Términos y condiciones generales
General terms and conditions Radial Torque Systems B.V. (KVK 53556542)
1. General
a. These general terms and conditions (“General Terms and Conditions”) are part of each quotation submitted by the private company Radial Torque Tools B.V. (Chamber of Commerce no. 53556542) (“Radial B.V.”) and of each agreement under which Radial B.V. delivers items. These General Terms and Conditions also apply to quotations sent and agreements concluded electronically.
b. “Customer” is understood to mean the person/the business requesting a quotation and/or purchasing items from Radial B.V..
c. Deviating terms and conditions are only part of the agreement if and to the extent that Radial B.V. and the Customer have explicitly agreed such in writing.
d. These General Terms and Conditions apply to all of Radial B.V.’s quotations, as well as to the creation, the contents and the performance of all of the agreements concluded between Radial B.V. and the Customer, to the exclusion of the Customer’s conditions of purchase or other terms and conditions. The Customer’s general terms and conditions are hereby explicitly rejected. The Customer’s general terms and conditions are hereby explicitly rejected. The Customer’s general terms and conditions are hereby explicitly rejected.
e. In the event of any conflict between the agreement provisions and the General Terms and Conditions, the agreement provisions will prevail.
2. Quotation
All of Radial B.V.’s quotations are free of obligation, unless they include a term for acceptance. If an offer free of obligation is accepted by the Customer, Radial B.V. will be entitled to revoke the offer within three working days of receiving the acceptance. b. Quotations are based on the information as provided by the Customer.
3. Creation of the agreement
a. Radial B.V. may instruct third parties to perform the agreement in full or in part if it considers such desirable. Radial B.V. is responsible for proper performance of the agreement by these third parties.
b. The Customer shall be responsible for providing to Radial B.V. all information and data which are relevant and necessary for the execution of the agreement by Radial B.V. in a timely manner and the Customer shall ensure that such information and data are correct and complete.
4. Performance of the agreement
Radial B.V. may instruct third parties to perform the agreement in full or in part if it considers such desirable. Radial B.V. is responsible for proper performance of the agreement by these third parties.
5. Communication
a. All titles to intellectual property rights on designs, drawings, trademarks, sales promotion materials, models, calculations, etc. used for the purposes of the quotation or the execution of the agreement shall be retained by Radial B.V..
b. If the General Terms and Conditions or the agreement provide that a statement must be made in writing, it may also be made electronically, provided that the electronic message can be printed.
c. The Customer is responsible for saving and/or printing electronic communications. The version of the electronic communication saved by Radial B.V. will serve as proof thereof, except if the Customer can present proof to the contrary.
d. Except in the event of proof to the contrary, electronic communications are deemed to have been received on the day of transmission. Any IT failures at the Customer’s as a result of which electronic communications are not received are at the expense and risk of the Customer.
6. Prices
a. Prices are exclusive of turnover tax and other government levies, custom cost, administration cost and transport costs. Radial B.V. has the right to charge these costs to the Customer.
b. If cost-determining factors increase in price after the agreement has been concluded, Radial B.V. is authorized to pass on this price increase to the Customer, provided that the execution of the agreement has not yet been fully completed at the time of the price increase. The Customer is obliged to pay for the price increase when paying the principal or the next agreed instalment.
c. The Customer is responsible for saving and/or printing electronic communications. The version of the electronic communication saved by Radial B.V. will serve as proof thereof, except if the Customer can present proof to the contrary.
7. Invoicing and payment
a. Payments must be effected within 30 days of the invoice date. If Radial B.V. has not yet received payment in full or in part after the end of this period, the Customer is in default and owes interest of 1% per month, in which respect a part of a month is regarded as one month. All costs incurred by Radial B.V. in relation to overdue payments, such as judicial and extrajudicial costs, including costs for legal assistance, bailiffs and debt collection agencies, will be borne by the Customer. Extrajudicial costs are set at a minimum of 10% of the invoice amount, with a minimum of € 500 excluding VAT.
b. At Radial B.V.’s first request, the Customer is obliged to provide security considered adequate by Radial B.V. with regard to the payment of the amount owed under the agreement. If this request is not met or not met in due time, Radial B.V. is authorised to suspend delivery or to terminate the agreement and recover its losses from the Customer.
