ARTICLE 1: GENERAL
These general terms and conditions apply to every offer or tender issued by THEMAR TRUCKS nv as well as to every purchase agreement between the latter and the purchaser. The purchaser states to have taken note of these general terms and conditions and to fully accept these without any proviso and thereby fully relinquishes the applicability of his own general (purchase) terms and conditions. Derogations from these general terms and conditions will only be valid insofar as these are accepted in writing by THEMAR TRUCKS nv. These general terms and conditions have been drawn up in Dutch. This Dutch version will prevail in the event of conflict with any translation thereof.
ARTICLE 2: THE AGREEMENT
2.1. Only the order accepted in writing by THEMAR TRUCKS nv will bind THEMAR TRUCKS nv in accordance with the special terms and conditions agreed in writing and in accordance with these general terms and conditions.
2.2. Every cancellation of the order by the purchaser must take place in writing and will only be valid provided that there is acceptance in writing by THEMAR TRUCKS nv. In the event of cancellation, wholly or in part, the purchaser will owe flat-rate compensation of 35% of the price of the order resulting from the non-performance of the agreement concluded between parties, without prejudice to the right of THEMAR TRUCKS nv to claim higher compensation, provided that there is evidence of higher damage actually suffered.
ARTICLE 3: PRICES
3.1. The price of the goods is as this is set out in the order form or invoice and applies excluding delivery costs, transport costs and insurance costs, taxes, duties, toll, customs duties and/or levies of whatsoever nature that are related to the delivered goods, which will be fully at the purchaser’s expense, with the exception of another arrangement agreed expressly in writing between parties.
3.2. THEMAR TRUCKS nv expressly retains the right to increase the agreed price if one or more cost factors (including, but not limited to, energy prices and labour costs) are increased, even if this takes place resulting from foreseeable circumstances. In that event the new price will apply as set out on the front page of the invoice.
ARTICLE 4: DELIVERY PERIODS
The delivery periods stated by THEMAR TRUCKS nv in any manner whatsoever are solely indicative and therefore not binding, with the exception of another arrangement expressly agreed in writing between parties. The purchaser expressly relinquishes any means of redress, including compensation of whatsoever nature or cancellation of the sale in the event of late delivery.
ARTICLE 5: DELIVERY
5.1. The delivery will take place EX WORKS at the office of THEMAR TRUCKS nv (lncoterms® 2010) with the exception of another arrangement expressly agreed in writing between parties. In the event of transport by sea or inland waterways the delivery FAS in the agreed harbour of shipment will take place alongside the ship that the purchaser has indicated (lncoterms® 2010). lf it has been expressly agreed that THEMAR TRUCKS nv will arrange the transport of the purchased goods and if no further instructions for this purpose are provided by the purchaser to THEMAR TRUCKS nv, THEMAR TRUCKS nv will determine the manner of transport, dispatch and suchlike. In that event the risk of the storage, loading, transport, unloading, or any other damage resulting from the transport will be vested in the purchaser and THEMAR TRUCKS nv cannot be held liable for this in any event. If parties have agreed to a derogating manner of delivery, this derogating arrangement will only apply with regard to this individual agreement and not with regard to any following agreement between parties.
5.2. The purchaser undertakes to take receipt of the goods within 10 days after the sending of the notification by THEMAR TRUCKS nv stating that these are available: If the purchaser does not take receipt of the goods without the aforesaid period, THEMAR TRUCKS nv will be entitled to regard the agreement as terminated and to sell on the goods, without prior notice of default, or notification and without prior judicial authorisation. In such an event the purchaser will owe flat-rate compensation of 35% of the price of the order resulting from the non-performance of the agreement concluded between parties, without prejudice to the right of THEMAR TRUCKS nv to claim higher compensation, provided that there is evidence of higher damage actually suffered, such as any lower proceeds, the extra costs that THEMAR TRUCKS nv had to incur due to the default on the part of the purchaser and any other damage suffered by THEMAR TRUCKS nv.
