GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF ALLTRUXX (Chamber of Commerce number: 64921468)
1. These terms and conditions apply to all offers made by Alltruxx to its counterparty (hereinafter: the client), all contracts concluded by Alltruxx with its counterparty and to all legal relationships between Alltruxx and the client.
2. Additions to or deviations from these terms and conditions must be agreed in writing; these additions and deviations apply only to the contract in respect of which they are agreed.
3. The rights and obligations arising from contracts between Alltruxx and the client and these general terms and conditions cannot be transferred by the client to third parties, except with the prior written consent of Alltruxx. This provision has effect under property law.
4. The provisions of Section 1 of Title 7 of Book 7 of the Dutch Civil Code (hereinafter: DCC) (Services), with the exception of Article 412, do not apply to the present legal relationship, unless the contract or these terms and conditions expressly provide otherwise.
5. Where the client also refers to (its) general terms and conditions, the client's terms and conditions will not apply. The general terms and conditions used by the client are hereby expressly rejected.
All offers are non-binding and valid for seven days, unless agreed otherwise in writing. An offer that includes a term for acceptance may nevertheless be revoked by Alltruxx, even after receipt of the order or contract, provided that Alltruxx does so within five (5) days of receiving acceptance of the offer at the latest. If no term for acceptance has been stipulated, no rights can be derived from the quotation or offer if the vehicle has become unavailable in the meantime.
An order or contract is concluded subject to the condition precedent that Alltruxx has approved and confirmed the order or contract in writing or has commenced with the performance of the order or contract. The content of the contract is determined by the quotation and/or order or contract confirmation given by Alltruxx and these general terms and conditions.
1. All quotations and prices charged by Alltruxx are the prices that apply at the time the offer is made or the contract is concluded, ex location Ampèrestraat 44 b in Wezep, unless agreed otherwise, exclusive of VAT and other costs relating to the contract, such as levies and tariffs.
2. If a change occurs in one of the price-determining factors after the offer has been made, Alltruxx will be entitled to adjust the prices accordingly, regardless of whether the contract has been concluded in the meantime. The price-determining factors include, among other things, purchase prices of the goods to be delivered, wages, social and government charges, transport costs, insurance premium, exchange rate fluctuations and costs, taxes, levies, and so on. This also applies to increases foreseeable at the time the contract was concluded.
3. Price changes of more than 10% give the client the right to dissolve the contract, provided this is done in writing and within seven days of receipt of our relevant notification. A dissolution as mentioned above does not entitle the client to compensation for any loss.
1. The client is obliged to pay all invoices before the delivery of the relevant goods or before the performance of the relevant work (payment in advance), unless agreed otherwise in writing. Alltruxx will not deliver the relevant goods or perform the relevant work until the invoice has been paid in full. Payment must be made by transfer to Alltruxx's bank account, and may expressly not be made in cash. This is partly in connection with the Anti-Money Laundering and Anti-Terrorist Financing Act (Wet ter voorkoming van witwassen en financieren van terrorisme or 'Wwft') and the upcoming amendment thereto in connection with the prohibition of cash payments for goods above EUR 3,000 and the expansion of information-exchange possibilities for the purpose of the gatekeeper function (Anti-money Laundering Action Plan Act).
2. If invoices are not paid in accordance with Article V. paragraph 1, the client will be in default by the mere expiry of the agreed payment term, without notice of default being required, regardless of whether the failure to comply with the payment term can be attributed to the client.
3. Without prejudice to its other rights, Alltruxx will then be entitled to charge interest of 1% per month or part of a month on the outstanding amount, to be calculated from the relevant due date.
4. All extrajudicial and judicial costs incurred by Alltruxx in the context of a dispute with the client, whether as the claimant or the defendant, will be borne by the client. The extrajudicial collection costs will be determined in accordance with the collection rate set by the Netherlands Bar Association; the judicial collection costs will be determined in accordance with the actual amount paid by Alltruxx in the context of the proceedings, also to the extent that these exceed the assessed legal costs.
5. Incoming payments will serve as payment of the longest outstanding items – including interest and costs – even if the client specifies otherwise in this respect.
