GENERAL TERMS AND CONDITIONS OF
Elec Trading Europe based in Hengelo
filed at the Chamber of Commerce of East Netherlands in Enschede
Article 1: Definitions
In these general terms and conditions the following terms have the following meanings:
Elec Trading Europe: Elec Trading Europe
Contract: The contract between Elec Trading Europe and its customer.
Customer: The party with which Elec Trading Europe contracts.
Article 2: General
These general terms and conditions apply to each offer and each contract between Elec Trading Europe and the customer, insofar as parties have not departed expressly in writing from these general terms and conditions. The general terms and conditions used by the customer are not accepted by Elec Trading Europe, unless parties have expressly agreed otherwise.
Article 3: Offers
The offers submitted by Elec Trading Europe are free of obligation and lapse at any rate within 14 days of their date, unless otherwise indicated. The prices given in the offers are exclusive of BTW (Dutch VAT), unless otherwise indicated.
Article 4: Formation of the contract
The contract will only be concluded through the written confirmation of the order by Elec Trading Europe. Differences must be agreed upon in writing.
Article 5: Price increase
Elec Trading Europe has the power to pass on to the customer price increases that Elec Trading Europe encounters in the scope of the execution of the contract and that arise after the contract is concluded. Only if the price increase amounts to more than 15% does the customer have the right to terminate the contract, without the customer being able to claim compensation.
Article 6: Advance payment and/or security
Elec Trading Europe is entitled at all times to seek payment in advance or security from the customer before proceeding to execution or further execution of the contract. If the demand for payment in advance or security is not satisfied upon the first request, Elec Trading Europe is authorized to terminate the contract, without prejudicing its right to compensation for the damage it has suffered as a consequence. Elec Trading Europe is also entitled to suspend execution or further execution of the contract if the customer is in breach of its obligations under one or several contracts entered into earlier with Elec Trading Europe. If a (repeated) request for payment is not satisfied, Elec Trading Europe is authorized to terminate the contract, without prejudicing its right to compensation for the damage it has suffered as a consequence.
Article 7: Delivery times
The agreed-upon delivery time is not a binding time, unless otherwise agreed upon expressly in writing. In case of overdue delivery, the customer must therefore give notice of default in writing to Elec Trading Europe, whereby Elec Trading Europe must be set a reasonable time of at least 21 days to still fulfil its obligations. If Elec Trading Europe is in default, only the customer has the right to terminate the contract. Elec Trading Europe will in that connection never be liable for any damage, under whatever name, suffered by the customer or third parties. Customer indemnifies Elec Trading Europe against claims from third parties in this respect.
Article 8: Delivery
Unless otherwise agreed, delivery occurs "
free place of business of customer"
, subject to the proviso in that connection that Elec Trading Europe is entitled to charge administration and/or shipping costs for deliveries with a net invoice amount up to EUR 175.00. Elec Trading Europe is permitted to deliver the sold objects in consignments and to invoice each partial delivery separately. The customer is obliged to take delivery of the bought objects or, as the case may be, to provide Elec Trading Europe with all information and to cooperate in order to enable a correct delivery by Elec Trading Europe.
Article 9: Differences
Minor differences between the objects delivered by Elec Trading Europe on the one hand and the objects as specified in the contract on the other hand cannot constitute a ground for rejection, discount, termination of the contract or compensation. Differences that, taking all circumstances into consideration, do not reasonably have any or only a minor influence on the practical value of the delivered objects, are deemed to be minor differences in the sense of this article.
Article 10: Complaints
Elec Trading Europe obtains its products from a large number of suppliers from home and abroad. Although Elec Trading Europe exercises due care in the choice of its suppliers, it cannot guarantee the conformity in relation to manufacturer and specifications of the objects to be delivered to the customer in accordance with the contract. After delivery, the customer must check immediately whether Elec Trading Europe has complied correctly with the contract and check the delivered objects properly for visible defects and conformity in relation to manufacturer and specifications and within that scope test the delivered objects electrically. Complaints related to visible defects and non-conformity as referred to in the first paragraph must be reported within 10 days of delivery in writing to Elec Trading Europe. Other defects must be submitted within 10 days of discovery by the customer to Elec Trading Europe. After expiry of the periods of time referred to, no obligation whatsoever for Elec Trading Europe ensues from any complaint by the customer. The proof that the delivered objects and/or their packaging displayed defects at the time of the delivery must be provided by the customer. The customer carries the burden of proof that the objects the complaint is related to are the same as those delivered by Elec Trading Europe. Even if the customer submits a complaint on time, the customer remains obliged to pay and take delivery of orders made.
