General Terms and conditions
Article 1: Definitions
- The seller will be mentioned on the invoice, bid, offer or rental agreement meant for the buyer. This can be BerkelBike BV, situated in Sint-Mischielsgestel. It is also possible that Trikes New Zealand, situated in Levin (New Zealand), or Recumbent & Specialised Cycling, situated in Sydney (Australia), are mentioned as the sellers. This depends on the products that have been ordered.
- The counterparty of the seller will be referred to as the buyer in these general terms and conditions.
- Parties are seller and buyer together.
- When “the agreement” is mentioned, we refer to the sales agreement between the parties.
Article 2: Use of general terms and conditions
- These conditions are applicable to all invoices, offers and agreements and delivery of services or goods by or on behalf of the seller.
- Deviating from these conditions is only possible if this has been agreed explicitly and in writing by the parties.
Article 3: Payment
- In case of an order- unless otherwise agreed in writing- 50% of the total amount has to be paid. The remaining amount must be paid by the buyer at recipience of the product. The buyer will receive proof of the reservation and the prepayment in the meantime.
- If the buyer does not pay on time, then he is at fault. If he remains at fault, the seller has the right to postpone his obligations until the buyer has completed his payment.
- If the buyer remains at fault, the seller will proceed to debt collection. The costs related to this debt collection are to be paid by the buyer.
- Until the full invoice amount has been paid by the buyer, all delivered and accepted goods remain the property of BerkelBike BV and/or Recumbent & Specialised Cycling and/or Trikes New Zealand (sellers).
- In the case of liquidation, bankruptcy, suspension of the buyer, the seller’s claims against the buyer will be immediately due and payable.
- If the buyer refuses to cooperate with the execution of the order by the seller, the buyer is still obliged to pay the agreed price to the seller.
- In the case of a late payment, the amount to be paid can increase. The standard is an increase of 1% interest per month of the total amount.
- A standard payment period of 14 days applies to invoices. A credit limit may apply to this.
Article 4: Offers, bids, and price
- Delivery times in invoices are indicative and do not give the buyer the right to dissolution or compensation if the time is exceeded unless the parties have explicitly and in writing agreed otherwise.
- Unless otherwise states, invoices have a validity period of 2 months. If the offer is not accepted within this time period, the offer will lapse. After this period, the invoice for the potential buyer can be adjusted or the invoice period can be lengthened.
- Offers and invoices are not necessarily valid for post orders. Parties must agree explicitly and in writing on this.
- The seller cannot be held to the invoice or offer if the customer can reasonably understand that the invoice of the offer, or a part thereof, contains an obvious mistake or error. If a product mentioned is no longer available at the time of the order, a comparable or replacement product is offered. In the event of price increases, this is discussed with the buyer.
- The price stated on offers and invoices consists of the purchase price excluding the VAT and any other government levies unless clearly stated otherwise.
- Delivery time is decided upon between the buyer and seller.
Article 5: Changing the deal
- If it becomes apparent during the execution of the agreement that it is necessary for the proper performance of the assignment to change or supplement the work to be performed, the parties will timely and in mutual consultation adjust the agreement accordingly.
- If the parties agree that the agreement is amended or supplemented, the time of completion of the execution can be influenced as well. The seller will inform the buyer as soon as possible.
- If the change and/or supplement to the agreement has financial and/or qualitative consequences, the seller shall inform the purchaser about this in writing in advance.
- If the parties have agreed on a fixed price, the seller will indicate to what extent the change or supplement to the agreement will result in an exceeding of this price.
- Contrary to the provisions of the third paragraph of this article, the seller can not charge any additional costs if the change or supplement is the result of circumstances that can be attributed to the seller.
Article 6: delivery and risk transfer
- Once the purchased items have been received by the buyer, the risk passes from seller to buyer.
- Any replacement and rental bicycles of the seller(s) are the responsibility of the customer. In the event of damage or alienation of the bicycle or parts, the costs are charged to the customer. If possible, deducted with a deposit amount.
Article 7: Research, advertisements
- The seller is obliged to examine the delivered goods within as short a time as possible if not at the time of delivery. In doing so, the buyer should investigate whether the quality and quantity of the delivered goods correspond to what was agreed upon; at least that quality and quantity meet the requirements that apply to normal (commercial) traffic.
- Complaints regarding damage, shortages or loss of goods must be submitted to the seller in writing within 10 working days after the day of delivery of the goods.
- If the complaint is well-founded within the set term, the seller has the right to either repair or to deliver again, or to abandon delivery and send the buyer a credit note for that part of the purchase price.
- Minor deviations and/or customary deviations and differences in quality, quantity, size or finish cannot be invoked against the seller.
- Complaints relating to a particular product do not affect other products or parts belonging to the same agreement.
- After processing the foods at the buyer’s, no complaints are accepted.
Article 8: Samples and models
- If a sample or model has been shown or provided to the buyer, then it is presumed to have been provided as an indication only, without the goods to be delivered have to be the exact same thing. This is different if the parties have explicitly agreed that the item to be delivered will correspond to this.
Article 9: Delivery
- Deliveries are made “from factory/shop/storage facility”. This means that all the costs are for the buyer.
