General Terms and Conditions
ARTICLE 1. | DEFINITIONS
In these General Terms and Conditions, the following terms will be used in the following meaning, insofar from the nature or tenor of the stipulations derives not differently.
- EVAC: EVAC B.V., the user of these General Terms and Conditions, having its seat of business in Schijndel, the Netherlands, registered in the Trade Register under Chamber of Commerce number 17132042.
- Counterparty: each natural person, acting in the execution of a profession or enterprise, or legal person, with whom EVAC has concluded or envisages to conclude an agreement.
- Agreement: each agreement concluded between EVAC and the Counterparty, with which EVAC has committed itself against a price further agreed upon, towards the Counterparty to the delivery of products.
- Products: all goods to be delivered to the Counterparty in the framework of the agreement by or on behalf of EVAC, including, without limitation: assembled valves and operating systems for industrial application, whether or not according to specifications of the Counterparty.
- In writing: both traditional written communication and digital communication to be stored in a sustainable data carrier, such as e-mail communication.
ARTICLE 2. | GENERAL STIPULATIONS
- These General Terms and Conditions are applicable to each offer of EVAC and each concluded agreement.
- The applicability of the terms and conditions of purchase or under whichever other name, of the Counterparty is explicitly rejected.
- From the stipulations in these General Terms and Conditions can solely be deviated in writing. If and insofar what Parties have agreed explicitly in writing, deviates from the stipulations in these General Terms and Conditions, then shall apply what Parties have agreed explicitly in writing.
- Invalidation or invalidity of one or more of the stipulations in these General Terms and Conditions, leaves the validity of the other stipulations unaffected. In a prevalent case, Parties are obliged to enter into mutual consultation in order to a make a substituting arrangement with regard to the affected stipulations. Thereby shall, as much as possible, the purpose and the tenor of the original stipulations be observed.
ARTICLE 3. | OFFER AND CONCLUSION OF THE AGREEMENT
- Also in case a term of acceptation is stated, each offer of EVAC is non-binding. An offer of EVAC can still be recalled till immediately after the acceptation. Offers of EVAC become void in each case after the expiry of two months after the date of the designated offer, unless the designated offer explicitly states another expiry term.
- The Counterparty can derive no rights from an offer of EVAC that contains an obvious error or mistake.
- The Counterparty can furthermore derive no rights from an offer of EVAC that is based on incorrect or incomplete data provided by the Counterparty.
- A composed price statement never obliges EVAC to compliance with a part of the offer against a related part of the stated price.
- Each agreement is concluded by offer and acceptation. If the acceptation of the Counterparty deviates from the offer of EVAC, then the agreement is not concluded in accordance with this deviating acceptation, unless EVAC states differently.
- If the Counterparty concludes the agreement on behalf of another natural or legal person, then he declares upon the conclusion of the agreement to be authorised thereto. The Counterparty is next to this (legal) person jointly and severally liable for the compliance with the obligations from that agreement.
ARTICLE 4. | TERMS
- EVAC makes an effort to comply with the execution and delivery terms to which he has committed towards the Counterparty, however, all of these terms are solely to be regarded as indicative, non-fatal terms. The default of EVAC emerges no sooner than after the Counterparty has declared in default EVAC in writing, in which notification of default a reasonable term is stated within which EVAC can comply with his obligations after all and the compliance therewith still has remained absent after the expiry of the term last referred to.
- Execution and delivery terms as referred to in section 1, do not start earlier than after EVAC has received all data required for the execution or delivery from the Counterparty.
ARTICLE 5. | OBLIGATION OF THE COUNTERPARTY
Both with regard to products to be assembled according to specifications of the Counterparty, and the delivery of standard products, the Counterparty is required to make all information relevant thereto available to EVAC as soon as possible as is required for the set-up and execution of the agreement, in the manner prescribed by EVAC. EVAC is never liable for damage emerged because the Counterparty does not provide EVAC timely with the information referred to, or EVAC has relied on incorrect or incomplete data provided by the Counterparty.
ARTICLE 6. | DELIVERY OF THE PRODUCTS
- Unless explicitly agreed differently, the delivery of orders takes place by delivery thereof on the delivery address stated by the Counterparty. In the absence of a delivery address, the invoice address will be regarded as the delivery address. Unless explicitly agreed differently, in case of delivery, the costs in connection with the delivery shall be additionally for the account of the Counterparty.
- Unless from the nature or tenor of a possibly explicitly agreed condition of delivery, such as Incoterm, it derives differently, the risk of loss and damaging of the products will be transferred to the Counterparty on the moment that the products have been taken into receipt by or on behalf of the Counterparty. A possibly agreed Incoterm, such as Ex Works (EXW), Delivered At Place (DAP) and Delivered Duty Paid (DDP), has the meaning as recorded in the latest version in force of the Incoterms as established by the International Chamber of Commerce
- Upon exceeding of the agreed term for delivery, the Counterparty is never authorised to refuse to (let) the products to be delivered be taken into receipt and/or to pay the amounts due by him on the basis of the agreement.
