GENERAL TERMS AND CONDITIONS OF THE PRIVATE COMPANY WITH LIMITED LIABILITY BOWLTECH INTERNATIONAL HOLDING B.V., with registered office and principal place of business at Made, municipality of Drimmelen, the Netherlands, AND AFFILIATED COMPANIES.
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The following terms and definitions apply in these General Terms and Conditions:
“The User”: the user of this General Terms and Conditions, being the private company with limited liability Bowltech International Holding B.V. and affiliated companies;
“The Other Party”: the legal entity that has accepted the validity of these General Terms and Conditions by signing a document, or by some other means.
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Where reference is made in these General Terms and Conditions to “goods”, these are understood to mean both the items to be delivered by the User, and the services to be performed by the User.
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Where reference is made in these General Terms and Conditions, or in the agreement concluded between the User and the Other Party, to an internationally defined stipulation, such a stipulation must be understood as defined by the Incoterms 2000 published by the International Chamber of Commerce.
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Unless otherwise agreed in writing, these General Terms and Conditions will apply to all agreements between the User and the Other Party.
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The provisions of the preceding paragraph will likewise apply to any (further or supplementary) agreements between the User and the Other Party in which the applicability of these “General Terms and Conditions” is not referred to (explicitly) in more detail.
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Any quotation, of whatever nature, will be without obligation for the User unless it contains a period for acceptance and is based on delivery under normal circumstances and in normal working hours.
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If a no-obligation quotation is accepted, the User may retract the offer within two days of receipt of the acceptance.
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Any illustrations, catalogues, drawings and any other information supplied by the User is/are subject to change without prior notice, and will not bind the User in any way.
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Drawings, illustrations, catalogues and other information supplied by the User will always remain the User’s property.
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An agreement will only be effected once the order placed by the Other Party has been confirmed in writing by the User.
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Any arrangement with or promise made by the User’s representatives or subordinates will not be binding upon the User unless confirmed in writing by the User.
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For the scope and nature of the agreement, the User’s order confirmation will be binding. In the absence of an order confirmation, the User’s quotation will be binding.
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The agreement covers only the delivery of those goods that have been expressly agreed.
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The User will not be bound by any deviation from or addition to the scope and nature of the agreement as described in the User’s order confirmation or, in the absence thereof, in the User’s quotation, unless expressly agreed between the Parties in writing, in which case the User may adapt the agreed price, means of delivery and delivery period, and other sections of the agreement, to the agreed changes. If such an addition or deviation results in a longer delivery period, the User will not be liable for any fine, damage or loss due to the deadline being exceeded.
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Unless expressly agreed otherwise in writing between the User and the Other Party, the prices stated by the User are based on delivery ex works, warehouse, or other storage depot, exclusive of turnover tax, import duties and any other taxes, levies or duties, and exclusive of the costs of loading and unloading, transportation and insurance. All of these costs will be borne by the Other Party. The User will not recognize any exemption from any tax or levy, of whatever nature, unless the Other Party submits to the User an authentic certificate of exemption from the tax or levy in question.
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The price or prices stated on the quotation are based on the cost-determining factors at that particular time.
If, during the period between the date of the quotation and that of the delivery, there is a change in the prices of raw materials, other materials, equipment, power, wages, social security, taxes and/or other cost-determining factors, including the prices charged to the User by suppliers, the User will be entitled to change the quoted and/or agreed prices accordingly.
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Unless otherwise agreed in writing, the User’s prices are given in euros. The exchange rate risk must be borne by the Other Party.
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If the price has been fixed in a currency other than euros, the amount in euros that corresponds to this price at the time of payment will not be lower than the price in euros would have been at the time of the formation of the agreement. All goods that have been assigned to the User by or on behalf of the Other Party and that the User has delivered and/or installed on top of the agreed quantities and/or types of materials to be processed, or has performed on top of the originally agreed work, will be charged for as contract extras.
In the event of unilateral cancellation by the Other Party of an order accepted by the User, the Other Party will owe the User a sum equivalent to 25% of the agreed and/or due principal as loss of earnings, without prejudice to the User’s right to demand performance and/or full compensation instead.
