In these General Terms and Conditions the following terms shall be used in the following meaning, insofar it does not derive from the nature or tenor of the stipulations.
Linsen Parts: Linsen Parts B.V., the user of these General Terms and Conditions, having its legal seat in Cuijk, registered in the Trade Register under CoC No. 54311721.
Counterparty: the natural person, at least trading in the execution of a profession or enterprise, or legal person, with whom Linsen Parts has concluded or envisages to conclude an agreement.
Parties: Linsen Parts and the counterparty jointly.
Agreement: each agreement concluded between Linsen Parts and the counterparty, with which Linsen Parts has committed itself, towards the counterparty, against a price further agreed between parties, to the sale and delivery of products.
Products: all in the framework of the agreement by or on behalf of Linsen Parts to the counterparty to be delivered goods.
In writing: both traditional written communication and digital communication to be stored in a sustainable information carrier, such as e-mail communication.
ARTICLE 2. | GENERAL STIPULATIONS
These General Terms and Conditions are applicable to each offer of Linsen Parts and each concluded agreement.
The applicability of the terms and conditions of purchase or named otherwise 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, or what explicitly in or with the offer (in the web shop) that is accepted by the counterparty, deviates from the stipulations in these General Terms and Conditions, what parties explicitly have agreed in writing or what explicitly is stated in the offer of Linsen Parts shall be accepted by the counterparty.
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 make a replacing regulation with regard to the affected stipulation. 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
Each offer of Linsen Parts is non-binding, also in case a term of acceptation is stated therein. An offer of Linsen Parts can until immediately after the acceptation thereof by the counterparty, be recalled.
The counterparty can derive no rights from an offer of Linsen Parts that contains an obvious error or mistake.
The counterparty can furthermore derive no rights from an offer of Linsen Parts that is based on incorrect or incomplete data provided by the counterparty.
A composed price statement never obliges Linsen Parts to compliance with a part of the offer against a price stated in accordance with that part.
Each agreement is, notwithstanding the stipulations in section 1, concluded on the moment that the offer of Linsen Parts is accepted by the counterparty and the counterparty has complied with all terms and conditions that are set in the offer. If the order of the counterparty has not been preceded by a concrete offer of Linsen Parts, then the agreement is concluded by confirmation of the order by Linsen Parts.
If the acceptation of the counterparty deviates from the offer of Linsen Parts, then the agreement is not concluded in accordance with this deviating acceptation, unless Linsen Parts states differently.
If the counterparty concludes the agreement on behalf of another natural or legal person, then he declares by the conclusion of the agreement to be authorised thereto. The counterparty is, in addition to this (legal) person towards Linsen Parts jointly and severally liable for the compliance with the obligations from that agreement.
ARTICLE 4. | TERMS
Linsen Parts makes an effort to comply with the delivery terms to which it has committed itself towards the counterparty; however, these terms are solely to be regarded as indicative, non-fatal terms. The default of Linsen Parts emerges not sooner than after the counterparty has declared Linsen Parts in writing in default, in which notification of default a reasonable term is stated within which Linsen Parts can comply with its delivery obligations and the compliance thereof after the expiry of the term last referred to still has remained absent.
The delivery terms, to which Linsen Parts has committed itself towards the counterparty, do not start earlier than after Linsen Parts has received all data required for the delivery from the counterparty.
ARTICLE 5. | DELIVERY OF THE PRODUCTS
Unless explicitly agreed otherwise, 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 delivery address. Unless explicitly agreed otherwise, in case of delivery, the costs in connection with the delivery will come additionally for the account of the counterparty.
Unless from the nature or tenor of a possibly explicitly agreed condition of delivery, such as a certain Incoterm, it derives differently, the risk of loss and damaging of the products shall be transferred to the counterparty on the moment that the products by or on behalf of the counterparty have been taken into receipt. A possibly agreed Incoterm, such as Ex Works (EXW) and Delivered Duty Paid (DDP), has the meaning as recorded in the latest version in force of the Incoterms such as that will be established by the International Chamber of Commerce.
Upon exceeding of the agreed delivery term, the counterparty is never authorised to refuse to take the products to be delivered into receipt and/or to refuse 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 is imputable to the counterparty, then Linsen Parts shall store the products for the account and risk of the counterparty, notwithstanding the obligation of the counterparty to satisfaction 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 Linsen Parts give notification within which term the products after all shall be taken-off. This term shall never be longer than a month after the day of the request as referred to the previous sentence. Linsen Parts is authorised to dissolve the agreement if the counterparty, after the expiry of the term referred to in the previous sentence, still has omitted take-off of the products, notwithstanding the obligation of the counterparty to payment of the amounts due on the basis of the agreement by him and the costs of storage of the products.
If Linsen Parts 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 6. | RIGHT OF DISSOLUTION
If the agreement has been concluded by means of the ordering process on the website (hereinafter: web shop order), then the counterparty is authorised to dissolve the agreement in whole or in part up to seven days after receipt of the products, without stating reasons.