- If the products could not be delivered as a consequence of a circumstance that can be imputed to the Counterparty, then EVAC shall store the products for the account and risk of the Counterparty, notwithstanding the obligation of the Counterparty to payment of the amounts due by him on the basis of the agreement.
- In the case that the Counterparty refuses take-off of the ordered products or is otherwise negligent to take the products into receipt, then the Counterparty shall upon first request of EVAC inform within which term the products shall be taken off after all. This term shall never be longer than a month after the day of the request as referred to in the previous sentence. EVAC is authorised to dissolve the agreement if the Counterparty, after the expiry of the term referred to in the previous sentence, still has omitted the take-off of the products, notwithstanding the obligation of the Counterparty to payment of the amounts due by him on the basis of the agreement and the costs of storage of the products.
- If EVAC, in the application of the sections 3, 4 or 5, makes costs which would not exist, if the Counterparty had properly complied with his obligations referred to there, then these costs will be additionally for the account of the Counterparty.
ARTICLE 7. | TOLERANCES
Characteristics of the products stated in the offer, the agreement and/or otherwise by EVAC, also those which are assembled according to specification of the Counterparty, can deviate on minor points from what actually will be delivered. As minor points will be regarded amongst others, all slight deviations in characteristics, including dimensions and functionality of the products which are reasonably not burdensome for the Counterparty and that reasonably should be tolerated by him. The presence of such deviations offers the Counterparty no ground to suspend his obligations from the agreement, to dissolve the agreement in whole or in part, or to claim compensation of damages or any other compensation. Deviations that, all circumstances taken into account, have – in reasonableness - no or a minor influence on the use value of the delivered, are always deemed to be deviations of slight importance.
ARTICLE 8. | INSPECTION AND RECLAMATIONS
- The Counterparty must on the moment of delivery of the products (let) inspect directly whether the nature and the quantity thereof complies with the agreement. If the nature and/or quantity of the products in the opinion of the Counterparty does not comply with the agreement, then he must give notification thereof at or at least immediately after the delivery, to EVAC.
- In case of defects that at the time of the delivery reasonably were not visible, then the Counterparty must give notification in writing thereof to EVAC within seven days after he became aware of the defect, at least reasonably could have become aware.
- If the Counterparty does not timely make a reclamation, then for EVAC no obligation whatsoever will derive from such a reclamation by the Counterparty.
- Also if the Counterparty makes a timely reclamation, then the obligation of the Counterparty to timely payment of the amounts due by him on the basis of the agreement.
- No ground for reclamations are the presence of tolerances as referred to in the previous article, as well as the presence or absence of product specifications which nevertheless meets with the 3D-drawing or other statements of EVAC, approved by the Counterparty. The statements of EVAC referred to are deemed to have been approved by the Counterparty, if this has been declared explicitly by the Counterparty, or the Counterparty has not sent a notification regarding the correctness thereof in writing within 48 hours after receipt of such a statement to EVAC.
ARTICLE 9. | RETURNS
Return shipments will only be accepted and taken into receipt after prior permission in writing of EVAC. Solely undamaged products, in their original state, not assembled according to specification of the Counterparty, are eligible for returning. Return shipments accepted by EVAC will be returned for the account and risk of the Counterparty. At the return shipment, the Counterparty must follow the directions of EVAC with regard to the processing thereof. If and insofar no shortcoming of EVAC is the foundation for the returning of the products, then EVAC authorised is authorised to bring 25% of the amount of the invoice to which the returning relates, into account to the Counterparty as administration and processing costs.
ARTICLE 10. | SPECIAL STIPULATIONS FOR RESELLERS
- In case the products to be delivered by EVAC are destined for resale by the Counterparty, then resale to buyers of the Counterparty takes place for the own account and risk of the Counterparty.
- Each possible cooperation between the reseller and EVAC is, unless explicitly agreed differently, never exclusive; EVAC is authorised without geographical limitations, to appoint several resellers.
- EVAC warrants the Counterparty the constant, agreed quality of the delivered products. The Counterparty that acts as reseller of the products, is self-responsible for the compliance with his lawful obligations towards his end purchasers.
- The Counterparty is not permitted to execute acts that cause an infringement on the trade name, brand name or other intellectual property rights of EVAC or his licensors.
- Resellers act as independent parties, independent of EVAC and shall never be regarded as representative, agency or subsidiary of EVAC, or be allowed to present itself externally as such.
ARTICLE 11. | WARRANTY
- EVAC delivers the products solely with warranty insofar such has explicitly been stated by EVAC. Otherwise, the Counterparty solely has a claim to the factory warranty possible delivered along by the manufacturer of the products.
