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General terms and conditions

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY

Intertruck Benelux B.V.

Chamber of Commerce Rotterdam 24130134

ARTICLE 1. GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
1.1  The conditions as stated below in writing apply as the general conditions of sale and delivery of Intertruck Benelux B.V. (hereinafter called: “General Conditions”). These apply to all of the offers on the part of, commissions to, deliveries made by and agreements with Intertruck Benelux B.V., with its registered office in Rotterdam (hereinafter called: “Intertruck”), concerning the purchasing, sale/delivery of goods and/or the performance of work activities, the provision/procurement of services, insofar as Intertruck and its Other party (hereinafter collectively called: “Parties”) have not explicitly deviated from these General Conditions in writing.
1.2  The applicability of any other conditions that may be observed by the other party of Intertruck (hereinafter called: “the Other party”) or that may be referred to by the Other party in any way can only be invoked against Intertruck if and insofar as these have been explicitly accepted by Intertruck in writing.
1.3  Intertruck has the right to alter the General Conditions, alterations that will then apply to existing agreements. Intertruck will, within reason, consider the interests of the Other party in this respect. Any changes will come into effect one (1) month following a notification to that effect.

ARTICLE 2. OFFERS AND THE REALISATION OF AGREEMENTS
2.1  All of the estimates, quotations and offers on the part of Intertruck are free of obligation, unless the opposite explicitly follows from these.
2.2  An agreement between Intertruck and the Other party will not come into being until Intertruck has provided a written confirmation of an order and/or until Intertruck has actually began with the realisation of a commission and/or until Intertruck has made it known to the Other party in some way that it has begun (will begin) with the realisation of the commission.
2.3  Any supplements to or changes to an agreement that has been entered into between Intertruck and the Other party will not become effective until this (these) supplement(s) or change(s) has (have) been confirmed by Intertruck in writing.
Intertruck is to observe to the best of its ability all of the (delivery) times as specified in the confirmation of the commission, yet the Other party has no right to dissolve the agreement or to claim damages if a term is not kept.
2.4  All of the specifications regarding numbers, sizes, weights and/or other details concerning the products and/or services will be formulated carefully, yet Intertruck cannot guarantee that there will be no deviations in that respect. The catalogues, drawings, photographs, Internet images or other images and/or descriptions as provided by Intertruck or by the suppliers of Intertruck are for the purpose of general information only and do not compel Intertruck to make deliveries in accordance with the sizes, weights or technical details as specified in that material.
2.5  In the event that Intertruck is not able to carry out an assignment either immediately or within the term as specified, then Intertruck will inform the Other party as soon as possible, stating the term within which Intertruck expects to be able to realise the assignment.

ARTICLE 3. PRICES
3.1  All of the prices of the products are ex warehouse and therefore exclusive of the costs of transport, insurance, any duties or taxes that are to be levied by the government and the costs in connection with items that are made available by the Other party within the scope of the realisation of the assignment.
3.2  Intertruck is entitled following the establishment of the agreement to increase the prices as agreed upon in the event of, among other things, but not limited to any interim increases and/or surcharges on cargo, customs tariffs, prices of goods and/or raw materials, taxes, wages or social security, interim increases as observed by its suppliers and changes in the monetary relations that may have a price-increasing effect.
3.3  In the event that the original purchase price is increased by more than 10% of the original purchase price as a result of the second section of this article, then the Other party has the right to dissolve the agreement. The dissolution will in that case have to be realised in writing and within five (5) days after Intertruck has informed the Other party of the price increase. The Other party will in that case have no right to any damages on any account.
3.4  Insofar as Intertruck has published any sales prices, these are to be observed as recommended retail prices.
3.5  Intertruck cannot provide a binding price estimate with respect to repair work; any prices that may be stated are to be considered as basic prices only.
Unless otherwise agreed upon in writing, the Other party is to be charged an amount of at least € 10,00 for administration costs and costs of handling if the total amount of an assignment does not exceed € 50,00 (excluding VAT according to Dutch law, hereinafter “VAT”).
3.6  Intertruck will not accept any assignments, the total amount of which do not exceed € 25,00 (excluding VAT).

