1. These general terms of delivery, hereinafter called the "terms of delivery" are the basis of the agreement concluded between "EBT Electronics" and the "buyer" in which EBT Electronics is considered to be: the private limited company EBT Electronics B.V., with its registered office at Kelvinring 18 in Alblasserdam, and as the "buyer" any contracting party with EBT Electronics B.V..
2. General terms and conditions of the buyer or third parties that deviate from these terms of delivery or from specific parts thereof are not binding on EBT Electronics, also if the buyer has referred thereto and EBT Electronics has not rejected these references in writing.
3. Once a buyer has made a purchase from EBT Electronics under the applicability of these terms of delivery, it is deemed in all subsequent orders to tacitly agree to the applicability of these terms of delivery regardless of the nature of the order and regardless of whether EBT Electronics confirms such an order in writing or otherwise.
4. If a purchase is made by two or more buyers jointly, they are each jointly and severally liable under application of these terms of delivery for all consequences of the agreement concluded. Deviations from these terms of delivery, or deviations from specific parts of the agreement only bind EBT Electronics if it has confirmed these deviations or changes in writing.
6. The articles of these terms of delivery are all applicable, unless expressly deviated therefrom in writing, even if the individual articles do not mention such a reservation.
7. The buyer cannot from any agreed deviations from these terms of delivery derive any rights for future transactions, unless the deviation has been expressly agreed in writing for several transactions.
8. These terms of delivery remain binding even if individual parts, for whatever reason, are not applicable.
9. The buyer, who orally or in writing instructs one of its employees or a third party to buy and collect goods at EBT Electronics at its expense, shall inform EBT Electronics in writing if the instruction has ended. If this does not take place, the buyer is liable for any damage that may arise for EBT Electronics, if goods have been given to someone who, on behalf of the buyer, was no longer entitled to buy and take delivery of the goods.
10. All offers are without obligation. If an offer explicitly states a period of validity, it is only binding if the acceptance has been received by EBT Electronics within the specified period.
11. All prices and rates are exclusive of VAT and any other levies imposed by the government.
12. Agreements are always concluded on the basis of the prices valid at the time of the conclusion. If for any reason price increases should occur after the time of the conclusion of the agreement and before the final delivery, EBT Electronics reserves the right to pass on the price difference to the buyer. If the price difference is greater than 5% of the invoice amount, the buyer has the right to change the order.
13. EBT Electronics will announce any price increases in a timely manner.
14. All prices, weights, dimensions, colours and other information ated in folders and documentation with regard to the goods to be sold by EBT Electronics and all images, drawings and descriptions of those goods are free of obligation and are approximate only, unless EBT Electronics has confirmed the contrary in writing. Deviations do not entitle the buyer to refuse receipt or payment of the goods or to demand any compensation for that deviation.
15. Delivery is generally made to the location of the buyer.
16. If goods are collected from EBT Electronics, they will be stored at the buyer's risk and expense after the agreed delivery date has passed.
17. If it has been agreed that the goods will be taken into storage by EBT Electronics, storage will take place at the buyer's risk. In this case, the sending of the invoice shall be regarded as delivery and notification of storage.
18. In the event of non-receipt of the goods, EBT Electronics has fulfilled its obligation to deliver if it has informed the buyer by registered letter that the goods are at its disposal. Following this, EBT Electronics has the right to claim payment before delivery. If the goods are not collected within 10 days after the registered letter, EBT Electronics has the right to consider the order cancelled in accordance with Article 28.
19. The goods shall be transported in a manner to be determined by EBT Electronics.
20. EBT Electronics shall as best as possible observe the delivery times, which are given in week number. Under no circumstances can a delay in delivery lead to any sanction, including termination of the agreement or compensation.
21. If the order is subsequently changed by the buyer, EBT Electronics is no longer bound by the original agreed and confirmed delivery time.
22. In case of force majeure, EBT Electronics has the choice to suspend execution of the agreement or to terminate the agreement after at least 6 weeks from the order date.
23. If it has been agreed that the goods will be taken into storage by EBT Electronics, storage will take place at the buyer's risk. In this case, the sending of the invoice shall be regarded as delivery and notification of storage.
24. If this has been agreed in writing, EBT Electronics will place the goods or have them placed in storage. In all cases, prior to delivery of the goods, the buyer shall make available a suitable place with all necessary facilities - except for goods to be delivered by EBT Electronics.
25. EBT Electronics has the right to deliver the sold goods in parts, unless complete delivery has been agreed in writing.
26. The goods are deemed to have been accepted by the buyer at the moment that the goods have been received by the buyer or at the date of placement in storage in case of application of Article 24.
27. If the parties agree that any services to be provided will be extended or changed, the buyer accepts that the time of completion of the service extension may be affected by this. EBT Electronics shall inform the buyer about this as soon as possible.