- Each warranty on a product is forfeited if a defect of the product is the consequence of an external cause or otherwise cannot be imputed to EVAC. Thereunder will be understood, without limitation, defects as a consequence of damaging, incorrect or inexpert installation, treatment or application, use in violation of the user instructions or other directions by or on behalf of EVAC (such as which are stated in manuals and user directions possibly delivered along) and repair that have been executed without prior consent in writing of EVAC.
- The stipulations in section 2 are equally applicable in case of possible claims of the Counterparty on the basis of default, non-conformity or whichever other basis.
ARTICLE 12. | FORCE MAJEURE
- EVAC is not required to the compliance with any obligation from the agreement if and for as long as he is thereto impeded by a circumstance that cannot be imputed to him on the basis of the wet, a legal act or opinions in society. Under Force Majeure will also be understood the circumstance that EVAC by an act of his suppliers is not able to (timely) comply with his obligations.
- If the situation of Force Majeure makes the compliance with the agreement permanently impossible, then Parties are authorised to dissolve the agreement with immediate effect.
- If EVAC upon the emergence of the situation of Force Majeure has already partially complied with his obligations, or can only partially comply with his obligations, then he is authorised to separately invoice the part already executed, respectively part of the agreement to be executed, as if there was an instance of an independent agreement.
- Damage as a consequence of Force Majeure shall, notwithstanding application of the previous section, never be eligible for compensation.
ARTICLE 13. | SUSPENSION AND DISSOLUTION
- Each agreement concluded with EVAC contains the dissolving that EVAC shall see evidence of sufficient credit worthiness of the Counterparty, such solely at his discretion.
- EVAC is, if the circumstances justify so, authorised to suspend the execution of the agreement or to dissolve the agreement with immediate effect in whole or in part, if and insofar the Counterparty does not, not timely or not fully comply with his obligations from the agreement, or circumstances come to the knowledge of EVAC after the conclusion of the agreement, give good cause to fear that the Counterparty shall not comply with its obligations.
- If the Counterparty is in a state of bankruptcy, has filed for (provisional) suspension of payment, any attachment has been put on its goods or in instances in which the Counterparty otherwise cannot freely dispose over its capital, then EVAC is authorised to dissolve the agreement with immediate effect, unless the Counterparty has already set satisfactory surety for the payment(s).
- Furthermore, EVAC is authorised to dissolve the agreement if and insofar circumstances emerge, which are of such a nature that compliance with the agreement is impossible, or unchanged maintaining thereof in reasonableness cannot be required of him.
- The Counterparty shall never have a claim to any form of compensation of damages in connection with the right of suspension or dissolution exercised by EVAC on the basis of this article.
- Insofar this can be imputed to it, the Counterparty is obliged to compensate the damage that EVAC suffers as a consequence of the suspension or dissolution of the agreement.
- If EVAC dissolves the agreement on the basis of this article, then all claims on the Counterparty are immediately payable upon demand.
ARTICLE 14. | PRICES AND PAYMENTS
- Unless explicitly stated otherwise, all prices stated by EVAC are exclusive of VAT and other levies by the government.
- Unless explicitly agreed differently, the Counterparty is required to advance payment of the full amount that it is due to EVAC on the basis of the agreement. EVAC is no sooner required to give execution to the agreement until the Counterparty has fully complied with an obligation to make an advance payment resting in it.
- Payments must take place in the manner stated thereto by EVAC and within the term demanded by EVAC or stated on the invoice.
- EVAC is authorised to make the invoices belonging to the Counterparty solely available per e-mail to it.
- If the Counterparty is in a state of bankruptcy, has filed for (provisional) suspension of payment, any attachment has been put on tis goods or in instances in which the Counterparty otherwise cannot freely dispose over its capital, then the claims on the Counterparty are immediately payable upon demand.
- If timely payment remains absent, then the default of the Counterparty emerges by law. From the day that the default of the Counterparty emerges, the Counterparty is liable to pay, over the outstanding amount, an interest of 1% per month, whereby a part of a month will be regarded as a full month.
- All reasonable costs, such as in-court, out-of-court and execution costs, made to acquire amounts due by the Counterparty on the basis of the agreement, will be for its account.
ARTICLE 15. | LIABILITY AND SAFEGUARD
- Except for wilful intent and conscious recklessness of EVAC, as well as the stipulations in article 8 and 11, EVAC is, after the delivery of the products, no longer liable for defects of the delivered.
- The Counterparty bears the damage caused by incorrectness or incompleteness in data provided by the Counterparty, a shortcoming in the compliance with the obligations of the Counterparty that derive from the law or the agreement, as well as another circumstance that cannot be imputed to EVAC.
