General Terms of Allers Automotive B.V., as filed with the Chamber of Commerce under number 51464993.
General Terms of Allers Automotive B.V. and of its group and/or subsidiary companies. For the appraisal, inspection, purchase, repair and maintenance of small commercial vehicles (total weight including payload no more than 3,500 kg) and parts and accessories for these vehicles, as well as the appraisal, inspection, purchase, repair and maintenance of heavy commercial vehicles (total weight including payload more than 3,500 kg) and parts and accessories for these vehicles. These general terms shall apply, unless Allers Automotive B.V. or its group or subsidiary companies expressly states other general terms and conditions and to the exclusion of any general terms and conditions of the buyer/customer. Additional conditions or provisions shall only form part of the contract insofar as the dealer/repairer has expressly agreed to these conditions and provisions in writing.
Article 1: Offers and conclusion of contracts
1. All offers and quotations, regardless of how or where they were made or by whom at the dealer/repairer, are free from obligation and are made on the basis of the prices and specifications valid at the time of concluding the contract.
2. All contracts, including amendments, are entered into under the suspensive condition of approval by the management board of the dealer/repairer. If the management board has not informed the buyer/customer in writing within five working days that the contract has not been approved, the suspensive condition shall be deemed to have been removed.
3. A contract for a new commercial vehicle shall always be made in writing; a contract for a used commercial vehicle shall be made in writing upon request. The buyer must be given a copy of the written contract. However, not possessing a written contract does not mean that the contract is invalidated.
4. A written contract shall in any case contain the following:
– a description of the commercial vehicle and any commercial vehicle to be traded in, including all accessories;
– the price of the commercial vehicle to be traded in at the time of delivery of the commercial vehicle;
– the price of the commercial vehicle to be delivered;
– the expected delivery date and delivery address;
– a description of the guarantee clauses applicable to the contract;
– the payment method.
Article 2: Changes, partial deliveries
1. The dealer/repairer retains the right to deliver other goods than those ordered on the understanding that these other goods possess the same properties in use as those originally ordered, as well as properties for special uses if and insofar as agreed upon. The buyer/customer is not entitled to compensation and/or termination. Neither is the buyer/customer entitled to suspend its obligations to the dealer/repairer.
2. The dealer/repairer is entitled to bring about necessary technical changes to the sold commercial vehicles, their equipment and/or parts without obligation to inform the buyer/customer in advance; the buyer cannot exercise any rights in this regard.
3. The dealer/repairer is entitled to make partial deliveries and partial invoices.
Article 3: Terms
1. Specified (delivery) terms are approximate terms and cannot be regarded as firm dates. If the expected delivery term is exceeded by three months, the buyer/customer can notify the dealer/repairer of default in writing. If the dealer/repairer fails to deliver the vehicle within three weeks of such notification of default, the buyer/customer is entitled to declare the contract terminated without requiring judicial intervention. In such case, the buyer/customer shall not be entitled to compensation, unless the non-delivery was the result of gross negligence or intent on the part of the dealer/repairer.
2. Repair terms are only given by approximation.
Article 4: Prices
1. Specified prices are net, excluding VAT, delivery costs, service costs and other government duties and/or third-party costs involved in the sale and/or delivery and/or execution of the contract.
2. Prices are on the basis of delivery ex-works/ex-warehouse, unless otherwise agreed in writing.
3. Quotations are made only on the basis of the prices and workshop rates valid at the time of purchase or instruction to carry out repairs or maintenance. If a price increase occurs after the offer and/or conclusion of any contract (e.g. higher taxes, import duties, excise duties, levies, exchange rates, labour, factory and/or importer’s prices, etc.), the dealer/repairer is entitled to increase the price stated and/or agreed upon in the offer. The buyer/customer shall be bound to such price increases, without prejudice to the provisions in section 4.
4. In case of a potential increase of more than 20% for a repair or other job, the buyer/customer must be contacted in order to discuss the additional costs. In that case, the buyer/customer is entitled, within a period of one week, to terminate the contract and shall compensate the dealer/repairer for any work already carried out by the dealer/repairer.
5. Exchange engines/parts shall only be delivered in exchange for other exchange engines/parts which are not broken, torn, welded or damaged in any other way or which are incomplete, and whose various components function normally and can be retrofitted. If an exchange engine/exchange part with such defects is supplied, the higher costs shall be at the expense of the buyer/customer.
Article 5: Delivery and transfer of risk
1. Delivery shall take place:
a. through provision of the purchased goods at the dealer/repairer’s address to the buyer/customer;
b. through delivery of the purchased goods to the buyer/customer’s address;
c. through provision of the purchased goods at an address specified by the buyer/customer.
