General terms and conditions of the private limited company under Dutch law Batavia B.V., also filed in the Commercial Register of the Chamber of Commerce for Noord-Nederland under number 01146598, with offices at Weth. Wassebaliestraat 6d, (7951 SN) Staphorst, the Netherlands. These general terms and conditions have been filed in the Commercial Register of the Chamber of Commerce for Noord-Nederland.
1.1 Batavia is the user of the terms and conditions as referred to in the preamble. The purchaser is the natural or legal person who has given Batavia the assignment for the sale and/or delivery of goods to the purchaser.
1.2 These terms and conditions are applicable to all, including pre-contractual and future, legal relationships between Batavia and the purchaser. This is therefore also understood to mean, in so far as relevant, service and repair work, warranty, subsequent delivery of materials, etc.
1.3 The applicability of the terms and conditions used by the purchaser is explicitly dismissed.
1.4 Additions to and/or deviations from these general terms and conditions are only binding for Batavia if they have been explicitly confirmed to the purchaser in writing.
1.5 If any provision of these terms and conditions is declared void either at law or otherwise, when determining what is legally applicable between the parties the purport of the invalid provision will be followed as closely as possible.
1.6 In so far as applicable, the term ‘goods’ in these terms and conditions is understood to mean: delivered materials, parts, accessories, information and services, as well as all related goods in the broadest sense of the word.
1.7 These terms and conditions also apply for the benefit of personnel of Batavia and third parties involved by Batavia in the performance of the agreement.
2.1 Unless stated otherwise, all offers by Batavia are without obligation and lapse at any rate thirty days after the date of the offer. An offer accepted by the purchaser may be withdrawn by Batavia within two working days. Offers are based on the information, if any, supplied by the purchaser at the time of the request.
2.2 Undertakings by and agreements with employees of Batavia are only binding to Batavia in so far as these undertakings and/or agreements have been confirmed by the director of Batavia to the purchaser.
2.3 If the purchaser gives an assignment to Batavia without a prior offer being made by Batavia, the agreement will only be formed either through a written confirmation by Batavia to the purchaser of that assignment, or through the issue of an invoice by Batavia to the purchaser.
2.4 Designs, drawings, models, descriptions, specifications etc. produced by Batavia remain the property of Batavia. The purchaser may not copy these documents without Batavia’s permission. Intellectual property rights attached to the goods delivered or made available by Batavia will remain the full property of Batavia and/or its supplier.
3.1 Unless stated otherwise, all amounts quoted by Batavia in offers, order confirmations or otherwise are given in Euros and are exclusive of turnover tax and other government levies. Unless stated otherwise, service and transport are not included in the price.
3.2 The price quoted by Batavia is based on its purchase prices and on other cost factors such as wages, social and government charges, transport costs, insurance premiums, the exchange rate between the Euro and other foreign currencies in which Batavia has purchased the goods, import duties, taxes, levies, dues etc. If one of these price elements is increased after the formation of the agreement and before its general implementation, Batavia is entitled to increase the agreed price, even if such an increase was foreseeable at the time of the formation of the agreement.
3.3 If the price increase in accordance with Article 3.2 is more than 10%, the purchaser is entitled to dissolve part of the agreement for the delivery of the goods in respect of the goods yet to be delivered.
3.4 If at the request of the purchaser, or if so required for the proper performance of the assignment, more is delivered than was originally agreed, the invoice amount will be increased accordingly.
4.1 The risk of the goods to be delivered to the purchaser is transferred to it ex warehouse at Batavia or the warehouse of third parties which provide storage on behalf of Batavia (i.e. Ex Works, as contained in the ICC Incoterms 2000). All goods, including those that have been sold free domicile, are transported at the risk of the purchaser at all times. Unless the purchaser requests in good time that the goods be insured at the expense of the purchaser, the goods will be transported uninsured.
4.2 Unless agreed otherwise in writing, export and import duty, clearance charges, taxes etc. will be charged to the purchaser.
