These General Terms and Conditions of Sale, hereinafter referred to as: “General Terms”, will apply to and form an integrated part of all offers, quotations, proposals and project propositions, hereinafter referred to as: “Offers” from Vencomatic Group B.V. or any of its affiliated companies, hereinafter referred to as: “VMG”, of any order confirmation, hereinafter referred to as ‘Order Confirmation’, and of any agreements, including agreements under negotiation, hereinafter referred to as: “Agreements”, concerning the sale by VMG and the purchase by Customer, hereinafter referred to as: “Customer”, of any equipment, objects, machines, installations, works, parts, hereinafter also referred to as: “Products”, and / or services, hereinafter referred to as: “Services”, unless agreed differently explicitly and in writing with VMG.
A reference in this Agreement to the singular includes the plural and vice versa.
The applicability of any terms and conditions of Customer is hereby explicitly excluded.
In the event that VMG concludes Agreements with Customer more than once, these General Terms will apply to all subsequent Agreements, irrespective of whether or not same have been explicitly declared applicable.
VMG will be entitled to update and/or amend the General Terms regularly and by and as of the moment of notifying the Customer of such update or amendment or by sending Customer the updated or amended General Terms, these revised General Terms will apply to all (future) dealings between VMG and Customer.
If one or more provisions in the General Terms are null and void or are nullified, the remaining provisions of the General Terms will continue to apply.
All offers made by VMG can be revoked at any time, unless a term for acceptance is stated in the Offer.
Offers will not apply to follow-up orders.
An Agreement will only be considered to be concluded at the time and to the extent to which VMG has explicitly agreed to it by means of a specified Order Confirmation or other similar document containing all the material terms and conditions of the Agreement
The agreed price is the price or rate quoted by VMG in the Offer, Agreement or the Order Confirmation. Unless otherwise agreed upon in writing, prices will be stated in euros, exclusive of VAT and other government levies, charges, taxes, storage, shipment, packaging, transport, installation, commissioning or training charges, costs of repair, maintenance, and are based on Ex Works (Incoterms 2000) delivery.
Unless the prices have been indicated as firm by VMG, VMG is entitled to increase the prices of the Products and Services still to be delivered if the cost price determining factors have been subject to an increase. These factors include but are not limited to: raw and auxiliary materials, energy, products obtained by VMG from third parties, wages, salaries, social security contributions, governmental charges, freight costs and insurance premiums. VMG shall notify Customer of such increase.
VMG’s prices may be adjusted for inflation.
Payment must be effected by Customer as indicated by VMG in the Offer, Agreement or the Order Confirmation. If the parties have not agreed on any delivery term, payment must be effected prior to the delivery/performance. Objections to the amounts stated in invoices will not suspend the payment obligation.
Unless otherwise agreed upon in writing, payment shall be made in full and without any deduction or set off under whatever title. VMG shall be entitled to offset amounts due by VMG to Customer against amounts due by Customer to VMG or any of VMG’s affiliated companies.
As from the due date of an invoice and without a notification of default being required, Customer shall pay interest on any outstanding instalment of 1.5% per month or part of a month, unless the statutory interest is higher, in which case the highest interest will apply. Customer shall also pay any judicial and extrajudicial costs to be incurred for collection. The latter costs are put at 15% of the relevant amount with a minimum amount of Euro 1.000,00. The above applies without prejudice to VMG’s right to defer any outstanding obligation on its part, if Customer’s payment of one or more instalments is overdue.
If the quoted price is not in Euro, the quoted price is based on the spot and forward exchange rate at the date of the final quotation of the stated currency against the Euro. If between the date of the final quotation and the date of the final agreement the stated currency has devaluated with more than 2%, the quoted prices in the stated currency will be adjusted for this level of change.
In the event that the Customer is wound up, is declared bankrupt or its bankruptcy is filed for, dies, is admitted to statutory composition pursuant to the Dutch Natural Persons Composition Act (“Wet schuldsanering natuurlijke personen”), is placed under guardianship, attachment is levied against it or is granted a suspension of payments, provisional or otherwise, VMG’s claims vis-à-vis the Customer will become due and payable forthwith.
Payments will first be used to cover the costs, then to cover any interest due and finally to cover the principal sum and the accrued interest.
