Xcellent rider
Van de Vijzellaan 1 B
1834 AW Sint Pancras
Netherlands
hereinafter to be referred to as: user
Article 1 Definitions
1. In the present general terms and conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise.
User: the user of the general terms and conditions;
Consumer: an opposite party being a natural person who does not act in the course of a business or in the course of a profession;
Agreement: the agreement between the user and the consumer;
Consumer purchase: the agreement of sale concerning a movable thing concluded by a seller acting in the course of a profession or a business, and a consumer being a natural person, who does not act in the course of a profession or business.
Article 2 General
1. The present terms and conditions shall apply to each and every offer, tender and agreement between user and a consumer, to which user has declared the present terms and conditions applicable, insofar as parties have not explicitly deviated from the present terms and conditions in writing.
2. The present terms and conditions shall also apply to agreements with user, the execution of which calls for the services of third parties.
3. Possible deviations from the present general terms and conditions shall only be valid provided they have been explicitly agreed upon in writing. (Zie ook: Artikelsgewijze toelichting onder 1).
Article 3 Offers and Tenders
1. All offers and tenders shall be free of obligation and shall be made in one written form or other, unless user forgoes a written offer for practical, urgent or other reasons. The offer shall bear a date, or shall provide the possibility to be determined according to the date.
2. User shall only be bound by offers and tenders if the consumer accepts such, preferably in writing, within thirty days. The prices given in an offer shall include VAT, unless indicated otherwise.
3. It shall not be possible to bind user to his offers and tenders if the consumer should have understood in accordance with the requirements of reasonableness and fairness and according to the usual criteria in social and economic life that the offer or tender, or part thereof, obviously contains a mistake or an error in writing.
4. If the acceptance deviates (on secondary items) from the offer given, user shall not be bound by it. The agreement shall in such event not be concluded in accordance with said deviating acceptance, unless user indicates otherwise.
5. A compound quotation shall not oblige user to deliver part of the goods contained in the offer or tender against a corresponding part of the given quotation.
6. Offers and tenders shall not apply automatically to repeat orders. (Zie ook: Artikelsgewijze toelichting onder 2).
Article 4 Conclusion of the Agreement
1. The present agreement shall be concluded through the timely acceptance by the consumer of user's offer.
Article 5 Delivery
1. Unless agreed upon otherwise, delivery shall be made ex works/store/warehouse of user.
2. The consumer shall be held to take delivery of the purchased goods the moment said goods are at his disposal or handed over to him.
3. If the consumer refuses to take delivery of the purchased goods or fails to give the information or instructions necessary to their delivery, the goods destined for delivery shall be stored at the consumer's risk following notification of the consumer by user. In said event, the consumer shall owe all additional costs.
4. If the consumer and user agree upon service, the purchased goods shall be delivered on user's ……. free of charge, unless user communicated the conditions laid down to the consumer the moment the agreement was concluded. In the event of delivery, user shall reserve the right to invoice the service charge separately.
5. If delivery in stages has been agreed upon, user can suspend the execution of the parts belonging to a following stage until the consumer has approved in writing the results of the stage prior to it.
6. If, in the framework of the execution of the agreement, user requires data to be given by the consumer, the term of delivery shall commence after the consumer has provided user with said data.
7. If user has given a term of delivery, it shall only be indicative. A given term of delivery shall therefore never constitute a term to be observed on penalty of forfeiture of rights.
Article 6 Guarantee
1. User shall guarantee that the goods to be delivered shall meet the usual requirements and standards that can be set for and made upon them and that they shall be free of any defect whatsoever.
2. The guarantee mentioned under 1 shall equally apply if the goods to be delivered are destined for use abroad and if the consumer explicitly informed user of this use in writing the moment the agreement was entered into.
3. The guarantee mentioned under 1 shall be valid for a period of 6 months following delivery.
4. User shall give the consumer a written certificate of guarantee. In the absence thereof, the note of purchase shall serve as proof with respect to the guarantee.