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Assembly and installation (hereinafter “Assembly”) will be carried out at the rates normally charged by the User, unless the associated costs are expressly included in the price(s) referred to in the agreement. The personnel entrusted with performing the Assembly will assemble the materials supplied by the User and/or included in the order, but may not carry out any other activity. The User will not be liable for any Assembly work performed outside the order.
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During the Assembly, the Other Party must provide workmen, lubricants and cleaning agents, as well as the necessary heating and lighting.
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If, for reasons beyond the User’s control, the Assembly work cannot be performed in an orderly and uninterrupted fashion, or is delayed in some other way, the User will be entitled to invoice the Other Party, at the normal rate, for any resulting additional costs.
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Following the departure of the assembly personnel, complaints relating to the performance of work or its duration will be ignored.
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The Other Party will ensure, at its own expense and risk, that
a. the documents, information, licenses etc. needed to execute the order are obtained;
b. suitable accommodation and/or other facilities required by law are provided for the User’s personnel;
c. access roads to the erection site are suitable for transport;
d. the designated building site is suitable for storage and assembly;
e. the necessary lockable stores for materials, tools and other items are present;
f. the necessary and usual ancillary workers and auxiliary machines and materials, and the necessary and usual production materials, are made available to the User in the right place, in good time and free of charge;
g. all necessary safety precautions and other measures have been taken, and are enforced; and
h. the items sent are in the right place at the start of, and during, the assembly.
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The delivery period will commence on whichever of the following dates is the latest:
a. the day on which the agreement is formed;
b. the day on which the User receives the documents, information, licenses, specifications, drawings, technical data and authorizations needed for performance of the agreement, as well as any other material (and similar) that is required in order to complete production or delivery; or
c. the day on which the User receives any payments that must be issued in advance by the Other Party under the terms of the agreement.
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The delivery periods stated should never be regarded as a fixed deadline, unless expressly agreed otherwise. In the event of late delivery, the User should therefore be given a written notice of default.
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If the delivery is prevented, either in full or in part, by force majeure, the User will be entitled to suspend the delivery or dissolve all or part of the agreement, insofar as it has not been performed, and to demand payment for any parts that have in fact been performed, without being under any obligation to pay compensation to the Other Party.
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If the delivery is delayed due to a circumstance for which the User cannot be held responsible, other than that referred to in the preceding paragraph, the agreed price(s) will be invoiced by the User and must be paid by the Other Party as if delivery had been on time.
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If, as a consequence of a delay as referred to in the two preceding paragraphs, the User is compelled to take back or store items, the User will be entitled to charge the Other Party a sum equivalent to 2% of the price of these items per month, without prejudice to the provisions of the subsequent paragraphs of this article.
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If the Other Party has not taken possession of the items after the expiry of the delivery date, they will remain at its disposal, and will be stored at its expense and risk. If this happens, however, the User will be entitled to dissolve the agreement by written statement, and to claim full compensation or to demand discharge from its obligation in court.
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If, in the case of an agreed delivery of fungible items, the Other Party has not taken possession after the expiry of the delivery date, the User will be entitled to choose the items intended for delivery, in which case the User, after notifying the Other Party, will only be obliged to deliver these items, without prejudice to the User’s authority to deliver other items that satisfy the obligation, and without prejudice to the provisions of the preceding paragraph.
The term “force majeure” in these General Terms and Conditions is understood to mean any circumstance beyond the User’s control – even if this was foreseeable at the time when the agreement was formed – which permanently or temporarily prevents performance of the agreement, as well as (as far as not already included in the above) war, danger of war, civil war, revolt, strike, lock-out, transport difficulties, fire and/or any serious disruption in the business belonging to the User or the User’s supplier(s), and/or a delay in the deliveries made by the User’s supplier(s).
The User will be entitled to charge for packaging at cost price at all times, and will not be obliged to take it back.
