if the delivery time is exceeded for a part of the goods or services to be supplied, the damages shall be calculated on the basis of that share of the price relating to the part of the goods or services that have not been supplied.
- The delivery of the goods shall be ex works (EXW). This shall mean Becker's warehouse, workshop or establishment, unless explicitly otherwise stated in writing. The goods shall be transported at the expense of the Principal, even when Becker has determined the form of packaging, insurance and transportation.
- Provided that an inspection is agreed in Becker's business, Becker shall have complied with its delivery obligation, when the goods that Becker must supply are ready for inspection, and in all other cases when they are ready for shipment, on the condition that the Principal is notified in writing. The preceding shall apply without prejudice to Becker's requirement to meet its assembly and/or installation obligations. Except the cases mentioned, the goods and/or services shall be deemed to be supplied if and once the Principal has the actual control of the delivered goods and/or services.
Article 5: Intellectual property rights
- Offers made by Becker as well as drawings, pictures, calculations, software, descriptions, models, tools and the like that are prepared or granted by Becker shall remain its property, even if Becker has invoiced costs to the Principal.
- The Principal shall at all times observe the intellectual property rights regarding information, production and construction methods, models, products and all other items and rights whereof the intellectual property rights are not vested in the Principal, even if costs have been invoiced to the Principal for such goods and/or rights.
- The Principal shall also ensure that the information Becker has provided to the Principal is not shown and/or disclosed to third parties, unless this is required to execute the contract or Becker has given its explicit agreement in writing.
Article 6: Claims and period of limitation
- The Principal shall be obliged to examine the goods or services that Becker has supplied or to have them examined immediately after the supply of such goods and/or services. The Principal must examine whether the supplied goods and/or services comply with the agreed conditions, or the Principal shall have this examined.
- In case of deliveries referred to in Article 4 para. 8, the Principal shall inspect the goods or services that Becker has supplied no later than 14 days after the delivery or no later than 14 days after the assembly and/or installation if such assembly and/or installation have been agreed. After the expiry of this term without specified references to substantiated claims or when the supplied goods and/or services are brought into use, the delivered goods and/or services shall be deemed to be accepted.
- In case of irrelevant shortcomings that fail or barely fail to affect the anticipated use of the goods and/or services, the goods and/or services shall be deemed to be accepted notwithstanding such shortcomings. Becker shall repair such shortcomings as soon as possible.
- Without prejudice to Becker's requirement to meet its contractual warranty, the Principal's acceptance of the supplied goods and/or services shall exclude any claim by the Principal regarding shortcomings in Becker's performance.
- Visible defects and hidden defects must be reported to Becker in writing on the delivery day or within seven days of their discovery. Failing this, the Principal shall no longer be entitled to have the defect remedied, replaced or indemnified by Becker. The notification of the defect must give the most detailed description possible of the defects found.
- The defect shall not suspend the Principal's obligation to meet the obligations towards Becker. The Principal must allow Becker to examine the reported defect.
- If it is certain that the goods and/or services are faulty and if the defect was reported in due time and in writing, Becker shall be at the liberty to remedy the defect within a reasonable period or to replace the faulty goods and/or services after they have been returned to Becker (if so requested) or to pay alternative compensation for the goods and/or services.
- If it is certain that the Principal has complained without justification, the resulting costs for Becker, including the costs for the examination of the notification shall be borne by the Principal.
- Notwithstanding the legal periods of limitation, such periods shall be set at one year for all claims and defences towards Becker and for the third parties involved by Becker in the execution of the contract with the Principal.
Article 7: Transfer of risk and ownership
- Immediately after the goods and/or services are deemed to be supplied, the Principal shall transfer the risk for all direct and indirect damages that could be caused to such goods and/or services, except in case and in so far as the damages are caused deliberately or were the result of conscious recklessness by Becker's management.