6. In the event of late payment, any exchange rate difference detrimental to Alltruxx will be borne by the client. The due date and the payment date of the invoice will be the reference dates.
VI. DELIVERY TIME, DELIVERY, RISK
1. The delivery period stated and/or agreed in the offer and/or order confirmation is indicative and does not constitute a deadline, even if it has been expressly accepted by the client and/or Alltruxx. In the event of late delivery, Alltruxx will therefore only be in default after it has been given a written notice of default – which notice will include a reasonable period of at least 30 business days in which Alltruxx must render proper performance. The delivery person must also be taken to mean the period for repair.
2. The aforementioned or agreed period will in any event be extended automatically – but not exclusively – by the period(s) during which:
- there is a delay in delivery and/or shipment and/or any other circumstance that temporarily impedes performance, regardless of whether this can be attributed to Alltruxx;
- the client fails to perform one or more obligations towards Alltruxx or there is a well-founded fear that they will fail to do so, regardless of whether the reasons for this are well-founded or not;
- the client does not provide Alltruxx with the opportunity to perform the contract; this situation occurs, inter alia, if the client fails to notify Alltruxx of the place of delivery or to make available any data, items or facilities required for performance of the contract.
3. Delivery will take place in the Netherlands and the risk will pass to the client ex warehouse in Wezep, unless agreed otherwise in writing. All goods are transported at the client's expense and risk, even in the event of free carrier shipment.
4. If, at the client's request, Alltruxx handles the shipment of the goods, or if the agreed parity of the ICC Incoterms 2020 imposes this duty on Alltruxx, the time, method of shipment and shipment route will be at Alltruxx's discretion. Alltruxx will only take out transport insurance if it is expressly requested to do so by the client; all costs in respect thereof will be borne by the client.
5. Delivery will be deemed to have taken place once the goods have been made available to the client at Alltruxx's premises. If the client does not accept delivery of the goods, they will be stored at the client's expense and risk or sold by Alltruxx. Alltruxx will then be entitled to recover its claim from the proceeds.
6. Delivery outside the Netherlands will be Ex Works (EXW) Incoterms 2020, unless another International Chamber of Commerce (ICC) Incoterms, Edition 2020, has been agreed in writing.
7. Partial deliveries are allowed.
8 Loss of or damage to the vehicle after the risk has passed to the client does not relieve the client from its obligation to pay the purchase price in full.
9. The client also undertakes to not use the vehicle for war purposes or sell it to clients that it knows will use it for war purposes.
10. Alltruxx will not be responsible or liable if, for any reason, the vehicle is not admitted to the place or country of destination.
11. The client is obliged to accept delivery of the good or goods that are the subject of the contract in the agreed manner on first request by Alltruxx and at the time to be determined by Alltruxx.
VII. WARRANTY / COMPLAINTS
1. The goods delivered by Alltruxx comply with the specifications set out in the corresponding purchase contract on the understanding that, in respect of the goods delivered, the "as is, where is" principle applies, which means that at the time of transfer, all risks relating to the delivered goods are transferred to the client, including all visible and invisible defects. This also applies to (i) a serious defect (preventing the normal use of the good) that was already present at the time of purchase and sale and that was not visible to the contractor and/or (ii) defects that Alltruxx knew or should have known about and failed to notify the client accordingly. Any legal provisions deviating from the foregoing (including but not limited to Article 7:17 DCC) are hereby expressly excluded. No warranty is provided unless stated otherwise in the purchase contract.
2. No warranty is provided by Alltruxx with regard to used transport equipment, nor for hidden defects, unless this is expressly stated in the purchase contract.
3. The client is aware that Alltruxx is not an official car dealer or garage owner and that it can therefore buy used cars for a relatively low price, accepting the risk of defects (including hidden defects). Should the parties agree on a warranty, this must be included in writing in the purchase contract. These warranty clauses must specify exactly which parts of the car the warranty covers, on penalty of nullity of the warranty clause.
3. If the client invokes the warranty provided by Alltruxx in the relevant purchase contract or submits a complaint, Alltruxx will assess the warranty or complaint and, if necessary, settle the matter in accordance with the relevant provisions of the purchase contract. Warranty claims are not transferable to third parties.