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Unless otherwise agreed in writing, the items will be delivered ex warehouse, in which case they will be regarded as having been delivered by the User and accepted by the Other Party once the items have been offered to the Other Party and/or have been loaded into or onto the means of transportation.
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If delivery “carriage paid” has been agreed, the items will be regarded as having been delivered by the User and accepted by the Other Party once the items have been delivered to the delivery address provided by the Other Party.
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If services are performed, these will be regarded as having been performed and having been accepted by the Other Party once the work has been completed and the User’s personnel have departed.
The expense and risk of the items to be delivered will be borne by the Other Party from the time of the delivery as referred to in the preceding Article of these General Terms and Conditions.
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Unless otherwise agreed in writing, the means of transport, dispatch and packaging etc. will be determined by the User without the User incurring any liability for this.
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Unless otherwise agreed in writing, transportation will be at the Other Party’s risk and expense, even if the transporter has expressly decided that all transport documents must state that any damage resulting from the transportation will be at the sender’s expense and risk.
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The User will retain the ownership of all of the items it has delivered to the Other Party until the purchase price for all these items has been paid in full.
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If, within the framework of the agreement concluded with the Other Party, the User performs work for the Other Party for which the other Party must pay, the retained title likewise applies until the Other Party has paid the amount it owes the User for this work too.
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The retained title also applies with respect to any amounts that the User is entitled to from the Other Party for failure on the part of the Other Party in one or more of its duties towards the User.
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Until ownership of the delivered items passes to the Other Party, the Other Party is not entitled to pledge or otherwise encumber the items or grant a third party any other right to them, except in the case outlined in the subsequent paragraph of this article.
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The Other Party may sell or transfer to third parties the items delivered under a retention of title in the ordinary course of its business. In the event of a sale on credit, the Other Party must insist on a retention of title from its buyers, as laid down in this article.
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The Other Party undertakes not to assign or pledge to third parties any amounts that it is owed by its buyers without the User’s prior written consent. The Other Party further undertakes to pledge said amounts to the User, as soon as the User expresses a desire for it to do so, in the manner stated in Art. 3:239 of the Dutch Civil Code, as additional security for all amounts owed by the Other Party to the User, for whatever reason.
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The Other Party must store the items delivered under a retention of title with due care and as the identifiable property of the User.
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The Other Party must insure the items against damage caused by fire, explosion and water, and also against theft, for the duration of the retained title, and must submit the relevant policies to the User for inspection on first demand.
The Other Party must pledge any claims it has against the insurers of the items under the above policies to the User as soon as the User has expressed a wish for it to do so, in the manner indicated in Art. 3:239 of the Dutch Civil Code. These will form additional security for all amounts owed by the Other Party to the User, for whatever reason.
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If the Other Party fails in the fulfillment of its payment obligations vis-à-vis the User, or the User has good reason to fear that it will do so, the User will be entitled to take back any items delivered under a retention of title. The User will then credit the Other Party with the market value (which will on no account be higher than the original purchase price), minus the costs accrued in taking back the items.
The Other Party is not entitled, without the User’s prior written consent, to transfer any or all of its rights and obligations under the agreement to third parties.
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Unless otherwise agreed in writing, and without prejudice to the provisions of the subsequent paragraphs of this article, payments must be issued to the User, at the discretion of the User cash on delivery or in net amounts within 30 days of the date of invoice. The due date must be regarded as a fixed deadline.
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All payments must be issued without any discount and/or setoff and in the manner agreed.
The Other Party may never, for any reason, suspend payments or offset them against (alleged) claims against the User.
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The User may, at any time, demand full or partial payment in advance for any delivery or partial delivery.
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If, for certain items (to be) delivered, the User allows the Other Party to pay the principal or part thereof in installments, the turnover tax on the total amount to be paid will be due and payable with the first installment, unless otherwise agreed in writing.
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Any costs payable by the User, which are advanced by the Other Party, will be offset against the final installment, when this is paid.
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The User may, at any time, demand sufficient security from the Other Party for the fulfillment of some or all of its payment obligations before delivering or continuing with the delivery.
