General Terms and Conditions of:
V.O.F. Post & Dros Motorenrevisie en Tuning
8251 GD Dronten
Chamber of Commerce No.: 39049488
Article 1: Applicability, definitions
- These General Terms and Conditions apply to any offer and any agreement of sale and purchase and to all agreements of assignment for the carrying out of work – including work in the field of revision and turning – of V.O.F. Post & Dros Motorenrevisie en Tuning, established in Dronten, hereinafter to be referred to as “Post & Dros MT”.
- The buyer or the principal is hereinafter referred to as “the Other Party”.
- Various provisions in these General Terms and Conditions refer to a natural person who acts outside his trade, business or profession. In these provisions the Other Party is indicated by the term "the Consumer”.
- “Offer” shall mean: any offer from Post & Dros MT, whether or not in the form of a written quotation.
- “In writing” shall mean: by letter, e-mail, fax or any other mode of communication that is regarded as equivalent to writing in view of advances in technology and conventional practices.
- “Object” shall mean: the vehicle, the engine, the part on which agreed work takes place.
- “Items” shall mean: parts, materials and suchlike to be used and delivered for the work, as well as individually sold parts, materials and suchlike.
- The possible invalidity of (any part of) a provision contained in these General Terms and Conditions shall not affect the validity of the remaining provisions.
- In the event of a discrepancy or conflict between these General Terms and Conditions and a translation hereof, the Dutch text shall prevail.
- These General Terms and Conditions shall also apply to repeat orders or partial orders, follow-up or partial assignments flowing from the agreement.
Article 2: Offers
- Unless a period of validity is stated in/for an offer, this concerns an offer without obligation. Post & Dros MT may withdraw this offer within a period of no more than 2 working days after receipt of the acceptance.
- A composite offer does not oblige Post & Dros MT to deliver part of the offered performance/items at a corresponding part of the price or rate.
- If the offer is based on information provided by the Other Party and this information appears to be incorrect/incomplete or should change at a later date, Post & Dros MT may adjust the quoted prices, rates and/or delivery terms.
- The offer, the prices and/or the rates do not automatically apply to repeat orders or follow-up assignments.
- Models that are displayed and/or provided, specifications of dimensions, weights, capacities, functionalities and other (technical) descriptions in brochures, promotional material and/or on the website of Post & Dros MT shall be as accurate as possible but shall only be intended as a guide. The Other Party may derive no rights from these. Minor deviations accepted in the industry are allowed, as well as deviations due to interim model changes.
- The models provided shall remain the property of Post & Dros MT and are returned to Post & Dros MT immediately on Post & Dros MT’s request at the expense of the Other Party.
Article 3: Establishing agreements
- The agreement is established after the Other Party has accepted the offer of Post & Dros MT, also if this acceptance deviates on secondary points from this offer. However, when this acceptance shall deviate in essential points, the agreement shall only be concluded after Post & Dros MT has agreed with these deviations in writing.
- Post & Dros MT shall only be bound to:
- an assignment or order without prior offer thereto;
- oral agreements;
- additions to or changes of the General Terms and Conditions or agreement;
after written confirmation to the Other Party or as soon as Post & Dros MT - without objection of the Other Party - has started the performance of the assignment, order or agreements.
- In the absence of a written agreement and subject to proof to the contrary provided by the Other Party, the delivery form/worksheet or the invoice will serve as proof of the existence and the content of the agreement.
Article 4: Distance purchasing - reflection period, right of termination
- This Article exclusively applies to the Consumer for distance purchasing in the sense of Article 6:230g, paragraph 1 of the Netherlands Civil Code. This concerns orders by mail/phone, in which respect the Consumer has not seen the ordered item at Post & Dros MT in advance.
- The Consumer has a reflection period in case of distance purchasing. During this reflection period, the Consumer may terminate the agreement without stating the reasons.