ARTICLE 4. DELIVERY AND RISK
4.1  Deliveries are to be made by Intertruck ex warehouse, unless explicitly otherwise agreed upon in writing. A delivery is also understood to mean – in those cases in which the Other Party does not enable Intertruck to actually make the delivery – any delivery that is completely ready for shipment at the warehouse of Intertruck.
4.2  Intertruck is to see to the transport of the products that are ordered by the Other party. The Other party may, if necessary, provide instructions for the shipment. Intertruck has the right to determine the manner of transport, the means of transport and the transport company. It may be agreed upon in writing that the Other party is to see to the transport of the products. The transport of the products always takes place at the expense and risk of the Other party, even if the delivery note states that the transport is to occur at the expense and risk of Intertruck.
4.3  War risk and/or the risk of civil commotion is always at the expense of the Other party.
4.4  The customary packaging is free, unless otherwise agreed upon. Packaging materials will only be taken back at the price as charged if this has been explicitly agreed upon and the packaging is duly sent back to Intertruck.
4.5  In the event of delivery on demand, unless otherwise agreed upon in writing, all of the ordered products must be demanded not later than six (6) months after the agreement with Intertruck has been realised, in default of which Intertruck has the right to deliver the products that are yet to be demanded all at once.
4.6  Intertruck explicitly reserves the right to deliver orders on the part of the Other party in consignments. Deliveries of this kind will be considered to have taken place as a result of separate agreements. Intertruck is furthermore entitled to deliver 10% more or less than the amount ordered, in which case the price will be adjusted accordingly.
4.7  The Other party is obligated to enable Intertruck to deliver the ordered products on the delivery date as agreed upon. In the event of non-compliance with this obligation, Intertruck will store the products in its warehouse or elsewhere for the period of one (1) month at the most. The Other party will then owe Intertruck an amount of no more than 1% of the invoice amount, with a minimum of € 25,00, for storage costs for each day or part of a day.
Once the period of time as stated in the previous sentence has expired, Intertruck has the right to sell the products to a third party and to settle the proceeds of the sale with the Other party, following a deduction for damages suffered, which will amount to at least € 50,00.
4.8  The delivery times as specified by Intertruck only apply to deliveries from stock and apply roughly. The delivery time is based on the working circumstances that apply at the time that the agreement is entered upon and on the assumption that the suppliers will timely deliver the (parts of the) products to Intertruck. In the event of a delay as a result of changes in the working circumstances as referred to, because timely ordered (parts of the) products are not delivered on time or due to circumstances that are not for the account of Intertruck, including in any event the circumstances as described in section 11.3, then the delivery time will be extended in accordance with the duration of the delay. The fact that the delivery time as initially agreed upon is exceeded does not give the Other party the right to dissolve, either partially or completely, the agreement with Intertruck.

ARTICLE 5. PAYMENT
5.1  Payments on the part of the Other party are to take place within the term as agreed upon by the parties. In the event that no term was agreed upon, then a term of payment of thirty (30) days after the date of the invoice will apply.
5.2  All payments are to be made without any discount or deduction. Only in the event that the Other party settles an invoice within ten (10) days after the date of the invoice will the Other party be allowed to deduct a 2% discount with respect to the net amount of the invoice.
5.3  Any payments on the part of the Other party will first serve to settle all of the costs and interest owed and then any invoices due that have been outstanding for the longest period, even if the Other party states that the payment concerns an invoice of a later date.
5.4  If the Other party fails to make a payment within the term as specified in section 5.1, then the Other party will be legally in default and all of the claims that Intertruck has towards the Other party will immediately fall due and the Other party will then owe the statutory interest rate on the amount due – the latter without any proof of default or summons in advance. In addition, any reasonable costs incurred for the purpose of coming to a settlement out of court are at the expense and risk of the Other party. These costs will amount to 15% of the amount due with a minimum of € 250,00, unless the expenses that were actually incurred by Intertruck are higher. The Other party will owe the actual costs in the latter case. The Other party is also bound in the event of a judicial collection to pay in full all of the reasonably incurred legal expenses, including those pertaining to legal aid, insofar as the actual costs exceed the amount of (any) court order to pay the costs of the proceedings.
5.5  In the event that the Other party is in default with respect to a payment that is to be made to Intertruck, then Intertruck is entitled to postpone the further implementation of any and all of the current agreements between Intertruck and the Other party until the payment has been made, whereas Intertruck may demand cash payments in advance with respect to any future assignments or deliveries.
5.6  Payments on the part of the Other party are solely to be made in the currency in which the prices as agreed upon are expressed.

