General terms and conditions of Track Rail Solutions in Leiderdorp, The Netherlands.
Article 1 DEFINITIONS
1.1 The term “counterparty” shall mean any (legal) person to whom Track Rail Solutions addresses its offers, as well as anyone who addresses their offers to Track Rail Solutions or places an order with them, or anyone with whom Track Rail Solutions has entered into an agreement.
1.2 Under “product” or “goods,” it should be understood as: All items delivered to the counterparty under the application of these general terms and conditions.
1.3 Under “on-site at Track Rail Solutions,” it should be understood as: the warehouses or office space of Track Rail Solutions in Leiderdorp.
1.4 To the extent possible, these general terms and conditions also apply to the services provided by Track Rail Solutions to the counterparty in connection with the goods, such as their installation.
Article 2 APPLICABILITY OF THE GENERAL TERMS AND CONDITIONS
2.1 These general terms and conditions apply to all offers made by Track Rail Solutions, orders placed with Track Rail Solutions, and agreements concluded by Track Rail Solutions.
2.2 General terms and conditions and/or other conditions applied by the counterparty are expressly not applicable to the offers, orders, and agreements mentioned in 2.1.
2.3 Deviations from and/or additions to these general terms and conditions are binding on Track Rail Solutions only if they are confirmed in writing and explicitly by Track Rail Solutions.
Article 3 OFFER AND ACCEPTANCE
3.1 All offers, brochures, quotations, and price quotations from Track Rail Solutions are non-binding and do not bind Track Rail Solutions. A written quotation is valid for the period mentioned therein, and in the absence thereof, for a period of 30 days.
3.2 All data is provided as accurately as possible, but they are only binding to the extent that Track Rail Solutions has explicitly guaranteed their accuracy in writing.
3.3 The agreement is concluded when an offer from Track Rail Solutions is accepted in writing by the counterparty within the period mentioned in 3.1. However, Track Rail Solutions reserves the right to revoke its offer within two days after receiving the written acceptance. In the case of verbal acceptance of an offer by the counterparty, and when the counterparty makes an offer and/or issues an order, the agreement is only concluded if Track Rail Solutions gives effect to it by actually commencing its execution or confirming the agreement in writing/accepting the offer.
3.4 If the acceptance by the counterparty deviates from the offer, this shall be considered a new offer from the counterparty and a rejection of the entire offer from Track Rail Solutions, even if the deviation is only on minor points.
Article 4 PRICE
4.1 The prices provided by Track Rail Solutions are exclusive of value-added tax and other government charges applicable to the sale, delivery, and execution of the agreement.
4.2 The prices agreed upon by Track Rail Solutions and the counterparty can be increased after the conclusion of the agreement if Track Rail Solutions has been confronted with a price increase from its supplier for the performance of its obligations under the agreement or if other price-increasing circumstances have occurred. When the price increase exceeds 15% of the agreed price, the counterparty can terminate the agreement regarding the items subject to the price increase in writing within 2 working days after receiving notice of the price increase.
4.3 Price increases resulting from additional requests and/or changes made by the counterparty to the initially concluded agreement will be passed on to the counterparty.
4.4 Normal standard packaging is included in the price; special packaging will be invoiced separately by Track Rail Solutions at cost price.
Article 5 DELIVERY
5.1 Stated delivery times and/or completion dates are indicative of the actual delivery time and shall never be considered as firm deadlines unless expressly agreed otherwise in writing. In the event of a delayed delivery and/or completion, Track Rail Solutions must be formally notified in writing, specifying a reasonable period for performance. If the agreement is terminated due to delayed delivery, the counterparty is not entitled to any compensation, except for the refund of amounts already paid to Track Rail Solutions regarding the agreement.
5.2 Delivery to the counterparty within the Netherlands is free of charge if the order mentioned on the invoice exceeds €300 (excluding VAT), unless otherwise agreed in writing. The transportation costs for deliveries outside the Netherlands are borne by the counterparty unless otherwise agreed in writing. Installation costs for the item are always the responsibility of the counterparty, unless otherwise agreed in writing.
