GENERAL TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT
of B.B.A. Pumps B.V. with its registered office in Doetinchem1. Definitions
The following definitions apply to these terms and conditions:
- BBA Pumps: BBA Pumps B.V., with its registered office in Doetinchem
- Other party: any natural or legal person who receives an offer from BBA Pumps for delivery, the performance of repairs, maintenance and/or (other) services, and/or the acceptance of installation activities concerning pumps and parts and pump systems and/or commissions BBA Pumps for this purpose and/or enters into an agreement with BBA Pumps regarding the aforementioned, whether or not via its website.
- For the purposes of these terms and conditions, ‘in writing’ means by letter, by fax or by electronic means.
- These general terms and conditions are applicable to all offers of BBA Pumps, all assignments of the Other party to BBA Pumps and all agreements made between BBA Pumps and the Other party, as well as all obligations of whatever nature, in particular with regard to the performance of services and/or the sale and delivery of pumps and related matters, hereinafter to be referred to as ‘the product’, that build upon and result from these.
- Deviations from these general terms and conditions are only valid if and as far as they have been agreed in writing between BBA Pumps and the Other party.
- The applicability of any general purchasing conditions or other general terms and conditions used by the Other party is hereby expressly rejected.
- Insofar as these terms and conditions are also drawn up in a language other than Dutch, the Dutch text shall always prevail in the event of any discrepancies.
- All offers and quotations of BBA Pumps are without obligation and are made on the basis of the daily prices and specifications applicable at that time and are based on the execution of the agreement by BBA Pumps under normal circumstances and during normal working hours.
- All images and descriptions, drawings, catalogues, brochures, price lists and other information provided with a quotation are without obligation. They only represent the construction and execution of the products and/or services to be delivered and the details are non-binding. BBA Pumps reserves the right to make changes to this information.
- An agreement is concluded when BBA Pumps, after receipt of an order or return of the offer of the Other party, accepts it in writing, or when BBA Pumps starts with the execution of the order.
- If payment by means of a letter of credit is agreed, the agreement will only be concluded after BBA Pumps’ written acceptance of the irrevocable (confirmed) letter of credit.
- Oral commitments by and agreements with employees of BBA Pumps are not binding on BBA Pumps until after and insofar as they have been confirmed in writing by BBA Pumps.
- Changes or additions to the agreement are binding upon BBA Pumps only after written confirmation by BBA Pumps.
- Additional work is considered to be anything extra that BBA Pumps, in consultation with the Other party, delivers and/or installs during the execution of the agreement in addition to that explicitly stated in the agreement or the order confirmation, or any extra performance by BBA Pumps in addition to the activities explicitly stated in the agreement or the order confirmation.
- If the Other party requests an account with BBA Pumps via the website, BBA Pumps will provide the Other party with a username and password after verification and approval. This data is strictly confidential and is intended solely to be used by the user concerned who has registered.
- The Other party guarantees that the user concerned is authorised to place orders on behalf of the Other party.
- The Other party shall ensure that the user shall use the username and password in strict confidence and shall not pass them on to third parties. BBA Pumps may assume that when a user logs on under the username and password, it is the authorised user of the Other party.
- As soon as the Other party knows or has reason to suspect that the username and password have been misused or have come into the possession of unauthorised persons, the Other party will inform BBA Pumps immediately, without prejudice to the Other party’s own obligation to take effective measures immediately.
- Quotations are always without obligation and are only made on the basis of the daily prices applicable at the time, applicable levels of salaries, social security contributions, travel and accommodation costs and materials. The quotations made may not be relied upon in legal proceedings.
- The prices quoted by BBA Pumps are exclusive of VAT and are based on ex works, Doetinchem, The Netherlands (EXW, in accordance with the Incoterms as in force on the day of conclusion of the agreement), unless otherwise agreed in writing. Any applicable discounts shall always be stated separately on the invoice.