ARTICLE 6. CLAIMS
6.1  Upon receiving the delivered products, the Other party is to immediately check whether or not the products are in good condition and/or comply with the agreement.
6.2  Upon receipt of the products, the Other party is to immediately submit a claim concerning any immediately distinguishable facts that are incorrect or inaccuracies on the delivery note and the like. If no claim is submitted in writing and stating the invoice number and packer’s number immediately upon receipt or following delivery, then these facts will be seen as correct.
6.3  Any claims concerning deficiencies that are not visible on the outside are to be submitted in writing and as soon as possible, yet not later than within seven (7) days following the delivery of the products concerned. Any claims against Intertruck pertaining to these deficiencies will become lapsed upon exceeding this 7-day term. Upon receiving the delivered goods, the Other party is to sign in acknowledgement of receipt and one’s agreement.
6.4  A claim with respect to a certain delivery does not imply a postponement of the obligation on the part of the Other party to pay for the delivery concerned and other deliveries, nor does it grant the Other party any rights to a settlement.
6.5  In the event that a claim is found to be valid, then Intertruck will repair, replace or compensate for the (parts of the) products to which the claim applies free of charge, the choice of which is to be determined by Intertruck. Any products or parts of products that are replaced will become the property of Intertruck.
6.6  Intertruck is not liable for any further compensation (for damages) and any compensation for indirect damages, including consequential losses, loss of profit, missed savings, emotional damages and losses due to an interruption of operations, on the basis of which Intertruck is not obliged to pay any indemnities in this respect.
6.7  The Other party is not entitled to submit a claim pertaining to products with respect to which Intertruck has no control over the claim (or have a third party exercise control). The Other party is not free to return the products until Intertruck has agreed to this in writing.

ARTICLE 7. RETURNING PRODUCTS AND DEPOSIT MONEY
7.1  The products that Intertruck has delivered and that have been received by the Other party may only be returned to Intertruck with the prior written permission of Intertruck and in accordance with the conditions as stipulated by Intertruck.
7.2  Intertruck has the right to sell to a third party any products that have been returned for assessment or in connection with repairs and that have not been taken back by the Other party three (3) months after providing the assessment comments and/or price estimate, and/or for which Intertruck has not received an order for repairs from the Other party. The proceeds from the sale, following a deduction for related work activities that will amount to at least € 50,00, will then be settled with the Other party.
7.3  The costs of returning the products that have been delivered by Intertruck to the Other party will be at the expense of the buyer, with the exception of the sending back of products of which it has been established that they have a deficiency as referred to in article 8 of the General Conditions, in which case the costs concerned will be at the expense of Intertruck. The costs involved in the (dis)assembly of the products that are delivered to the Other party will in all cases be at the expense of the Other party.
7.4  Intertruck supplies certain products that can be returned to Intertruck following their use by the Other party. In addition to the sales price, Intertruck charges deposit money to the Other party for these products, the amounts of which are owed by the Other party. The deposit money that has been paid by the Other party upon receiving the products concerned will be reimbursed by Intertruck at the time that the products are offered in return, taking into account that which is stated in section 5 of this article.
7.5  In the event that the Other party offers Intertruck a product in return for which a deposit has been paid and Intertruck is of the opinion that the product concerned is no longer in a good condition, then Intertruck has the right to refuse to accept the return of the product. If Intertruck exercises this right, then the Other party’s right to the reimbursement of the deposit money will no longer apply and Intertruck will keep the deposit money that has been paid.

ARTICLE 8. GUARANTEE
8.1  Taking into account that which is stated in the following sections of this article, Intertruck guarantees the quality, composition, features and the absence of deficiencies with respect to the products that it supplies for a period of six (6) months, which is to commence on the date of delivery by Intertruck to the Other party.
8.2  In contravention to that stated in article 8, paragraph 1, of the General Conditions, with respect to products or parts of products that have been obtained from third parties (suppliers of Intertruck), Intertruck will only grant the Other party a term of guarantee that does not exceed the guarantee as granted to Intertruck by the supplier in question.
8.3  Intertruck will not in any case guarantee the absence of deficiencies that are the result of the compliance with any mandatory government regulations regarding the nature or the quality of the raw materials and/or other materials that have been applied in the delivered products. Nor does Intertruck guarantee, unless otherwise agreed upon in writing, that the products are suitable for the purpose for which the Other party has intended the products, irrespective of whether or not the Other party has informed Intertruck of the purpose in question.
The guarantee does not apply to the delivery of used products.
8.4  The guarantee will become lapsed in the event that the Other party carries out repairs or makes changes to the delivered products, or calls in a third party to that effect, without the prior written permission on the part of Intertruck.
8.5  The guarantee does not apply in the event that the deficiencies concerned are the result of:
 improper handling;
 improper application;
 refraining from proper maintenance;
 the use of the delivered products for purposes other than those included in the normal use of the products.