2. If the purchased goods are provided to the buyer/customer at the dealer/repairer’s address, the buyer/customer must collect the purchased goods within two weeks after the date of notification by the dealer/repairer to the buyer/customer that the purchased goods are ready to collect.
3. If the purchased goods are delivered by the dealer/repairer to the address of the buyer/customer or the address specified by the buyer/customer, the buyer/customer shall immediately assume possession of the purchased goods.
4. If the buyer/customer does not accept or collect the purchased goods (in time) in accordance with the above, the dealer/repairer shall be entitled to charge storage costs in accordance with the applicable rate at the dealer/repairer’s company or the storage site. The risk of damage to and/or destruction of the purchased goods within the twoweek period mentioned in section 2 as well as during the period of storage shall be at the buyer/customer’s expense.
5. Unless expressly stated otherwise in the contract and/or these general conditions, the risk of the purchased goods shall be transferred to the buyer/customer at such time as the goods leave the dealer/repairer’s company.
Article 6: Termination
Without prejudice to the dealer/repairer’s right to demand compliance, the dealer/repairer, although not obliged to do so, can terminate the purchase contract if the buyer/customer wishes to terminate the contract; in that case the dealer/repairer is entitled to charge the buyer/customer at least 15% of the purchase price as compensation. The buyer/customer must submit a request to terminate a purchase contract in writing.
Article 7: Payment
1. Unless expressly agreed otherwise, payment must be made in cash before goods are delivered or immediately after services are carried out, as the case may be.
2. If the parties agree that payment shall be by means of payment into an account specified by the dealer/repairer, this must be done within ten days of the invoice date, unless otherwise agreed in writing. The value date specified by the bank shall be considered the payment date.
3. The buyer/customer must pay the amount due by no later than the due date, otherwise the dealer/repairer will send a reminder letter (without additional charge) giving the buyer/customer a further period of 14 days after receipt of this letter to pay the outstanding amount. If payment has still not been made within this further period, the dealer/repairer is entitled to charge statutory interest as from the date of the breach. Judicial and extrajudicial costs incurred by either party to enforce payment of a debt by the other may be passed on to this other party. The amount of these costs is subject to a maximum sum specified by law, although this maximum can be ignored in favour of the buyer/customer.
4. Payments made by the buyer/customer shall first be applied to cover any interest owed, then any costs, and finally the longest outstanding invoices, even if the buyer/customer specifies that the payment is for a later invoice.
5. The dealer/repairer must be notified of objections to invoices sent to the buyer/customer in writing no later than five working days after the due date. If no objections are made to an invoice within this term, the buyer/customer shall be deemed to have consented to the invoice.
6. In the event of liquidation, insolvency, bankruptcy or a moratorium in respect of the buyer/customer, the dealer/repairer’s claims shall be payable upon demand.
Article 8: Complaints
1. If the dealer/repairer has undertaken to transport goods, the buyer/customer must inspect the goods for damage in transit immediately upon delivery and if damage is ascertained, must make an accurate statement of the observed damage on the transport document to be signed by him after delivery. The buyer/customer must provide the dealer/repairer with this transport document no later than two working days after delivery of the goods. If the buyer/customer does not fulfil this condition for recovery, its recovery rights for damage to goods in transit shall lapse.
2. In the event of externally visible defects not caused in transit, the buyer/customer must notify the dealer/repairer of these immediately upon delivery of the goods, failing which the buyer/customer shall be deemed to have unconditionally accepted the purchased goods/service.
3. The buyer/customer can submit complaints regarding defects that are not externally visible to the dealer/repairer up until three months after delivery of the commercial vehicle/performance of the service. These complaints must be submitted to the dealer/repairer in writing no later than eight days after the defect is discovered or could reasonably have been discovered by the buyer/customer. If the complaint is not reported to the dealer/repairer within three months of delivery of the commercial vehicle/service and within eight days of discovering the defect, the buyer/customer shall be deemed to have unconditionally accepted the purchased goods/services performed.
4. If complaints are submitted in time, the buyer/customer must give the dealer/repairer the opportunity to verify the complaint. If the dealer/repairer considers the complaint to be justified, the dealer/repairer must be given sufficient time to replace the purchased goods and/or to take necessary actions. In the event of replacement, the fact that the buyer/customer has benefited from the purchased goods/services shall be taken into account and the buyer/customer shall be charged a reasonable fee for this.
5. Complaints regarding specific goods or specific services do not affect the buyer/customer’s obligations with regard to other products or clauses in this or other contracts.