c. Everything that Radial B.V. can claim from the Customer pursuant to any agreement is immediately due and payable if:
(1) a payment term has been exceeded;
(2) attachment is levied on the Customer’s items or claims;
(3) in the event that the Customer is a legal entity, the Customer is dissolved, is liquidated, has been declared insolvent or files for a suspension of payments;
(4) in the event that the Customer is a natural person, the Purchaser requests to be granted judicial debt adjustment, is placed under guardianship, or dies.
d. The Customer’s right to claim its claims against Radial B.V. settlement is excluded.
8. Delivery period
a. The delivery periods are estimated by Radial B.V.. Radial B.V. considers the circumstances currently known to it when determining its delivery periods. The delivery times stated shall never be regarded as a statutory limit.
b. In the event of circumstances other than those known to Radial B.V. when it determined the delivery period, Radial B.V. may extend the delivery period for the time necessary to perform the agreement under those circumstances.
c. If Radial B.V. suspends its obligations, the delivery period and/or performance period will be extended for the duration of the suspension.
d. Any liability on the part of Radial B.V. as a result of exceeding the delivery period is excluded.
9. Delivery of items
a. Delivery is effected FCA Soest in accordance with the Incoterms 2022. The risk associated with the goods will be transferred at the time that Radial B.V. makes the goods available to the Customer. Loading and unloading risks are borne by the Customer.
b. New tools and parts shipments are insured if booked via the Radial B.V. DHL account. This insurance is valid for both DHL Parcel and DHL Express shipments. If an insured shipment is lost, Radial B.V. will replace the lost items without cost – FCA Soest.
c. Shipments of serviced, calibrated or repaired tools that are booked via the Radial B.V. DHL account are also insured: tools less than one year old are replaced by new equivalent tools. Tools between one and two years old: 75% of the original invoice value. Tools between two and four years old: 50% of the original invoice value. Tools older than four years: 25% of the original invoice value. The cost of the original service or repair must still be paid in full by Customer.
d. Insurance for shipments with other shipping companies than DHL is optional and must be ordered by Customer before shipment and has to be confirmed by Radial B.V. in order to be valid.
e. If goods are delivered on the basis of a demonstration model, the demonstration model serves as an indication of the average condition of the goods.
f. If the Customer refuses to accept delivery of the goods in full after the end of the delivery period, Radial B.V. is authorised to:
(1) store the items at the Customer’s expense and risk, irrespective of any force majeure on the part of the Customer and without prejudice to the Customer’s obligation to pay the agreed price;
(2) to dissolve the agreement, without any obligation to pay compensation to the Buyer, whereby the Buyer will bear all costs and damage incurred by Radial B.V. will reimburse;
(3) sell the goods, if RAD B.V. believes it cannot be required to store the goods any longer.
g. If delivery on call has been agreed in writing, the Customer is obliged to accept delivery of the goods according to the agreed call-and-delivery schedule. If a call-and-delivery schedule is lacking, the Customer shall accept delivery of all goods at RAD B.V.’s first request within the relevant period stated.
h. In all cases, the Customer shall arrange the permissions, exemptions and/or permits required for the transport of the goods at its own expense. The Customer is liable for all losses resulting from the lack of the permissions, exemptions and/or permits required.
10. Retention of title
a. After delivery, Radial B.V. continues to be the owner of all the goods it has delivered for as long as all its current and future claims regarding deliveries of goods and related activities, the amounts referred to in Article 7.a of these General Terms and Conditions, the collection costs and its other costs and losses have not been paid in full.
b. As long as a retention of title rests on the goods delivered, the Customer may not encumber them outside of its day-to-day operations.
c. After Radial B.V. has invoked its retention of title, it may recover all of the goods it has delivered. The Customer shall allow Radial B.V. to enter the place where these goods are located.
d. If Radial B.V. cannot invoke its retention of title as a result of confusion, deformation or accession of the delivered goods, the Customer is obliged to pledge the newly formed goods to Radial B.V..