ARTICLE 9. RETENTION OF TITLE
9.1  Intertruck retains the right of ownership with respect to the products that are supplied to the Other party until its claims towards the Other party in the matter of the payment of the products have been settled.
9.2  Prior to having paid for the products in full, the Other party is not authorised to pledge the products, or to encumber these in any other fashion or to dispose of the products to a third party, other than within the scope of its normal operations. The Other party is furthermore obligated in this respect to immediately pledge to Intertruck, on first demand on the part of Intertruck, all of the claims that the Other party has or may come about towards its buyers in the matter of these products.
9.3  The Other party is obligated to store all of the products that have been supplied under retention of title with due care and in a fashion in which the ownership of Intertruck can be distinguished. The purchase price will immediately fall due in the event of the non-compliance with the provisions stated above, irrespective of any stipulation to the contrary.
9.4  Intertruck is hereby irrevocably authorised by the Other Party to take back or cause to be taken back the products that have been delivered under retention of title, this without any judicial intervention, summons or notice of default. The Other party is to lend its co-operation to that effect, under penalty of a fine payable on demand in the amount of € 1000,00 for each day that the Other party is in default. The agreement will not be dissolved upon taking back the products, unless Intertruck informs the Other party that such is the case.
9.5  In the event that the Other party creates a new object using the delivered products, then Intertruck will be considered to have created this new object, which the Other party will keep for Intertruck until it has complied with all of the payment obligations as referred to in this article.
9.6  The Other party hereby binds itself towards Intertruck to insure the products against the risk of loss or damages, in any shape, and to keep the products insured up to and including the time of payment.
9.7  The Other party is obligated to immediately inform Intertruck in the event that:
a. the Other party has the intention to file for a (provisional) moratorium on payments;
b. the Other party has been granted a (provisional) moratorium on payments;
c. the Other party has the intention to file for bankruptcy;
d. the Other party has been informed that one or more of its creditors has the intention to file for its bankruptcy;
e. the Other party has been declared to be insolvent.

ARTICLE 10. LIABILITY
10.1  Without prejudice to that which is stated in the rest of this article, Intertruck is not liable towards the Other party for any harm to individuals or for damages to any products other than those supplied by Intertruck:
 insofar as the harm/damages is/are the result of the improper use of the products that Intertruck has supplied or the result of an act that is inconsistent with the instructions for use as provided by Intertruck;
 that is/are the result of or connected with the implementation of an agreement between Intertruck and the Other party, if the Other party has insurance to cover the damages concerned and/or could have taken out insurance to that effect.
10.2  Intertruck has no liability towards the Other party for any damages that are the result of exceeding the delivery period as agreed upon between the Parties.
10.3  In the event that Intertruck is liable for damages that the Other party is suffering and Intertruck is bound on the grounds of the General Conditions to compensate the Other party for the damages concerned, then the liability on the part of Intertruck for the damages concerned will in any case be limited to € 10,000.
10.4  Intertruck is not in any case liable for damages as a result of one’s death or bodily injury.
10.5  Intertruck is not in any case liable for indirect damages, including among other things consequential loss, loss of profit, missed savings and damages due to an interruption of operations.
10.6  A claim for damages is to be submitted to Intertruck not later than six (6) months after the Other party has discovered the damages, in default of which the right to damages will become lapsed.

ARTICLE 11. NON-ATTRIBUTABLE SHORTCOMING
11.1  Intertruck will not accept any liability in the event that it is not able to meet its obligations due to a non-attributable shortcoming.
11.2  A non-attributable shortcoming as referred to in the General Conditions is understood to mean any circumstance as a result of which the compliance with the agreement on the part of Intertruck can no longer, with reason, be demanded by the Other party, including in any case circumstances of war, the threat of war, civil war, civil commotion, flooding, walkout, lockout, shortage of employees, transport difficulties, fire, government measures, import/export bans and operational malfunctions.
11.3  Additional circumstances that will not in any case be at the expense of Intertruck include:
a. actions, barring intent or deliberate recklessness on the part of persons, of those who are deployed upon performing the agreement with the Other party.
b. the unsuitability of products that are used by Intertruck during the performance of the agreement with the Other party.
c. circumstances in which a third party exercises one or more rights towards the Other party in the matter of a shortcoming of the Other party and the performance of an agreement between said third party and the Other party that involves the products that have been supplied by Intertruck.
d. provisions by the government that have been or will be issued and that hinder or limit the use of the products that have been or are yet to be supplied.
e. non-performance of the obligations on the part of the suppliers of Intertruck and/or malfunctions in the production.
11.4  Intertruck, in the event of a non attributable shortcoming, may at its own discretion opt to extend the term of delivery in accordance with the duration of the interference or opt to dissolve the agreement insofar as it is influenced by the interference. Intertruck is obligated to state its preference regarding these options within fifteen (15) days if the Other party summons Intertruck to do so in writing.

