General terms and conditions of delivery of private company with limited liability
“MEGAMI B.V.”, established in Schijndel (MEGAMI)
Article 1. General
The terms and conditions of delivery and payment given below shall apply to any offer
submitted and agreements entered by MEGAMI.
Any offer made, either by MEGAMI or on their behalf, shall be without commitment with respect to business, prices, amounts as well as delivery period. Depiction, drawings, and statements of sizes and/or weights in offers are merely indications. MEGAMI shall not be liable for deviations. The sending of price lists by MEGAMI shall not be considered offers and shall not oblige MEGAMI to deliver. Orders, agreements, and arrangements shall only be binding for MEGAMI after their written confirmation.
Article 2. Prices
Unless otherwise stated in offers or order confirmations, any price stated by MEGAMI is exclusive of VAT and includes packaging. If cost price increasing alterations, such as changes of product raw material prices, transport rates, tax rates, wages, salaries, national insurance contributions, etc., occur at home or abroad after MEGAMI’s order confirmation, MEGAMI shall be entitled to pass the cost price increasing factors on to the other party.
Article 3. Delivery period
The delivery periods stated by MEGAMI shall at all times be considered target dates, and shall never apply as firm dates. In the case of exceeding of the target period, if any, MEGAMI shall not be liable for either any direct or consequential damage. The other party shall indemnify MEGAMI against any claims of third parties in the case of untimely delivery by MEGAMI.
Exceeding the stated delivery period shall not entitle the other party to cancel the order or to refuse to accept goods or refuse to pay for products.
In the case of force majeure and the inability to deliver (on time), or if delivery (on time) cannot reasonably be required from MEGAMI, MEGAMI shall have the option to postpone the delivery, or dissolve the agreement. In both situations, MEGAMI shall not be liable for the damage suffered directly or indirectly by the other party as a result of this.
Article 4. Dispatch
Delivery shall take place ex factory/storehouse MEGAMI, unless otherwise agreed. If delivery takes place on the basis of Incoterms, the Incoterms which apply at the time of entering the agreement shall apply, in addition to the present conditions. If that which is determined in the Incoterms deviates from what is included in the present conditions, then that which is determined in these conditions shall prevail over what is determined in the Incoterms.
The other party shall be obliged to purchase the goods upon delivery by MEGAMI, or when they have them delivered, or when the goods are made available to the other party.
If the other party refuses the purchase, or is in default concerning the provision of information or instructions necessary for the delivery, MEGAMI shall be entitled to store the goods at the other party’s expense and risk.
If the Incoterms clause agreed upon entrusts the care of dispatch of the goods to the other party, and MEGAMI takes care of them in their name at their request, both the manner of dispatch and dispatch route shall be at MEGAMI’s option, whereby MEGAMI shall not be liable for harmful events of whatever kind, that take place during or in relation with the dispatch, unless there is gross negligence or intention on the part of MEGAMI, gross negligence or intention of employees and/or auxiliary persons not included.
In the case of return consignments for whatever reason, the costs incurred shall be – unless otherwise agreed - at the other party’s expense, while the goods are also transported at the other party’s risk. The returned consignment shall be completed only after the actual return of goods.
Article 5. Creditworthiness/Suspension/Dissolution
MEGAMI shall enter any agreement under the suspensive condition that the other party is sufficiently creditworthy. The other party shall declare to assist in the investigation to be carried out by/in the name of MEGAMI into the other party’s creditworthiness.
During the execution of the agreement, MEGAMI shall at all times be entitled to postpone the performance of their obligations until the other party, at MEGAMI’s request and to MEGAMI’s satisfaction, has provided security with respect to the fulfilment of their obligations to the agreement. The other party’s refusal to provide the requested security shall entitle MEGAMI to dissolve the agreement without judicial intervention, and to take back what was already delivered, without prejudice to MEGAMI’s right to compensation of expenses and loss of profits.
MEGAMI shall also be entitled to postpone any delivery until payment obligations are fulfilled, or to dissolve the agreement extrajudicially with immediate effect.
Without prejudice to the other rights belonging to MEGAMI, the agreement shall be understood to be dissolved if the other party is in a state of involuntary liquidation or has been granted suspension of payment, or if a (legal) debt rescheduling arrangement is declared applicable to the other party, or if their company is closed down.
Article 6. Payment
Subject to deviating arrangements, payments without discounts or set-off shall take place as stated on MEGAMI’s offer or confirmation of instruction. The other party shall not be entitled to defer their payment obligation, including if only part of the goods sold are delivered.