5. If the good to be delivered does not comply with said guarantee, user shall, at his discretion, replace or see to the repair of the good, within a reasonable period of time following receipt thereof, or, if the good cannot be returned in reason, following notification of the defect by the consumer. In the event the good is replaced, the consumer shall already now undertake to return the replaced good to user and to transfer ownership of it to user.
6. The guarantee mentioned for this purpose shall not apply when the defect originated as the result of injudicious or improper use or when the consumer or third parties have introduced changes or tried to introduce changes to the good without user's consent in writing or if they have used it for purposes for which the good was not intended.
7. If the guarantee given by user concerns a good produced by a third party, the guarantee shall be limited to the guarantee given by the producer of the good. (Zie ook: Artikelsgewijze toelichting onder 4).
Article 7 Samples and Models
1. If user has shown or given the consumer a sample or model, the good shall correspond with it, unless the sample was given by way of indication.
Article 8 Retention of Title
1. User shall remain the full owner of the delivered good until the purchase price has been paid in full.
Article 9 Inspection & Complaints
1. The consumer shall be held to inspect the delivered goods (to have the delivered goods inspected) the moment of delivery (handing over), but in any case in as short a period of time as possible. In this respect, the consumer must examine whether the quality and the quantity of the delivered goods comply with what was agreed upon, or at least whether they meet the requirements applying to said goods in normal (business) transactions.
2. Possible visible shortcomings must be communicated in writing to user within three days following delivery and this together with the simultaneous submission of the certificate of guarantee and the defect good, unless the latter is impossible or unreasonably onerous.
3. The consumer must inform user of a non-visible defect within 8 days following its detection, but in any case before the guarantee period expires, observing the stipulations of the previous paragraph of the present article. When the guarantee period has expired, user shall be entitled to charge the consumer for all repair or replacement costs, including administration and shipment costs as well as call-out charges.
4. If in accordance with the previous paragraph, the consumer files his complaint in due time, he shall still be held to take delivery and effect payment of the goods purchased. If the consumer wishes to return defect goods, he shall do so following prior consent in writing from user. (Zie ook: Artikelsgewijze toelichting onder 5).
Article 10 Transfer of Risk
1. The risk of loss of, or damage to the products being the subject of the agreement, shall be transferred to the consumer the moment said products are judicially and/or actually delivered to the consumer and therefore fall into the power of the consumer or of third parties to be appointed by the consumer (Zie ook: Artikelsgewijze toelichting onder 6).
Article 11 Price Increase
1. If user agrees upon a certain price with the consumer the moment the agreement is concluded, user shall nevertheless be entitled to increase the price, even in the event that the initial price was not given subject to approval.
2. If a price increase takes place within the first three months following the conclusion of the agreement, the consumer can dissolve the agreement with a written statement regardless the percentage with which the price was increased.
3. If a price increase takes place within the first three months following the conclusion of the agreement, the consumer shall be entitled to dissolve the agreement if the price increase amounts to more than 5% (Zie ook: Artikelsgewijze toelichting onder 7).
Article 12 Payment
1. Unless agreed upon otherwise, payment must be made net cash upon delivery.
2. If payment is not made in cash, it must be effected within 14 days from the date of invoice, in a way to be indicated by user and in the currency in which the goods were invoiced.
3. Contestation of the amount of the invoices shall not suspend the fulfilment of the payment obligation.
4. After the expiry of 14 days from the date of invoice, the consumer shall be in default by operation of law; commencing on the moment the consumer is in default, he shall owe an interest of 1% per month on the amount due and payable, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply.
5. User's claims and the consumers obligations vis א vis user shall become due on demand in the event of bankruptcy, suspension of payment or curatorship.
