General terms and conditions
RAD TORQUE SYSTEMS B.V. GENERAL TERMS AND CONDITIONS (CHAMBER OF COMMERCE NO. 53556542)
Based on the general terms and conditions of the VERTAZ technical trade association, March 2019.
a. These general terms and conditions (“General Terms and Conditions”) are part of each quotation submitted by the private company RAD Torque Systems B.V. (Chamber of Commerce no. 53556542) (“RAD B.V.”) and of each agreement under which RAD 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 RAD B.V.
c. Deviating terms and conditions are only part of the agreement if and to the extent that RAD B.V. and the Customer have explicitly agreed such in writing.
d. These General Terms and Conditions apply to all of RAD B.V.’s quotations, as well as to the creation, the contents and the performance of all of the agreements concluded between RAD 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.
e. In the event of any conflict between the agreement provisions and the General Terms and Conditions, the agreement provisions will prevail.
a. All of RAD 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, RAD 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. The agreement is not effected until it is confirmed in writing or electronically by RAD B.V.
b. The quotation submitted by RAD B.V. and this confirmation are deemed to fully reflect the agreement with the Customer.
c. Section 6:227b paragraph 1 (obligation to provide information) and section 227c (creation of the agreement) of the Dutch Civil Code do not apply if the Customer acts in the exercise of a profession or business.
4. Performance of the agreement
a. RAD B.V. may instruct third parties to perform the agreement in full or in part if it considers such desirable. RAD B.V. is responsible for proper performance of the agreement by these third parties.
b. The Customer shall be responsible for providing to RAD B.V. all information and data which are relevant and necessary for the execution of the agreement by RAD B.V. in a timely manner and the Customer shall ensure that such information and data are correct and complete.
c. If the Customer does not comply with its obligations as set out sub b, RAD B.V. cannot be held responsible for any delay in the execution of the agreement and the Customer shall be liable to RAD B.V. for any damages suffered by it as a result of such delay.
5. Intellectual property rights
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 RAD B.V..
a. All communications between RAD B.V. and the Customer may be effected electronically unless the law provides otherwise.
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 RAD 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.
7. Advice, designs and materials
a. The Customer cannot derive any rights from advice or information provided by RAD B.V. which are not explicitly covered by and part of the agreement.
b. The Customer is responsible for any drawings, calculations, designs, etc. provided to RAD B.V. for the purpose of the agreement.
c. The Customer shall fully indemnify and hold RAD B.V. harmless from and against any and all losses, costs, expenses, liabilities and claims incurred and/or any other negative effects sustained by RAD B.V. as a result of a claim by a third party in respect of or in relation to the use of any drawings, calculations, designs, etc. provided by the Customer to RAD B.V..
a. Prices are exclusive of turnover tax and other government levies, custom cost, administration cost and transport costs. RAD B.V. is entitled to charge these costs to the Customer.
b. If the price of any cost price determining factors increases after the agreement is concluded, RAD B.V. will be authorised to charge this price increase to the Customer, provided that the agreement has not yet been performed in full 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. In the event of changes or additions to the agreement made at the Customer’s request, RAD B.V. may increase its prices according to its usual rates. RAD B.V. is never obliged to meet such a request and may require that a separate written agreement be concluded to this end.
9. Invoicing and payment
a. Payments must be effected within 30 days of the invoice date. If RAD 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 RAD 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 RAD B.V.’s first request, the Customer is obliged to provide security considered adequate by RAD 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, RAD B.V. is authorised to suspend delivery or to terminate the agreement and recover its losses from the Customer.
c. Everything that RAD 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 deduct its claims against RAD B.V. is excluded.
10. Delivery period
a. The delivery periods are estimated by RAD B.V.. RAD 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 RAD B.V. when it determined the delivery period, RAD B.V. may extend the delivery period for the time necessary to perform the agreement under those circumstances.
c. If RAD 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 RAD B.V. as a result of exceeding the delivery period is excluded.
a. The Customer is entitled to inspect the goods prior to delivery. The costs of such inspection will be for the account of the Customer. Such costs include the costs incurred by RAD B.V. for the inspection.
b. If the goods are not, wholly or partially, in conformity with the agreement, the Customer shall inform RAD B.V. forthwith in writing, but no later than four (4) days after the inspection, providing adequate details of the defects.
c. RAD B.V. will have the right to remedy any defects. The delivery period will be extended by the time necessary to remedy the defects.