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Even if a fixed delivery time has been agreed, the User may, if the Other Party fails in the fulfillment of its payment obligations, or does not meet its obligation to give security, or otherwise fails in one or more of its obligations vis-à-vis the User, suspend further deliveries, without prejudice to its right to dissolve the agreement and/or claim full compensation, and without prejudice to any rights otherwise due to the User in such an event.
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Unless expressly agreed otherwise, all payments issued by the Other Party, whatever they are called, will first be deducted from expenses, then from the interest due and finally from the principal of the invoice that has been left unpaid. If several invoices have been left unpaid, the payment will be deducted from the principal of the earliest invoice.
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If the Other Party does not pay within the agreed time, it will be in default by operation of law, and will owe the User an interest of 12% per annum on the outstanding amount from the due date of the unpaid invoice(s).
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If the Other Party defaults under the provisions of Paragraph 9 of this article, all outstanding amounts owed to the User by the Other Party will become immediately due and payable at that moment.
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If payment is made by means of bills of exchange and/or cheques, all relevant expenses incurred will be borne by the Other Party. The same applies to cash on delivery charges.
All extra judicial and judicial costs incurred by the User in connection with the collection of amounts owed by the Other Party will be borne by the Other Party. The extra judicial costs will be calculated in proportion to the due principal, or in proportion to the value of the performance otherwise to be claimed from the Other Party, in the manner indicated below, on the understanding that these will amount to at least € 75.00, and that the User may, at any time, claim the extra judicial costs it has actually incurred, where these exceed the sum calculated in the manner described below. The extra judicial costs will be calculated as follows, on the due principal or the value of the performance otherwise to be claimed from the Other Party:
on the first € 2,950.00 15%
on any additional amount up to € 5,900.00 10%
on any additional amount up to € 14,750.00 8%
on any additional amount up to € 59,000.00 5%
on any additional amount over € 59,000.00 3%
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Unless otherwise agreed in writing and without prejudice to the provisions of Article 7, Paragraph 4, the User, with due observance of the restrictions below, guarantees the good quality of the goods it has delivered for a maximum of 3 months after delivery. If the goods in question do not satisfy the agreement, and, in so far as the Other Party demonstrates that this is the result of an attributable shortcoming, the User will deliver any item missing, or repair any item delivered if reasonably able to do so, or replace it, unless either (a) the departure from the agreed item is too insignificant to justify replacement, or (b) it perishes or deteriorates, after the time that the Other Party should reasonably have expected the situation to be rectified, because the Other Party has not maintained it as a prudent debtor.
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Complaints concerning externally visible defects must be submitted in writing within 8 days of delivery. The due date must be regarded as a forfeiture date.
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Any complaint concerning defects that are not visible from the outside must be submitted in writing within 8 days of detection, and certainly no later than three months after delivery. Both dates must be regarded as forfeiture dates.
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Any complaint concerning amounts in the invoices sent by the User must be presented in writing within eight days of the date of invoice. The due date must be regarded as a forfeiture date.
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In the event of replacement or compensation, the use that has since been made of the delivered item will be taken into account.
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Unless expressly otherwise agreed in writing, fulfillment of the guarantee obligation on the part of the User only applies within the Netherlands.
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The guarantee will only be valid if the Other Party has fulfilled all its obligations towards the User. Furthermore, the User will not be bound to any guarantee, whatever it may be called, if the items it delivered have since been processed, if the Other Party has not strictly observed the User’s recommendations and the manufacturer’s and/or supplier’s directions for use and assembly instructions, or if third parties have made changes to the items delivered by the User, by order of the Other Party or otherwise, without the User’s prior written consent.
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Any item(s) and/or material(s) that have been delivered by the User but obtained by the User from third parties will also be subject to the provisions of the preceding paragraphs only if, and to the extent to which, the supplier of these item(s) and/or material(s) has given a guarantee to the User.
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Except in the event of intent or gross negligence on the part of the User’s management or one of the User’s executive employees, satisfaction of the User’s guarantee obligation is the only compensation. The User is not obliged to provide any other compensation, of whatever form.