6. User shall be entitled to have the payments made by the consumer go first of all to reduce the costs, subsequently to reduce the interest still due and finally to reduce the principal sum and the current interest. User shall have the right, without this leading user to be in default, to refuse an offer for payment, if the consumer designates a different sequence of attribution. User shall be entitled to refuse full payment of the principal sum, if said payment does not include the interest still due, the current interest and the costs. (Zie ook: Artikelsgewijze toelichting onder 8).
Article 13 Suspension and Dissolution
1. User shall be authorised to suspend the fulfilment of the obligations under the agreement or to dissolve the agreement, in the event that:
- consumer does not fulfil or does not fully fulfil his obligations resulting from the agreement
- after the agreement has been concluded, user learns of circumstances giving good ground to fear that the consumer will not fulfil his obligations. If good ground exists to fear that the consumer will only partially or improperly fulfil his obligations, suspension shall only be allowed in so far the shortcoming justifies such action.
- consumer was asked to furnish security to guarantee the fulfilment of his obligations resulting from the agreement when the contract was concluded and that this security is not provided or insufficient.
2. User shall furthermore be authorised to dissolve the agreement (have the agreement dissolved) if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be demanded in all reasonableness.
3. If the agreement is dissolved, the user's claims against the consumer shall be forthwith due and payable. If user suspends fulfilment of his obligations, he shall retain his rights under the law and the agreement.
4. User shall always retain the right to claim damages.
Article 14 Collection Charges
1. If the consumer fails to fulfil one or more of his obligations or defaults on one or more of them, then all reasonable costs incurred to have all extrajudicial costs and debts paid shall be borne by the consumer. The consumer shall in any case owe the collection charges in the event of a monetary claim. The collection charges shall be calculated in accordance with the collection rates advised by the Nederlandse Orde van Advocaten (Netherlands Bar) for collection procedures.
2. If user demonstrates that he has incurred higher expenses, which were necessary in reason, said expenses shall also qualify for reimbursement . (Zie ook: Artikelsgewijze toelichting onder 9).
Article 17 Liability
1. If the goods delivered by user are defective, user's liability vis א vis the consumer shall be limited to the arrangements made in the present terms and conditions under "Guarantee".
2. When the producer of a defective good is liable for consequential damage, the user's liability shall be limited to repairing or replacing the defective good, or to returning the purchase price.
3. Without prejudice to the above, user shall not be liable if the damage is attributable to intentional act or omission and / or gross negligence and / or imputable actions, or to injudicious or improper use on the part of the consumer.
4. The limitations of liability for direct damage contained in the present terms and conditions shall not apply if the damage is due to intentional act or omission or gross negligence on the part of user or his subordinates.
(Zie ook: Artikelsgewijze toelichting onder 10).
Article 18 Force Majeure
1. Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a legal action or generally accepted practice.
2. In addition to the provisions of the law and the judge-made law in this respect, force majeure shall in the present general terms and conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which user cannot have any influence but which prevents user from fulfilling the obligations. Industrial action at user's company shall also be understood to be a circumstance of force majeure.
3. User shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfilment of the obligation(s) impossible, commences after the point in time on which user should have fulfilled his obligation.
4. Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfilment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to dissolve the agreement without any obligation to pay the opposite party damages.
5. Insofar user has already parially fulfilled his obligations resulting from the agreement at the moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, user shall be entitled to separately invoice the part already fulfilled or still to be fulfilled respectively. The consumer shall be held to pay this invoice as if it were a separate agreement. (Zie ook: Artikelsgewijze toelichting onder 11).
Article 19 Disputes
1. The Court in user's place of business shall have exclusive jurisdiction to hear actions, unless the District Court is the competent Court. User shall nevertheless be entitled to submit the dispute to the Court deemed competent by the law. (Zie ook: Artikelsgewijze toelichting onder 12).
Article 20 Applicable Law
1. Dutch law shall apply to each and every agreement between user and the consumer. The Vienna Sales Convention shall be explicitly excluded.