ARTICLE 12. ATTRIBUTABLE SHORTCOMING ON THE PART OF THE OTHER PARTY
In the event that the Other party fails in any way in the performance of an obligation towards Intertruck, then Intertruck – without prejudice to any of its other rights and without any obligation to compensate for damages – is authorised to dissolve the agreement(s) either partially or completely with immediate effect, or to postpone the (further) performance  of the agreement(s), while retaining any right to compensation for damages and reimbursement of costs.

ARTICLE 13. INDEMNIFICATION
The Other party indemnifies Intertruck, its employees and/or any persons employed by or on behalf of Intertruck from any and all claims on the part of third parties for any damages suffered by said third parties that are caused by or otherwise connected with the products supplied by Intertruck.

ARTICLE 14. PROVIDING SECURITY
14.1  The Other party is obligated on first demand to that effect to pay Intertruck for the products that the Other party has ordered in advance and/or to furnish adequate security for the complete fulfilment of its obligations pertaining to the assignments that are to be carried out by Intertruck, either partially or completely, in any form as desired by Intertruck.
14.2  For as long as the Other party has not complied with the demand as referred to in article 14, section 1, all of the amounts owed to Intertruck by the Other party on whatever grounds will become payable on demand and Intertruck will have the right to suspend the fulfilment of any of the obligations that it may have, all this without prejudice to the other rights of Intertruck.

ARTICLE 15. INTELLECTUAL PROPERTY RIGHTS, BRANDS AND TRADE NAMES
15.1  All of the intellectual property rights pertaining to the materials that are developed pursuant to the agreement, such as documentation and offers, as well as preparatory materials to that effect, lie solely with Intertruck or its licensers. The Other party is only to be granted the right of use.
15.2  The Other party is not allowed to make public, make available, modify, process, multiply by photocopying or otherwise, to lend out or to otherwise provide to a third party any of the brands, logo’s and other information and data of Intertruck.
15.3  The Other party is authorised to equip the packaging of the products that are supplied by Intertruck with labels of its own trade marks or trade names, provided that the trade marks or trade names of Intertruck remain clearly visible as well.
15.4  In the event of non-compliance on the part of the Other party with respect to one (1) of the prohibitions or obligations as stipulated in article 15, then the Other party will be liable to forfeit an immediately payable penalty in the amount of € 5,000 for each day that the Other party remains in default.

ARTICLE 16. CONFIDENTIALITY
16.1  The Other party is prohibited in any shape or form to make any of the information that it obtains from Intertruck known to a third party.
16.2  The Other party is to ensure that the obligations pertaining to confidentiality are also observed by the employees of the Other party.
16.3  In the event of non-performance on the part of the Other party with respect to the obligations pertaining to confidentiality as stipulated in this article, then the Other party will be liable to forfeit an immediately payable penalty in the amount of € 10,000.

ARTICLE 17. PRIVACY AND PROTECTION OF DATA
17.1  The Other party, by entering into an agreement, grants permission to Intertruck to process its (personal) data for the purpose of implementing the agreement and in connection with the administrative and managerial tasks of Intertruck. This (personal) data can only be accessed by Intertruck and will not be supplied to a third party, unless Intertruck is obligated to do so on the grounds of the law or a court decision.
17.2  Insofar as Intertruck is to process the (personal) data for the benefit of the Other party, then Intertruck will do so as a security guard of personal data within the meaning of the law.

ARTICLE 18. INCONSISTENCIES BETWEEN THE DUTCH TEXT AND THE TRANSLATION
Intertruck also makes use of an English version of the General Conditions. The General Conditions as formulated in the Dutch language is binding in the event of inconsistencies between the text of the General Conditions in the English language compared to the text in Dutch.

ARTICLE 19. CONVERSION
If and insofar as, on the grounds of reasonableness and fairness, no appeal can be made to one of the provisions of the General Conditions, then an as similar as possible meaning will be ascribed to the provision concerned in terms of its contents and tenor so as to make an appeal possible.

ARTICLE 20. APPLICABLE LAW AND COMPETENT COURT
All of the legal relationships between Intertruck and the Other party are subject to Dutch law only. The Court of Rotterdam has exclusive jurisdiction in any dispute between Intertruck and the Other party, unless Intertruck prefers the competent court in accordance with the general rules of jurisdiction.

Filed with the Chamber of Commerce in Rotterdam
on 25. August 2004 under number 24130134.