- If one or more cost-determining factors undergo an increase after the conclusion of the agreement but before the delivery, for instance, but not limited to an increase of rights and/or excise duties, wages, supplier prices, transport prices, VAT or a change in the value of currency – even if this happens due to foreseeable circumstances – BBA Pumps is entitled to increase the agreed price accordingly.
- All prices mentioned on the website and in offers of BBA Pumps are subject to programming, typing or writing errors.
- Product samples, witness testing and customer-specific drawings will be charged separately, unless stated as being included in the scope of delivery. If BBA Pumps has to make or use new drawings, calculations, descriptions, models or tools etc. in case of possible repeat orders, costs will be charged.
- The packaging is not included in the price and will be charged separately, except for cardboard or other light packaging. Return of used packaging, if agreed in writing, is not included in the price and will be calculated separately.
- The costs of loading and unloading and of the transport of raw materials, semi-finished products, models, tools and other products made available by the Other party are not included in the price and will be charged separately. The aforementioned costs paid by BBA Pumps are considered as an advance payment at the expense of the Other party; BBA Pumps is therefore entitled to set off or charge these costs at a later stage.
- If BBA Pumps has agreed with the Other party to assemble the product, the price is calculated including assembly and turn-key delivery of the product at the place mentioned in the offer and including all costs, except for costs that according to the preceding paragraphs are not included in the price. Costs incurred due to unworkable weather conditions will be charged by BBA Pumps to the Other party.
- The Other party shall be liable for all costs, possibly unforeseeable, in particular costs arising from the fact that, for whatever reason, assembly cannot be carried out in normal daytime hours and travel and accommodation costs insofar as these costs were not included in the price.
- If BBA Pumps and the Other party have agreed on a price in a currency other than the euro, the exchange rate into euros on the day of order acceptance will apply.
- All offers and quotations are made under the suspensive condition that the institution with which BBA Pumps has taken out its credit insurance will provide sufficient cover for the transaction with the Other party. If such cover is not provided or if the Other party does not meet the conditions as referred to in the following paragraph, the agreement shall be null and void and shall therefore be deemed never to have been concluded.
- If the credit insurance company does not provide cover that BBA Pumps deems sufficient, the Other party is obligated to provide BBA Pumps, upon request and within a period to be set by BBA Pumps, with a proper bank guarantee or other security for payment equal to the amount desired by BBA Pumps.
If the credit insurance company does not provide sufficient cover in the opinion of BBA Pumps, and if the Other party does not provide a proper bank guarantee or other payment security within the period set by BBA Pumps upon request, BBA Pumps can invoke the fulfilment of the condition mentioned in the first paragraph of this clause, as a result of which the agreement is considered not to have been concluded and is therefore null and void.
- Data mentioned in catalogues, pictures, drawings, weights and measurements, etc. are only binding if and as far as they are explicitly included in an agreement signed by the parties or an order confirmation signed by BBA Pumps.
- The offer made by BBA Pumps, as well as the drawings, calculations, software, descriptions, models, tools, etc. made or provided by BBA Pumps, remain the property of BBA Pumps, including the intellectual property rights attached thereto, regardless of whether costs have been charged for them. The information contained in all the above or underlies the manufacturing and construction methods, products, etc., remains the exclusive property of BBA Pumps, even if costs have been charged for it. The Other party guarantees that this information, except for the execution of the agreement, will not be copied, shown to third parties, disclosed or used by third parties other than with the written permission of BBA Pumps.
- All rights of BBA Pumps with respect to its website are exclusively vested with BBA Pumps.
- BBA Pumps is entitled to not perform or continue performing an order or agreement, or not or no longer under the same conditions, if it appears that information provided by the Other party that is important for the performance of the order or agreement is incorrect and/or incomplete. In such a case, BBA Pumps will be entitled to claim compensation for any efforts made and costs incurred up to that moment and shall not be obliged to pay any amount to the Other party.