- The reflection period referred to in the previous paragraph is 14 calendar days from the day on which the Consumer or a third party designated by him (not being the carrier):
- received the item;
- received the last item if the Consumer ordered several items in the same order and these items are delivered separately;
- received the last shipment or the last part if the delivery of one item consists of several shipments/ parts.
- Termination shall take place by a written notification from the Consumer to Post & Dros MT, whether or not making use of a standard form made available by Post & Dros MT.
- Termination in accordance with the previous paragraphs shall also terminate all possible additional agreements by operation of law.
- The Consumer has no right of termination in case of the delivery of specific, custom or adapted items.
- In the event that the Consumer wishes to return the delivered item as it does not comply with what the parties had agreed on, the provisions of the complaints article apply.
Article 5: Distance purchasing – return shipment, repayment
- Unless Post & Dros MP personally collects the delivered items or has them collected on his behalf, the Consumer must immediately return the items - but in any case within 14 days after termination - in the original packaging, unused and at his own expense and risk to Post & Dros MP or a third party commissioned by Post & Dros MP.
- No later than 14 calendar days after termination, Post & Dros MP pays back all amounts received from the Consumer - within the framework of the agreement in question - in the same manner and in the same currency used by the Consumer.
- The Consumer bears the shipping costs and the risk of the return shipment itself. If the delivered item becomes lost or damaged during the return shipment, the Consumer is obliged to compensate the associated damage to Post & Dros MP.
- Post & Dros MP is not obliged to pay back any additional costs incurred because the Consumer has explicitly chosen a different type of delivery than the least expensive type of standard delivery offered by Post & Dros MP.
- Unless Post & Dros MP personally collects the items or has them collected on his behalf, the Consumer may not claim repayment until after Post & Dros MP has received the items in return or the Consumer has demonstrated that the items were returned by it, whichever comes first.
- Post & Dros MP can refuse items that have been returned or pay back only some of the payments received from the Consumer, in the event that the items are not in the original packaging, this packaging is damaged (for example not opened neatly, but torn open and/or covered with coloured tape and suchlike) or is contaminated, the items have been treated, used (more than necessary to establish the nature, characteristics and functioning of the item) and/or have been damaged. Post & Dros MP shall inform the Consumer thereof immediately after receipt of the items.
- The Consumer is liable for the reduction in value of the item when he handles the item (or its packaging) in excess of what is necessary to establish the nature, characteristics and functioning of the item.
- The Consumer shall never be liable nor shall he owe any costs for the mere fact that he exercises his right to terminate.
Article 6: Fee, prices, rates
- Unless parties agree a fixed fee for work, Post & Dros MT shall calculate her fee based on the number of hours spent applying the agreed/usual hourly rate. In the event of disputes concerning the numbers of hours spent/charged Post & Dros MT’s time recording shall be binding unless the contrary is proved by the Other Party.
- The hourly rates apply to normal working days, which is understood to mean: Mondays to Fridays (with the exception of recognised public holidays) for the times agreed between parties.
- In the event of urgent assignments or if the work is carried out outside of normal working days, Post & Dros MT may charge a surcharge on the hourly rate.
- The Other Party may request an indication of the fee due before/upon concluding the agreement for the performance of work. If the approximate fee specified is threatened to be exceeded by more than 20%, Post & Dros MT will contact the Other Party to discuss the additional costs.
- Post & Dros MT may increase an agreed fixed fee if it should appear during the execution of the agreement, that the agreed/expected amount of work was not estimated correctly, without the misjudgement being attributable to Post & Dros MT, and it cannot reasonably be expected from her to carry out the work for the agreed fee.
- The prices and rates stated in an offer, price- or rate list are exclusive of BTW (Dutch VAT) and possible costs, such as transport costs or shipping costs, possible packaging costs/handling costs for packaging and expense claims of third parties engaged.
- If (cost)price increasing circumstances occur at the expense of Post & Dros MT between concluding the agreement and the execution thereof due to changes in legislation and regulations, government measures, currency fluctuations, price changes of the for the work required items or price changes of the manufacturer/supplier, Post & Dros MT may increase the agreed prices and rates accordingly and charge these to the Other Party.
