Conditions of Use
General conditions of sale, supply, repair and overhaul of gearboxes, spares, other related materials and goods by Harry Martens of Limmen, De Wieken 22, 1906 DC LIMMEN. THE NETHERLANDS
The sale and supply of gearboxes, spares and other related materials and goods, hereafter named “goods”, by H.W.G.Martens h.o.d.n. [Handelsonderneming] Harry Martens of Limmen, hereafter named “HML”, as well as carrying out overhauls, repairs, renovation and maintenance work, each individually or collectively called hereafter “activities”, “repairs”, “overhaul” of goods by Harry Martens of Limmen will be carried out only under the following conditions. Deviation from these conditions may only be allowed after written permission has been received from Harry Martens of Limmen. HML is not bound by the conditions laid down by purchasers or customers.
2. Application of these conditions
• These conditions apply to everything that is offered and every contract between the user and the purchaser whereby the user has declared the application of the conditions, insofar as these conditions have not been expressly changed in writing by the parties.
• The present conditions are apply equally in all contracts with the user and include situations where third parties may be involved.
3. Estimates and quotations issued by HML with regard to the sale or repair of goods and where no time limit has been stipulated, will be valid for 30 days from date of issue. Notwithstanding this, an estimate can be withdrawn at any time, as long as HML has not been made aware of a buyer’s or customer’s declaration that they want to accept the offer. If HML states an amount at any time for the supply goods, to carry out repairs or overhauls, and difference from that stated amount of approximately 10% arises for the purchaser or customer, the purchaser shall have no grounds to make any claim for breach of contract or otherwise. Prices quoted by HML are unless otherwise stated, based on the work being carried out during normal business hours and are exclusive of transportation, packing, delivery costs, VAT and other governmental taxes.
4. Price changes, or changes in law, taxation and interest rates will be charged on to the purchaser in the fixed and not-fixed price contracts Changes in manufacturers’ or importers’ prices and changes in exchanges rates will be charged on to purchasers in the not-fixed price contracts.
Goods are sold and supplied “ex-factory”. One way or another this does not alter the definition at item 6. After maintenance/repair/overhaul of gearboxes, spares or goods, the delivery is “ex factory”. The goods that are sold remain the responsibility of the seller up until the moment of actual delivery. Goods sent back for exchange only become the property of the seller only when the actual delivery to him has taken place. Until that time, the goods to be exchanged remain the responsibility of the purchaser as well as any costs that may arise. Delivered, repaired and overhauled goods are transported at the cost and the risk of the customer.
6. Delivery times
Delivery times are given in good faith, but remain unbinding. Exceeding what has already been agreed, and for whatever reason, cannot lead to claims for damages or the cancellation of a contract
7. Cancellation of the contract
A contract between HML and the purchaser can be cancelled immediately in the following situations:
If after closing a contract with HML, circumstances come to the attention of HML that allow good reason to believe that the purchaser would not stand by his obligations if HML had on originally closing the contract requested the buyer to give assurance of compliance, and this assurance had not been forthcoming or was unsuitable despite final demand. In certain cases HML will be allowed to suspend the contract being carried out and to begin its cancellation, one way or another the rights of HML are not reduced allowing HML to pursue a claim for damages if circumstances present themselves concerning individuals and /or materials with which HML was carrying out the contract, are, or committed to being such that the continuation of the contract is impossible or heavily and/or disproportionately expensive so that keeping to the original contract is no longer possible and therefore HML will be allowed to cancel the contract.
8. Reservation of title
The goods sold by HML will remain their property until the complete payment has been made to HML including any interest or any other costs that may have been incurred by the purchaser.
All payments should be made with deductions or debt-equalisation to the account of HML or to an account indicated by HML. Payment should take place within 14 days after invoice date unless otherwise agreed. The burden of proof of such other agreements lies with the purchaser or customer. By exceeding the maximum terms of payment the seller has the right, without further notice, to calculate interest over the outstanding amount at a interest rate of 1.5% per month maximum or part thereof, without reducing the future rights of HML.