4. On penalty of forfeiture of their warranty and/or the right to complain, the client must notify Alltruxx in writing of any complaints relating to the amount of the invoice or visible imperfections in the goods delivered, within two days of receipt or delivery, accurately describing the complaints. All other warranties and/or complaints are subject to a term of five (5) days after the defects have become known or could have become known. The goods in question must be made available to Alltruxx for inspection on first request by Alltruxx.
5. No complaints may be submitted if:
- the goods have been used for a purpose other than that for which they are normally intended or, in the opinion of Alltruxx, have been used or transported improperly or have been repaired by the client or a third party;
- the damage was caused by the client's negligence (e.g. inadequate maintenance) or because the client acted contrary to instructions, directions or advice given by Alltruxx;
- it concerns parts whose seal has been broken or that should be replaced regularly during maintenance or servicing or parts that are accessories;
- the client has not performed its obligations in respect of Alltruxx (whether financial or otherwise).
6. In the event that the client submits a complaint in compliance with the provisions of this article and Alltruxx deems the complaint well-founded, Alltruxx will, at its discretion, replace the goods in question free of charge – after which the replaced goods will become Alltruxx's property – or repair the goods or grant a price reduction.
7. The handling of a complaint will not suspend the client's payment obligation.
8. If a complaint is dealt with other than in the cases described above, this will be done entirely without obligation and the client cannot derive any rights therefrom.
The client is entitled, at its own expense, to inspect the goods, or to have the goods inspected by an independent party before delivery, at a time and place to be determined by Alltruxx.
1. Alltruxx will be entitled to dissolve the contract in whole or in part with immediate effect, without written notice of default and/or without judicial intervention, or to suspend performance, without prejudice to its other rights (to performance and/or compensation), if:
- the client fails to perform its obligations under the contract, or fails to do so on time or properly, and/or acts in breach of any provision of the contract between the parties, or Alltruxx has a well-founded fear that client will fail to do so;
- the client applies for Natural Persons Debt Restructuring or suspension of payments or files for bankruptcy;
- the Natural Persons Debt Restructuring, suspension of payments or bankruptcy of the client is applied for and/or granted/pronounced;
- one or more of the client's goods become subject to a pre-judgment seizure or executory seizure;
- the client's company and/or business is shut down, dissolved or liquidated or the client expresses its intention to terminate the company and/or business;
- a private settlement is offered.
- there is a change with regard to the shareholder or management structure of the client;
- the client proceeds to – partially – dispose of the company and/or assets; In these cases, any claim against the client will be immediately due and payable, without Alltruxx being obliged to pay any compensation or provide any warranty.
2. At Alltruxx's first request, the contractor will be obliged to provide adequate security for the payment, such at Alltruxx's discretion. The provisions of paragraph 1 of this article apply mutatis mutandis if the client, after having been invited to do so in writing, has not provided security deemed satisfactory by Alltruxx within seven (7) days.
3. If the client remains in default of payment and/or acceptance for more than fourteen days, Alltruxx will be entitled, without further notice, to take back the goods sold and to sell them again, in which case the down payment made will be forfeited to Alltruxx as compensation for the loss incurred by it, subject to proof to the contrary that the loss is less, to be provided by the client.
4. The client is not permitted to cancel the contract unless prior written consent has been obtained from Alltruxx. In the event of cancellation, the client will be obliged to compensate Alltruxx for its financial loss.
X. RETENTION OF TITLE
1. Delivery will take place subject to retention of title. This reservation applies in respect of claims for payment of all goods delivered or to be delivered and/or work performed by Alltruxx to the client under any contract, as well as in respect of claims arising as a result of the client's failure to comply with these contracts.
2. In the cases referred in Article IX, Alltruxx is entitled to take back the delivered goods that have remained its property pursuant to the previous paragraph. The client will provide all cooperation to this end. Taking back delivered goods in this manner constitutes a dissolution of the contract(s) concluded with the client. The client authorises Alltruxx, irrevocably to the extent necessary, to remove the goods in question, or have them removed, from wherever they are located.