- In the event of price- or rate increases within three months after the agreement was concluded, the Consumer may terminate the agreement by means of a written statement. Unless the Consumer notifies Post & Dros MT whitin 14 days after the price- or rate change was announced that he wants to use its right of termination, Post & Dros MT may assume that the Consumer agreed to the change.
Article 7: Engaging third parties
Post & Dros MT shall have the right to have deliveries and work carried out by third parties.
Article 8: Obligations of the Other Party
- The Other Party ensures that:
- it makes all information required for the execution of the agreement available to Post & Dros MT in time and in the manner required by Post & Dros MT and that this information is correct and complete;
- it makes the object on which the work must be carried out available to Post & Dros MT in time;
- no valuables are left unattended in the object.
- The risk for the objects of the Other Party which Post & Dros MT has in her possession in the context of the execution of the agreement (including properties of the Other Party still present in a provided vehicle) will remain vested with the Other Party. The Other Party is responsible for taking out an adequate insurance for these objects.
- The Other Party may only sell on items delivered by Post & Dros MT in the original packaging from Post & Dros MT or her supplier/the manufacturer. The Other Party may make no changes to the original packaging and shall prevent any damage. Return shipment is not possible in case of the absence of the original packaging or damage/changes to this packaging.
- If the above obligations are not fulfilled (in time), Post & Dros MT may suspend the execution of the agreement until the Other Party has fulfilled his obligations. The costs and the other consequences arising from this shall be at the expense and risk of the Other Party.
- If the Other Party does not fulfil his obligations and Post & Dros MT does not require immediate compliance, this will not affect the right of Post & Dros MT to require compliance at a later date.
Article 9: Confidential information
- Post & Dros MT shall maintain secrecy of all information obtained in the context of concluding and executing the agreement of/about the Other Party. Post & Dros MT shall only provide this information to third parties insofar as this is necessary for the execution of the agreement.
- Post & Dros MT shall take every reasonable precautionary measures in order to maintain secrecy of this information. This obligation of confidentiality also applies to her employees and third parties which are involved in the execution of the agreement under her responsibility.
- If the information concerns personal data in the context of the General Data Protection Regulation, Post & Dros MT will process the information in accordance with this Regulation and will report any breaches of the security of the information also in accordance with this Regulation.
- The obligation of confidentiality shall not apply if Post & Dros MT as a result of legislation and regulations or a judicial decision has to disclose the confidential information and cannot rely on a lawful privilege or a privilege permitted by the court. This exception shall also apply to the employees/third parties as referred to in paragraph 2.
Article 10: Delivery, terms, progress and execution of agreement
- Post & Dros MT shall exert herself to effect the agreed work and deliveries within the time agreed and planned for this purpose. However, the agreed terms shall never be final deadlines. If Post & Dros MT fails to meet her obligations (in time), the Other Party must give notice of default to her and grant reasonable time to meet these obligations at a later date.
- An early delivery/execution is always permitted.
- In the absence of an agreed delivery term, Post & Dros MP will inform the Other Party well in advance when the ordered items are ready for collection or will be delivered.
- An agreed term will take effect at the moment that Post & Dros MT has received the possible agreed (advance) payment and all information necessary for the delivery/work of the Other Party and/or can be in the possession of the object which is the subject of the work. If delay arises from this, the term shall be extended proportionally.
- Post & Dros MT may deliver in parts and invoice each part delivery separately.
- The risk of items to be delivered transfers to the Other Party the moment these leave Post & Dros MT's premises/warehouse or Post & Dros MT informed him that the items are ready for collection.
- Dispatch or transport of the items shall take place at the expense and risk of the Other Party in a manner to be decided by Post & Dros MT. Post & Dros MT is not liable for any damage of whatever nature that is related to the dispatch or the transport.
