Standard Terms of Delivery of McTrade Graphic Arts Machinery.
Applicability of the standard terms and conditions used by any other party is explicitly dismissed.
The present standard terms shall apply to all cases in which McTrade Graphic Arts Machinery acts as a (potential) seller and/or supplier of goods and/or services.
Any transactions in which McTrade Graphic Arts Machinery does not act in his own name but as an agent of a manufacturer, importer or other supplier shall not be governed by the present terms but by the principal’s standard terms.
Any disputes arising between McTrade Graphic Arts Machinery and the other party shall be exclusively adjudicated by the competent court in McTrade Graphic Arts Machinery’s place of business, unless:
a. any mandatory provisions prescribe otherwise; or
b. McTrade Graphic Arts Machinery, as plaintiff or petitioner, chooses for the competent court in the place of business or domicile of the other party.
All legal relationships between McTrade Graphic Arts Machinery and the other party shall be governed by the Dutch law.
Offers and prices.
Any offers made by McTrade Graphic Arts Machinery shall be free of engagement.
Any samples and models shall be provided only for reference purposes.
Any changes in labour costs, cost prices of materials or raw materials and/or exchange rates which relate to the agreed consideration and which hold good for more than three months from the concluding of a contract shall entitle McTrade Graphic Arts Machinery to pass on such changes, without any further loading.
Assembly and repairs after delivery.
Unless explicitly agreed otherwise in writing and in advance, McTrade Graphic Arts Machinery, when making available any fitters or other staff, shall always charge the other party with all hours of working and travelling, as well as with any additional costs, according to the rates used by McTrade Graphic Arts Machinery.
The other party is obliged to make available to the fitter, at no cost, any required labour (porters, cleaners, helpers, etc.), as well as any required hoisting, transport and other equipment and any cleaning materials, for purposes of bringing in and assembling the delivered good, unless agreed otherwise. If the other party fails to fulfil this obligation, McTrade Graphic Arts Machinery shall be entitled to pass on to the other party the costs of any auxiliary persons called in.
All possible construction works, such as earthwork and brickwork, the laying of foundations, as well as the laying of pipes for gas, electricity, water or compressed air and the installing of driving gear, shall be performed by and for the account of the other party. McTrade Graphic Arts Machinery does not accept any liability for any costs thereof.
Any additional costs resulting from the fact that a fitter cannot start performing his activities immediately upon arrival or must interrupt his activities because of the preparatory work not being ready or for any reason whatsoever for which McTrade Graphic Arts Machinery cannot be held responsible can be borne in full by the other party.
If the assembly cannot take place during normal business hours, any additional costs resulting therefrom can also be borne by the other party.
McTrade Graphic Arts Machinery shall not accept any liability for the electrical equipment and/or installation other than that which the producer thereof has laid down in his terms of delivery.
Any special safety measures and other provisions, whether or not required to be taken under government regulations, shall be fully for the other party’s account, in so far as not otherwise agreed in advance, and shall be taken and/or installed only on express instructions.
McTrade Graphic Arts Machinery shall not accept any liability whatsoever for any damage resulting, either directly or indirectly, from setting up or assembling the delivered good on a foundation that is unfit for that purpose, nor for any damage arising, either directly or indirectly, from unprofessional or injudicious operation or from the use of improper materials. McTrade Graphic Arts Machinery shall never be liable for any trading or consequential loss, nor for any loss of profit incurred as a result of the way in which the assembly work is carried out.
The other party shall be obliged to indemnify McTrade Graphic Arts Machinery and McTrade Graphic Arts Machinery’s staff against any action taken by any third party in that respect.
Any orders to McTrade Graphic Arts Machinery for performing any repair, overhaul and maintenance work on any delivered goods, as well as for rendering any services or giving any advice in respect of any delivered goods, shall be subject to the condition that any statement of the period needed for the activities as well as any quotation shall always be free of engagement.
Terms of payment.
Each invoice sent by McTrade Graphic Arts Machinery must be paid by the other party within such period and in such way as stated on the relevant invoice.
Payment must be made at the office of McTrade Graphic Arts Machinery, effectively in Dutch currency (Euro), unless a different currency has been agreed on, without any deduction, discount and/or suspension.
In case of overdue payment of any invoice, all payment obligations of the other party shall become due and payable forthwith, whether or not McTrade Graphic Arts Machinery has invoiced the other party in respect thereof.
In case of overdue payment of any invoice, the other party shall have to pay interest on the invoiced amount increased, from invoice date, with the statutory interest rate.
McTrade Graphic Arts Machinery is entitled to charge any extrajudicial collection costs to the other party according to the collection rates used by the Dutch Bar.
Each payment by the other party shall firstly serve as settlement of any extrajudicial collection costs payable by the other party and of any court costs and shall next be set off against any interest payable by the other party, and next against the oldest outstanding claims, irrespective of any instructions to the contrary given by the other party.
The other party can raise objections against any invoice only within the term of payment, but not later than 14 days from the invoice date.