Delivery and ownership
Unless otherwise agreed in writing, delivery shall be “Ex Works (EXW) VMG Eersel, The Netherlands, or EXW such other (production) location as to be agreed by the parties.
The Customer must take delivery or possession of the Products immediately after they have become available. In the event that the Products are available to the Customer or are offered to the Customer for delivery but are not taken possession of, for whatever reason, delivery will be effected by means of a written notification from VMG.
In the event that the Customer refuses to take delivery of the Products or has neglected to provide information or instructions that are necessary for the delivery, VMG will be entitled to store the Products at the Customer’s expense and risk. VMG’s claims vis-à-vis the Customer, including any transport and storage costs, will in that case become immediately due and payable. In the event that the Customer does not take delivery of the Products within two months, VMG will be entitled to sell the Products to another Customer. The damage incurred by VMG due to such resale of the Products will be borne by the Customer.
VMG will be entitled to make partial deliveries and to invoice each delivery.
In the event that VMG has stated a delivery period, same must be deemed to be an indication. A stated delivery date is therefore never a deadline.
The delivery time shall not start as long as the Agreement has not been concluded, all formalities that might be required for the performance of the Agreement have not yet been fulfilled, not all information to be provided by Customer and not all required documents have been made available to VMG, and the down-payment, if agreed upon, has not yet been received by VMG. Customer will be liable for the consequences of any postponement of the delivery.
Unless agreed to otherwise in writing, the delivery has been performed if the Products to be delivered are ready for transport and VMG has communicated the readiness for transport.
If delivery is delayed on the request of Customer or falls within the responsibility of Customer e.g. due to his choice of delivery according to the Incoterms other than ex works or if he violates any other cooperation obligation, VMG is not liable for such delay and is entitled to claim for compensation for the resulting expenditure and damage incurred to VMG regardless of VMG’s other rights. Payment terms shall not be changed because of such delay.
In the event that a stated term is exceeded, the Customer must give VMG written notice of default and grant it a reasonable period of time to comply as yet. If the parties have not agreed on any term, VMG will inform the Customer in good time of when delivery or performance will be effected.
If payment by Customer is to be made by letter of credit, hereinafter referred to as: “LC”, the delivery period shall begin to run on the date on which the bank has advised VMG that the LC has been opened in accordance with VMG’s requirements, unless explicitly agreed otherwise in writing. If Customer must make an advance payment or give security for the payment of the purchase price or if the Customer must furnish information and/or materials or parts required for the execution of the Agreement, then the agreed delivery period shall not begin to run until such payment has been received in full, the required security has been given or the information and/or materials or parts have been furnished in full, respectively.
Delivery, inspection, complaints
The Customer will be obliged to inspect the purchased Products or the Services performed, as the case may be, or have others do so, at the time of delivery or transfer. The Customer must notify VMG of any complaints regarding the Products delivered in writing within seven days. The notice of default must specify the defect in as much detail as possible, so that VMG is able to respond in an appropriate manner.
Any damage to the Products must be mentioned in the packing list/consignment note and be reported to VMG in writing.
After receiving such notification, VMG will deal with the complaint forthwith.
The following situations will under no circumstances justify the lodging of a complaint:
deviations in colour, weight, specifications and measurements which do not affect the functionalities;
any typesetting, printer’s or typographical errors in the catalogue, on the website or in the offer.
In the event that a complaint is well-founded, VMG will repair or replace the delivered Products, unless this has become demonstrably pointless to the Customer by that time. If this is the case, the Customer must communicate this to VMG by means of a written notification. VMG will, however, in all cases only be liable within the limits of the provisions laid down in the Articles ‘Warranty’ and ‘Liability’.
Passage of risk
The risk of loss of or damage to the Products that are the subject of the Agreement will pass to the Customer at the time at which these items are legally and/or actually delivered to the Customer and therefore come under the control of the Customer or are placed under the control of a third party designated by the Customer, or at the time when the items are ready for delivery, after the Customer has been informed thereof in writing.
In the event that VMG is to provide for the transport of the Products that are the subject of the Agreement, this will be fully at the Customer’s expense and risk. Unless the parties have agreed on provisions to the contrary, the Customer will be responsible for taking out proper insurance.