11. Complaints
a. Any complaints of the Customer regarding defects of the performance agreed must be submitted immediately to Radial B.V. in writing, stating reasons, and in any event within seven (7) days of delivery of the goods.
b. Defects that cannot reasonably be detected within seven (7) days will be brought to Radial B.V.’s attention in writing, stating reasons, immediately after the defects are detected, but no later than one (1) month after delivery of the goods.
c. After the period referred to in Article 11.b has lapsed, the Customer can no longer rely on any defects regarding the performance agreed.
d. Complaints regarding a delivery will, in any event, not be honoured if Radial B.V. is not given an opportunity to investigate such complaints. At Radial B.V.’s request, the Customer shall return the goods to which a complaint pertains or parts thereof in accordance with the provisions of Article 12 of these General Terms and Conditions. Until Radial B.V. gives its permission as referred to in Article 12.a of these General Terms and Conditions, the Customer shall retain ownership of the goods to which the complaint pertains at its own expense and risk.
e. If and to the extent that Radial B.V. accepts a complaint concerning delivered goods pursuant to this Article, it shall, at its own discretion:
(i) repair the defect;
(ii) replace the defective goods, or;
(iii) take back the goods and credit the Customer for the price of the relevant goods. The Customer cannot additionally claim entitlement to any form of damages.
f. If the defect is repaired or the defective goods are replaced, the provisions of Article 12 of the General Terms and Conditions apply again in that regard.
g. Filing a complaint does not release the Customer from its payment obligations vis-à-vis Radial B.V. At such time, the Customer also does not have the power to suspend payments.
12. Return shipments
a. Return shipments require the prior written permission of Radial B.V..
b. All return shipments made by the Customer must be always delivered DAP Soest, stating the invoice number and the date of delivery.
c. Radial B.V. taking receipt of items returned by the Purchaser does not constitute an acknowledgement of non-performance.
13. Warranty
a. New tool warranty:
(1) Radial B.V. guarantees the proper performance of the goods delivered for a period of twelve (12) months after delivery to the final customer. And is limited to fifteen (15) months after the original Radial B.V. calibration date;.
b. Repaired tool warranty:
(1) Once a tool is beyond its new tool warranty, Radial B.V., for a period of three (3) months from the date of repair, will replace or repair for the original purchaser, free of charge, any part, or parts, found upon examination by Radial B.V., to be defective in material or workmanship or both. If any tool or part is replaced or repaired under the terms and conditions of this warranty, that tool or part will carry the remainder of the warranty from the date of original repair. To qualify for the above mentioned warranties, written notice to Radial B.V. must be given immediately upon discovery of such defect, at which time Radial B.V. will issue an authorization to return the tool. The defective tool must promptly be returned to RAD B.V., all freight charges prepaid. The defective tool must promptly be returned to RAD B.V., all freight charges prepaid. When returning a tool, the reaction arm(s) being used with the tool must also be returned.
c. Customer cannot invoke a warranty if:
(1) the defect, wholly or partly, is due to unusual, inappropriate, improper or careless use of a delivery;
(2) het gebrek, geheel of gedeeltelijk, het gevolg is van normale slijtage of niet of onjuist uitgevoerd onderhoud;
(3) the defect, wholly or partly, is due to installation, assembly, modification and/or repair by the Customer or by third parties;
(4) the delivery is altered, modified, used or processed;
(5) the delivery is transferred to a third party;
(6) Radial B.V. has obtained the tool, wholly or partly, from a third party, and Radial B.V. cannot claim compensation under warranty;
(7) Radial B.V. in manufacturing of the tool, has used raw materials, and suchlike on the instructions of the Customer;
(8) the tool has a small deviation in its quality, finishing, size, composition and suchlike, which is not unusual in the industry or if the defect was technically unavoidable;
(9) the Customer has not promptly and correctly fulfilled all obligations under the agreement towards Radial B.V..