3. As long as the delivered goods are subject to retention of title, the client may not dispose of the delivered goods, nor encumber them. This provision has effect under property law. However, the client is authorised to dispose of the goods subject to retention of title if and to the extent such is necessary in its normal course of business. If the client exercises such authorisation, it will be obliged to supply the goods subject to retention of title to third parties also subject to Alltruxx's retention of tile. The client will then also be obliged to grant Alltruxx, at its first request, an undisclosed pledge on the claims that it has or will have against these third parties. If the client refuses to do so, this provision will constitute an irrevocable power of attorney to Alltruxx to create this pledge.
4. If, after the goods have been delivered to the client by Alltruxx in accordance with the contract, the client has performed its obligations, the retention of title in respect of those goods will remain in force if the client fails to perform its obligations under a contract concluded at a later date (extended retention of title).
XI. RIGHT OF RETENTION
Alltruxx is entitled to suspend the performance of its obligation to surrender any of the client's goods in its possession in the context of an order or contract until such time as the claim that Alltruxx has in respect of those goods has been paid in full including interest and costs. Alltruxx may recover the claim from the goods retained, which Alltruxx can then sell and set off against the proceeds.
If the client continues using a trade-in motor vehicle while awaiting the delivery of the motor vehicle they ordered, the client will bear all costs relating to the former motor vehicle and any depreciation in its value.
XIII. LIABILITY / INDEMNITY
1. Alltruxx is not liable for any loss arising as a result of any failure to perform its obligation(s) towards the client. Any other claim for damages including those relating to loss of profits (loss due to standstill, loss of income and other indirect loss of any kind) and loss resulting from liability towards third parties is expressly excluded, unless there is question of intent or gross negligence on the part of Alltruxx.
2. Alltruxx is also not liable for intent, negligence or gross negligence of non-managerial subordinates or others it has engaged for the performance of the contract.
3. Alltruxx does not accept liability for any advice provided by it or on its behalf.
4. Alltruxx is not liable for damage to motor vehicles of third parties located on its premises .
5. In the event that Alltruxx is liable, the liability will always be limited to a maximum of 15% of the invoice amount excluding VAT and costs, with a maximum of EUR 10,000 (in words: ten thousand euros). The loss to be compensated by Alltruxx will be mitigated if the price to be paid by the client is small in relation to the extent of the loss incurred by the client.
6. The client will indemnify Alltruxx against all claims by third parties in connection with the work performed and/or goods supplied and/or loss incurred or to be incurred.
XIV. FORCE MAJEURE
1. For the purposes of these general terms and conditions, force majeure will in any event include any circumstance beyond the will and control of Alltruxx, whether or not foreseeable at the time of concluding the contract, as a result of which performance cannot reasonably be required of Alltruxx, such as economic circumstances (e.g. inflation), war, government measures, lack of raw materials, factory or transport disruptions of any kind, strikes, lock-outs or lack of personnel, quarantine, epidemics, cold weather-related downtime, weather conditions, cybercrime, disruption of digital infrastructure, failure to perform on the part of third parties engaged by Alltruxx for the performance of the contract, etc.
2. Alltruxx reserves the right to suspend performance of its obligations if it temporarily cannot meet its obligations towards the client due to force majeure. As soon as the circumstance of force majeure has ended, Alltruxx will perform with its obligations as soon as its schedule so allows.
3. If performance is or becomes permanently impossible due to force majeure, or if the temporary force majeure situation has continued for than one month, Alltruxx will be entitled to terminate the contract in part or in whole with immediate effect. The client is not entitled to compensation for the loss incurred or to be incurred as a result of force majeure, suspension or dissolution within the meaning of this article.
XV. PARTIAL NULLITY
If one or more provisions of this contract with the client are legally invalid or not entirely legally valid, the remaining provisions of the contract will remain in full force and effect. In such case, the invalid provisions will be replaced with suitable provisions. which correspond as closely as possible in a legally valid manner to the intentions of both parties and the economic result they seek.
XVI. PLACE OF PERFORMANCE, APPLICABLE LAW, COMPETENT COURT
1. Alltruxx's place of establishment is the place where the client must perform its obligations towards Alltruxx.
2. All offers and contracts entered into by Alltruxx are exclusively governed by Dutch law. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
3. Any disputes that might arise further to the contract concluded between the client and Arbitral or any further contracts arising from it will be settled by the competent court in Zwolle.