Unless provisions to the contrary have been agreed upon, payment for export transactions must be effected by means of an irrevocable letter of credit confirmed by a Dutch bank. All costs involved will be borne by the Customer.
The Customer guarantees that, in the event the import of the Products in the country of destination requires an import certificate or licence, such an import certificate or licence has been or will have been obtained before shipment, in the absence of which the Customer will be liable for any ensuing damage.
In the event that work is exported to another country, the Customer will be obliged to arrange all permits and facilities required.
Models / specification of the Products
Any information in whatever form provided by VMG relating to the Products and their use, such as dimensions, capacities, performance, prices, colours contained in catalogues, prospectuses, price lists, circulars, advertisements, presentations, drawings, models or illustrations and other data shall not be considered as terms of an Agreement unless explicitly agreed in an Agreement.
VMG is authorised to modify the specifications or the design of Products ordered and to deliver Products in conformity with such modified specifications or design, provided that the Products are designed for the same purpose as the Products ordered and are not essentially different. VMG is also authorised to modify the specifications or design if, due to a lack of materials or any other similar cause, it is unable to meet the specifications agreed with Customer. In these cases VMG will have duly fulfilled its obligation to deliver conforming Products by delivering the Products thus modified.
In case the Agreement includes assembly; works
Customer ensures that all permits, dispensations and other decisions of authorities required for the performance of the works, or which VMG indicate as being required, are timely obtained.
Unless the contrary has been explicitly agreed in writing, in the price will not be included the following costs of:
groundwork, chiselling and hammering work, foundation work, metal work, concrete work, carpentry and other additional work of whatever nature;
additional help called in to move those parts which cannot be moved by the manpower made available by VMG, as well as the costs of the hoisting and lifting machines and tackles used for that purpose;
the connection of systems to electricity grids, gas mains or water mains, as well as the connection of waste pipes;
the supply and assembly of switch gear, safety systems and electrical wiring for the electric motors and other electrical equipment to be supplied by VMG;
the supply of water, electricity, etc. required for testing the start-up of operations;
work necessary to return parts of the systems which have become soiled or damaged during the work to a proper state of repair, and
lodging and travelling.
Customer ensures that VMG can fulfil the performance of the works undisruptedly within the agreed terms and that VMG will have at its disposal in due time:
the building where the works are to be performed at a temperature between 5° and 32° centigrade, swept clean;
sufficient facilities for supply, storage and removal of materials and equipment;
connection facilities for electrical equipment, lighting, gas, fuel, compressed air, water, grease, etc., required for assembly and repairs; and
such lighting facilities that the assembly works can also be performed under artificial lighting.
The Customer must establish whether the building is suitable and structurally sound enough for the system’s assembly, including any suspension. Any damage ensuing from unsuitability will be borne by the Customer.
VMG will be entitled to post its advertising sign on the site during the performance of the works.
In the event that the Customer has reserved the right to supply certain materials and/or to perform certain parts of the works, the Customer will be liable for any non-timely supply or performance in that connection.
The Customer shall ensure that all data and measurements which VMG indicates are necessary or which the Customer should reasonably understand are necessary for the performance of the Agreement are provided to VMG timely.
If the information and permits necessary for the performance of the Agreement as referred to in clause 10.1 and 10.7 are not provided to VMG in time, VMG will be entitled to suspend performance of the Agreement and/or to charge the Customer the additional costs arising from the delay in accordance with its usual rates.
In the event that the commencement or the progress of the work is delayed due to factors for which the Customer is responsible, VMG will be compensated by the Customer for any damage and costs ensuing from the delay.
In the event that works are performed by VMG or by third parties engaged by VMG at the Customer’s premises or at a location designated by the Customer in the context of the Agreement, the Customer will provide any facilities reasonably required by VMG’s employees or by those of the relevant third party, free of charge.
The Customer must take safety measures during the performance of the works . The Customer will be obliged to comply with the statutory regulations in doing so.
The Customer must comply with governmental regulations and recommendations issued by authorities, in default of which the Customer will be liable for any ensuing damage.
If necessary, to be determined by VMG, sale of the Products will include providing operations instructions. VMG will also determine the scope and the method of providing these instructions and will not accept any liability in that connection.