- Unless parties agree on another term, delivery to the Consumer will be carried out within a period of up to 30 days after concluding the agreement. In this case the risk will transfer to the Consumer the moment the items are actually available to him/a third party appointed by him (not being the transporter). If the Consumer appoints the transporter himself (not being a transporter suggested by Post & Dros MT), the risk transfers to him on receipt of the items by this transporter. Dispatch or transport is at the expense of the Consumer.
- If it appears impossible, due to a cause within the risk area of the Other Party, to deliver the agreed performance or items (in the agreed manner) to the Other Party or if these items are not collected, Post & Dros MT may store the ordered items/the items purchased for the performance of the work at the expense and risk of the Other Party. The Other Party will give Post & Dros MT the opportunity, within a period reasonably set by Post & Dros MT, to deliver the performance or the items at a later date or to collect these items itself.
- If the Other Party still fails to meet its obligations after the aforementioned reasonable period, it shall be immediately in default. Post & Dros MT may then, either fully or partially, terminate the agreement with immediate effect by means of a written statement and sell the items to third parties without being obliged to pay compensation for damage, costs or interest. This does not affect the obligation of the Other Party to compensate for any (storage) costs, damage or loss of profits of Post & Dros MT and/or the right of Post & Dros MT to demand compliance at a later date.
- In case of agreed work on an object, Post & Dros MT will inform the Other Party when the object is ready for collection. The Other Party must collect the object within one week of this notice. Failing this, the Other Party will be required to pay for the work carried out and Post & Dros MT may charge storage costs.
- Post & Dros MT shall inform the Other Party about the consequences for agreed prices, rates and terms:
- in the event of changes to the agreed work requested by the Other Party;
- if it appears during the execution of the work that it cannot be executed in the agreed manner due to unforeseen circumstances. In this case, Post & Dros MT shall first discuss the changes to the execution with the Other Party. If the execution of the agreement has become impossible as a result, Post & Dros MT shall in any case be entitled to full compensation for any work already carried out and any deliveries already made.
- Additional and reduced work shall be agreed in writing between Post & Dros MT and the Other Party. Post & Dros MT shall only be bound by oral agreements after written confirmation thereof to the Other Party or as soon as she - without objection from the Other Party - has started with the execution of these agreements.
- Any parts/materials that are replaced during the work will only be provided to the Other Party by Post & Dros MT at its explicit request. Failing this, these parts/materials will become the property of Post & Dros MT.
Article 11: Completion, approval in the case of work
- At the moment the agreed work on an object has been completed Post & Dros MT shall notify the Other Party thereof.
- The work shall be delivered in accordance with the agreement at the moment the Other Party has checked the operation of (the parts of) the object and signed the completion statement or worksheet for approval.
- If it is necessary for checking the object that the Other Party first uses the object, the work is deemed to have been approved if the Other Party has not complained within 2 working days after collecting the object.
- Work not yet carried out/not completed by or on behalf of third parties engaged by the Other Party, which affect the proper use of the object, is no reason for denial of approval concerning the work completed by Post & Dros MT.
- If the Other Party still finds failures, imperfections and suchlike after the completion referred to in this article, the provisions of the Complaints Article shall apply.
Article 12: Packaging
- Packaging that is designated to be used several times, shall remain the property of Post & Dros MT and may not be used by the Other Party for any purpose other than for which it is designated.
- Post & Dros MT determines whether the Other Party must return packaging or whether she will collect this herself and at whose expense the latter is carried out.
- Post & Dros MT may charge a deposit for this packaging to the Other Party. If the packaging is returned by the Other Party for free within the term agreed, Post & Dros MT shall take back the packaging. The deposit will be paid back to the Other Party or set off against deposit for the packaging of a next delivery. Post & Dros MT may deduct 10% handling costs on the amount to be paid back or set off.
- If the packaging is damaged, incomplete or has been destructed, the Other Party shall be liable for the damage and its entitlement to a repayment of the deposit shall lapse. If this damage is higher than the deposit charged, Post & Dros MT shall not have to take back the packaging. She may then charge it to the Other Party at cost price, less the deposit paid by the Other Party.