5.3 Delivery will take place at the location agreed upon with the counterparty and at the times determined by Track Rail Solutions, which will be communicated to the counterparty in a timely manner by Track Rail Solutions. The counterparty is obliged to accept the item at the agreed-upon location at the scheduled delivery time, failing which all resulting costs will be charged to the counterparty.
5.4 The risk of the item passes to the counterparty upon delivery, even if ownership of the item has not yet been transferred by Track Rail Solutions.
5.5 Track Rail Solutions has the right to deliver the item in installments, and each partial delivery may be invoiced separately.
5.6 Delivery of orders less than €300 (excluding VAT) will be made by pickup at Track Rail Solutions’ premises within 7 days after written or telephone notification by Track Rail Solutions that the item is available for the counterparty unless a different term is expressly agreed between the parties. If the item is not collected within this period, Track Rail Solutions is free to terminate the agreement, without prejudice to Track Rail Solutions’ right to claim damages. Track Rail Solutions may charge the counterparty reasonable storage costs if the item is not collected within the 7-day period.
5.7 The risk of depreciation or loss of the item to be delivered by Track Rail Solutions is the responsibility of the counterparty from the moment Track Rail Solutions notifies the counterparty that the purchased item is available to them.
5.8 If, contrary to 5.6, the counterparty agrees with Track Rail Solutions that Track Rail Solutions will transport the item or have it transported by a third party, the costs and risk of this transportation will always be borne by the counterparty.
5.9 In cases where it is agreed that Track Rail Solutions will handle the transportation of the item, the method of packaging and transportation will be determined by Track Rail Solutions unless otherwise agreed in writing.
Article 6 PAYMENT
6.1 Payment shall be made in cash upon delivery, unless payment on credit terms is agreed upon. In the latter case, payment must be made within 30 days from the invoice date. This period is considered a firm deadline, and if exceeded, the counterparty is in default, and contractual interest is due, equal to an interest rate of 1% per month, or the legal interest rate if higher, with any part of the month counted as a full month, calculated from 30 days after the invoice date until the time of payment. For payment by bank, the date of crediting to Track Rail Solutions’ account shall be considered as the payment date.
6.2 In case of non-payment within the terms mentioned in 6.1, Track Rail Solutions reserves the right to increase the amount owed by the counterparty with collection costs. These collection costs include both extrajudicial and full legal costs, even if the latter exceed the amount awarded by the court as legal costs. Extrajudicial collection costs are all the costs incurred by Track Rail Solutions to collect its claim from the counterparty. They are set at 15% of the amount of the claim with a minimum of €100.
6.3 Payments made by the counterparty shall always be applied, first to cover any outstanding interest and costs, and then to cover the claims arising from the agreement that have been outstanding for the longest period, even if the counterparty specifies a different allocation when making the payment.
6.4 In the event of default, liquidation, insolvency, (application for) bankruptcy, (application for) suspension of payments (of the business) of the counterparty, all obligations of the counterparty shall become immediately due and payable.
6.5 Track Rail Solutions reserves the right to demand partial prepayment of the purchase price and to request the counterparty to provide security for the fulfillment of all its obligations under the agreement. This provision applies equally when credit has been arranged.
6.6 Track Rail Solutions is authorized to suspend the fulfillment of its obligation if the counterparty does not meet all its obligations or if circumstances that give Track Rail Solutions good reason to fear that the counterparty will not fulfill its obligations come to its knowledge after the conclusion of the agreement.
Article 7 RESERVATION OF OWNERSHIP
7.1 Track Rail Solutions shall retain ownership of the delivered item until the counterparty has fulfilled its payment obligations, in whole or in part, for:
a. items delivered under any agreement;
b. work performed or to be performed under such an agreement for the benefit of the counterparty;
c. amounts owed by the counterparty in connection with the failure to fulfill such agreements.
7.2 The counterparty is only authorized to resell the items falling under the ownership reservation as per paragraph 1 within the scope of normal business operations. It is expressly prohibited for the counterparty to pledge these items, establish any other rights on them, or grant a third party any personal rights related to the item.
7.3 If third parties seek to assert any rights over the items delivered under ownership reservation, such as through seizure, suspension of payment, or bankruptcy, the counterparty is obliged to promptly inform Track Rail Solutions.