- If the Principal remains in default for purchasing the goods and/or services after having received a formal notice, Becker will be entitled to invoice the costs and/or damages resulting therefrom. The Principal shall bear the costs and risks for meeting national export regulations and laws and such regulations and laws shall not be a valid justification for remaining in default for the purchase.
Article 8: (Extended) Retention of title and pledge
- All goods supplied to the Principal shall remain Becker's or its subcontractor's property until the Principal has paid all Becker's claims or possible claims at any time, including fines, interests, costs and damages.
- The goods and/or services that Becker has supplied and that fall within the field of the extended retention under the previous clause of this article, may not be alienated by the Principal and may not be used as tender. The Principal is not competent to pledge or in any other way encumber the goods and/or services that fall within the field of the extended retention.
- In the event that the Principal, even after written notice, fails to meet an obligation towards Becker or fails to meet such obligations in a timely manner or correctly, Becker shall be entitled to gain access to the places where the goods under extended retention are located, to take back such goods or to remove them, even when the supplied goods would have become the other party's property as a result of accession. The Principal is obliged to give Becker every assistance to this end.
- In the event of seizure, (temporary) suspension of payments, bankruptcy, debt settlement proceedings, the Principal shall draw the attention of the seizing bailiff, administrator or liquidator to Becker's property rights. The Principal shall ensure that the possible seizure of goods that belong to Becker is immediately cancelled.
- Notwithstanding the previous clauses, the Principal shall undertake to assist Becker on first request to encumber a non-possessor pledge on goods, the ownership whereof is passed to the Principal with the payment and on goods in which objects have been processed that Becker or its subsuppliers have supplied and/or whereof they have become a component.
- Becker shall have a lien on all goods that belong to the Principal or that Becker holds on behalf of the Principal, as long as the Principal has not complied with all obligations towards Becker.
Article 9: Payment
- The payment shall be made within thirty days of the invoice date at the office of Becker or in a bank account that Becker shall indicate, unless other payment conditions have been agreed in writing. Becker can specify other payment conditions, for example including (electronic) payment prior to delivery.
- In the event that the Principal fails to pay an invoice on time or in full, the Principal shall be required to pay the statutory commercial interest rate plus three percentage points without prior notice after the payment term of the invoice. The interest shall be charged to the full invoice amount, including when the invoice has been partly paid, until the full invoice amount is settled.
- In the event that the Principal fails to comply with the payment obligations (on time), the Principal shall automatically be in default and the Principal shall bear all of Becker's reasonable non-judicial costs to obtain the payment. Non-judicial costs, including all costs referred to in Article 6:96 of the Civil Code, shall amount to 15 % of the invoice amount, with a minimum of 350 € excluding VAT.
- In the event of late payment by the Principal, Becker shall be entitled to suspend all its obligations towards the Principal. In this respect no damages whatsoever shall be payable to the Principal.
- The Principal's right to invoke a set off of its claims, if any, against Becker with Becker's claims against the Principal is explicitly excluded.
Article 10: Warranty
- Notwithstanding the restrictions outlined below, Becker shall ensure both the soundness of the objects it has delivered (excluding services) and the quality of the used and/or supplied material used therein, in as far as this concerns defects to the supplied object that were not observable in tests or acceptance tests, whereof the Principal proves within 12 months after their delivery that their appearance is either the exclusive or Principal direct result of a flaw in the construction that Becker has used for the object or is the result of poor finishing or the use of bad material.
- At Becker's convenience, Becker shall remedy defects falling under the warranty by repair or replacement of the defective component in Becker's installations or by sending the replacement part. All costs exceeding the mere obligation described in the previous sentence, including but not limited to transport, travel and accommodation costs as well as the cost of dismantling and assembly/installation, shall be borne by the Principal.
- Repaired and/or replaced parts shall benefit from a further warranty period of 12 months, provided that any warranty expires 24 months after the original supply of the object.
- Installations, assemblies, inspections, advice and similar services that Becker has executed, performed, given or rendered shall not be covered by the warranty.
