General Terms and Conditions of:
Pfeifer Heavy Machinery B.V.
Den Sliem 35
7141 JE Groenlo
Chamber of Commerce No.: 09181206
Article 1: Applicability, definitions
- These General Terms and Conditions apply to any offer and to any contract of sale and purchase of Pfeifer Heavy Machinery B.V., established in Groenlo, hereinafter to be referred to as: “Pfeifer”.
- The Other Party of Pfeifer is hereinafter referred to as “the buyer”.
- “Offer” shall mean: any offer from Pfeifer, whether or not in the form of a written quotation.
- “In writing” shall mean: by letter, e-mail, fax or any other mode of communication that is regarded as equivalent to writing in view of advances in technology and conventional practices.
- “Items” shall mean: the digging and soil moving machines, access platforms, cranes, rollers, (forklift) trucks, aggregates and suchlike to be delivered by Pfeifer.
- The possible invalidity of (any part of) a provision contained in these General Terms and Conditions shall not affect the validity of the remaining provisions.
- In the event of a discrepancy or conflict between these General Terms and Conditions and a translation hereof, the Dutch text shall prevail.
- These General Terms and Conditions shall also apply to repeat or part orders flowing from the agreement.
Article 2: Offers, prices
- Unless a period of validity is stated in/for an offer, this concerns an offer without obligation. Pfeifer may withdraw this offer within a period of no more than 2 working days after receipt of the acceptance.
- Unless parties agree otherwise in writing, it will not be possible to reserve any item.
- The prices stated in offers or price lists are exclusive of BTW (Dutch VAT) and possible costs, such as transport costs, inspection costs, the costs for acquiring export certificates, administrative costs and expense claims of third parties engaged.
- A composite offer does not oblige Pfeifer to deliver part of the offered items against a corresponding part of the price.
- If the offer is based on information provided by the buyer and this information appears to be incorrect or incomplete or should change at a later date, Pfeifer may adjust the quoted prices and/or delivery terms.
- Models that are displayed, specifications of colours, capacities, characteristics, dimensions, weights and other descriptions in brochures, promotional material and/or on Pfeifer’s website shall be as accurate as possible but shall only be intended as a guide. The buyer may derive no rights from these.
- If (cost) price increasing circumstances occur at the expense of Pfeifer between the date of concluding the agreement and the execution thereof due to legislation and regulations, currency fluctuations, price- or rate changes of third parties engaged by Pfeifer or suppliers of Pfeifer, or price changes of the required materials, parts and suchlike, Pfeifer is permitted to increase the agreed prices and charge these to the buyer.
Article 3: Establishing agreements
- The agreement is established after the buyer has accepted the offer of Pfeifer, also if this acceptance deviates on secondary issues from this offer. However, when the acceptance shall deviate in essential aspects, the agreement shall only be concluded after Pfeifer has explicitly agreed with these deviations in writing.
- Pfeifer shall only be bound to:
a. an order without prior offer thereto;
b. oral agreements;
c. additions to or changes of the General Terms and Conditions or agreement;
after written confirmation to the buyer or as soon as Pfeifer - without objection of the buyer - has started the performance of the order or arrangements.
Article 4: Engaging third parties
If Pfeifer deems this necessary, it shall have the right to have specific deliveries or work carried out by third parties.
Article 5: Obligations of the buyer
- The buyer ensures that:
a. it shall make all documents and information required for the execution of the agreement available to Pfeifer in time and in the manner required by it;
b. any information carriers, files, etc. possibly provided by the buyer are free from viruses and defects.
- The buyer shall ensure that the provided information is correct and complete and that the documents are complete, correct and authentic and it shall indemnify Pfeifer against any claims from third parties arising from the incorrectness, authentic and/or completeness of the information and the documents etc.
- Pfeifer shall treat the information provided by the buyer with confidentiality and will only provide this to third parties insofar as this is necessary for the performance of the agreement.
- If the above obligations are not fulfilled (on time), Pfeifer may suspend the execution of the agreement until the buyer has fulfilled his obligations. The costs and the other consequences arising from this shall be at the expense and risk of the buyer.
- If the buyer does not fulfil his obligations and Pfeifer does not require immediate compliance, this will not affect the right of Pfeifer to require compliance at a later date.
Article 6: Inspections and tests
- All items to be delivered by Pfeifer will be of the usual quality suitable for their designated use and will fulfil the agreed requirements, or in the absence thereof the requirements to be reasonably set out for this.
- Pfeifer will provide the buyer with the opportunity to inspect (have inspected) or test (have tested) the items. The inspections and tests will take place at Pfeifer’s site. Pfeifer will be permitted to be present during the inspections or tests. The costs attached to the inspections or tests will be at the expense of the buyer.