6. Complaints submitted in time shall not be considered if it becomes evident that the buyer/customer has made changes and/or repairs to the purchased goods/services, except where the dealer/repairer has given prior written permission for this.
Article 9: Liability and indemnity
1. Without prejudice to the warranty clauses the dealer/repairer expressly excludes all liability to the buyer/customer for any loss, whatever the cause, including all direct and indirect loss (such as consequential loss, trading loss or loss of income), except for liability for loss caused by gross negligence or intent on the part of the dealer/repairer.
2. If and insofar as the dealer/repairer has any liability, this liability shall at all times be limited to the value of the goods delivered/services performed, which shall be determined on the basis of the invoice regarding the contract in question. Any liability is, in any event, limited to the amount paid out by the dealer/repairer’s insurer with regard to the liability.
3. The dealer/repairer accepts no responsibility for deliveries and services contracted out to third parties on behalf of the buyer/customer.
4. The buyer/customer indemnifies the dealer/repairer against any thirdparty claims for loss arising from goods/services which the dealer/repairer has delivered/performed to or on behalf of the buyer/customer. The buyer/customer shall compensate the dealer/repairer for any loss (including costs) suffered by it as a result of such third-party claims.
Article 10: Non-conformity, warranty
1. The buyer/customer cannot invoke any rights on account of nonconformity as referred to in Book 7 of the Dutch Civil Code with regard to purchase, repair and/or maintenance.
2. Deliveries of new vehicles and/or parts are covered solely by the warranty issued on these by the manufacturer or importer of these goods.
3. Deliveries of used vehicles and/or used parts are covered solely by the applicable warranty as agreed upon in writing.
Article 11: Repair and BOVAG repair and maintenance warranty
1. In the performance of the contract, new replacement parts will be used or, if this is customary for the part in question, exchange parts. The dealer/repairer shall use good-quality parts. Replaced parts will only be given to the buyer/customer if this has been expressly agreed. In all other cases the replaced parts will become the property of the dealer/repairer, without the buyer/customer being entitled to any compensation.
2. If after the performance of the commissioned work by the dealer/repairer and notification thereof to the buyer/customer, the vehicle in question is not collected within two weeks of such notification, the dealer/repairer is entitled to charge storage costs in accordance with the applicable rate at the dealer/repairer’s company or the storage site. The risk of damage and/or destruction of the vehicle and/or part in question after notification shall be carried by the buyer/customer.
3. The dealer/repairer guarantees proper performance of the contracted or sub-contracted work during a period of three months up to a maximum of 25,000 km, to be calculated from the time that the commercial vehicle has been put at the buyer/customer’s disposal.
4. The buyer/customer will receive an itemised bill for the work carried out as mentioned in section 3.
5. The warranty includes any work that needs to be carried out again by the repairer at the repairer’s expense to replace any work not carried out correctly. If carrying out such work again is not, or is no longer possible or useful, the buyer/customer is entitled to reasonable compensation for no more than the amount of the original repair which was not carried out correctly, unless the buyer/customer can prove that the loss was caused by gross negligence or intent on the part of the dealer/repairer.
6. The warranty is limited to the European Union, unless the buyer/customer can prove that defects that occurred elsewhere were not caused by circumstances deviating from those in the European Union (inferior roads, inferior fuels, etc.).
7. No warranty is given on commissioned emergency repairs. No warranty is given either on:
– defects in materials or parts which were provided or prescribed by the buyer/customer;
– defects which are the result of designs, drawings, constructions or working methods provided by the buyer/customer or recommendations made by the buyer/customer;
– deviations in colour or quality of the coating which are unavoidable or considered acceptable in the industry.
8. Claims in terms of the warranty shall lapse if:
a. the buyer/customer does not inform the dealer/repairer of defects immediately after they are ascertained;
b. the dealer/repairer is not given the opportunity to repair the defects, unless it grants permission for repairs to be carried out elsewhere;
c. third parties have carried out work related to the work carried out by the dealer/repairer in respect of which a claim is being made under the warranty without the knowledge or permission of the dealer/repairer, unless the necessity for immediate repairs arose elsewhere and can be demonstrated by information provided by the other repairer. If repairs are carried out in the Netherlands, the repairer must also be a member of BOVAG;
d. the commercial vehicle is used incorrectly, including:
– use of fuels and oils that are unsuitable for the vehicle in question;
– inexpert operation and/or use of the vehicle;
– failure to adhere to the instructions for use or maintenance.
9. The provisions of sections 8(b) and 8(c) do not apply in the event that repairs are necessary in other countries than The Netherlands. In that case, the reimbursement of the costs of necessary repairs will be on the basis of the current prices at the repairer’s company.
