General Terms and Conditions of Sale and Delivery of Bell Dredging Pumps B.V., registered at (1731 LR) Winkel, Winkelerzand 1A, registered with the Chamber of Commerce under number 56775245
Article 1 General
- These General Terms and Conditions apply to all legal relationships in which Bell Dredging Pumps acts as the (intended) seller and/or producer and/or supplier of goods and/or services, in which a third party acts
as Purchaser and/or customer. Said third party will be referred to herein below as ‘Purchaser’.
- Bell Dredging Pumps expressly rejects the applicability of any General Terms to which Purchaser may in any way refer.
Article 2 Offer and conclusion of Agreement
- All offers are free of engagement, unless stated otherwise in the offer. Bell Dredging Pumps may reconsider offers free of engagement within two business days of receipt of the acceptance of said offer.
- The Agreement is not concluded until after Bell Dredging Pumps sends Purchaser a written confirmation of the Agreement.
- In case Bell Dredging Pumps commences the performance of services in the absence of an accepted order and/or order confirmation, said services are considered to take place on the basis of the order sent and subject to these
General Terms and Conditions of Sale and Delivery.
Article 3 Payment
- Unless expressly agreed otherwise Purchaser is obliged to pay 50% of the price agreed on placement of the order. Purchaser is obliged to pay the remaining 50 % of the price agreed on delivery, i.e. prior to the transport of the goods.
Except after the approval of Bell Dredging Pumps Purchaser does not have the right to reduce these invoice amounts by any amounts on account of any claims brought by Purchaser, or to suspend its payment obligations.
- In case of delay in payment – but in any case 14 days of invoice date – Purchaser will be in default without any notice of default being required, and will be obliged to pay an interest on the unpaid part of the amount agreed, which interest will be 1% (one percent) per month or more, if the legal (commercial) interest is more, to be calculated from the day at which payment has become due. For this calculation a part of a month is considered a full month. After
expiry of each year the amount on which the interest on account of late payment is calculated, will be increased by the interest due for that year.
- Any extrajudicial and judicial costs in connection with the collection of an unpaid invoice (such as reminder charges, costs of a solicitor or bailiff engaged), will be borne by Purchaser. The extrajudicial costs are at least 15 % of the invoice amount with a minimum of € 160,00 exclusive of ‘btw’ [Dutch VAT] for each invoice.
- Failing payment in a timely manner Bell Dredging Pumps has the right to rescind any Agreements concluded with Purchaser or, if desired, to suspend their performance until said payment has taken place. Further, Bell Dredging Pumps has the right to demand security from Purchaser before continuing further performance of the Agreements or concluding new Agreements.
- In case Bell Dredging Pumps performs services at a location specified by Purchaser, and as long as Purchaser has not fully met its obligations under the Agreement with Bell Dredging Pumps, Bell Dredging Pumps will at all times have the right to actually post and/or fence the (construction) site, costs to be borne by Purchaser, and to refuse, deny and/or prevent Purchaser and/or third parties access to the construction site and any work located on said site.
Article 4 Delivery, performance, delivery times, risk and completion
- Delivery time is understood to mean the time in which the performance should be made as specified in the Agreement. Delivery times are approximate, unless a final delivery time has been agreed.
- In case of non-observance of the presumed delivery time Bell Dredging Pumps will be given a term for subsequent performance. This term is equal to the original, presumed delivery time with a maximum of two months.
- In case of non-observance of this subsequent term or the presumed or final delivery time agreed Bell Dredging Pumps will not be liable for consequential damage, however named, as referred to in article 10.2.
- Unless agreed otherwise delivery will take place ex works.
- Purchaser is liable for differences in quantities of units in the offer/order and the dimensions of the design, whether they have been measured or advised by Bell Dredging Pumps or otherwise. Bell Dredging Pumps at all times has the right to deliver in accordance with the customary tolerances with respect to the quantities and dimensions agreed for the goods to be delivered. The costs of return shipments of goods to Bell Dredging Pumps for whatever reason shall be borne by Purchaser.
- The risk in goods passes at the time of delivery, also in case the title is transferred at a different point in time.
- Bell Dredging Pumps has the right to demand from Purchaser adequate security for the performance of Purchaser’s payment obligations, before delivery or before continuing delivery or performance of the Agreement. Until Purchaser has provided adequate security for payment, Bell Dredging Pumps has the right to suspend delivery or completion. Purchaser is liable for any damage caused to Bell Dredging Pumps as a result of this delayed delivery or completion.
- In case Bell Dredging Pumps is to install the materials supplied at or for Purchaser, Purchaser is obliged to pay any additional services or waiting time in case the performance of said services cannot commence at the time agreed or cannot be performed during an uninterrupted period of time due to circumstances for which Bell Dredging Pumps is not liable.
- Upon request of Bell Dredging Pumps Purchaser is obliged to lend its cooperation to completion of the services performed by Bell Dredging Pumps. In case Purchaser is not present during completion Purchaser is obliged to inspect said services in a timely manner. If Purchaser fails to inspect said services in a timely manner, the services are considered completed and accepted.