- EVAC is, except for wilful intent and conscious recklessness on his side, not liable for damage as a consequence of the use of the delivered products, including damage emerged as a consequence of use of the products in violation of the use instructions and/or normal requirements of care that the end user should observe in the use of the products.
- EVAC bears no liability for damage for which the manufacturer of the products should bear the damage on the basis of the lawful regulation of product liability.
- EVAC is never liable for consequential damage, including missed profits, suffered loss and damage as a consequence of enterprise stagnation. If despite the stipulations in these General Terms and Conditions still a liability of EVAC exists, then, notwithstanding the stipulations in the following section, solely direct damage is eligible for compensation. Under direct damage will solely be understood:
- the reasonable costs for the establishment of the cause and the scope of the damage, insofar the establishment concerns the damage that is eligible for compensation in the sense of these General Terms and Conditions;
- the possible reasonable costs made to let the defective performance of EVAC comply with the agreement, insofar these can be imputed to EVAC;
- reasonable costs, made for the prevention or limitation of damage, insofar the Counterparty demonstrates that these costs have led to limitation of the damage that is eligible for compensation in the sense of these General Terms and Conditions.
- The liability of EVAC is at all times limited to no more than the invoice value of the agreement, at least to that part of the agreement to which the liability of EVAC relates, it being understood that the liability of EVAC shall never amount to more than the amount that with regard to the concerned case actually will be paid out on the basis of the concluded liability insurance of EVAC, increased with the possible own risk of EVAC that is applied on the basis of the insurance.
- The stature of limitations of all claims and defences towards EVAC is one year only.
- The Counterparty safeguards EVAC from possible claims of third parties, that suffer damage in connection with the execution of the agreement and of which the cause is imputable to (an) other(s) than to EVAC.
ARTICLE 16. | RETENTION OF TITLE
- All products sold by EVAC remain its property until the Counterparty has properly complied with all of its obligations from the agreement.
- Except for insofar in the framework of its normal conduct of enterprise it must be deemed permissible, it is forbidden for the Counterparty to put a lien or in any other manner encumber the products on which the retention of title rests.
- The Counterparty is required to keep the products delivered under retention of title with the necessary care and as recognizable property of EVAC.
- If third parties put an attachment on the products on which the retention of title rests, or wish to vest or claim rights thereon, then the Counterparty is obliged to notify EVAC hereof as soon as possible.
- Upon sale and/or delivery by the Counterparty to third parties in the framework of its normal conduct of enterprise, as well as in case of violation of the stipulations in the remainder of this article, the sale price becomes immediately payable upon demand. Also, the Counterparty is in case of sale to third parties, required to stipulate a retention of title that goes at least as far as the retention of title of this article, it being understood that to the third party no authority to encumbering or alienation may be granted. On the moment of onward delivery to a third party, EVAC shall acquire on the claim(s) of the Counterparty on the third party a right of lien without possession, with the right to notify that third party thereof and to claim and to receive payment.
- The Counterparty gives unconditional permission to EVAC or third parties designated by EVAC, to access all those places, where the products on which the retention of title rests, are located. EVAC is in case of default of the Counterparty authorised to (let) take back the products referred to here. The Counterparty must provide EVAC upon first request with all information in order to be able to exercise his property, such at the peril of a contractual fine immediately payable upon demand of € 1,000 per day that the Counterparty is in default therewith and without that EVAC is required to declare the Counterparty therefore in default. All reasonable costs in connection with the execution of his property rights, will be for the account of the Counterparty.
- If the Counterparty, after the sold products have been delivered to it, has complied with its obligations, then the retention of title with regard to these products shall revive, if the Counterparty does not comply with its obligations from an agreement concluded.
ARTICLE 17. | INTELLECTUAL PROPERTY
EVAC reserves all rights of intellectual and industrial property with regard to the products, the composition, (technical) specifications and designs thereof, as well as on the 3D-drawing manufactured by it and other documentation,
The one and the other insofar these rights do not belong to third parties. The Counterparty is forbidden to multiply, change, reproduce in
another manner, provide to third parties, distribute, exploit or make works or materials deviated there from, the materials on which the rights of EVAC or third parties rest, otherwise than necessary in connection with the nature and tenor of the agreement.
ARTICLE 18. | FINAL STIPULATIONS
- Solely the Laws of the Netherlands are applicable to each agreement and all legal relations deriving there from between Parties.
- Parties shall not sooner turn to the courts than after they have made an optimum effort to resolve the dispute in mutual consultation.
- Solely the competent court within the court district of the seat of business of EVAC will be designated to take knowledge of in-court disputes.
- The Netherlands’ version of the present General Terms and Conditions shall each time determine the interpretation of the stipulations included therein.
These General Terms and Conditions are filed with the Chamber of Commerce in the Netherlands