5.3. In the event that THEMAR TRUCKS nv stores the goods due to the late taking receipt thereof by the purchaser, a garaging payment will be owed by operation of law and without prior notice of default of 25 EURO per day, from the passing of the 10th day after the notification as referred to in article 5.2.
ARTICLE 6: INVOICING AND PAYMENT
6.1. The goods must be paid for in advance to the registered office of THEMAR TRUCKS nv, with the exception of another arrangement expressly agreed in writing between parties. The advance payment must be paid at the time of the order as determined in the special terms and conditions agreed between parties. The remaining balance will be owed no later than within 1 month after the concluding of the agreement.
6.2. The goods will only be delivered after payment in full of the purchase price as set out in the order form. If THEMAR TRUCKS nv derogates from this, this will not affect in any manner whatsoever the obligation on the part of the purchaser of payment in full of the purchase price and to completely take receipt of the order.
6.3. In the event of non-payment or late payment of the advance payment or remaining balance, THEMAR TRUCKS nv will be entitled to regard the agreement as terminated with immediate effect and without prior notice of default or notification and without prior judicial authorisation, and to sell on the goods. In such an event the purchaser will owe flat-rate compensation of 35% of the price of the order resulting from the non-performance of the agreement concluded between parties, without prejudice to the right of THEMAR TRUCKS nv to claim higher compensation, provided that there is evidence of higher damage actually suffered. The advance payment made by the purchaser will be allocated to the aforesaid compensation owed and any remaining balance will be repaid by THEMAR TRUCKS nv upon the first request from the purchaser.
6.4. In the event that THEMAR TRUCKS nv does not opt for the immediate termination of the agreement as described above the purchaser will owe, from the due date until payment, by operation of law and without prior notice of default, default interest to the amount of 1% per month over the unpaid invoice amount, and this will be for every month that has already started, without prejudice to the right of THEMAR TRUCKS nv to claim higher compensation, provided that there is evidence of higher damage actually suffered. Every delay in the payment will result by operation of law and without prior notice of default in flat-rate compensation to the amount of 15% of the invoice, which will be charged with a minimum of 250 EURO and a with a maximum of 2,500 EURO.
6.5. The amount of the invoice must be paid net. Discount bank charges will be at the purchaser’s expense.
6.6. THEMAR TRUCKS nv will be entitled, without prior notice of default, to suspend its obligations with regard to the purchaser, if the purchaser does not fulfil his payment obligation.
6.7. Non-payment on the due date of any invoice will make the balance owed of all other amounts, even invoices that are not due yet, immediately due and payable by operation of law.
6.8. Disputes with regard to the invoice must be reported by the purchaser to THEMAR TRUCKS nv by registered letter within 10 days after the invoice date, at the risk of forfeiting rights.
6.9. Set-off by the purchaser is expressly excluded.
ARTICLE 7: INSPECTION AND CONFORMITY
7.1. Inspection of the goods must take place by the purchaser at the time of the delivery and taking receipt of the goods.
7.2. The second-hand goods will be sold in the condition in which these goods are at the time of the concluding of the purchase agreement. Acceptance of the delivery will mean the acceptance of the condition in which the goods are.
7.3. THEMAR TRUCKS nv is under no circumstances obliged to indemnify against the maintenance, the arranging and the tuning necessary for the normal use of the goods, nor for the parts that are usually replaced at the occasion of the service prescribed by the manufacturer. The usual wear and tear and the usual decrease in value of the parts will be deemed to form part of the nature of the second-hand goods and therefore cannot give any cause for a claim for indemnity with reference to THEMAR TRUCKS nv.
7.4. THEMAR TRUCKS nv is under no circumstances obliged to indemnity if the purchaser has remodelled, changed the goods, or has the goods repaired without prior approval in writing from THEMAR TRUCKS nv, or in the event of abnormal or incorrect use of the goods by the purchaser, or lack of maintenance in accordance with the regulations of the manufacturer.