Article 11: Retention of title
The objects delivered by Elec Trading Europe remain the property of Elec Trading Europe until the customer has met all obligations from all contracts entered into with Elec Trading Europe. Objects delivered by Elec Trading Europe that come under the retention of title, may be treated, processed or resold only in the framework of normal business operations. The customer is for that matter not empowered to pledge the objects or establish any other right to them. If the customer does not meet his obligations or there is a reasonable fear that he will not do so, Elec Trading Europe is entitled to remove or have removed the delivered objects subject to retention of title, from the customer or third parties who are holding the object for the customer.
Article 12: Force majeure
Force majeure means circumstances that hinder the compliance with the obligation and that cannot be attributed to Elec Trading Europe. They include below (if and insofar as these circumstances make the compliance impossible or hinder it unreasonably): strikes in businesses other than that of Elec Trading Europe, a general lack of essential raw materials and other matters or services required to achieve the agreed-upon performance, unforeseeable stagnation at suppliers or other third parties that Elec Trading Europe depends on and general transport problems. During force majeure the delivery obligation and other obligations of Elec Trading Europe are suspended. If the period in which force majeure makes it impossible for Elec Trading Europe to comply with the obligations lasts longer than 30 days, both Elec Trading Europe and the customer are entitled to terminate the contract, without in that case there being any obligation to compensation.
Article 13: Guarantee and liability
Elec Trading Europe guarantees the proper operation of the delivered objects during a period of 3 months to be counted from the day of delivery of the objects to the customer, provided that they are used under normal circumstances and whereby in the event of reasonable doubt the burden of proof in the matter of normal usage lies with the customer. Elec Trading Europe does not guarantee and is never considered to have guaranteed or to have warranted that the delivered object or objects are suitable for the purpose for which the customer desires to use, treat or process it. The liability of Elec Trading Europe is at all times expressly limited to replacement of what was delivered in defective state, as soon as this is reasonably possible for it to do, or -
to be decided by Elec Trading Europe-
to repayment of that which was charged to the customer for the delivered object. For consequential loss or other direct or indirect damage, Elec Trading Europe is never liable towards the customer and/or third parties. The customer indemnifies Elec Trading Europe fully against all claims by third parties that might ensue from or be connected to (non-) compliance with obligations by Elec Trading Europe on the basis of any contract with the customer. The limitation of liability included in this article is not applicable if it is a matter of liability of Elec Trading Europe as referred to in Book 6, title 3, section 3 of the Dutch Civil Code (product liability).
Article 14: Payment
Payment must occur within 30 days of the invoice date without the customer being entitled to any discount, setoff or deferment. After the expiry of this period, the customer, without notice of default being required, is in default; from the moment of defaulting the customer owes interest on the payable amount, to the amount of the legal interest multiplied by 2% on an annual basis. In the event of liquidation, bankruptcy or moratorium of the customer, the obligations of the customer will be immediately due and payable.
Article 15: Legal and other costs
If the customer is in default or breach of complying with one or more of his obligations, all legal and other costs for obtaining payment made by Elec Trading Europe are payable by the customer. In any case, the customer owes the other costs in that connection at 15% of the principal sum with a minimum of EUR 150.00. If Elec Trading Europe proves it has incurred higher costs, these costs also qualify for reimbursement.
Article 16: Appearing as agent
These terms and conditions also apply to contracts whereby Elec Trading Europe acts as an agent, on the understanding that everywhere in these terms and conditions where Elec Trading Europe is mentioned or meant, or must be read, this means the name of the (foreign) principal. If the contract is also governed by general terms and conditions of the principal, the latter terms and conditions are given preference to those of Elec Trading Europe.
Article 17: Export
The customer realizes the possibility that the export of objects delivered by Elec Trading Europe to countries outside the Benelux, or resale of the objects to businesses active in the nuclear industry or in general resale of the objects for the purpose of use for nuclear objectives, is subject to permission from the Ministry of Economic Affairs and/or the "
Office of Export Control"
in Washington DC 20230, USA.
Article 18: Choice of forum
Contrary to the statutory rules for the authority of the civil court, every dispute between the customer and Elec Trading Europe will be settled by the court in Breda, in the event the court, except for the subdistrict section, is authorized. However, Elec Trading Europe remains authorized to serve a summons to the customer to appear before the court that is competent in accordance with the law or with the appropriate international treaty.
Article 19: Choice of law
Dutch law applies to every contract between Elec Trading Europe and the customer. The applicability of the Vienna Sales Convention is specifically excluded.
Elec Trading Europe