McTrade Graphic Arts Machinery is entitled to charge the other party any costs (both present and future costs) which relate to the contract as a result of government measures in the Netherlands or abroad, unless mandatory law provides otherwise.
McTrade Graphic Arts Machinery is entitled to charge all import duties, turnover tax and, in general, all taxes and duties to the other party’s account, unless the contract explicitly provides otherwise in respect of certain existing taxes and duties. In the latter case, McTrade Graphic Arts Machinery shall nevertheless be entitled to charge the other party separately with any subsequent increase in such taxes and duties.
Retention of title and other securities.
McTrade Graphic Arts Machinery shall retain the title to any goods delivered or to be delivered by him, until the following has been settled to him in full:
a. the consideration due by the other party for all goods delivered or to be delivered and all activities performed or to be performed under the contract;
b. all claims resulting from the other party failing to comply with such contract.
The other party shall not be allowed to invoke any right of retention for custody charges, nor to set off such charges against any considerations it is due.
If the other party creates a new good from or partly from the goods referred to in paragraph 1, this shall be deemed to be a good that McTrade Graphic Arts Machinery makes for himself and the other party shall keep such good for McTrade Graphic Arts Machinery as owner, until all obligations referred to in the first paragraph of the present article have been fulfilled.
As long as the title to any good belongs to McTrade Graphic Arts Machinery, the other party shall be able to dispose thereof only within the scope of its ordinary business operations.
If the other party fails to fulfil the obligations referred to in the first paragraph of the present article, McTrade Graphic Arts Machinery shall be entitled to take back the goods belonging to him from the place where these are. To that end, the other party authorizes McTrade Graphic Arts Machinery, now for then, to enter the premises being used by the other party. All costs relating to the taking back of the goods shall be borne by the other party.
As security for all that which McTrade Graphic Arts Machinery claims or will claim from the other party at any time, the other party hereby pledges to McTrade Graphic Arts Machinery who accepts this pledge, all goods of which the other party will become the (co-)owner as a result of specification, accession or confusion with the goods delivered and/or to be delivered by McTrade Graphic Arts Machinery.
If McTrade Graphic Arts Machinery has reasonable cause to fear that the other party will fail to fulfil his obligations and, in any case, if the other party is declared bankrupt, files a petition for suspension of payments, offers any composition to its creditors, becomes a ward of court, closes down or liquidates its business or the branch thereof to which the ordered goods relate, if an attachment is made on the purchased or other goods at the other party’s expense, if the purchased goods are damaged or if the other party fails to fulfil any obligation assumed toward McTrade Graphic Arts Machinery or if it assumes any obligations elsewhere which seriously endanger the fulfilment of any accepted obligations toward McTrade Graphic Arts Machinery, then McTrade Graphic Arts Machinery shall have the right, without prejudice to any other rights conferred to him by law and without any warning being required, to take back the relevant goods, without this leading to dissolution of the contract, without McTrade Graphic Arts Machinery being obliged to refund any payments already received, and with the right to claim compensation from the other party on account of decrease in value of the goods or for any other reason.
If McTrade Graphic Arts Machinery has reasonable cause to fear that the other party will not fulfil its obligations promptly, the other party shall be obliged, on McTrade Graphic Arts Machinery’s first demand, to establish satisfactory security forthwith in such form as demanded by McTrade Graphic Arts Machinery, and, if required, to supplement such security, for the fulfilment of all of its obligations. As long as the other party fails to meet such demand, McTrade Graphic Arts Machinery shall be entitled to suspend the fulfilment of his obligations.
In the cases referred to in the present article, McTrade Graphic Arts Machinery shall be allowed to take the goods back; the costs of disassembly, transport and otherwise, as well as the costs of legal assistance, shall be borne by the other party.
If the value of the goods taken back by McTrade Graphic Arts Machinery must be determined, the valuation shall be carried out by an expert to be designated by McTrade Graphic Arts Machinery. Such valuation shall take into account the price at which, on the day of retrieval, McTrade Graphic Arts Machinery can acquire new goods of the same nature as the retrieved goods; taking the price referred to as a basis, the valuation shall also take into account the decrease in value resulting from use, damage, aging and the decrease in saleability of the retrieved goods, for whatever reason.
To determine the decrease in saleability, the valuation shall also take into account the costs of an overall technical inspection to be incurred by McTrade Graphic Arts Machinery in the event of a possible resale.
In respect of any new and used machines – as for the latter machines, however, only in so far as such machines have been sold by McTrade Graphic Arts Machinery as overhauled machines and McTrade Graphic Arts Machinery has explicitly given a warranty thereon – McTrade Graphic Arts Machinery gives a warranty on the proper working thereof for three months from delivery, as referred before, provided always that McTrade Graphic Arts Machinery’s warranty or warranties shall never go beyond or deviate from the warranty or warranties given to him by the producers or by other supplier(s) from whom he acquired the sold good. If the machine is operated for more than 8 hours per working day on average, the warranty period shall be shortened proportionally.