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No guarantees will be given on any of the bowls, shoes, pins and/or lights supplied by the User.
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Returns will only be accepted with the User’s prior written consent, and must be carriage paid.
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The acceptance of any returns does not automatically mean approval on the part of the User.
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Without prejudice to the provisions of Article 7, paragraph 4, and Article 18 of these General Terms and Conditions, the User will never be liable for any damages/loss of whatever nature, as a consequence of the goods that it has supplied, save in the event of intent or gross negligence on the part of the User’s management or any of the User’s executive employees.
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Without prejudice to the provisions of the preceding paragraph, any liability on the part of the User for loss of profits or other consequential loss is expressly excluded.
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Without prejudice to the provisions of the preceding paragraphs, any obligation on the part of the User to award compensation, in the event of liability on the part of the User, will, at all times, be limited to the amount owed to the User by the Other Party under the terms of this agreement, exclusive of turnover tax, on the understanding that the compensation owed by the User will never exceed € 50,000.00.
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Without prejudice to the provisions of the preceding paragraphs, any right of action that the Other Party has against the User will expire one year after the damage/loss was (first) incurred.
Except in the event of intent and/or gross negligence on the part of the User’s management or any of the User’s executive employees, the Other Party must indemnify the User against all costs, damage/loss and interest that the User might incur as a direct or indirect consequence of legal action instituted against it by third parties with respect to the performance of the agreement. The Other Party must, under the terms of the agreement, answer a call into the action from the User.
Except in the event of evidence to the contrary, the information in the User’s accounts will be decisive with respect to the agreement.
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Without prejudice to the provisions of the preceding articles concerning suspension and dissolution, the User may – if there is serious doubt whether the Other Party can fulfill its obligations under the agreement between the User and the Other Party, in the case of bankruptcy, moratorium, receivership, closure, liquidation of the Other Party’s business, full or partial transfer, or (undisclosed) pledging of its business or a substantial portion of the fixed assets or the company’s receivables – suspend the agreement for up to six months or, if it is still not being performed, dissolve it, without serving notice or having recourse to the courts, if the Other Party does not fulfill any one of its obligations under the agreement between the User and the Other Party, or does so inadequately or late. Should the User take this action, this will not affect its right to compensation for the damage/loss it has suffered and/or for lost profits.
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In the event of dissolution, as referred to in the preceding paragraph, the Other Party must immediately pay the agreed price that is owed to the User, after deducting any amounts already paid and any costs not yet incurred by the User.
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In the event of the scenarios referred to in paragraph one, all outstanding amounts owed to the User by the Other Party at that particular moment will become due and payable at once, in full.
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Unless expressly agreed otherwise in writing, any software (of whatever nature) that forms part of the agreement will only be made available to the Other Party on the basis of a non exclusive, non-transferable license, for use on one central processing unit only, for the Other Party’s internal operational management. The Other Party may not use such software for any purpose and/or in any way other than those agreed.
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The Other Party is prohibited from duplicating, or attempting to duplicate, the software or corresponding manual, either in part or in full, without the User’s express written consent.
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Unless expressly agreed otherwise in writing, the User will, at all times, retain (either) full ownership of the software made available to the Other Party or (if the User itself is a licensee) the first license or as many licenses as it may hold, as well as all intellectual property rights or the license thereto as referred to above. On request from the User, the Other Party will take every step and (where necessary) produce documents to confirm the User’s (intellectual) property rights/license.
In the event of a conflict between the Dutch version of these General Terms and Conditions and a translation of the same, or in the event of a difference of opinion concerning the interpretation of one or more of the translated provisions of these General Terms and Conditions, the Dutch text and its interpretation will always prevail.
The Other Party can leave a comment during the checkout process. User cannot respond to requests regarding Pin Distance, Wished color of accessories, Set apart products, Personal notes, Combine orders, etc. No rights can be derived from it either.
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Netherlands law is applicable to all agreements to which some or all of these terms and conditions apply.
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All disputes will in the first instance exclusively be settled by the competent court within the district of the court in Breda, the Netherlands.
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