4.3 The choice of form of transport is delivery free domicile to Batavia, unless agreed otherwise in writing.
5.1 The delivery dates given by Batavia are target dates and are explicitly not deadlines. If a particular delivery period has been agreed or it has been agreed that Batavia will commence or complete the delivery within a certain period of time, this period will be extended if and in so far as the purchaser has not yet made all the necessary preparations for the performance of the agreement, or has not made an advance payment as agreed or has made such payment too late.
5.2 If the agreement pertains to several goods, Batavia reserves the right to make part deliveries and submit part invoices to the purchaser. The purchaser is required to pay the invoice as if it were a separate order or separate contract.
5.3 If an agreed delivery period is exceeded, Batavia will only be in default if it has received from the purchaser a written notice of default giving it one month to deliver the goods and still fails to comply within this period of time.
5.4 If the above period of time is exceeded, the purchaser will be entitled to terminate the agreement, provided that the failure does actually justify such termination. In the event of termination, the purchaser is not entitled to compensation unless such exceeding of this period of time is the result of intent or gross negligence of the management of Batavia and/or its managing employees.
5.5 If Batavia is not given the opportunity by the purchaser or third parties to perform the agreement, it is entitled to store or arrange for the storage of the goods to be delivered at the expense and risk of the purchaser, notwithstanding the retention of title of Batavia. Nevertheless, the purchaser remains obliged to pay the agreed price for the work to be performed and/or the goods to be delivered, and is also obliged to compensate Batavia for the costs and loss arising therefrom.
6.1 Notwithstanding that stated in these terms and conditions, all goods delivered, to be delivered, made available or given on consignment by Batavia remain the property of Batavia, until such time as all its claims on the purchaser have been paid, for whatever reason and regardless of whether such claims are due and payable, including interest and costs.
6.2 Until Batavia has been paid in full, the purchaser is not authorized to make available to third parties, to lend or loan for consumption, pledge and/or otherwise encumber the goods, with the exception of sale by the purchaser within the context of its normal business operations.
6.3 Batavia is entitled as the situation may arise to take back itself or arrange to take back all delivered goods, without any authority from the purchaser or court being required, from the place where these goods are located. The purchaser is obliged to lend Batavia all its cooperation for this purpose, in particular to allow it or persons designated by it access to the company or other areas used by the purchaser.
7.1 Payment must be made within thirty days of the invoice date, unless agreed otherwise in writing. If a payment discount is stated on the invoice, this discount will apply if the invoice has been paid in full within the period stated for this purpose on the invoice, unless agreed otherwise.
7.2 Payment must be made without any setoff, to the bank or giro account designated by Batavia. The moment of payment will be deemed to be moment at which Batavia receives confirmation from its bank that the amount concerned has been credited to the account.
7.3 If payment has not been made in full within the stipulated period of time, the purchaser is immediately in default by operation of law, i.e. without any further notice of default being required, and from the due date will be liable to interest of 1.5% per month or part thereof, or statutory interest if this is higher, on the outstanding amount. Furthermore, all costs at law and otherwise will be charged to the purchaser amounting to at least 15% of the outstanding amounts payable, notwithstanding the right of Batavia to claim payment of the actual costs incurred at law and otherwise.
7.4 If any payment deadline has been exceeded by the purchaser, the total outstanding invoice amount as well as all other outstanding invoices will be immediately due and payable without notice of default being required.
7.5 Batavia is entitled at all times to demand security or full or partial advance payment to ensure compliance with all payment obligations, whether due and payable or not.
7.6 Payments made by the purchaser will be used first to settle costs and interests due, and then to settle outstanding invoices which have remain unpaid the longest, even if the purchaser states that a particular payment is to settle a different invoice.
7.7 Batavia is entitled to suspend compliance with its obligations until the purchaser has settled all its outstanding obligations in full. Batavia is entitled to set off all claims on the purchaser against any debt that Batavia may have towards the purchaser or a natural or legal person affiliated to the purchaser.
7.8 The purchaser is not entitled to defer any payment.
8.1 The purchaser is required to inspect the delivered goods for any visible defects immediately upon delivery. If visible defects are found, the purchaser is required to inform Batavia in writing, giving reasons, within 48 (forty-eight) hours of delivery, failing which the delivered goods will be deemed to have been accepted.