- Packaging for single use may be left at the Other Party’s by Post & Dros MP. Possible costs for removal shall be at the expense of the Other Party.
Article 13: Complaints
- The Other Party shall check the delivered items immediately on receipt and state any visible failures, defects, damages and/or anomalies in numbers, types and suchlike on the consignment note or accompanying note or, in their absence, reports these to Post & Dros MT in writing within 2 working days. If such complaints are not reported in a timely manner, the items are deemed to have been received in good order and to conform with the agreement.
- Other complaints about the items deliverd are reported to Post & Dros MT by the Other Party in writing immediately after discovery, but no later than within the agreed guarantee period. The Other Party shall bear all risks of failing to report directly.
- The Other Party shall report complaints in view of the work carried out in writing to Post & Dros MT immediately after discovery - but no later than within a (guarantee) period set by Post & Dros MT after delivery/completion. The Other Party shall bear all risks of failing to report directly. If such complaints are not reported in time, the work is deemed to have been carried out in accordance with the agreement.
- If a complaint is not reported in a timely manner, it is not possible to make a claim under the agreed guarantee.
- Complaints shall not suspend the Other Party’s payment obligations.
- The previous paragraph does not apply to the Consumer.
- The Other Party shall give Post & Dros MT the opportunity to investigate the complaint and provide all relevant information. If it is necessary for the items to be returned for investigation or it is necessary to make the item/the object available (again) or Post & Dros MT should investigate the complaint on the spot, this will be at the expense of the Other Party, unless the complaint proves to be justified. The transport risk will always be borne by the Other Party.
- Returning the items shall take place in a manner to be determined by Post & Dros MT and in the original packaging.
- No complaints can be lodged about items that have been changed by the Other Party in nature and/or composition or that have been fully or partially treated or adapted after receipt.
Article 14: Guarantees
- Post & Dros MT shall execute the agreed deliveries and work in a proper manner and in accordance with standards applicable in the industry, but shall never provide a more extensive guarantee than has been agreed expressly.
- Post & Dros MT shall be responsible during the guarantee period for the usual quality and reliability of the items delivered.
- For the use of the items required for the execution of the work, Post & Dros MT rely on the information about the characteristics of these items provided by the manufacturer or supplier. If the manufacturer or the supplier provides a quarantee for these items ordered, this quarantee applies in the same manner between the parties. Post & Dros MT shall inform the Other Party in this regard.
- Unless parties agree otherwise, a guarantee period of 6 months applies after the delivery of the items/work with respect to both items delivered and work carried out.
- Unless parties agree otherwise, Post & Dros MP is not responsible for any (general) statements/promises of the manufacturer or supplier concerning performances, capacities and suchlike of the items.
- No quarantee is granted for, and the Other Party will always be responsible for the consequences of the use of, any damage caused by deviations in/of the item (such as deviating dimensions) and suchlike if the Other Party assembles/installs the delivered items itself.
- No quarantee is granted for parts or revisions and high-performance parts for racing sports or turning. An applicable quarantee will also expire in case of installation in and/or use of the delivered items in vehicles used for racing sports and competitions in the broadest sense of the word. Moreover, Post & Dros MP will never be liable for damage suffered by the Other Party and/or non-functioning of the delivered items when used for races, competitions and suchlike. The reason for this is partly based on the fact that the supplier/ manufacturer does not offer any quarantee to Post & Dros MP or accept any liability in such cases.
- Post & Dros MP does not guarantee that the items are suitable for the purpose for which the Other Party wishes to use them, such as races, competitions and suchlike, unless she has confirmed this to the Other Party in writing.
- Defects and suchlike that are the result of changes made to the itmes by or on behalf of the Other Party, whether or not technical, are not covered by the quarantee.
- No guarantee is granted for emergency repairs carried out by Post & Dros MT as commissioned by the Other Party.