10. Claims and limitations of time
The purchaser should immediately examine the goods supplied by HML when they are delivered. Any claims should be made in writing to HML no later than 14 days following delivery, stating accurately the nature of the claim. After this period has elapsed, and without communication from the purchaser, the seller will assume that that the goods have been received in good condition. In the case of a justifiable claim, HML will at their own discretion, carry out repairs free of charge or replace the faulty goods and/or spare parts provided that the goods and/or spare parts were sent to HML carriage paid or will take back the faulty goods and/or spare parts and repay the purchaser the purchase price he has already paid thereby annulling the original contract. Every claim made by the purchaser stating that HML has not carried out its obligations properly, will become invalid after a duration of 6 months from the date of delivery of the goods purchased.
The gearboxes sold by HML carry a 3 month warranty against manufacturing faults from the date of delivery. The warranty is only valid for defects in the goods purchased and that which the purchaser can demonstrate arose from the consequences of normal and judicious use at a level of normal technical, business trained persons and under normal conditions and for the purpose for which they were designed.
Claims should be made within 7 days. The obligations of the warranty include at the discretion of HML, to carry out repairs free of charge or replace the faulty goods and/or spare parts, provided that the goods and/or spare parts were sent to HML carriage paid; or taking back the faulty goods and/or spare parts and repaying the purchaser the purchase price he has already paid, thereby annulling the original contract. The guarantee obligations become invalid if the purchaser or third party repairs or attempts to repair the goods and/of spares thereof, without the prior consent of HML for the purposes that it is to repair the defect. The warranty explicitly EXCLUDES used gearwheels, shafts, connecting sleeves, etc.
12. Maintenance, repair and overhaul
Claims with respect to maintenance, repairs and overhauls (hereafter called repairs) are difficult on the grounds of the definition at item 10. Overhauled objects are as far as practically possible and taking into account availability, overhauled using original spare parts, or certainly spare parts that are as like the original as possible as adjudged by HML. In the event of a justified claim HML will, at their own discretion will offer either are re-repair, or if not a re-repair a repayment of the amount already paid by the customer, which in this last case will lead to the cancellation of the contract.
The liability of HML is explicitly limited to the fulfilment of the above-described warranty obligations on the basis of a justified claim, the liability of HML is limited to the invoice value of the transaction, or at least that part of the invoice where the liability is relevant. Every claim from the buyer/customer which is as a direct or indirect result of damage resulting in trading or consequential losses caused by whichever reason, including the negligence of a member of the personnel of HML with exception nevertheless of intentional or gross negligence of the directors of HML personally, as well as every claim from the buyer/purchaser to the cancellation or dissolution of the contract. The buyer/customer shall safeguard HML against all claims from third parties as a result of action or negligence by HML or its personnel and/or others, who are connected with the repair and/or manufacture and/or overhaul of goods and/or the carrying out of the sales contract.
14. Resale and export
The purchaser will ensure that all necessary export documentation issued by the government of the Netherlands shall be respected in the instance of selling on or reselling goods or any part thereof, as well as whenever the goods or any part thereof are taken over the national boundaries of the country when the original delivery from HML took place. The buyer shall also ensure that third parties, who are in possession of goods or any part thereof, will abide by the export regulations in force in the Netherlands. Export by third parties, removes HML from its warranty obligations
15. Collection charges
In the event of the buyer or customer not fulfilling one or more of the obligations to HML in its contract with HML, all court and out-of-court settlements will be met by the buyer or customer.
16. Appropriateness: Disputes
Dutch law applies to these conditions and to all offers, orders, contracts, supplies, repairs, overhauls and services. All disputes (meaning even if one party is in dispute) which could arise as a result of offers, orders, contracts, supplies, repairs, overhauls and services will be presented to a judge in Alkmaar except for the right of HML to put these disputes before any competent national or foreign judge.