10. Warranty is given on the warranty repairs carried out on the basis of section 3 of this Article under the same conditions.
11. The buyer/customer can make a request in writing for mediation by the BOVAG Bemiddelingsbureau (Postbus 1100, 3980 DC BUNNIK) in respect of the BOVAG maintenance warranty if a complaint has been submitted to the dealer/repairer within the term referred to in section 3.
12. With regard to exchange engines produced by the dealer/repairer and complete overhauls carried out by the dealer/repairer, the warranty clauses apply as determined in the framework of the BOVAG overhaul warranty and set out in the BOVAG overhaul warranty certificate that is issued. In the event of exchange engines/overhauls produced or carried out by third parties, only the warranty clauses of these third parties shall apply.
Article 12: Force majeure
1. The dealer/repairer is not obliged to meet any obligation if it is unable to do so as a result of a circumstance that is not attributable to the dealer/repairer, nor at its expense by law, legal act or general practice.
2. In the event of the non-fulfilment or late fulfilment by the dealer/repairer of obligations in terms of the contract due to force majeure or other extraordinary circumstances such as (but not limited to) the following: non-delivery, incomplete or late delivery by factory/importer, war and the threat of war, full or partial mobilisation, import and export bans, measures by Dutch and/or foreign government bodies which make execution of the contract objectionable or more expensive than was foreseeable at the time of concluding the contract, frost, strikes, epidemics, traffic disorders, loss or damage during transit, fire, theft, etc. either at the dealer/repairer or at its supplier, the dealer/repairer will be entitled to carry out the agreed obligations within a reasonable term, or if fulfilment within a reasonable term is not possible, to declare the contract fully or partially terminated.
3. In the event of force majeure or other extraordinary circumstances, during the first six months in which the circumstances persist, the buyer/customer shall not be entitled to terminate the contract. The buyer/customer is not entitled to claim damages resulting from these circumstances.
Article 13: Suspension, right of retention, pledge, settlement, termination
1. In the event of non-fulfilment, incomplete or late fulfilment of one or more of the buyer/customer’s obligations under this and other contracts made between the parties, the dealer/repairer is entitled, without any need for further notification of default or judicial intervention and without incurring any liability to pay compensation, to wholly or partly suspend the performance of the contract in question and/or to wholly or partly terminate the contract in question, without prejudice to all the dealer/repairer’s other rights.
2. The dealer/repairer is entitled at all times, including during the performance of a contract, to suspend the performance of its obligations until the buyer/customer has provided security for the performance of its obligations under this and other contracts concluded by the parties, such at the dealer/repairer’s request and to its satisfaction. If the buyer/customer fails to provide security to the dealer/repairer’s satisfaction within ten working days of the request to do so, the dealer/repairer may terminate the contract by registered letter without judicial intervention and the buyer/customer shall be obliged to compensate the dealer/repairer for any work already carried out.
3. Without prejudice to its other rights, the dealer/repairer is entitled to keep all goods of the buyer/customer which the dealer/repairer has at its disposal at the expense and risk of the buyer/customer, until all claims which the dealer/repairer has on the buyer/customer have been fully paid, unless sufficient security for the payment of the claims is provided and the payment is not thereby delayed.
4. The buyer/customer is not entitled to refuse or suspend performance of its payment obligation on the grounds of alleged defects or any other grounds.
5. By putting the goods at the disposal of the dealer/repairer, the buyer/customer places a right of pledge thereon with regard to all debts that are owed or shall be owed to the dealer/repairer, on whatever grounds. These in any case include claims pursuant to contracts which have not yet been settled. The parties hereby agree that as pledge holder, the dealer/repairer can also convert the above possessory pledge into a non-possessory pledge by registering the contract between them together with a copy of these conditions as a private deed.
6. The buyer/customer is not entitled to settlement.
7. In addition to its other rights, the dealer/repairer is entitled at all times to immediately terminate the contract with the buyer/customer without requiring further notification of default or judicial intervention and without incurring liability to pay compensation to the buyer/customer if the buyer/customer is deemed not to be in a position to redeem its payable debts, the buyer/customer does not redeem the payable debts, the buyer/customer becomes insolvent, an application is made for a moratorium on payments for the buyer/customer, the buyer/customer’s business is interrupted, the buyer/customer’s assets are seized and such seizure will not be lifted within 30 days of the date of seizure, or the buyer/customer in some other way loses the power to dispose of all or part of its assets.