The counterparty has no right of dissolution in case of a web shop order concerning:
the delivery of products manufactured according to specifications of the counterparty, which are not pre-manufactured;
a purchase concerning products with regard to which a consumer on the basis of Section 6.5.2B of the Dutch Civil Code also would not have had a right of dissolution.
The counterparty that makes use of the right of dissolution as referred to in section 1, can recall the web shop order by submitting thereto a request in writing to Linsen Parts. As soon as possible after Linsen Parts has been notified of the resolution of the counterparty to recall the web shop order and if the terms and conditions of this article have been complied with, Linsen Parts shall confirm the dissolution of the agreement per e-mail.
The counterparty must return the products unused, undamaged, with all delivered accessories and in the original state and packaging to Linsen Parts. Returning takes place for the account and risk of the counterparty in a manner to be determined by Linsen Parts.
Returning of the products must take place within seven days after Linsen Parts has confirmed the recall of the web shop order in accordance with the stipulations in section 3.
The buyer has solely a claim to refunding or discharge of the purchase price of the products and not of the shipping costs. Insofar applicable, Linsen Parts is authorised to bring the costs of the return shipment into account to the counterparty.
Linsen Parts shall refund the amounts to be paid back to the counterparty as soon as possible, but no later than within seven days after the return receipt of the products, provided that the counterparty has complied with all terms and conditions of this article.
Linsen Parts has the right to refuse the returned products or to refund or waive only a part of the purchase price, if and insofar the products after return receipt do not comply with the stipulations in section 4 or the products have been returned too late. In a prevalent case, Linsen Parts shall give notification thereof as soon as possible to the counterparty. The costs of possible return delivery of the returned order to the counterparty, shall also come for the account of the counterparty.
ARTICLE 7. | EXAMINATION AND RECLAMATION
The counterparty must on the moment of delivery of the products (let) examine 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 thereof at least without delay after the delivery, give notification to Linsen Parts.
In case of defects that at the time of the delivery were reasonably not visible, the counterparty must give notification in writing thereof to Linsen Parts within seven days after he has become aware of the existence of the defect, at least reasonably could have become aware.
If the counterparty does not timely make a reclamation, then from such a reclamation of the counterparty shall derive for Linsen Parts no obligation whatsoever.
Also if the counterparty makes a timely reclamation, the obligation of the counterparty to timely payment of the amounts due by him on the basis of the agreement, continue to exist.
ARTICLE 8. | WARRANTY
The counterparty has solely a claim to a factory warranty possibly delivered along by the manufacturer of the products.
Notwithstanding the possible explicitly stipulated (factory) warranty conditions, each warranty on a product shall be forfeit, if a defect of the product is the consequence of an external cause or otherwise cannot be imputed to Linsen Parts. Thereunder will be understood, without limitation, defects as a consequence of damaging, incorrect or inexpert treatment or application, use in violation of the use prescriptions or other directions of or on behalf of Linsen Parts and repairs that have been executed without prior written consent of Linsen Parts.
The stipulations in section 2 are equally applicable to possible claims of the counterparty on the basis of default, non-conformity or whichever other foundation.
ARTICLE 9. | FORCE MAJEURE
Linsen Parts is not required to the compliance with any obligation from the agreement if and for as long as it is hindered thereto by a circumstance that cannot be imputed to it on the basis of the law, a legal act or opinions in society. Under Force Majeure will also be understood the circumstance that Linsen Parts by acts of its suppliers is not able to comply (timely) with its (delivery) 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 Linsen Parts at the time of the emergence of the situation of Force Majeure has already partially complied with its obligations or can only partially comply with its obligations, then it is authorised to separately invoice the already executed part, respectively executable part of the agreement, as if there were an instance of an independent agreement.
Damage as a consequence of Force Majeure is, notwithstanding application of the previous section, never eligible for compensation.
ARTICLE 10. | SUSPENSION AND DISSOLUTION
Linsen Parts 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 after the conclusion of the agreement give Linsen Parts good ground to fear that the counterparty shall not comply with his obligations.
If the counterparty is in a state of bankruptcy, has filed for a (provisional) suspension of payment, any attachment has been put on his goods or in instances in which the counterparty otherwise cannot freely dispose over his capital, then Linsen Parts is authorised to dissolve the agreement with immediate effect, unless the counterparty has already provided satisfactory surety for the payment(s).
Furthermore, Linsen Parts is authorised to dissolve the agreement if and insofar circumstances occur which are of such a nature that compliance with the agreement is impossible or unchanged maintaining thereof in reasonableness cannot be required..
The counterparty never has a claim to any form of compensation of damages in connection with the right of dissolution or suspension executed by Linsen Parts on the basis of this article.
Insofar this can be imputed to him, the counterparty is obliged to compensate the damage that Linsen Parts suffers as a consequence of the suspension or dissolution of the agreement.