The Customer will be responsible for the proper removal of rubble, waste and hazardous substances in accordance with any legal requirements.
The Customer shall indemnify VMG against any claims of third parties that may incur damage relating to the Agreement’s performance and which is attributable to the Customer.
The work will be deemed to have been delivered when the Products supplied has been made available to the Customer assembled and in working order or has been taken into use by the Customer.
Prior to the final delivery of the work assembled, the Customer will be given the opportunity to inspect and test the work or the system, as the case may be. If the Customer does not make use of this option, the parties will assume that VMG has completed the work or effected delivery properly.
VMG will be entitled to test the work assembled at all times. The Customer must under all circumstances render its cooperation during the testing procedure by supplying all items and animals required for the testing, in default of which VMG will be deemed to have effected proper delivery and the agreed warranty will not be able to be invoked.
A party will not be obliged to fulfil any obligation if it is prevented from doing so due to a circumstance which cannot be attributed to gross negligence or an intentional act or omission on its part, nor will it be for its account pursuant to the law, a juristic act or generally prevailing opinion.
In these General Terms, the term ‘force majeure’ will be taken to mean – in addition to its definition in law and legal precedent – all external causes, foreseen or unforeseen, which VMG cannot influence, but as a result of which VMG is unable to perform its obligations. This will include strikes at VMG’s company, computer and power failures, fire, theft, traffic congestion, natural disasters, such as bad weather circumstances, animal diseases, export impediments, government measures, and delays in the supply of Products/materials by suppliers.
To the extent that VMG has partly performed its obligations arising from the Agreement or is able to partly perform same at the time that the situation of force majeure first occurs, and that part performed or to be performed has independent value, VMG will be entitled to charge the Customer for the part performed or to be performed separately.
Suspension and dissolution
VMG will be entitled to suspend performance of its obligations or to dissolve the Agreement if:
the Customer fails to perform the obligations ensuing
from the Agreement or fails to perform them in good time or in full or in the event of force majeure;
circumstances of which VMG has learned following the
Agreement’s conclusion provide good reason for fearing
that the Customer will not perform its obligations, or will
not perform such in good time or in full; in the event that
there is good reason to fear that the Customer will only
perform its obligations in part or will not perform such
properly, suspension will only be permitted to the extent
that such is justified by the relevant failure;
the Customer was requested upon or after the Agreement’s conclusion to provide security for the performance of its obligations ensuing from same Agreement and such security has not been provided or is insufficient; or
the Customer dies or its company is discontinued or transferred.
In addition, VMG will be entitled to dissolve the Agreement or have it dissolved if circumstances arise of such a nature that performance of the Agreement is impossible or can no longer be required pursuant to standards of fairness and reasonableness, or if any other circumstances arise of such a nature that continued unamended maintenance of the Agreement can no longer reasonably be expected.
In the event that the Agreement is dissolved, VMG’s claims vis-à-vis the Customer will become immediately due and payable. In the event that VMG suspends the performance of its obligations, it will retain its rights and claims pursuant to the law and the Agreement.
VMG at all times reserves the right to claim damages.
If Customer cancels the Agreement Customer will be liable for and hold VMG free from all costs VMG will have and (direct and indirect) damages VMG will suffer consequently. In case the Customer cancels less than 10 weeks before the scheduled delivery Customer will pay in any case 100% of the agreed price (including Dutch VAT) as cancellation costs, without prejudice to VMG’s right to full damages, including loss of profit.
The Products manufactured and registered by VMG meet the technical requirements and specifications stated by VMG.
VMG will issue its Customer with a warranty with respect to the operation and the Products manufactured by it which will be valid up to one year following delivery and up to three months following delivery for electrical equipment, unless the parties have agreed on different period of time in writing.
This warranty may only be invoked in the event that the Customer reports the defect to VMG within 48 hours of discovering same defect, so as to offer VMG the opportunity to respond adequately.
An invocation of this warranty will lapse if the Customer does not offer VMG the opportunity to perform work on the basis of the warranty.
The warranty must be agreed in writing.