Article 14: Sale with exchange
1. In the event that a new commercial vehicle is sold in exchange for a used vehicle and the buyer/customer continues to use the old vehicle pending delivery of the new vehicle, ownership of the old vehicle will only transfer to the dealer/repairer at the time this vehicle is actually delivered to the dealer/repairer.
2. During such use all costs, including those of maintenance and damage, whatever the cause, including those as a result of loss (including not handing in the complete vehicle registration certificate) will be at the expense and risk of the buyer/customer.
3. At the time the vehicle is actually exchanged, it must be in the same state of repair as on the valuation date. If the vehicle is no longer in the same state of repair as on the valuation date, the dealer/repairer is entitled to reject the exchange vehicle and to demand payment of the agreed purchase price of the new vehicle, or to revaluate the vehicle to be exchanged.
4. The exchange vehicle must be accompanied by a valid registration certificate (Part 1 and Part 2) as well as a vehicle transfer certificate, or Part 1A, part 1B and part II. If any of the above documents is missing, the dealer/repairer is entitled to pass on the costs of obtaining a new registration certificate and the associated loss of value to the buyer/customer.
Article 15: Retention of title
1. As long as the buyer/customer has not fully paid for all goods/services delivered by the dealer/repairer or has not fulfilled its other obligations under the contract with the dealer/repairer, the dealer/repairer shall retain the title of all delivered goods, and the delivered goods will be at the risk and expense of the buyer/customer.
2. The buyer/customer is only entitled to use the goods in the performance of its normal business operations.
3. The buyer/customer is not entitled to pledge the goods not paid for in full to third parties and/or to transfer ownership or possession of the goods or to alienate or encumber the goods in any other way such that third parties will acquire the rights to these goods; moreover, in the event of late payment the buyer/customer is obliged to return the goods at the dealer/repairer’s first request. The dealer/repairer may keep the goods until the buyer/customer has fulfilled its payment obligation, without prejudice to the dealer/repairer’s right to take possession of the goods and dispose of them in another way. In the event that the goods are definitively taken back into the dealer’s/repairer’s possession, the buyer/customer will be credited the market value of the goods, which will in any event not be higher than the original purchase price, less the costs of taking back the goods.
4. If the dealer/repairer deems necessary, in addition to the retention of title an undisclosed pledge may also be placed on the goods with regard to all claims which the dealer/repairer may have on the buyer/customer, on the suspensive condition that the reserved title shall accrue to the buyer/customer.
5. As long as the payment obligation on the grounds of purchase has not been fulfilled, the buyer/customer shall take out complete liability and vehicle damage insurance for the vehicle. At the dealer/repairer’s request, the buyer/customer must make the insurance policies available for inspection. The buyer/customer hereby pledges to the dealer/repairer all rights it may enforce against the insurers to serve as additional security. The dealer/repairer hereby accepts such pledge of rights.
Article 16: Recall
If the dealer/repairer is notified of a defect to a commercial vehicle or new part delivered by the dealer/repairer which results in recall by the manufacturer/importer, the dealer/repairer will immediately notify the buyer/customer. If after such written notification the buyer/customer does not immediately report to the dealer/repairer, all possible claims of the buyer/customer regarding the matter shall lapse. This means that neither the dealer/repairer nor the manufacturer/importer can be held liable for any loss or future loss suffered by the buyer/customer, expressly including but not limited to any consequential loss.
Article 17: Amendment
If any provision in these general conditions becomes invalid or unenforceable as a result of any existing or future rule of law, act, instruction, directive or by-law, the remaining provisions of these general terms shall remain in force. The parties agree that if such a situation arises, they shall amend the current general terms such that the provisions in question will be brought in line with the applicable legislation with which they first conflicted, taking account of the general balance between the parties’ rights and obligations which existed before such situation arose.
Article 18: Personal data processing
The buyer/customer’s details will be processed by the dealer/repairer. The dealer/repairer is entitled to provide these details to third parties. Insofar as this pertains to personal data processing, this concerns data processing as referred to in the Personal Data Protection Act. Based on this data processing, the dealer/repairer can: carry out the contract, perform its warranty obligations to the buyer/customer, provide optimum service, provide the buyer/customer with timely product information and personalised offers. If this pertains to personal data processing for direct mailing purposes, any objection made by the buyer/customer will be honoured.
Article 19: Applicable law/choice of forum
Dutch law applies to all contracts and any other legal relationship between the dealer/repairer and the buyer/customer, to the exclusion of the 1980 United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) or any other
future international regulation on the sale of goods. Without prejudice to the maintenance warranty provision in Article 6, disputes arising from this contract shall be adjudicated by the competent court in the Netherlands.