The other party shall be in default by operation of law by the mere expiry of the payment obligation agreed upon. In the case of default, any of MEGAMI’s debts shall become forthwith due and payable, without prejudice to the other rights belonging to MEGAMI. As from the day of default, the other party shall be obliged to pay an interest at 1% per month; from that moment, any costs incurred by MEGAMI, both extrajudicial and judicial, shall be chargeable to the other party up to the amount of the actual costs.
MEGAMI shall retain the right to not deliver before payment is received, where appropriate.
Article 7. Title retention
Any product delivered by MEGAMI remains MEGAMI’s property until any claims MEGAMI has with the other party, pursuant to the agreement, have been satisfied. MEGAMI shall at all times be entitled to take back the products supplied subject to retention of title if the other party fails to fulfil their obligations strictly. The other party shall be obliged to render co-operation in order to enable MEGAMI to take back their products supplied subject to retention of title.
The other party shall keep the products of which they have not become the owner as a result of the abovementioned title retention, apart from products that have already passed into their ownership.
As long as the products delivered have not yet passed into the other party’s ownership, they shall not process, dispose of, burden the products, or bring them outside their actual control.
In the case of MEGAMI’s repossession of the goods as a result of the other party’s failure to strictly fulfil their obligations toward MEGAMI, the agreement between the parties shall be dissolved as per the date of the repossession of the goods, without prejudice to MEGAMI’s right to claim reimbursement of the costs, interest, and lost profit.
Article 8. Claims
Claims concerning deliveries shall be submitted to MEGAMI in writing no less than two days after receiving the products and before a start is made with processing or treatment. After this period has expired, MEGAMI shall no longer be obliged to deal with them. If a complaint is acknowledged, MEGAMI shall have the option to replace the products delivered, or to credit the invoice amount without being obliged to replace the products.
Article 9. Exoneration, force majeure
In the case of force majeure, MEGAMI shall be entitled to entirely or partly cancel the order concerned. In the case of such cancellation, MEGAMI shall not be liable for any possible damage to the other party resulting from this. Furthermore, MEGAMI shall not be liable for damages the other party suffers as a result of MEGAMI’s non-execution or incorrect execution of the agreement, unless gross negligence or intention can be imputed to MEGAMI. Cases of force majeure include at least the following: war, danger of war, riots, terrorism, fire, factory breakdown, strikes, lockouts, exclusions, traffic disruption, loss or damage during transport, illness of personnel, a subcontractor’s failing to (promptly) fulfil their obligations, and any other circumstance beyond MEGAMI’s direct control which prevents execution of the agreement.
Except for rules with respect to public order which generally apply and mandatory legal provisions concerning product liability, MEGAMI shall not be liable to pay damages of whatever nature, direct or indirect, including trading loss to movable and immovable properties or to persons, both at the other party or a third party. With due observance of that which is stated elsewhere in this article, MEGAMI is by no means liable for any damage caused by improper use of the delivery.
MEGAMI’s liability is (also) judged on the grounds of MEGAMI’s consequential loss insurance.
Subject to the provisions set elsewhere, damage caused to the other party (trading loss) by MEGAMI shall at all times be limited to the net invoice amount of that which is delivered. Payment to the applying guarantee/complaint obligations and/or payment of the damage determined by MEGAMI and/or MEGAMI’s insurer(s) shall be considered the only and sole compensation.
After the delivery of goods, MEGAMI shall not be responsible for any damage by whatever cause to the other party or to third parties in person or goods.
For the rest, the other party shall expressly and entirely indemnify MEGAMI against any claims from third parties for damages against MEGAMI relating to goods delivered to the other party by MEGAMI and/or for these services provided.
Article 10. Competent court, applicable law
Any disputes relating to, or arising from, the agreement(s) entered into with MEGAMI or offers submitted by them, shall be exclusively taken to the competent court in the district of ‘s-Hertogenbosch, unless any imperative provision in force in the Netherlands expressly provides otherwise.
These general terms and conditions and the agreements they apply to shall be governed by Dutch law.
The United Nations convention concerning international purchase agreements regarding movable property, realised on 11 April 1980 in Vienna, and in operation in the Netherlands from 01 January 1992, shall not apply. The same applies to any other future regulation concerning the purchase of movable goods, of which the operation can be excluded by parties.
In the event of disputes concerning the interpretation of these general terms and conditions, the original Dutch text shall take precedence.