This warranty will be limited to: manufacturing defects, provided that Customer proves that such defects have occurred within this period due to faulty design or poor workmanship on the part of VMG, or faulty Products supplied by VMG, and will therefore not include damage as a result of: improper, negligent or inexpert use, accidents, misapplication, storage damages, negligence or modifications to the Products or its components and maintenance by Customer or by a third party or as a result of normal wear and tear of parts; VMG may either choose to repair or replace the Products or parts of it, that are considered to be defect.
If on-site repair proves to be the best suited method according to VMG, Customer shall enable VMG to carry out such repair and put at VMG’s disposal free of charge, in time and at the right place all necessary and usual auxiliary labour, auxiliary machinery, auxiliary materials, consumables and utilities (oils, greases, cleaning and other small material, gas, water, electricity, lighting etc), the costs arising from non or untimely fulfilment of these provisions shall be for Customer’s account.
Any production data weights, dimensions, prices, performance ratings and other data or statistics regarding the Products, any representations or descriptions regarding the Products are only an indication and are not guaranteed, and will not create any warranty or other obligation.
This warranty will lapse:
in the event of resale of the Products supplied, unless the parties have explicitly agreed otherwise;
in the event that adaptations of, alterations of, or changes or repairs to the Products supplied are effected by a third party without VMG's approval;
in the event of overloading, strokes of lightning, overpressure or incorrect placement or installation;
in the event that the Products supplied are exposed to chemical substances or electrolysis;
in the event of improper safety measures or incorrect connection to the network;
in the event that the Products supplied are not used and maintained in accordance with the operating instructions, and
in the event that the Products supplied are not stored in such a way that they is protected against all kinds of weather conditions.
As part of its performance of the warranty, VMG will replace parts free of charge. The performance of the works and the travelling and accommodation expenses will be borne by the Customer.
Parts replaced will accrue to VMG and must be returned to VMG.
In the event of replacement, VMG may charge the Customer a fair fee for the benefit derived from the replacement by the Customer. This fee will at least equal the replacement value.
As long as the Customer fails to perform its obligations ensuing from Agreements concluded between the parties, it cannot invoke this warranty.
Liability and indemnification
If VMG is liable, this liability will be limited to the warranty obligations as described in these general terms and to the provisions laid down in this article.
Under no circumstances will VMG be liable for:
deviations, damage, faults and defects that have gone unnoticed in Products approved by the Customer;
deviations, damage, faults and defects resulting from incorrect assembly or use by the Customer or third parties;
indirect damage, including consequential damage, loss of profit, loss of turnover or savings or any damage due to an interruption of business operations, or damages inflicted upon third parties, unless and to the extent to be established according to applicable mandatory provisions of law regarding the liability for death or personal injuries or damage to personal property, caused by defective products;
damage resulting from raw materials that have been declared unfit because the environmental legislation has changed since the Agreement’s conclusion;
wrongful, improper or unprofessional use of the Products supplied by the Customer or third parties.
damage incurred because the Products supplied are not suitable for the purpose intended by Customer for them; or
damage as a consequence of use that is not in accordance with the operating instructions.
Should VMG be liable for damage, this liability will be limited to the amount paid by its insurer, or to the amount of the invoice, if the latter is lower than the first, or to the amount of that part of the invoice to which the liability pertains.
VMG will under no circumstances be liable for damage ensuing from any advice given. Advice will always be given on the basis of the facts and circumstances known to VMG and in mutual consultation, in which respect VMG will always use the Customer’s intention as a guideline and starting point. Advice given by one of VMG’s sale personnel or mechanics can under no circumstances lead to any form of damages.
VMG will not be liable for damage, of whatever nature, resulting from the fact that VMG has operated on the basis of incorrect and/or incomplete data or measurements or incorrect and/or incomplete information regarding the presence of polluted or hazardous materials or substances provided by the Customer.
Any claims for damages must be submitted to VMG in writing immediately after the damage has occurred.
In the event that building materials or auxiliary materials made available or prescribed by the Customer are defective, the Customer will be liable for any damage incurred as a consequence.
The consequences of compliance with any statutory regulations or government decisions that may take effect after the date of the offer will be for the Customer’s account.
The limitations of liability for damage laid down in these General Terms will not apply if the damage is attributable to an intentional act or omission or gross negligence on VMG ’s part or on that of its employees.