7.4 Upon Track Rail Solutions’ first request, the counterparty shall:
1. insure and keep insured the items delivered under ownership reservation against fire, explosion, water damage, theft, and provide Track Rail Solutions with the policy of these insurances for inspection;
2. assign or pledge in advance any claims against insurers regarding the items delivered under ownership reservation to Track Rail Solutions;
3. pledge or assign any claims the counterparty obtains from its customers when selling items delivered under ownership reservation within the scope of its normal business operations to Track Rail Solutions;
4. mark the items delivered under ownership reservation as the property of Track Rail Solutions;
5. cooperate in any reasonable measures that Track Rail Solutions wishes to take to protect its ownership rights over the items, provided such measures do not unreasonably hinder the counterparty in the normal course of its business.
7.5 In case of the counterparty’s default or reasonable fear that the counterparty will not fulfill its obligations, Track Rail Solutions is entitled, without further notice, to repossess or arrange the repossession of the delivered items subject to the ownership reservation as described in clause 7.1 from the counterparty or third parties holding the items for the counterparty. The counterparty is obliged to provide full cooperation, subject to a penalty of 10% of the amount owed at that time, per day. The counterparty pre-authorizes Track Rail Solutions to enter its owned or used premises or buildings for the purpose of taking back the reclaimed items.
Article 8 WARRANTY
8.1 The counterparty shall immediately inspect the delivered item for its soundness upon receipt. The right to repair or replacement exists only if the counterparty:
– In the case of visible defects, promptly notifies Track Rail Solutions of these defects;
– In the case of non-visible defects, notifies Track Rail Solutions in writing of these defects within 2 working days from the day the counterparty discovered or should have reasonably discovered the defects, and demonstrates that Track Rail Solutions’ instructions for use, maintenance, and operation have been followed, while the defects are not the result of normal wear and tear, misuse, negligence, accident, exceeding the limits prescribed by Track Rail Solutions, or legal safety regulations, or if the product has been repaired or altered without Track Rail Solutions’ permission or by a recognized repairer authorized by Track Rail Solutions. No claim for repair or replacement exists otherwise.
8.2 The warranty as specified in Article 8.1, concerning products located in the Netherlands, consists of the free replacement or repair (at Track Rail Solutions’ discretion) of the defective component by Track Rail Solutions or a repairer appointed by Track Rail Solutions and does not cover the transport costs of goods or individuals related to the execution of this warranty. For products located outside the Netherlands, this warranty covers only the costs of the defective component.
8.3 The replaced components must be made available to Track Rail Solutions free of charge.
8.4 Non-compliance by the counterparty with one or more of its obligations relieves Track Rail Solutions of all its warranty obligations.
Article 9 LIABILITY
9.1 Without prejudice to the provisions of Article 8, Track Rail Solutions shall not be liable for damages unless they result from intent or gross negligence on the part of Track Rail Solutions or its senior employees.
Article 10 FORCE MAJEURE
10.1 Track Rail Solutions shall not be liable for any failure to perform an agreement in the event of force majeure, notwithstanding what is stipulated elsewhere in these conditions.
10.2 Force majeure on the part of Track Rail Solutions shall also include any circumstance beyond its control that prevents the normal execution of the agreement. Such circumstances of force majeure shall include, in any case, the failure of delivery by Track Rail Solutions’ own suppliers for any reason, strikes, lockouts, disruptions in energy supply, traffic disruptions, machinery breakdown, government measures, as well as the consequences thereof, loss or damage during transport, and excessive employee absenteeism.
Article 11 CONFIDENTIALITY
11.1 The counterparty commits to maintaining the confidentiality of the confidential information provided to it by Track Rail Solutions. Confidential information includes, but is not limited to, data related to a newly developed product, such as those disclosed by Track Rail Solutions during the negotiation phase. The counterparty is also obligated to refrain from using the aforementioned information for its own business operations.
Article 12 DISPUTES
12.1 Dutch law shall apply to all agreements to which these conditions, in whole or in part, apply.
12.2 The provisions of the Vienna Sales Convention shall not apply, nor shall any future international agreements on the sale of movable property the operation of which can be excluded by the parties.
12.3 All disputes arising from offers and agreements, however named, shall be submitted to the judgment of the court in the Amsterdam district, unless the law mandatorily designates another competent court.