McTrade Graphic Arts Machinery shall be obliged to replace or repair any broken or faulty parts, in so far as the producer or McTrade Graphic Arts Machinery who manufactured such parts enables McTrade Graphic Arts Machinery to do so. This obligation shall exist only within such term and under such reservation as stated in the preceding paragraph, and without prejudice to the provisions stated below.
Any defects in the proper working must be notified to McTrade Graphic Arts Machinery in writing within 14 days from detection, and in any case not later than 14 days from expiry of the warranty period.
In the event of being challenged, any claims on account of McTrade Graphic Arts Machinery’s guarantee obligations should be enforced at law within 12 months from expiry of the term referred to in the first paragraph, on penalty of lapse of rights.
McTrade Graphic Arts Machinery shall never be bound by any warranty, if and as long as the other party has not fulfilled its obligations, especially its payment obligations.
Any machines dispatched in disassembled condition are given a warranty, only if such machines are assembled under the supervision of McTrade Graphic Arts Machinery.
If the other party makes any repair or alteration of whatever nature without the explicit permission of McTrade Graphic Arts Machinery, and this shall explicitly include any rearrangement or reassembly following a removal or relocation, other than made by or on behalf of McTrade Graphic Arts Machinery, any claim under the warranty and any right of complaint shall lapse.
The warranty shall never relate to any defect in the proper working caused by normal wear and tear nor to any defect in the proper working caused by injudicious, incorrect or careless handling, overloading, unsuitable equipment, faulty engineering structures, unfit building ground or chemical, electrical, electronic or electrotechnical influences, including a temporary or prolonged voltage fluctuation in the electricity grid.
Except for the case mentioned in paragraph 1 of the present article, used machines shall never be given a warranty.
Any temporary inability to dispose of any sold good in connection with the necessity of making repairs shall never oblige McTrade Graphic Arts Machinery to pay any damages, nor shall it suspend the existing payment obligations in any way whatsoever.
The provisions concerning warranty shall apply by analogy to any replacement parts delivered by McTrade Graphic Arts Machinery.
If McTrade Graphic Arts Machinery fails to fulfil his obligation to replace or repair some good within a reasonable term, even after having been warned to do so, his liability shall be limited to the reasonable costs that the other party had to incur to have the repair made or, if the repair would cost more than half of the original purchase price, to have the replacement carried out by a third party. In the case or repair, the costs payable therefor shall never exceed half of the original purchase price. In the case of replacement, McTrade Graphic Arts Machinery shall never have to pay more than the original purchase price, and in that case the delivered good must also be returned to McTrade Graphic Arts Machinery in the original state or – if any repairs or alterations were made by or on behalf of McTrade Graphic Arts Machinery or with the latter’s explicit permission or pursuant to the first sentence of the present paragraph – in such state as it was in immediately after such repairs or alterations.
Unless a warranty has been provided – in which case the provisions of the warranty shall apply – McTrade Graphic Arts Machinery shall be obliged to handle any complaints, only if these have been submitted in writing.
Goods cannot be returned to McTrade Graphic Arts Machinery without his prior written permission; if this permission is given, the relevant goods shall be returned carriage paid, unless McTrade Graphic Arts Machinery accepts the complaint.
Furthermore, any complaint should be submitted as soon as possible, but not later than 14 days from delivery or – in the case of invisible defects – within 14 days after such defects could reasonably have been detected. The other party shall be obliged to inspect any delivered goods immediately following delivery.
Any claim and defence based on facts justifying the assertion that any delivered good should fall short of the contract shall be barred by lapse of 1 year from delivery.
If any delivered good falls short of the contract, McTrade Graphic Arts Machinery shall be bound, at his option, only to deliver that which is lacking, to repair the delivered good or to replace the delivered good.
McTrade Graphic Arts Machinery shall not be liable for any damage which is not attributable to gross negligence or intention on the part of McTrade Graphic Arts Machinery or which has come into being as a result of circumstances that are not at the risk of McTrade Graphic Arts Machinery.
McTrade Graphic Arts Machinery shall not bear the risk of any damage caused by gross negligence or intention on the part of any persons called in by McTrade Graphic Arts Machinery for the execution of the contract, the unsuitability of any goods used by McTrade Graphic Arts Machinery for the execution of the contract, when any third party exercises one or more of its rights toward the other party relating to a failure of the other party to meet a contract concluded between the other party and such third party, nor shall it bear the risk of strikes, lockouts, illness, import, export and/or transit prohibitions, transport problems, non-fulfilment of obligations by suppliers, interruption of operations, natural and/or nuclear disasters, war, threat of war and/or civil commotions.
The other party shall indemnify McTrade Graphic Arts Machinery from and against any compensation, cost, damage and interests which McTrade Graphic Arts Machinery might incur, arising from any claims filed by third parties on account of any defect in any good delivered by McTrade Graphic Arts Machinery to the other party.