- Pfeifer will not be liable for the contents of the inspection or test reports.
- If following the inspection or test repairs or other work must be executed on the item this will be at the expense of the buyer, except for when parties have agreed otherwise in writing.
Article 7: Delivery, delivery terms
- The agreed terms shall never be final deadlines. If Pfeifer fails to meet its obligations (on time), the buyer must give notice of default to her and grant reasonable time to meet these delivery obligations at a later date.
- An agreed term will take effect at the moment that Pfeifer has received all documents, information required for the delivery and the possible agreed (advance) payment of the buyer. If delay arises from this, the term shall be extended accordingly.
- Pfeifer may deliver in parts and invoice each part delivery separately.
- The risk concerning the items to be delivered shall pass to the buyer at the time of delivery. Unless agreed otherwise in writing delivery will take place “Ex Works” (EXW) in conformity with the most recent version of the Incoterms.
- The buyer must collect (have collected) the items within 14 days after Pfeifer has stated that the items are ready for collection.
- The buyer must inform Pfeifer, no later than 3 working days before the planned date of collection, of the fact that he will collect/have collected the purchased item. This information will be provided to [email protected] stating the reference number of the purchase.
- If the buyer forms part of several natural persons or legal entities the delivery will be made to the party that pays first.
- If, due to a cause within the control of the buyer, it appears to not be possible to deliver (in the agreed manner) the items to the buyer, or the items are not collected, Pfeifer will be permitted to store the items and/or the materials that have been purchased for the performance of the agreement at the expense and risk of the buyer. In that case the buyer will provide Pfeifer with the opportunity, within a reasonable period set out by Pfeifer, within which to still deliver the items or for the buyer to collect these items. Pfeifer is permitted to charge an amount equal to 1% of the purchase price of the item concerned as storage costs for each day that Pfeifer has stored items of the buyer.
- If the buyer still fails to meet its obligations after the aforementioned reasonable period, or leaves an invoice sent for an agreed (advance) payment unpaid for 30 days, it shall be immediately in default. Pfeifer may then, either fully or partially, terminate the agreement with immediate effect by means of a written statement, sell the items and/or materials to third parties without being obliged to pay compensation for damages, costs or interest. This does not affect the obligation of the buyer to compensate for any storage and other costs, damage and loss of profits of Pfeifer and/or the right of Pfeifer to demand compliance at a later date.
Article 8: Exchange/purchase of items
- If parties have agreed that, along with the purchase of an item, the buyer will also exchange an item with Pfeifer, the item to be exchanged or to be purchased by Pfeifer will remain at the expense and risk of the buyer until the time of delivery. In the context of these general terms and conditions the time of delivery is taken to mean: the time when the item to be exchanged or to be purchased arrives at Pfeifer’s site, or sooner if Pfeifer has these available.
- The buyer will be liable until the time of delivery for all costs of maintenance, any damage, loss and/or decrease in value of the item to be exchanged or purchased.
- Pfeifer will not be bound by the agreed price if the actual delivery of the item to be exchanged - whether or not due to delay in the delivery stated by Pfeifer as an estimate of the item purchased by the buyer - falls on a later time than agreed or expected. In that case a percentage agreed by parties in advance will be applied over the exchange or purchase price by means of debiting.
- The buyer guarantees that the item to be exchanged or purchased by him will be free of rights and claims by third parties, free of damage, or as the case may be there will only be damage as agreed between parties, that the item is in a proper and (traffic/operating) safe condition and not manipulated with regard to, for example, the odometer readings or operating hours.
- The buyer must provide Pfeifer with all relevant information with regard to the item to be exchanged or to be sold, of which he knows or reasonably could know that this is important for Pfeifer.
- The buyer must also provide Pfeifer with all documents, keys and other accessories forming part of the item to be exchanged or to be sold.
Article 9: Complaints
- The buyer shall check the delivered items immediately on receipt and state any visible failures, defects, damage and deviations on the consignment note or accompanying note or, in their absence, reports these to Pfeifer in writing within 2 working days. If such complaints are not reported in a timely manner, the items are deemed to have been received in good order and to conform with the agreement.
- Other complaints are reported to Pfeifer by the buyer in writing immediately after discovery, but no later than within any agreed guarantee period. The buyer shall bear all risks of failing to report directly.
- If a complaint is not reported in a timely manner, it is not possible to make a claim under any agreed guarantee.
- Complaints shall not suspend the buyer’s payment obligations.
- The buyer shall give Pfeifer the opportunity to investigate the complaint and provide all relevant information.
- No complaints can be lodged about items that have been changed in nature and/or composition or that have been fully or partially treated or processed after receipt.