8.2 Other defects must be reported to Batavia in writing as soon as they have been discovered, or immediately after they could have been reasonably discovered, failing which the delivered goods will be deemed to have been accepted.
8.3 The purchaser may only return the goods to Batavia after having receiving permission to do so.
8.4 The purchaser is not entitled to make a complaint if the goods delivered are no longer in exactly the same condition as they were at the time of delivery.
8.5 If Batavia is of the opinion that a complaint submitted is justified, Batavia is entitled, after consultation with the purchaser, to credit the invoice or a proportional part thereof or to perform the agreement once again while maintaining the existing agreement, subject to the obligation of the purchaser to return the faulty goods to Batavia carriage paid at the latter’s request.
8.6 No obligation whatsoever rests on Batavia concerning a complaint submitted if the purchaser has not met all its obligations towards Batavia (both financial and otherwise) on time and in full.
8.7 A complaint concerning the goods delivered cannot have any influence on goods delivered earlier or yet to be delivered, not even if the goods have been or will be delivered in performance of the same agreement.
8.8 Batavia is entitled to refuse to accept returns, unless the option to return goods comes within the scope of the provisions of paragraph 5 of this article.
9.1 Separate warranty conditions are applicable to the goods delivered by Batavia to the purchaser and form an integral part of these general terms and conditions. In so far as the warranty conditions or certain provisions therein differ from those set out in these general terms and conditions, the relevant provisions in the warranty conditions will be applicable.
9.2 A defect to an item that occurs within the warranty period given by Batavia in accordance with the warranty conditions referred to above entitles the purchaser to have the item repaired or replaced at the discretion of Batavia, provided that the defect is only or predominantly the direct result of defective assembly or installation, a faulty construction and/or defective materials.
9.3 Batavia is required to repair or replace the faulty part of the goods free of charge at its own discretion. Any defects must be notified, with reasons, to Batavia as soon as possible, however no later than 8 (eight) days after such defects have been discovered.
9.4 Each warranty obligation of Batavia is cancelled in the following circumstances – but is not limited to these circumstances – if the goods concerned are not or will not be used in accordance with their purpose or are used improperly, the conditions of use and maintenance and/or the integration or assembly instructions have not been observed, inexpert repairs have been carried out or non-original parts have been incorporated in the goods, modifications have been made to or in the goods and/or the product numbers or features have been made unrecognizable or have been removed, and if the purchaser cannot provide Batavia with the original sales receipt stating the date of purchase and the product description.
9.5 Defects that have arisen from normal use or other natural wear and tear, or defects that can be attributed to such circumstances, do not come under the warranty.
9.6 Unless explicitly stated otherwise in the aforementioned warranty conditions, the warranty period is two years from the date of putting the goods into use, however up to a maximum of 30 months after the date on which the goods were made available to the purchaser, unless another period of time is stated in the warranty for the goods concerned.
9.7 The warranty period applicable to the repair or replacement delivery will end on the same date as the period that was applicable to the warranty for the original delivery. Any obligation and liability on the part of Batavia will lapse upon expiry of the warranty period.
9.8 Any claim made under warranty may never lead to a termination of the agreement by the purchaser, and does not affect the obligations of the purchaser under the terms of that agreement.
10.1 Force majeure is understood to mean a failure that cannot be attributed to Batavia. A shortcoming cannot be attributed to Batavia if such shortcoming cannot be blamed on it nor charged to it under the law, agreement or according to generally accepted standards. This will at any rate include a failure as a result of:
– Failures of and/or serious disruptions to the production process at suppliers of Batavia, including utility companies
– Failure by third parties to deliver the necessary materials and semi-finished goods
– Wilful misconduct or gross negligence of auxiliary persons, servants or agents
– Strikes
– Fire
– Exceptional weather conditions
– Government measures, including import and export prohibitions and import and export barriers
– War, mobilization, civil commotion
– Transport congestion
– Machine breakdowns
– Other similar circumstances.
10.2 In the case of force majeure, Batavia has the choice of either suspending the performance of the agreement until the situation of force majeure has ceased to exist or, whether or not having originally chosen to suspend performance, to terminate the agreement in full or in part. In both cases the purchaser is not entitled to any compensation. If the period in which Batavia is unable to comply with its obligations for reasons of force majeure is longer than three months, the purchaser is also entitled to terminate the agreement, without giving rise to any obligation in that case to pay compensation, however with due observance of Article 10.3.