- No claim can be made under the guarantee until the Other Party has paid the price/fee agreed for the items and/or the work.
- The previous paragraph does not apply to the Consumer.
- In the case of a justified claim under the guarantee Post & Dros MT will arrange - at her discretion - for a repair free of charge or replacement of the items, the correct execution of the agreed work free of charge, or a repayment or discount on the agreed price or fee. If there is any additional damage, the provisions set out in the Liability Article shall apply.
- The Consumer may always opt for repair free of charge or replacement of items, respectively the correct execution of the agreed work free of charge unless this may, in all reasonableness, not be demanded from Post & Dros MT. In the latter case the Consumer may terminate the agreement by means of a written statement or demand a discount on the agreed price or fee.
Article 15: Liability
- Post & Dros MT shall accept no liability beyond the guarantees, guaranteed results or quality requirements explicitly agreed or given by Post & Dros MT.
- Post & Dros MT is only liable for direct damage. Any liability for consequential damage such as trading losses, loss of earnings and/or losses sustained, damage caused by delay and/or personal or bodily injury shall be expressly excluded.
- The Other Party takes all measures needed to prevent or limit the damage.
- If Post & Dros MT is liable, the liability for compensation of damage always be restricted to the maximum amount paid by her insurer where appropriate. If the insurer does not pay or if the damage is not covered by the insurance taken out by Post & Dros MT, the liability for compensation of damage shall be limited to the maximum invoice amount of the delivered items and/or the work carried out.
- The Other Party must sue Post & Dros MT for any damage suffered by him within 6 months after he became or could have become aware of it.
- Contrary to the previous paragraph, a period of 1 year applies to the Consumer.
- Should the Other Party make materials and/or parts available for processing, Post & Dros MT shall be liable for a correct processing, but not for the reliability of the materials/parts.
- The Other Party will always remain responsible for the manner in which, or for the purpose for which, the delivered items/object which are/is the subject of the work are used. If the Other Party wishes to participate in public traffic, it will be responsible for determining whether this is permitted with respect to these items/this object. Post & Dros MT is not liable for fines, tickets and suchlike resulting from the (intended) use of the delivered items/object.
- Post & Dros MT is not liable - and the Other Party cannot make a claim under the applicable guarantee - if the damage has arisen due to:
- improper use, use contrary to the purpose for which the items delivered were intended or use contrary to the directions, advices, (operating) instructions and suchlike provided by or on behalf of Post & Dros MT;
- incompetent safekeeping (storage) or maintenance or assembly/installation of the items by the Other Party;
- errors or incompletenesses in the information provided to Post & Dros MT by or on behalf of the Other Party;
- instructions or directions from/on behalf of the Other Party;
- or due to a choice of the Other Party, which deviates from Post & Dros MT’s advice and/or what is customary;
- or due to the fact that by on or behalf of the Other Party carried out (repair) work or adjustments to the delivered items/object, without Post & Dros MT's explicit prior permission.
- The Other Party is fully liable for all damage arising from this in all cases listed in the previous paragraph, and indemnifies Post & Dros MT against any claims from third parties.
- The limitations of the liability stated in this article shall not apply if the damage is due to intent and/or willful recklessness by Post & Dros MT or the supervisory staff on a management level or if mandatory legal provisions oppose this. Only in these cases shall Post & Dros MT indemnify the Other Party against any third party claims.
Article 16: Payment
- Post & Dros MT may always require (partial) advance payment or other security for payment . The requested advance payment for the Consumer is a maximum of 50% of the agreed price.
- Unless parties agree otherwise, payment will take place in cash immediately upon the delivery of the items or upon the collection of the object. If parties agree on payment after receipt of an invoice, payment must take place within an expiry period of 14 days after the invoice date, unless parties have agreed a different payment term in writing. The invoice shall be considered correct if no objections have been made within the payment term.
- If an invoice is not fully paid after expiry of the term referred to in the previous paragraph or if it was not possible to pay the amount by direct debit, the Other Party is due to Post & Dros MT a default interest of 2% per month, to be calculated cumulatively over the principal sum. Parts of a month are computed as a full month.