Article 10: Guarantees
- Pfeifer shall execute the deliveries in a proper manner and in accordance with standards applicable in the industry, but shall in respect of these deliveries never provide a more extensive guarantee than has been agreed.
- The items will be delivered “As Is”. Unless parties have agreed otherwise in writing the warranty for the used items, parts and suchlike is excluded.
- Pfeifer guarantees the usual normal quality and sound condition of the delivered item during any warranty period provided.
- If the manufacturer or supplier provides a warranty for the items delivered by Pfeifer, this warranty applies in the same manner between the parties. Pfeifer shall inform the buyer in this regard.
- Pfeifer does not guarantee any (general) statements or promises made by the manufacturer or supplier of the delivered item, for example related to performance such as fuel consumption, power, capacities, CO2 emission and suchlike.
- Defects that are the result of technical alterations made by or on behalf of the buyer of the delivered items or parts thereof are not included in the warranty.
- If the purpose for which the buyer wishes to treat, process or use the items differs from the customary use of these items, Pfeifer shall only guarantee that the items are suitable for this if it has confirmed so in writing to the buyer.
- No claim can be made under any agreed guarantee until the buyer has paid the price agreed for the items.
- If the buyer rightly makes a claim under the guarantee, Pfeifer shall at no cost - at its own discretion - arrange to repair (have repaired) the items, or as the case may be the repayment of, or a reduction of the agreed price. If there is any additional damage, the provisions set out in the Liability Article of these General Terms and Conditions shall apply.
Article 11: Liability
- Pfeifer shall accept no liability other than the guarantees explicitly agreed or given by Pfeifer.
- Pfeifer is only liable for direct damage. Any liability for consequential damage such as trading losses, loss of earnings and/or losses sustained, damage caused by delay and/or personal or bodily injury shall be expressly excluded.
- The buyer takes all measures needed to prevent or limit the damage.
- If Pfeifer is liable, the liability for compensation shall at all times be restricted to the maximum amount paid by the insurer where appropriate. If the insurer does not pay or if the damage is not covered by the insurance taken out by Pfeifer, the liability for compensation shall be limited to the invoice amount of the delivered items.
- The buyer must sue Pfeifer for any damage suffered by him within 3 months after he became or could have become aware of it.
- Pfeifer is not liable - and the buyer cannot make a claim under the applicable guarantee - if the damage has arisen due to:
a. improper use or use contrary to the purpose for which the items delivered were intended or the directions, advice, operating instructions, manuals etc. provided by or on behalf of Pfeifer;
b. incompetent storage or maintenance of the items;
c. errors or incompletenesses in the information provided to Pfeifer by or on behalf of the buyer;
d. instructions or directions from/on behalf of the buyer;
e. or due to a choice of the buyer, which deviates from Pfeifer’s advice or what is customary;
f. normal wear and tear or corrosion;
g. the choice made by the buyer in respect of the items to be delivered;
h. or because (repair) work or processing by/on behalf of the buyer has been executed on the delivery, without express, prior, written approval from Pfeifer.
- The buyer is fully liable for all damage arising from this in all cases listed in the previous paragraph, and indemnifies Pfeifer explicitly against any claims from third parties to compensate this damage.
- The limitations of the liability stated in this article shall not apply if the damage is due to intent and/or willful recklessness by Pfeifer or its supervisory staff on a management level or if mandatory legal provisions oppose this. Only in these cases shall Pfeifer indemnify the buyer against any third party claims.
Article 12: Payment
- Pfeifer may require (partial) advance payment or other security for payment at all times.
- Payment must take place within an expiry period of 14 days after the invoice date, unless parties have agreed a different payment term in writing. The invoice shall be considered correct if no objections have been made within the payment term.
- If an invoice is not fully paid after expiry of the term referred to in the previous paragraph, the buyer is due to Pfeifer a default interest of 2% per month, to be calculated cumulatively over the principal sum. Parts of a month are computed as a full month.
- If payment is not forthcoming after notice was given, Pfeifer may charge the extrajudicial collection costs to the buyer at 15% of the invoice amount with a minimum of € 40.00.
- For the calculation of the extrajudicial collections costs Pfeifer may, after 1 year, increase the principal amount by the default interest accrued in that year.
- In the absence of full payment within 30 days after the expiry period of the invoice, Pfeifer may terminate the agreement without further notice of default by a written statement or to suspend its obligations under the agreement until payment is received or provided appropriate security. Pfeifer shall also have the aforementioned right of suspension if it has legitimate grounds to doubt the buyer’s creditworthiness even before the buyer enters into default regarding payment.