28. Events that change the basis of the agreement in whole or in part, be it on the part of the buyer, EBT Electronics or the supplier to EBT Electronics, entitle EBT Electronics to change the agreement in whole or in part in line with the new circumstances without any claim for damages arising therefrom.
29. If the buyer cancels an order for goods, being goods not specifically designed by EBT Electronics for the buyer and delivered from stock by EBT Electronics, in whole or in part, the buyer shall only pay reasonable costs incurred for the execution. An order for goods not available from EBT Electronics from stock but which have been ordered in whole or in part from third parties and/or which have meanwhile been delivered to EBT Electronics, can only be cancelled in whole or in part if EBT Electronics' supplier agrees to cancellation/return. If (partial) cancellation is possible, the buyer shall pay reasonable costs incurred for the execution. An order of production goods, being goods designed specifically for the buyer by EBT Electronics, can only be cancelled by the buyer if EBT Electronics has not yet started production. In such a case, EBT Electronics is entitled to claim costs and damages from the buyer due to loss of profit, set by the parties at 20% of the amount to be paid by the buyer upon receipt, or over the difference between the final amount paid and the amount upon full receipt.
30. If the buyer is in default, as described in paragraph 5, and furthermore if the buyer is declared bankrupt, applies for or obtains a suspension of payments, is placed under guardianship, dies, proceed with the liquidation or sale of its business, and if attachment is imposed on all or part of the buyer's assets, EBT Electronics is irrevocably authorised by the buyer, without any notice of default being required, to remove the goods from the place where they are located without any judicial measure being necessary to enter the places concerned and the only judicial intervention required is to terminate the agreement in full or for the part not yet executed by simple notification, subject to compensation of such termination attributable to the buyer.
31. Subject to the provisions of these terms of delivery, the agreement can only be terminated if the other party, after proper written notice of default, imputably fails to fulfil essential obligations under the agreement. Termination shall be effected by registered letter to the other party; judicial intervention is not required.
32. If at the time of the termination, buyer has already performed dissolves performances for the execution of the agreement only partially and only for that part that has not yet been executed by EBT Electronics.
33. Payments of invoices sent by EBT Electronics shall be made within thirty days of the date on which the invoice to be received by the buyer is drawn up.
34. If the payment term is exceeded, the buyer shall be in default without further notice. EBT Electronics is in that case entitled to charge interest in accordance with the legally determined percentage from the due date pursuant to paragraph 32.
35. Furthermore, in the event of late payment to EBT Electronics, the buyer shall reimburse any collection costs, which are set at 15%, with a minimum of € 125.00 Collection costs are due from the moment at which EBT Electronics has had to call in the assistance of third parties for the collection.
36. Amounts that EBT Electronics has invoiced prior to termination under paragraph 5 in connection with what it has already performed or delivered for the execution of the agreement, remain due in full and become immediately due and payable at the time of termination.
37. All delivered goods remain the property of EBT Electronics until full payment of all that EBT Electronics, for whatever reason, has to claim from the buyer, regardless of whether they have already been processed by the buyer.
38. Goods that are replaced as a result of the repair order become or remain the property of EBT Electronics until all that EBT Electronics has to claim from the buyer has been paid in full.
39. The buyer is entitled to dispose of and resell the goods within the framework of its normal business operations. In the event that the goods are resold without payment of the sales price, the buyer's claim arising from this will automatically be transferred to EBT Electronics without the need for attachment.
40. The buyer is not permitted to encumber the goods for the benefit of third parties, for example banking institutions, by means of a right of pledge or security, etc., without EBT Electronics' written consent. The buyer shall notify EBT Electronics immediately if third parties attach goods delivered subject to retention of title.
41. As long as the delivered goods have not become the property of the buyer, it shall insure the goods for its account on behalf of EBT Electronics.
42. Only commercial goods, being goods not specifically designed for the buyer by EBT Electronics and delivered from stock by EBT Electronics, can be returned to EBT Electronics by the buyer, if unused and in the original packaging, within 7 days. The buyer shall only pay reasonable costs incurred for the execution.
43. Complaints regarding missing or not ordered goods shall be submitted in writing. The buyer shall within 3 days of delivery of the goods return the packing list to EBT Electronics, stating any defects or surpluses.
44. Complaints regarding externally visible defects shall within 7 days of delivery of the goods be reported to EBT Electronics in writing, supported by reasons. The buyer shall give EBT Electronics the opportunity to investigate the complaints. In the absence of punctual observance by the buyer of the above provisions, any claim of the buyer in this respect lapses.
45. EBT Electronics guarantees the proper functioning of the goods delivered by it only insofar as it has received a guarantee from its suppliers, in accordance with the provisions of said provided guarantee.
46. EBT Electronics provides a one-year guarantee on the proper functioning of the delivered production goods. EBT Electronics shall perform the guarantee in-house. Only if in-house performance at EBT Electronics is not possible will the guarantee be performed at the buyer. Related hours worked by EBT Electronics shall not be charged to the buyer. Travel and accommodation costs are at the buyer's expense and will be charged separately by EBT Electronics.