- In the aforementioned situation a default interest of 6% on an annual basis applies to the Consumer, unless the statutory interest is higher. In this case the statutory interest applies.
- If payment is not forthcoming after notice was given, Post & Dros MT may charge the extrajudicial collection costs to the Other Party at 15% of the invoice amount with a minimum of € 40.00.
- In the above-mentioned notice, Post & Dros MT shall give the Consumer a term of at least 15 days to make a payment. If payment is again not forthcoming, the extrajudicial collection costs for the Consumer will be:
- fifteen percent of the amount of the principal sum for the first € 2,500.00 of the demand (with a minimum of € 40,00);
- ten percent of the amount of the principal sum over the next € 2,500.00 of the demand;
- five percent of the amount of the principal sum over the next € 5,000.00 of the demand;
- one percent of the amount of the principal sum over the next € 190,000.00 of the demand;
- half a percent of the surplus of the principal sum.
All this with an absolute maximum of € 6,775.00.
- For the calculation of the extrajudicial collections costs Post & Dros MT may, after 1 year, increase the principal amount by the default interest accrued in that year.
- In the absence of full payment, Post & Dros MT may terminate the agreement without further notice of default by a written statement or to suspend her obligations under the agreement until payment is received or provided appropriate security. Post & Dros MT shall also have the aforementioned right of suspension if she has legitimate grounds to doubt the Other Party’s/the Consumer creditworthiness even before the Other Party/the Consumer enters into default regarding payment.
- Post & Dros MT will initially deduct payments received from all interest and costs due and subsequently from invoices which have been due and payable the longest, unless the payment is accompanied by a written statement that it refers to a later invoice.
- The Other Party may not deduct any claims of Post & Dros MT from any reclamations that it has on Post & Dros MT. The aforesaid also applies if the Other Party applies for a (temporary) suspension of payment or is declared bankrupt.
- The previous paragraph does not apply to the Consumer.
Article 17: Retention of title
All items supplied/to be supplied under the agreement shall remain the property of Post & Dros MT until the Other Party has met all its payments obligations.
These payment obligations consist of payment of the purchase price of the items, increased by claims relating to work performed in connection with that delivery and claims due to shortcomings attributable to the Other Party, including payment of damages, extrajudicial collection costs, interest and possible penalties.
On the delivery of identical, non-individualized items, the consignment relating to the oldest invoice shall be considered to have been sold first. Therefore, retention of title always remains with the items delivered that are still in stock, in the shop and/or form a part of the inventory and equipment of the Other Party on invoking retention of title.
The Other Party may resell the items during his normal business operations, provided he stipulates that his customers recognize an identical retention of title on these items.
As long as the title is retained in the items, the Other Party may not pledge the items in any manner or bring items under the actual control of a financier.
The Other Party informs Post & Dros MT immediately in writing if third parties claim to have ownership or other rights to the items.
As long as the Other Party holds the items, it shall carefully store them as identifiable property of Post & Dros MT.
The Other Party arranges a business interruption or home contents insurance to ensure that the items delivered which are subject to retention of title are included in the policy. Immediately on Post & Dros MT's request he will give access to the insurance policy and any included proof of premium payments.
If the Other Party contravenes this article or if Post & Dros MT claims retention of title, Post & Dros MT and her employees may enter the Other Party's site and take possession of the items. This does not affect Post & Dros MT's right to compensation of damage, lost profit and interest and the right to terminate the agreement without any notice of default by a written statement.
Article 18: Right of retention
- Post & Dros MT may suspend returning the objects of the Other Party which she has in her possession for work if and during the period that the Other Party:
- has not (fully) paid the costs for (previous) work on these objects;
- has not (fully) paid all other exigible claims arising from the contractual relationship with Post & Dros MT.
- Post & Dros MT is not liable for any damage – of whatever nature – arising from the exercised right of retention.