14. Liability
a. Except to the extent that the Customer demonstrates that loss or damage is the direct result of a wilful act or deliberate recklessness on the part of Radial B.V., Radial B.V. is not liable vis-à-vis the Customer, the latter’s personnel or third parties for any direct or indirect loss or damage in connection with the agreement or the performance thereof. The Customer indemnifies Radial B.V. in this context against all liability vis-à-vis third parties.
b. In all cases, Radial B.V.’s liability is limited to the amount of the payment under the relevant liability insurance. If Radial B.V.’s insurer, for any reason whatsoever, does not pay or if the relevant liability insurance does not provide cover, Radial B.V.’s liability will, in all cases, be limited to:
(1) the amount of the net price agreed in the agreement to which the event causing the loss or damage directly pertains;
(2) or if partial deliveries have been agreed, the amount of the agreed net price of that part of the agreement to which the event causing the loss or damage relates the most.
c. Radial B.V.’s liability will never exceed € 15.000,00 per event or per series of events with the same cause.
d. Trading losses such as loss of profits and losses resulting from business interruption will never be eligible for repayment.
e. Any rights of action of the Customer vis-à-vis Radial B.V. expire as a result of the mere lapse of one (1) year following the event that led to the relevant right of action.
f. The Customer indemnifies Radial B.V. as well as the latter’s personnel and agents against all third-party claims, irrespective of the reason, that are in any way related to the agreement and the performance thereof. Radial B.V. will only be liable vis-à-vis the Customer if and to the extent that the relevant liability must be borne by Radial B.V. pursuant to the relevant agreement and these General Terms and Conditions.
g. If the items have not been produced by Radial B.V., any liability on the part of Radial B.V. vis-à-vis the Customer is limited in all cases to the amount for which Radial B.V.’s supplier will be liable vis-à-vis Radial B.V..
h. The Customer indemnifies Radial B.V. against all third-party claims on account of product liability resulting from a defect in a product that the Customer supplied to a third party and that consisted entirely or partly of products and/or materials supplied by Radial B.V..
15. Force majeure
a. In the event of force majeure at Radial B.V., Radial B.V. is authorised to extend the agreed delivery period and/or performance period for the duration of the force majeure or to terminate the agreement if it has not yet been performed in full. This does not create any obligation for Radial B.V. to pay damages.
b. In these General Terms and Conditions force majeure is construed to mean, in addition to what is interpreted as such in the law and case law, all external causes, whether anticipated or unanticipated, beyond the control of Radial B.V., but which render Radial B.V. unable to perform its obligations. This includes strikes at the business of Radial B.V. or that of third parties. Radial B.V. also has the right to invoke force majeure if the circumstance hindering performance or further performance of the agreement commences after Radial B.V. should have performed its obligation.
c. Radial B.V. may suspend the obligations under the agreement as long as the force majeure continues. If this period continues for more than two months, each of the parties is entitled to terminate the agreement without any obligation to pay damages to the other party.
d. To the extent that Radial B.V., at the time the force majeure commenced, had already partly performits obligations under the agreement or is able to perform the same, and the performed part or part to be performed has independent value, Radial B.V. is entitled to invoice the part already performed or to be performed separately. The Customer is obliged to pay such invoice as if there were a separate agreement.
16. Applicable law. Disputes
a. All agreements between the Customer and Radial B.V. are governed by Dutch law.
b. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG – Vienna, 11 April 1980) is excluded, as are all other international regulations that may be excluded.
c. All disputes arising out of or in connection with this Agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (Netherlands Commercial Court or NCC). An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English.
d. Radial B.V. furthermore has the right to submit disputes to the competent court of the client’s place of residence.
e. If the provision of Article 16.c does not apply, Radial B.V. is still authorised to commence legal proceedings at the court that is competent in that case.
17. Other provisions
a. If any provision of these General Terms and Conditions is null and void or nullified, the other provisions of these General Terms and Conditions will remain in full force and effect and Radial B.V. and the Customer shall consult mutually in order to agree on a new provision to replace the invalid or nullified provision, in which respect due account will be taken of the purpose and purport of the invalid or nullified provision.
b. All quotations as well as the performance of the agreement are based on the information made available by the Customer. The Customer guarantees that this information is correct and complete.
c. The headings of these General Terms and Conditions are for ease of reference only and are not part of these terms and conditions.
d. Radial B.V. is entitled to amend these General Terms and Conditions at all times.
April 2023
Filed with the District Court in Utrecht under number [261/2011].