Article 5 Reservation of title
- As long as Purchaser has not paid to Dredging Pumps:
- any amounts due to Bell Dredging Pumps by Purchaser for any goods supplied or to be supplied under the Agreement concerned, including any services performed or to be performed under said Agreement ;
- any claims on account of a failure on the part of Purchaser in the performance of any Agreement with Bell Dredging Pumps;
- any amounts which Purchaser is required to pay to Bell Dredging Pumps for any other reasons; Bell Dredging Pumps reserves the title in the goods supplied or to be supplied by Bell Dredging Pumps.
- In case Purchaser creates a new good (also) using the goods referred to in paragraph 1, said good will be a good that is created by and for Bell Dredging Pumps, and Purchaser will hold said good on behalf of Bell Dredging Pumps which is the owner, until all obligations referred to in paragraph 1 have been complied with.
- Bell Dredging Pumps will at all times have the right to demand from Purchaser security in the shape of a non – possessory pledge of the movable good which has been created using (also) the goods supplied by Bell Dredging Pumps, or in the shape of a mortgage of the immovable property in, to and/or at which the goods supplied by Bell Dredging Pumps have been processed or installed.
- In case Bell Dredging Pumps has the title in any good in accordance with paragraphs 1 and/or 2, or if any security rights as referred to in paragraph 3 have been established on said good, Purchaser may only use said good as part of its normal business operations. However, without the written approval of Bell Dredging Pumps, Purchaser is not authorized to alienate and or encumber said good in such a case.
- In case Purchaser is in default with the performance of one or more obligations towards Bell Dredging Pumps, Bell Dredging Pumps has the right to take back (or cause to take back) the goods that are the property of Bell Dredging Pumps from the place where they are located, costs to be borne by Purchaser. For that purpose Purchaser now and for henceforth gives Bell Dredging Pumps an irrevocable authorization to access (or give access) to any locations and/or sites used by Purchaser.
Article 6 Rescission
- Bell Dredging Pumps has the right to rescind the Agreement without the intervention of a court of law in case Purchaser is declared bankrupt, applies for provisional suspension of payment, or loses the power of disposal of its
assets or part thereof as a result of attachment, appointment of an administrator or otherwise, unless the administrator or trustee in bankruptcy acknowledges the obligations resulting from this Agreement as debts of the insolvency assets.
- As a result of rescission the claims of Bell Dredging Pumps against Purchaser shall become due and payable immediately. Purchaser is liable for the damage caused to Bell Dredging Pumps as a result of that.
- In case proper performance of Agreement or part thereof by Bell Dredging Pumps has become temporarily or permanently impossible due to Force Majeure, Bell Dredging Pumps has the right to rescind the Agreement.
- Force Majeure on the part of Bell Dredging Pumps is deemed to include any circumstances that are not attributable to Bell Dredging Pumps, such as: acts or omissions, also in case of gross negligence, of auxiliary staff, also including subordinates/employees engaged by Bell Dredging Pumps for the performance of the Agreement, unsuitability of goods used by Bell Dredging Pumps for the performance of the Agreement, strike, lockout, sickness of its personnel, import, export and transit restrictions, transport problems, non-observance of obligations on the part of auxiliary staff or suppliers, disruption of production, natural and/or nuclear catastrophes and (threat of) war.
Article 7 Non-acceptance
- In case goods to be supplied by Bell Dredging Pumps are not accepted by or on behalf of Purchaser on delivery, any damage and costs caused by said non-acceptance shall be borne by Purchaser.
- In case goods to be supplied by Bell Dredging Pumps cannot be delivered at the time agreed due to circumstances for which cannot be attributed to Bell Dredging Pumps, Bell Dredging Pumps has the right to invoice said goods
subject to the customary terms of payment. In that case Bell Dredging Pumps may also charge to Purchaser any storage and any further handling costs.
- In case Bell Dredging Pumps stores the goods in its own facility said storage costs are calculated in accordance with the rates charged by professional warehousing companies.
Article 8 Complaints
- Purchaser is under the obligation to immediately and conscientiously inspect (or cause to inspect) the goods supplied/completed.
- Purchaser is obliged to sign a delivery/completion note immediately on delivery/completion.
- In case defects (regarding quality, quantities, inconsistencies in dimensions) are found on delivery/completion of goods, said defects must be stated in the delivery/completion note by Purchaser and Bell Dredging Pumps. In addition to that Bell Dredging Pumps must be notified of this by Purchaser in writing within five business days after delivery/completion, failing which Purchaser is deemed to have received the goods and/or accepted their completion without defects.
- Non-visible defects which could not reasonably be detected within the term specified in paragraph 8.3, must be reported to Bell Dredging Pumps in writing within fourteen days from the time at which the defect has been detected but in any case within thirty days after delivery/completion.