7.5. THEMAR TRUCKS nv will not be responsible for breakdowns originating prior to the sale of the delivered goods, not for breakdowns on the part of third parties with regard to the use of the sold goods.
7.6. In the event that THEMAR TRUCKS nv might be obliged to indemnify, it will at its discretion replace the goods concerned (following which the replaced goods will become its property), or repair the goods, or as the case may be provide a price reduction.
ARTICLE 8: WARRANTY
If THEMAR TRUCKS nv provides a specified warranty, this will be evident from the front page of the order form. The warranty will solely apply to sealed components of the engine, gearbox and swingarm. The warranty will never apply to wearing parts and hourly pay. The warranty can never be invoked for damage resulting from unreasonable or improper use of the vehicle, for example too little engine oil, or too low oil pressure, too high operating temperature, too little braking power, too little directional stability, too little oil or grease in the gearbox, swingarm, etc. The warranty will lapse by operation of law as soon as the purchaser entrusts his vehicle for maintenance and work to third parties. The warranty of THEMAR TRUCKS nv is in any event limited to the amount of the invoiced net sale price, excluding VAT, and will in any event not include payment of any material or moral consequential loss of whatsoever nature.
ARTICLE 9: LIABILITY
THEMAR TRUCKS nv will only be liable for the damage that is the direct result of a specifically proven error and will not be liable for consequential damage of whatsoever nature (including but not limited to: loss owing to stoppage and lost income) nor for damage as a result of liability towards third parties.
ARTICLE 10: TRANSFER OF OWNERSHIP
10.1. The delivered goods remain the complete property of THEMAR TRUCKS nv until payment by the purchaser of all that the purchaser owes to THEMAR TRUCKS nv as financial consideration, including the price, costs, interest and any compensation. By contrast the risks of damage, loss, theft or destruction of the goods will be fully borne by the purchaser from the date of the signing of the purchase agreement.
10.2. The purchaser has a duty of care with regard to the goods falling under retention of title and must garage these in accordance with the standards that are usual in the sector, and must also insure these against all risks that are usual in the sector (including but not limited to: fire and theft). The purchaser undertakes to inform THEMAR TRUCKS nv if the goods are garaged in a space that is not the property of the purchaser and will inform THEMAR TRUCKS nv of the identity and the place of residence of the owner as appropriate.
10.3. Until the time when the ownership of the goods effectively transfers to the purchaser in conformity with these general terms and conditions, the purchaser will be expressly prohibited from using the delivered goods as a means of payment, to pledge, or to encumber the delivered goods with any other real right or personal right, or to dispose thereof in any manner whatsoever. The purchaser undertakes to immediately inform THEMAR TRUCKS nv by means of a registered letter of any attachment that might be levied on the goods by a third party.
10.4. The purchaser undertakes not to introduce the goods to the market without having the second-hand goods test required by law conducted and having paid the costs for this, as well as having applied for the vehicle registration certificate in his name within the statutory period and having completed all statutory administrative formalities.
ARTICLE 11: VAT
If at the transfer of the purchased goods to another member state of the European Union, or at the export the goods are exempted from VAT, the purchaser undertakes to fulfil all the necessary conditions for this purpose, in order to effect a legally valid transaction. If the application of the VAT exemption appears (afterwards) not to be possible due to whatsoever circumstance, the purchaser will owe an amount to THEMAR TRUCKS nv equal to the amount that would be owed if there would have been a domestic transfer of the goods concerned. The purchaser is also liable for all other damage for THEMAR TRUCKS nv resulting from the non-fulfilment by the purchaser of the aforesaid conditions.