If Linsen Parts dissolves the agreement on the basis of this article, then all claims on the counterparty are immediately payable upon demand.
ARTICLE 11. | PRICES AND PAYMENTS
Unless stated explicitly different by Linsen Parts, all prices stated by Linsen Parts are exclusive of VAT and other levies by the government, including possible customs costs and import levies.
Unless explicitly agreed otherwise, the counterparty is required to advance payment of the complete amount that he is liable to pay to Linsen Parts on the basis of the agreement. Linsen Parts is not sooner required to give execution to the agreement until the counterparty has fully complied with an obligation to advance payment resting on him.
Payments must take place in the manner designated thereto by Linsen Parts and within the term communicated or stated in writing by Linsen Parts. If payment after delivery is agreed, then payment must take place within 30 days after date of the invoice.
Linsen Parts is authorised to make the invoices destined for the counterparty solely available per e-mail to him.
If the counterparty is in a state of bankruptcy, has filed for a (provisional) suspension of payment, any attachment has been put on his goods or in instances in which the counterparty otherwise cannot freely dispose over his 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 for the obtaining of the amounts due by the counterparty on the basis of the agreement, will be for his account.
ARTICLE 12. | LIABILITY AND SAFEGUARD
Except for wilful intent and conscious recklessness of Linsen Parts, as well as except for the stipulations in article 7 and 8, Linsen Parts, after the delivery of the products, is no longer liable for defects of the delivered.
The counterparty bears the damage caused by incorrect or incomplete matters 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 Linsen Parts.
Linsen Parts is, except for wilful intent and conscious recklessness from his side, not liable for damage as a consequence of the use of the delivered products, including among others damage emerged as a consequence of use of the products in violation of the prescriptions of use and/or normal requirements of carefulness that the end user should observe concerning the use of the products.
Linsen Parts bears no liability for damage for which the manufacturer or importer of the products is required to bear the damage on the basis of the lawful regulation of the product liability.
Linsen Parts is never liable for consequential damage, including among others missed profit, suffered loss and damage as a consequence of enterprise stagnation. If, in spite of the stipulations in these General Terms and Conditions, still liability of Linsen Parts exists, then, notwithstanding the stipulations in the following section, solely direct damage will be 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 in the sense of these General Terms and Conditions is eligible for compensation;
- the possible reasonable costs made to let the defective performance of Linsen Parts comply with the agreement, insofar this can be imputed to Linsen Parts;
- 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 in the sense of these General Terms and Conditions is eligible for compensation.
The liability of Linsen Parts is at all times limited to no more than the value of the invoice of the agreement, at least to that part of the agreement to which the liability of Linsen Parts relates, it being understood that the liability of Linsen Parts never shall amount to more than the amount that with regard to the concerned case on the basis of the concluded liability insurance of Linsen Parts actually will be paid out, increased with the possible own risk of Linsen Parts that is applied on the basis of die insurance.
The statute of limitations of all claims and defences towards Linsen Parts is one year.
The counterparty safeguards Linsen Parts against 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 Linsen Parts.
ARTICLE 13. | RETENTION OF TITLE
All products remain property of Linsen Parts until the counterparty has complied properly with all of his obligations from the agreement.
Except for insofar must be deemed permissible in the framework of his normal conduct of enterprise, the counterparty is forbidden to sell, to create a lien on 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 recognisable property of Linsen Parts.
If third parties put an attachment on the products on which the retention of title rests, or wish to vest rights thereon, then the counterparty is obliged to notify Linsen Parts hereof as soon as possible.
In case of sale and/or delivery by the counterparty to third parties in the framework of his normal conduct of enterprise, as well as upon violation of the other matter set forth in this article, the purchase price becomes immediately fully 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. On the moment of onward delivery to a third party, Linsen Parts acquires on the claim(s) of the counterparty on the third party a possession less right of lien, with the right to notify that third party thereof, and to claim and to receive payment.
The counterparty gives unconditional permission to Linsen Parts or third parties designated by Linsen Parts to access all those places where the products on which the retention of title rests, are located. Linsen Parts is in case of default by the counterparty authorised to (let) the products referred to here, be taken back. The counterparty must provide Linsen Parts upon first request with all information in order to be able to execute its property rights, such at the peril of a contractual fine immediately payable upon demand of € 500 per day that the counterparty is in default therewith and without that Linsen Parts has to declare the counterparty therefore in default. All reasonable costs in connection with the exercise of its property rights, will be for the account of the counterparty.
If the counterparty, after the sold products have been delivered to him, has complied with his obligations, then the retention of title with regard to these products shall revive, if the counterparty does not comply with his obligations from an agreement concluded later.
ARTICLE 14. | FINAL STIPULATIONS
Solely the Laws of the Netherlands are applicable to each agreement and all legal relations deriving therefrom 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 legal seat of Linsen Parts is designated to take knowledge of in-court disputes.
The Netherlands’ version of the present General Terms and Conditions is each time decisive for the interpretation of the stipulations included herein.