Article 19: Bankruptcy, loss of power to dispose of property and suchlike
- Post & Dros MT may terminate the agreement without any notice of default by a written statement to the Other Party, at the time when the Other Party:
- is declared bankrupt or files for bankruptcy;
- applies for (temporary) suspension of payment;
- is affected by enforceable seizure;
- is placed under guardianship or judicial supervision;
- otherwise loses the power to dispose of its property or loses legal capacity regarding (parts of) its assets.
- The Other Party shall always inform the guardian or administrator of the (contents of the) agreement and these General Terms and Conditions.
Article 20: Force majeure
- In the event of force majeure of the Other Party or Post & Dros MT, the latter may terminate the agreement by means of a written statement to the Other Party or suspend compliance with her obligations towards the Other Party for a reasonable term without being obliged to pay any compensation.
- Force majeure with respect to Post & Dros MT shall include: a non-culpable shortcoming by Post & Dros MT, a non-culpable shortcoming of third parties or suppliers engaged by Post & Dros MT or other serious grounds on her part.
- In any case force majeure applies to Post & Dros MT in the following circumstances: war, revolt, mobilization, riots at home and abroad, government measures, strikes within the company of Post & Dros MT or a threat of these and other circumstances, disruption of existing exchange rates at the time the agreement was concluded, operational failures due to fire, burglary, sabotage, power failure, internet or telephone failures, natural phenomena, (natural) disasters and suchlike, as well as transport problems and delivery problems arisen from weather conditions, roadblocks, accidents, and import and export hindering measures.
- If force majeure occurs when only part of the agreement has been executed, the Other Party shall be obliged to fulfil its obligations towards Post & Dros MT until that moment.
Article 21: Cancellation, suspension
- This Article does not apply to termination of the agreement within the statutory reflection period as provided in Article 4.
- If the Other Party wishes to cancel an agreement prior to or during the execution thereof, Post & Dros MT may require a fixed compensation of damage from the Other Party to cover all expenses incurred and damage suffered due to suspension, including any lost profit. At the option of Post & Dros MT and dependent on all the work carried out and/or deliveries made, this compensation of damage shall amount to 20 to 100% of the agreed price/fee.
- If the Other Party cancels or postpones a planned appointment less than 24 hours beforehand, Post & Dros MT may charge to the Other Party the time reserved for it on the basis of the agreed/customary hourly rate.
- The Other Party shall indemnify Post & Dros MT against any third-party claims resulting from the cancellation.
- Cancellation is not possible for custom objects.
- Post & Dros MT may set off the compensation of damage due against all amounts already paid by the Other Party and possible counterclaims from the Other Party.
- Should the agreement be suspended at the request of the Other Party, the compensation for all deliveries/work that are carried out shall be immediately due and payable and Post & Dros MT will have the right to charge these to the Other Party. This also applies to all costs incurred, costs resulting from the suspension and/or the hours that were already reserved by Post & Dros MT at the time of suspension for the suspension period.
- Costs Post & Dros MT incurs as a result of resumed deliveries/work, are at the expense of the Other Party. If the execution of the agreement cannot be resumed after the suspension, Post & Dros MT may terminate the agreement by means of a written statement to the Other Party.
Article 22: Applicable law, jurisdiction
- The agreement concluded between the Parties is exclusively governed by Dutch law.
- The applicability of the Vienna Sales Convention (CISG) is explicitly excluded.
- Any disputes will be submitted to the competent court in the place where Post & Dros MT is established, although Post & Dros MT shall always retain the right to submit a dispute to the competent court in the place where the Other Party is established.
- Irrespective of the choice of Post & Dros MT, the Consumer will always retain the right to submit the dispute before the legally competent court. The Consumer must notify his choice to Post & Dros MT within a month after receipt of the summons.
- If the Other Party is established outside the Netherlands, Post & Dros MT shall have the option to submit the dispute to the competent court in the country or the state where the Other Party is established.
Date: January 20, 2020