47. If the buyer, during a guarantee period, without written permission from EBT Electronics, makes or instruct repairs or changes to the goods delivered or if the buyer does not meet its payment obligations, the above guarantee obligation expires.
48. The guarantee only applies to goods that have been used by the authorised user in accordance with the applicable regulations and standards for the purpose for which they were supplied.
49. Repair work is only guaranteed by EBT Electronics if it has expressly provided a guarantee in writing.
50. Whether or not parts or products qualify for replacement is determined exclusively at the prejudice of EBT Electronics, while termination on this basis is excluded.
51. The guarantee period is not subject to suspension and the guarantee applies exclusively to the buyer.
52. If the execution of the agreement is not possible and cannot be attributed to a shortcoming of one of the parties and if it is furthermore foreseeable that the delay will last longer than six weeks, each of the parties shall be entitled to terminate the agreement by mutual agreement without the other party being liable for any compensation.
53. In the event of a circumstance as referred to in the previous paragraph, EBT Electronics has the right to set off the proportional part of the contract sum based on the work already performed, materials delivered and other costs incurred.
54. The first paragraph applies to any event or circumstance, including those that could have been foreseen at the time of the conclusion of the agreement, that makes compliance difficult or impossible or becomes so difficult for EBT Electronics from a commercial point of view that further execution of the work by EBT Electronics can no longer reasonably be demanded.
55. In case of attributable failure in the performance of the agreement on its part, EBT Electronics is only liable for replacement damages, i.e. compensation of the value of the omitted performance. Any liability of EBT Electronics for any other form of damage is excluded, including additional compensation in any form whatsoever, compensation for indirect or consequential damage or damage due to loss of profit.
56. Furthermore, EBT Electronics is under no circumstances liable for damage due to delay, damage due to loss of data, damage due to exceeding of delivery times as a result of changed circumstances, damage due to defective cooperation, information or materials provided by the buyer and damage due to information or advice given by EBT Electronics, the content of which does not explicitly form part of a written agreement.
57. The compensation to be paid by EBT Electronics for attributable failure in the performance of an agreement shall in no case exceed 50% (fifty percent) of the amounts invoiced and invoiceable by EBT Electronics to the buyer on the basis of that agreement.
58. In the event of an unlawful act on the part of EBT Electronics, or of its employees or subordinates for which EBT Electronics can be held legally liable, EBT Electronics is only liable for compensation of damage due to death or physical injury and of other damage, the latter to the extent that it is caused by intent or gross negligence. In these cases, the compensation will in no case exceed € 1,250,000 per event, whereby a series of connected events is considered one event, subject to a maximum amount of € 2,500,000 per year.
59. EBT Electronics' liability for damages due to an unlawful act other than that referred to in Article 55 is expressly excluded. If and insofar as this cannot be invoked, the compensation per event - whereby a series of connected events is considered one event - will in no case exceed the price stipulated in the agreement between parties in the context of which the event occurred.
60. The liability to compensate damage from defects of products delivered by EBT Electronics is determined by EBT Electronics and shall not exceed a maximum of an amount of 2 times the amount of the delivery.
61. A condition for the occurrence of any right to compensation is always that the buyer has reported the damage in writing to EBT Electronics as soon as reasonably possible after the occurrence thereof.
62. No liability can be accepted:
- for damage or costs resulting from the incorrect use of delivered and/or insufficiently and/or inadequately packaged products;
- for incorrect storage of goods by the buyer;
- for damage, which is a direct or indirect result of services provided by EBT Electronics.
63. The buyer indemnifies EBT Electronics against all damage that EBT Electronics may suffer as a result of third-party claims in connection with the goods or services delivered by EBT Electronics, including:
- claims of third parties, including buyer's employees, who suffer damage as a result of unlawful acts of employees of EBT Electronics who have been made available to the buyer and work under the buyer's supervision or on the buyer's instructions;
- claims of third parties, including employees of EBT Electronics, who suffer damage in connection with the execution of the agreement, which is the result of acts or omissions of the buyer or of unsafe situations in its company.
- claims of third parties who suffer damage resulting from a defect in products or services delivered by EBT Electronics and used by the buyer, which products or services have been further delivered under addition of or in connection with the buyer's own products or services, unless the buyer proves that the defect is not the result of use, modification or delivery as referred to above.
64. All disputes that may arise from agreements to which these terms of delivery apply shall be exclusively adjudicated by the competent court in Rotterdam, unless the buyer, within one month after being informed by EBT Electronics that it will bring the dispute before the court applicable on the basis of these terms of delivery, has notified EBT Electronics in writing that it will choose the competent court by law and subject to EBT Electroncs' right to choose the competent court by law.
65. An agreement concluded with EBT Electronics is exclusively governed by Dutch law.