- The terms of the warranty shall under no circumstances cover defects that wholly or partly result from:
- non-observance of operating and maintenance instructions or any use other than the intended normal use;
- normal wear and tear;
- assembly/installation, alterations or repair works by the Principal or by third parties;
- any government regulation regarding the nature or quality of the materials used;
- materials or articles that have been used in consultation with the Principal;
- materials or articles that the Principal has provided for processing to Becker;
- materials, articles, procedures and constructions used on the explicit instructions of the Principal, as well as materials and articles delivered by or on behalf of the Principle;
- parts that Becker has procured from third parties, insofar as either the third party has failed to provide a warranty to Becker or the warranty provided by the third party has expired;
- the connection of the delivered articles to a mains system that fails to comply with Becker's standards;
- the use of unsuitable and/or contaminated oils/lubricants, the use of contaminated and wet compressed air, dirt in the articles or use in a destructive or otherwise unsuitable environment.
- If the Principal fails to meet any obligation from the agreement concluded with Becker or the agreement associated with it, or if the Principal fails to meet such obligations conveniently or on time, Becker shall not be liable to any warranty for such agreements. All warranty claims will be invalid if the Principal dismantles, repairs, modifies, carries out work or has work carried out on the articles without Becker's prior written approval.
- Complaints regarding defects to this warranty scheme must be made in writing within 14 days of their discovery. All claims against Becker due to such defects shall lapse when this term is exceeded. Legal proceedings must, at the risk of forfeiting all rights, be brought before the court within 1 year of the timely complaint.
- The alleged non-compliance with warranty obligations by Becker shall not discharge the Principal from its obligations arising from any contract concluded with Becker.
Article 11: Liability
- Becker's liability shall be limited to complying with the warranty obligations described in the present obligations.
- If Becker fails to comply with its warranty obligations within the term referred to in Article 10 within a reasonable time, the Principal may propose an ultimate reasonable time in a written notice to Becker to comply with its obligations. In the event that Becker fails to comply with its obligations within this ultimate term, the Principal may perform the required repair works itself or have such repair works done at the expense of Becker. If the Principal or a third party has successfully undertaken the repair works, Becker shall be relieved of its responsibility for the relevant article with the payment of the costs the Principal has reasonably incurred, on the understanding that such costs shall not exceed 15 percent of the price agreed for the supplied article and/or service.
- In the event that the repair works referred to in paragraph 2 above are not completed successfully, the Principal shall notify Becker immediately in writing. After this notice:
- the Principal shall be entitled to a discount of the price agreed for the supplied article and/or service proportional to the decrease in value of the article and/or service, on the understanding that this discount shall not exceed 15 percent of the price agreed for the supplied article and/or service, or;
- if the defect is so substantial as to significantly deprive the purchaser of the advantage of the agreement, the Principal may terminate the contract by written notice to Becker. The Principal shall then be entitled to a refund of the price for the supplied article and/or service and to compensation for the damages suffered. Such compensation however shall not exceed 15 percent of the price agreed for the goods or services to be supplied.
- The Principal must, at the risk of forfeiting all rights, claim the rights referred to in paragraphs 3 a and b of this Article within 1 year of the timely complaint.
- Except where the damages are caused deliberately or are the result of conscious recklessness by Becker's management and except as described in Article 4 paragraph 6 and paragraphs 1, 2 and 3 of this Article, Becker's liability shall be excluded for defects in the supplied article and/or service and regarding the supply thereof, such as damage caused by exceeding the delivery time and the failure to delivery, for damages caused by third-party liability, for business losses (including loss of profits, lost savings and damage through business interruptions), for consequential loss and indirect damage, and for damage caused by any wrongful acts or the failure to act by Becker (or its staff). Therefore, Becker shall bear no liability for, inter alea:
- violation of patents, licences or other third-party rights;
- damage or loss, due to any cause whatsoever, of raw materials, semifinished products, models, tools or other articles provided by the Principal.