Customer shall indemnify VMG against any claims filed by third parties concerning damage sustained by them as a result of the application of designs, advice or other services rendered by VMG to Customer or caused by defective Products supplied, designed or processed either by VMG, or by personnel made available by VMG, unless VMG is liable for these damages pursuant to article 16, and Customer has paid this damage to the injured party.
The indemnities given by VMG under this clause 15 are exclusive and in lieu of all other indemnities or warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose.
The Customer will be obliged to indemnify VMG against claims relating to damage that cannot be attributed to VMG.
Intellectual property and copyrights
All intellectual property rights including copy rights in respect of the Products, including possible delivered software or electronic controls, and those regarding the trade name, trademark, drawings, know how etc. remain vested in VMG. Unless authorised by VMG in writing, specifying allowed purposes, Customer has no right to use or copy intellectual property of VMG nor the right to copy any Products in whole or partly of VMG. Customer shall withhold from any infringement of VMG’s intellectual property rights.
All designs, sketches, calculations, drawings, models and brochures provided by VMG, are exclusively intended for use by the Customer, and may not be multiplied, resold, adapted, changed, copied, reproduced, made public or brought to the attention of third parties by the Customer without VMG’s prior permission, unless the contrary ensues from the nature of the Products sold or the documents provided. Customer shall return the afore mentioned information to VMG immediately after a first request of VMG thereto.
VMG shall become sole proprietor of and take out sole patent rights to any special know-how developed during implementation of an Agreement, unless otherwise stipulated in the Agreement.
In the event of a violation of this Article, the Customer will forfeit to VMG an immediately due and payable penalty of EUR 100.000,00 and EUR 1.000,00 for each day that the violation continues, without prejudice to the right of VMG of full compensation.
Retention of title
All Products supplied by VMG, irrespective of whether they have been processed or assembled, will remain VMG’s property until the Customer has fulfilled all its obligations arising from all Agreements concluded with VMG, insofar as this is admissible according to law in the area in which the delivery object is located. If under such law reservation of property rights is not possible, though it permits VMG to reserve other rights to the Products, VMG can execute all rights of this kind. Customer is obliged to collaborate with the measures VMG implement to protect VMG’s reservation of proprietary rights or the rights taking the place of the same, to the Products.
An undisclosed pledge will be established on the Products supplied, which will lapse once the Customer has performed all its obligations ensuing from all Agreements concluded with VMG.
The Customer undertakes to insure and keep insured the Products supplied under retention of title against fire, explosion and water damage and against theft, and to allow inspection of the insurance policy in question at the VMG’s first request. Any damages paid by the insurer will replace the aforementioned Products and will accrue to VMG.
The Customer will not be entitled to sell, pledge or encumber in any other way any Products covered by the retention of title.
If third parties levy attachment on Products delivered subject to the retention of title or wish to create rights in same or enforce rights to same, the Customer will be obliged to inform VMG of that circumstance as soon as possible.
Should VMG wish to exercise its proprietary rights as referred to in this Article, the Customer hereby grants its unconditional and irrevocable permission to VMG or any third parties to be designated by VMG to enter those places where VMG’s Products are located and to recover those Products.
Customer acknowledges that all technical, commercial and financial information that VMG reveals to Customer concerns Confidential information regarding VMG. Customer is not allowed to reveal any of this Confidential information to third parties or to use it for any other purpose parties have agreed upon within the framework of the concerning Agreement.
In case of discrepancy between the terms of the Agreement and the terms as laid down in the Offer and/or General Terms of Sale, the terms of the Agreement prevail.
The English-language version of these General Terms of Sale is the only authentic version.
In the event of any discrepancy between the Dutch text and a translation, the English text will prevail.
Neither the rights nor the obligations of Customer under the Agreement may be assigned, transferred or otherwise disposed of, in whole or partial, without prior written consent of VMG. VMG will be entitled to assign all or part of its rights and obligations under the Agreement. Any references to VMG will then include the concerning assignee.
Applicable law and dispute resolution
All Agreements between VMG and the Customer and any disputes arising from it, will be governed by Dutch law. Applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded.
Any disputes arising from the Agreement concluded between the parties will be settled in the first instance by the competent Court in ‘s-Hertogenbosch, the Netherlands. Nevertheless, VMG will be entitled to submit any disputes to the competent court according to the law or to an arbitration court.