ARTICLE 12: TAKEOVER OF A VEHICLE
12.1. If the takeover of a vehicle belonging to the purchaser is stated in the order form, the takeover will be depending on the evidence that the purchaser is the owner of the vehicle to be taken over, and that the purchaser can freely dispose thereof and has fulfilled all obligations with regard to any financing. The takeover value of the vehicle to be taken over, agreed at the order of the goods, will be final insofar as the condition of the vehicle belonging to the purchaser at the time of the delivery corresponds with the description thereof in the order form, or in a document added thereto. If one of these conditions has not been fulfilled, or if the agreed date of delivery of the vehicle to be taken over is not observed, THEMAR TRUCKS nv will have the right to reduce the price of the takeover or to cancel the takeover without any right to compensation on the part of the purchaser. This cancellation will not have any impact on the settlement of the sales agreement.
12.2. lf the purchaser continues to use the vehicle to be taken over in anticipation of the delivery of the goods ordered by him from THEMAR TRUCKS nv, all costs with regard to the first-mentioned vehicle and any decrease in value thereof will be at the purchaser’s expense.
ARTICLE 13: RIGHT OF RETENTION
It is expressly agreed between parties that all goods of the purchaser, which are situated in the warehouses and workshops of THEMAR TRUCKS nv, can be held back by the latter for security of the payment of the invoices owed for goods that have already been returned. New goods that are entrusted by the purchaser for modification or repair, will be deemed to form part of one and the same indivisible agreement, even if this agreement is performed in successive goods and services.
ARTICLE 14: TERMINATION
14.1. THEMAR TRUCKS nv has the right to terminate the agreement with the purchaser at any time and with immediate effect, without prior judicial authorisation, without prior notice of default, and without any payment of compensation, in the following events: (i) if the purchaser remains in default of proper fulfilment in a timely manner of one or more obligations ensuing from the agreement, (ii) if THEMAR TRUCKS nv lost its trust in the creditworthiness of the purchaser due to judicial enforcement against the purchaser, or by suspension of payment, or application for insolvency proceedings such as bankruptcy, or judicial reorganisation, (iii) in the event of liquidation, or cessation of the purchaser’s activities.
14.2. In the event of termination THEMAR TRUCKS nv will have the right to take back the goods and to claim compensation of the costs, interest and damage that it has suffered. All claims of THEMAR TRUCKS nv against the purchaser will be immediately due and payable.
ARTICLE 15: FORCE MAJEURE
In the event of force majeure THEMAR TRUCKS nv will be released by operation of law and will not be obliged to fulfilment of any obligation towards the purchaser. Force majeure is taken to mean the situation in which the performance of the agreement by THEMAR TRUCKS nv is prevented, wholly or in part, whether or not temporarily, by circumstances beyond the control of the latter, even if at the time of the coming into effect of the agreement this circumstance was already foreseeable.
Without this being limited to this list, the following events are in every respect regarded as force majeure: strike action, war, government measures, interruption of the manufacturing, transport disruption of whatsoever nature and shortcomings on the part of third parties, which are engaged by THEMAR TRUCKS nv for the purpose of the performance of the agreement. The purchaser can never withdraw from the performance of the agreement due to laws, regulations, guidelines, bylaws, import restrictions or customs regulations applicable in the country of import.
ARTICLE 16: MISCELLANEOUS PROVISIONS
16.1. Test drives upon the request from the purchaser will be executed at the purchaser’s risk.
16.2. In the event that the agreement comes into effect via an intermediary, this intermediary will always be regarded as acting as the mandatory of the purchaser, so that every act of or to this intermediary will be regarded as directly focused with regard to the purchaser, with the exception of an agreement expressly stating otherwise.
ARTICLE 17: NOTIFICATIONS
The purchaser expressly acknowledges that all notifications from THEMAR TRUCKS nv can be executed in a legally valid manner by sending an email.
ARTICLE 18 : CHOICE OF LAW AND JURISDICTION
18.1. All agreements between parties will be exclusively governed by Belgian law. The applicability of the Vienna Sales Convention of 11 April 1980 is expressly excluded.
18.2. All disputes between parties exclusively fall under the jurisdiction of the courts of the judicial district of MECHELEN.