- In case no complaints have been made within the terms referred to in articles 8.3 and 8.4, complaints will not be looked into, and Purchaser shall have no further claims against Bell Dredging Pumps on account of those complaints.
- In case Bell Dredging Pumps acknowledges a complaint, Bell Dredging Pumps will at its own discretion, either pay a compensation in an amount not exceeding the invoice value of the goods concerned, or repair or replace the goods concerned, in which case any travel, accommodation, transport and transport related expenses as well as employee wages incurred by Bell Dredging Pumps will be borne by Purchaser. Bell Dredging Pumps is not obliged to pay any further damages and compensate any indirect damage.
Article 9 Warranty
- Bell Dredging Pumps guarantees the proper performance of its products during six months after delivery. In deviation of the previous sentence used parts supplied by third parties are covered by the same warranty as the warranty provided to Bell Dredging Pumps by said third parties. The warranty does not cover normal wear and tear.
- The warranty applies subject to the condition that the products of Bell Dredging Pumps:
- are correctly maintained in a timely manner, in accordance with the instructions by competent service
technicians trained for this purpose, who have fully read and understand the manual;
- are correctly operated by competent personnel trained for that purpose who have fully read and understand the
- are used in a competent manner only and exclusively for the purposes described in the product manual.
- carries its type plate at all times. Removal of the type plate will render the warranty void.
- Any malfunction or defect of or in the products of Bell Dredging Pumps must be reported to Bell Dredging Pumps in writing as soon as possible, but in any case within the warranty term. In order to prevent damage to the products of Bell Dredging Pumps they must be switched off in case of malfunction or defect, until – in consultation with Bell Dredging Pumps – the approval has been given to resume operation of the products of Bell Dredging Pumps.
- The warranty is cancelled:
- after expiry of the term(s) referred to in article 9.1;
- in case the obligations referred to in article 9.2 or 9.3 have not been fully complied with;
- in case of modification of the products of Bell Dredging Pumps without the approval of Bell Dredging Pumps.
- Article 8 of these General Terms and Conditions also applies to the warranty provided.
- In case products, parts or materials supplied or prescribed by or on behalf of the Purchaser to Bell Dredging Pumps, the warranty does not cover those parts or materials and the resulting malfunction.
- Article 9.6 also applies to products produced by Bell Dredging Pumps based on drawings or models supplied or prescribed by or on behalf of the Purchaser.
Article 10 Rights of third parties and intellectual property rights
- In case Bell Dredging Pumps uses designs, drawings or other instructions provided by or on behalf of Purchaser for the performance of an order, Purchaser guarantees the accuracy and completeness of those and guarantees that this use does not violate any rights, including intellectual property rights, of any third parties.
- Purchaser indemnifies Bell Dredging Pumps from and against any claims or demands from any third parties resulting in any way from or caused by the use of the information referred to in the previous article 9.1.
- Any examples, samples, offers, drawings, schematics, designs, models, brands, lists of materials and such provided to Purchaser by or on behalf of Bell Dredging Pumps will remain the property of Bell Dredging Pumps. Purchaser acknowledges the intellectual property rights of Bell Dredging Pumps in the above information and shall not infringe or allow any infringements on those rights. Without prior, written approval of Bell Dredging Pumps the above information may not be reproduced for any purposes other than use in the company of Purchaser, and Purchaser is not authorized to show or make available or disclose in any other way said information to any third parties for any other purposes than the purpose for which it was provided to Purchaser by Bell Dredging Pumps.
Article 11 Damages
- Except in case of intent or gross negligence on the part of Bell Dredging Pumps or its executive officers, Bell Dredging Pumps is not liable for damage. Purchaser cannot derive any rights from advice and information obtained from Bell Dredging Pumps in case they do not directly concern the order.
- Bell Dredging Pumps is never liable for consequential damage or indirect damage such as loss of turnover, loss of profit, loss of opportunities, damage caused by business interruptions or delay in the performance of obligations of Purchaser towards any third parties.
- The damage for which Bell Dredging Pumps may be liable under the Agreement is at all times limited to the amount of the payment actually made by the insurer(s) of Bell Dredging Pumps due to or in connection with the damage concerned. In case Bell Dredging Pumps is not insured against the damage caused to Purchaser the liability of Bell Dredging Pumps is at all times limited to the amount of the price to be paid to Bell Dredging Pumps by Purchaser under the Agreement, the above with a maximum of € 25.000,-.
Article 12 Dispute and applicable law
- Agreements entered into with Bell Dredging Pumps are governed by Dutch law exclusively. The applicability of the Vienna Sales Convention is expressly excluded.
- In case a dispute arises between Bell Dredging Pumps and Purchaser, which they are not able to settle by mutual consultation, said dispute shall be submitted to the jurisdiction of the court in the North-Holland district exclusively, unless Bell Dredging Pumps opts to submit the dispute to the jurisdiction of a different court of law that is competent by virtue of the law.