10.3 If Batavia has met its obligations in part at the time the force majeure occurs or can only partially comply with its obligations, it will be entitled to invoice that part separately. The purchaser is required to pay this invoice as if it were a separate order or separate contract.
11.1 Batavia is only liable vis-à-vis the purchaser for damage incurred by the latter as a direct consequence of gross negligence or intent on the part of Batavia.
11.2 Batavia is under no circumstances liable for:
– Indirect loss such as trading loss, consequential loss or loss due to delays incurred by the purchaser (including business disruption, loss of income etc.), through whatever cause; the purchaser is required to take out insurance if necessary to cover such loss
– Loss arising through the actions or omissions of the purchaser or third parties in breach of the instructions given by Batavia or in contravention of the agreement and these terms and conditions.
11.3 Information provided by Batavia in illustrations, catalogues, drawings or in any other way concerning the model, material and colour, as well as all other specifications given in official lists, offers and/or order confirmations and advertising material are deemed to be an approximation and without obligation. Batavia accepts no liability whatsoever for any inaccuracies.
11.4 Batavia is not liable for damage of any nature, including that which has arisen because or after the purchaser has put the delivered goods into use or has had these goods put into use, or has processed them or delivered them to third parties or arranged for them to be processed or delivered to third parties.
11.5 Batavia will never be liable for the acts and/or omissions of third parties, including auxiliary persons, servants or agents engaged by it, or for any damage arising as a result.
11.6 In the case that Batavia is indeed liable, the amount of compensation will be always limited to the invoice amount (excluding VAT) of the performance at issue, up to the maximum amount paid out under liability insurance or other insurance.
11.7 The restrictions and/or exclusion of liability also applies to personnel of Batavia and the auxiliary persons, servants or agents engaged by Batavia for the performance of the agreement.
12.1 Batavia is entitled to terminate all or part of the agreement with immediate effect, without prior notice of default, if:
– The purchaser does not comply with the obligations under the agreement, or does not comply with them promptly or properly
– The purchaser is granted a moratorium or has applied for such a moratorium
– The purchaser is declared insolvent, or a winding-up petition has been filed against or by the purchaser
– A third party levies attachment against the purchaser
– The purchaser is a legal person and the legal person is dissolved or, if the purchaser is a natural person, the purchaser dies or is no longer able to conduct his business
– Other circumstances arise that endanger Batavia’s recovery options.
All this applies without Batavia being obliged to pay any compensation.
12.2 In the case of termination, Batavia is entitled to remove and take back all the goods it has delivered.
12.3 The purchaser is required to lend its cooperation to Batavia for such purpose, in particular to allow it or persons designated by it access to the company or other areas used by the purchaser. The purchaser gives its consent in the event of such a situation arising.
12.4 The costs of taking back, storing and selling these goods will be charged to the purchaser. Batavia is entitled either to retain the goods until the purchaser has met all its obligations in full, including interest, costs and compensation, or to sell the goods to third parties, in which case the net proceeds will be deducted from the total amount owed by the purchaser.
12.5 If the agreement is dissolved, Batavia will be entitled to compensation from the purchaser for any financial loss incurred by Batavia, unless the termination is the consequence of failure or force majeure on the part of Batavia.
In so far as the purchaser has a legal claim against Batavia, this claim will lapse one year after it arose unless shorter statutory periods of time apply.
14.1 Dutch law is applicable to all agreements concluded between the parties. The International Sales Convention of the United Nations Convention for the International Sale of Goods (CISG), concluded in Vienna, is not applicable.
14.2 Contrary to the statutory rules for the jurisdiction of the civil court, any dispute between the parties, if the District Court has jurisdiction, as well as interlocutory proceedings, will be heard by the District Court of Zwolle-Lelystad or the Interlocutory Judge at this court, Zwolle location, the Netherlands. However, Batavia remains entitled to summon the opposite party before the court with jurisdiction in accordance with the law or the applicable convention, or to submit the dispute for arbitration.