12. Delivery of items
a. Delivery is effected FCA Soest in accordance with the Incoterms 2020. The risk associated with the goods will be transferred at the time that RAD B.V. makes the goods available to the Customer. Loading and unloading risks are borne by the Customer.
b. 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.
c. If the Customer refuses to accept delivery of the goods in full after the end of the delivery period, RAD 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) terminate the agreement, without any obligation to pay damages to the Customer, in which respect the Customer will reimburse all of RAD B.V.’s costs and losses;
(3) sell the goods, if RAD B.V. believes it cannot be required to store the goods any longer.
d. 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.
e. 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.
13. Retention of title
a. After delivery, RAD B.V. continues to be the owner of all the goods it has delivered for as long as all of its current and future claims with regard to deliveries of goods and related activities, the amounts referred to in Article 9 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 RAD B.V. has invoked its retention of title, it may recover all of the goods it has delivered. The Customer shall allow RAD B.V. to enter the place where these goods are located.
d. If RAD 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 RAD B.V..
a. Any complaints of the Customer with regard to defects of the performance agreed must be submitted immediately to RAD 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 RAD 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 14.b. has lapsed, the Customer can no longer rely on any defects with regard to the performance agreed.
d. Complaints regarding a delivery will, in any event, not be honoured if RAD B.V. is not given an opportunity to investigate such complaints. At RAD 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 15 of these General Terms and Conditions. Until RAD B.V. gives its permission as referred to in Article 15.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 RAD 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. In the event that the defect is repaired or the defective goods are replaced, the provisions of Article 15 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 RAD B.V. At such time, the Customer also does not have the power to suspend payments.
a. Return shipments require RAD B.V.’s prior written consent.
b. All return shipments made by the Purchaser must be delivered carriage paid at all time, stating the invoice number and the date of delivery.
c. RAD B.V. taking receipt of items returned by the Purchaser does not constitute an acknowledgement of non-performance.
15. Return shipments
a. Return shipments require RAD B.V.’s prior written consent.
b. All return shipments made by the Customer must be delivered DAP Soest at all time, stating the invoice number and the date of delivery.
c. RAD B.V. taking receipt of goods returned by the Customer does not constitute an acknowledgement of non-performance.
a. New tool warranty:
(1) RAD 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 RAD B.V. calibration date.
(2) Excluded from this warranty are electric components of RAD B.V.’s digital tools (e.g. MB-RAD, MV-RAD, E-RAD, SmartSocket™, RT and TV-RAD) which have a twelve (12) month warranty after date of delivery to the final customer with a maximum of nine (9) months after the original RAD B.V. calibration date. Mechanical components of these tools fall under the terms of paragraph 1.
b. Repaired tool warranty:
(1) Once a tool is beyond its new tool warranty, RAD 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 RAD 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 RAD B.V. must be given immediately upon discovery of such defect, at which time RAD 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.
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) the defect, wholly or partly, is due to normal wear and tear or lack of proper maintenance;
(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) RAD B.V. has obtained the tool, wholly or partly, from a third party, and RAD B.V. cannot claim compensation under warranty;
(7) RAD 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 RAD B.V..
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 RAD B.V., RAD 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 RAD B.V. in this context against all liability vis-à-vis third parties.
b. In all cases, RAD B.V.’s liability is limited to the amount of the payment under the relevant liability insurance. If RAD B.V.’s insurer, for any reason whatsoever, does not pay or if the relevant liability insurance does not provide cover, RAD 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; or
(2) 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. RAD 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 RAD 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 RAD 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. RAD B.V. will only be liable vis-à-vis the Customer if and to the extent that the relevant liability must be borne by RAD B.V. pursuant to the relevant agreement and these General Terms and Conditions.
g. If the items have not been produced by RAD B.V., any liability on the part of RAD B.V. vis-à-vis the Customer is limited in all cases to the amount for which RAD B.V.’s supplier will be liable vis-à-vis RAD B.V..
h. The Customer indemnifies RAD 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 RAD B.V..
18. Force majeure
a. In the event of force majeure at RAD B.V., RAD 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 RAD 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 RAD B.V., but which render RAD B.V. unable to perform its obligations. This includes strikes at the business of RAD B.V. or that of third parties. RAD B.V. also has the right to invoke force majeure if the circumstance hindering performance or further performance of the agreement commences after RAD B.V. should have performed its obligation.
c. RAD 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 RAD B.V., at the time the force majeure commenced, had already partly performed its obligations under the agreement or is able to perform the same, and the performed part or part to be performed has independent value, RAD 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.
19. Applicable law. Disputes
a. All agreements between the Customer and RAD 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. The language to be used in the proceedings before the NCC or CSP shall be English.
d. RAD 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 19.c. does not apply, RAD B.V. is still authorised to commence legal proceedings at the court that is competent in that case.
20. 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 RAD 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. RAD B.V. is entitled to amend these General Terms and Conditions at all times.