- The buyer is obliged to accept the delivered goods from the moment they have been delivered, if not at the time when these goods are made available to the buyer according to the agreement.
- If the buyer refuses to take the delivery or is negligent in providing information or instructions necessary for delivery, the seller is entitled to store the goods at the expense and risk of the buyer.
- If the seller requires data from the buyer for the execution of the agreement, the delivery period commences after the buyer has made this information available to the seller in writing.
- A delivery period stated by the seller is indicative. This is never a fatal deadline. If the term is exceeded, the buyer must give notice of default to the seller in writing.
- The seller is entitled to deliver the goods in parts, unless the parties have agreed otherwise in writing or if the delivery in parts does not have independent value. The seller is, upon delivery in parts, entitled to invoice these parts separately.
Article 10: Force Majeure
- If the seller can not, not timely or not adequately fulfill his obligations under the agreement due to force majeure, then the seller is not liable for damage suffered by the buyer.
- By force majeure, the parties, in any case, understand any circumstances with which the seller could not take into account at the time of entering into the agreement and as a result of which the normal execution of the agreement and as a result of which the normal execution of the agreement cannot reasonably be demanded by the buyer, such as, for example, illness, war or war danger, civil war and riot, molestation, sabotage, terrorism, power failure, flooding, earthquake, fire, occupation, strikes, workforce exclusion, altered government measures, transport problems, and other disruptions in the seller’s business.
- Furthermore, the parties under force majeure understand that subcontractors of which the seller is dependent for the execution of the agreement, do not fulfill the contractual obligations towards the seller unless this can be blamed on the seller.
- If a situation as referred to above arises as a result of which the seller can not fulfill its obligations towards the buyer, these obligations will be suspended as long as the seller cannot meet his obligations. If the situation referred to in the previous sentence has lasted 30 calendar days, the parties have the right to dissolve the agreement in writing in whole or in part.
- In the case that the force majeure lasts longer than three months, the buyer has the right to dissolve the agreement with immediate effect. Dissolution can only be done by registered mail.
Article 11: Transfer of rights
- Rights of a party from this agreement cannot be transferred without a written agreement from the other party. This provision applies as a clause with a property law effect as referred to in section 3:83 (2) Dutch Civil Code.
Article 12: Retention of title and right of retention
- The goods and delivered items at the sellers remain the property of the seller until the buyer has paid the entire agreed price. Until then, the seller can invoke his retention of title and take back the goods.
- If the agreed advance amounts are not paid or not paid on time, the seller has the right to suspend the work until the agreed part has been paid. There is then a creditor’s default. In that case, a late delivery cannot be held against the seller.
- Goods delivered by the seller are covered by the customer’s insurance. Even if the full amount has not yet been paid.
- If items have not yet been delivered, but the agreed payment or price has not been paid in accordance with the agreement, the seller has the right of retention. The case will then not be delivered until the buyer has paid in full and in accordance with the agreement.
- In the event of liquidation, insolvency or suspension of payment of the buyer, the obligations of the buyer are immediately due and payable.
Article 13: Liability
- The seller can be held liable up to the invoice amount. With a term of six months or longer, liability is limited to the fee of the last 6 months.
- The seller is never liable for consequential damage.
- The seller is not liable for damage of any kinds, because the seller assumed incorrect and incomplete information provided by the customer unless this incorrectness or incompleteness should have been known to the seller.
- The seller’s liability for damage resulting from intent or deliberate recklessness on the part of the seller or his superior subordinates is not excluded.
Article 14: Complaints
- The seller is obliged to communicate complaints about the work performed to the seller. The complaint should contain a detailed description of the defects/limitations in order for the seller to respond to it appropriately.
- If a complaint is well-founded, the seller is obliged to repair the goods and to replace them if necessary.
Article 15: Warranty
- If warranties are included in the agreement, the following applies. The seller warrants that the sold goods comply with the agreement, that it will function without defects and that it is suitable for the use that the buyer intends to make. This guarantee applies for a period of two calendar years after actual commissioning by the buyer. This only applies to the first owner and as long as the parts are not subject to normal wear and tear.
- The seller guarantees, for 5 years, that the frames are free of material and production faults.
- The guarantee in question is intended to establish a risk distribution between seller and buyer so that the consequences of a breach of a guarantee are always fully at the expense and risk of the seller and that the seller can never invoke a breach of a guarantee. Section 6:75 of the Dutch Civil Code. The provisions of the previous sentence also apply if the infringement was known to the buyer or could have been known by conducting research.
- The said warranty does not apply if the defect arose as a result of improper use or if – without permission – the buyer or third parties have made changes or attempted to make or have used the purchased goods for purposes for which it was not intended.
- If the warranty provided by the seller relates to a case produced by a third party, the guarantee is limited to the guarantee provided by that producer.
Article 16: Applicable law
- Dutch law is exclusively applicable to the agreement between seller and buyer. The Dutch judge is competent.
- The applicability of the Vienna Sales Convention is excluded.
- If one or more provisions of these general terms and conditions are considered to be unreasonably onerous in legal proceedings, the remaining provisions will remain in full force.
Article 17: Forum choice
- All disputes arising from this agreement are exclusively submitted to the competent court.