- Pfeifer will initially deduct payments received from all interest and costs due and subsequently from invoices which have been due and payable the longest, unless the payment is accompanied by a written statement that it refers to a later invoice.
- The buyer may not deduct any claims of Pfeifer from any reclamations that it has on Pfeifer. The aforesaid also applies if the buyer applies for a (temporary) suspension of payment or is declared bankrupt.
Article 13: Retention of title
- All items supplied/to be supplied under the agreement shall remain the property of Pfeifer until the buyer has met all its payments obligations.
- These payment obligations consist of payment of the purchase price of the items, increased by claims relating to work performed in connection with that delivery and claims due to shortcomings attributable to the buyer, including payment of damages, extrajudicial collection costs, interest and possible penalties.
- As long as the title is retained in the items, the buyer may not pledge the items in any manner or bring items under the actual control of a financier.
- The buyer informs Pfeifer immediately in writing if third parties claim to have ownership or other rights to the items.
- As long as the buyer holds the items, it shall carefully store them as identifiable property of Pfeifer.
- The buyer arranges a business interruption or home contents insurance to ensure that the items delivered which are subject to retention of title are included in the policy. Immediately on Pfeifer’s request he will give access to the insurance policy and any included proof of premium payments.
- If the buyer contravenes this article or if Pfeifer claims retention of title, Pfeifer and his employees may enter the buyer’s site to collect and take possession of the items This does not affect Pfeifer’s right to compensation of damage, lost profit and interest and the right to terminate the agreement without any notice of default by a written statement.
Article 14: Bankruptcy, loss of power to dispose of property, etc.
- Pfeifer may terminate the agreement without any notice of default by a written statement to the buyer at the time when the buyer:
a. is declared bankrupt or files for bankruptcy;
b. applies for (temporary) suspension of payment;
c. is affected by enforceable seizure;
d. is placed under guardianship or judicial supervision;
e. otherwise loses the power to dispose of its property or loses legal capacity regarding (parts of) its assets.
- The buyer shall always inform the guardian or administrator of the (contents of the) agreement and these General Terms and Conditions.
Article 15: Force majeure
- In the event of force majeure of the buyer or Pfeifer, the latter may terminate the agreement by means of a written statement to the buyer or suspend compliance with his obligations towards the buyer for a reasonable term without being obliged to pay any compensation.
- Force majeure with respect to Pfeifer shall include: a non-culpable shortcoming by Pfeifer, a non-culpable shortcoming of third parties or suppliers engaged by Pfeifer or other serious grounds on his part.
- In any case force majeure applies to Pfeifer in the following circumstances: war, revolt, mobilization, riots at home and abroad, government measures, strikes within the company of Pfeifer or a threat of these and other circumstances, disruption of existing exchange rates at the time the agreement was concluded, operational failures due to fire, burglary, sabotage, power failure, internet or telephone failures, natural phenomena, (natural) disasters and suchlike, as well as transport problems and delivery problems arisen from weather conditions, roadblocks, accidents, and import and export hindering measures.
- If force majeure occurs when only part of the agreement has been executed, the buyer shall be obliged to fulfill its obligations towards the User until that moment.
Article 16: Cancellation, suspension
- If the buyer wishes to cancel the agreement prior to or during the execution thereof, Pfeifer may require fixed damages from the buyer to cover all expenses incurred and damage suffered due to termination, including any lost profit. At the option of Pfeifer and dependent on all deliveries made, these damages shall amount to 20 to 100% of the agreed price.
- The buyer shall indemnify Pfeifer against any third-party claims resulting from the cancellation.
- Pfeifer may set off the damages due against all amounts already paid by the buyer and possible counterclaims from the buyer.
- In the event of suspension of the agreement upon request from the buyer, the payment for all executed work/delivered services will be immediately due and payable and Pfeifer will be permitted to charge the buyer for this. This applies to all costs incurred, costs ensuing from the suspension and/or hours that were reserved at the time of the suspension by Pfeifer before the suspension period.
- If costs ensue for Pfeifer from resuming the work/provision of service, these will be at the expense of the buyer. If the performance of the agreement cannot be resumed after the agreed suspension, Pfeifer will be permitted to terminate the agreement by means of a statement in writing to the buyer.
Article 17: Applicable law, jurisdiction
- The agreement concluded between the Parties is exclusively governed by Dutch law.
- The applicability of the Vienna Sales Convention (CISG) is explicitly excluded.
- Any disputes will be submitted to the competent court in the place where Pfeifer is established, although Pfeifer hall always retain the right to submit a dispute to the competent court in the place where the buyer is established.
- If the buyer is established outside the Netherlands, Pfeifer shall have the option to submit the dispute to the competent court in the country or the state where the buyer is established.
Date: August 11, 2016