- Becker's liability, if applicable, shall in any case always be limited to the payment of the insurer, plus the amount of own risks.
- Penalties forfeited by Becker shall be deducted from the damages, if any, to be paid by Becker to the Principal.
- The Principal shall indemnify Becker against all third-party claims, including Becker's staff and assisting agents.
- The limitations enclosed in this article are also agreed for the third parties engaged by Becker. The said third parties may directly invoke the limitation of liability.
Article 12: Force majeure
- Becker shall not be bound to comply with any obligation resulting from the agreement with the Principal if, after its conclusion, Becker is hampered by circumstances arising outside Becker's control or risk.
- Force majeure for Becker shall arise when it is prevented from complying with its obligations as a result of causes, foreseen or not foreseen, which Becker cannot influence, including war, civil war and risk of war or civil war, terrorism, revolt, disturbances, fire, natural disaster, strikes, lock-out, disturbance in energy and material supply, late delivery or non delivery by a supplier of an article and/or service, breakdowns in services and/or articles of a supplier, government measures, all in the broadest sense.
- Becker shall also be entitled to invoke force majeure if the circumstances that prevent Becker from complying or continuing to comply with the agreement arise after Becker should have complied with its obligation.
- In the event of temporary force majeure, Becker shall be entitled to suspend compliance with its obligations under the agreement for the time of the force majeure, without the Principal being entitled to damages. Becker shall not be entitled to suspend compliance if performance of the contract becomes permanently impossible or if the temporary force majeure continues for a period in excess of 6 months. In such cases the parties shall be entitled to terminate the agreement with by registered letter with acknowledgement of receipt to the other party. No party shall then be liable to pay damages to the other party.
- In the event that Becker has partly complied, or is able to partly comply, with its obligations after the time when the force majeure took effect, and in the event that the part complied or to be complied with has an independent value, the Principal shall be obliged to pay the proportionate amount of the agreed price as if this were a separate agreement.
Article 13: Suspension and termination
- If there is good reason to fear that the Principal is not or will not be able to meet the contractual obligations towards Becker, as well as in case of bankruptcy, suspension of payment, debt restructuring, shut-down, liquidation or total or partial transfer of the Principal's business, Becker shall be entitled to require adequate securities from the Principal for all the Principal's obligations, whether due or not. Pending such securities, Becker shall be entitled to suspend the execution of the agreement, while the Principal is not entitled to damages. In default of a security deposit within a reasonable time set by Becker, Becker shall be entitled to terminate all or part of the agreement, without the Principal being entitled to damages.
- Becker may terminate all or part of the agreement between the parties without judicial intervention by means of an non-judicial written notice, without the Principal being entitled to damages, if the Principal is declared bankrupt, if the application for temporary suspension of payment for its debt restructuring is applied, or if the Principal loses its power of free disposal of its assets through attachment or guardianship.
- In the event that all or part of the agreement is terminated, Becker's claims against the Principal shall immediately fall due. The Principal shall be liable for all damages suffered with respect to the termination.
- In the event that the agreement is suspended, Becker shall be entitled to have the raw materials, materials, parts and other articles bought, reserved, processed and/or manufactured, kept in storage at the expense and at the risk of the Principal. In the event of termination sub 4, the preceding sentence shall apply, on the understanding that Becker, instead of storage, may also choose to sell or destroy such goods at the expense of the Principal.
Article 14: Applicable law and competent court
- All agreements are governed by Dutch law, even if all or part of the agreement is performed abroad or if the other party's residence is located abroad. The Vienna Sales Convention is expressly excluded.
- Disputes between Becker and its Principal following an offer by Becker or following a contract with Becker or further contracts concluded as a result thereof will be settled by the competent Dutch court in the judicial district of Becker's domicile or registered office, unless imperatively prescribed otherwise by law. However, Becker shall be entitled to submit the dispute to the legally competent court.