- Datalogging device and machine data - BBA Pumps supplies datalogging devices with several of its products, through which datalogging devices machine data – not being personal data - can be transmitted to the Ot her party and/or BBA Pumps and/or its suppliers. Machine data can be accessed through BBA Pumps’ or its suppliers web portal. If the machine data is visible to the Other party, depends on the service contract between BBA Pumps and the Other Party. BBA Pumps retains the right to charge a fee for service contracts also in the cases where originally this was included in the delivery.
- Machine data collection - The Other party hereby authorizes BBA Pumps and its relevant suppliers to collect, store and use machine data. The Other party acknowledges and agrees that BBA Pumps will collect information about the Other party’s connected product(s), including information about the operation and use of such products and to provide information to any other parties in connection with the services provided by BBA Pumps to the Other party. The Other party hereby grants BBA Pumps and its relevant suppliers an unrestricted right and license to collect, store and use the machine data for carrying out its services on behalf of the Other party.
- Machine data analytics - Machine data may be used by BBA Pumps and its relevant suppliers for internal business purposes, analysis, and improvement of services and products. The Other party hereby acknowledges and agrees that BBA Pumps may disclose any machine data to relevant third parties, so long as the Other party and specific products are not identifiable.
- Availability - BBA Pumps cannot guaranty that its service will be provided uninterrupted, timely, secure or free from error or will operate without loss or degradation of machine data. In certain extreme circumstances where services are expected to be unavailable for an extended period of time, BBA Pumps reserves the right to terminate the machine data services upon 30 days written notice.
- Usage in approved regions – Machine data services only apply to products within BBA Pumps-approved regions/countries. The Other party shall use the datalogging device solely with the intended services provided through or by BBA Pumps.
- International Machine data transfer - Since BBA Pumps’s delivers products that are movable and BBA Pumps provides services through suppliers located outside the Netherlands, machine data may be transferred from, to, and maintained on computer servers located outside of the country or other governmental jurisdiction where laws (such as data protection laws) may differ from the laws of the Netherlands. The Other Party is aware of and consents with the transfer of machine data to or trough locations inside as well as outside the Netherlands.
- Liability regarding machine data services - Under no circumstances shall BBA Pumps or its suppliers be liable for any indirect, incidental, punitive, special or consequential damages, including but not limited to damages for lost revenues or profits, loss of business or loss of data, that are directly or indirectly related to the use of or inability to use BBA Pumps’ machine data services. The total liability of BBA Pumps and its suppliers regarding claims out of machine data services provided to the Other party is limited to the amount, if any, actually paid by the Other party for access to and use of the machine data services during the three month period immediately preceding the event giving rise to the claim.
- Delivery times are approximate and can never be considered as final deadlines. The delivery period commences on the last day of one of the following times:
a. the day on which the agreement is concluded;
b. the day of receipt by BBA Pumps of the documents, information, permits, etc. necessary for the execution of the assignment;
c. the date of completion of the formalities necessary for the commencement of the work;
d. the day of receipt/acceptance by BBA Pumps of any agreed payment security, including advance payment.
BBA Pumps will not be in default by exceeding the delivery time until after BBA Pumps has been given notice of default in writing by the Other party, where BBA Pumps has been given a reasonable period to comply and BBA Pumps remains in default.
- The delivery time is based on the working conditions at the time of the conclusion of the agreement and on timely delivery by suppliers of BBA Pumps. If a delay occurs as a result of a change in the working conditions or due to non or non-timely compliance by suppliers or due to other circumstances that are not at the expense and risk of BBA Pumps, the delivery time will be extended as necessary without BBA Pumps being liable for any damages. Delivery shall take place on the basis of the agreed Incoterm (in accordance with the Incoterms in force on the day of conclusion of the agreement).
- Without prejudice to the provisions elsewhere in these terms and conditions regarding the extension of the delivery time, the delivery time will be extended by the duration of the delay that arises on the part of BBA Pumps as a result of the Other party’s failure to comply with any obligation resulting from the agreement or to require cooperation from the Other party with regard to the execution of the agreement.
- The Other party shall only be entitled to dissolve the contract in the event of excessive exceeding of the delivery time (more than 12 weeks), unless the overrun is caused by force majeure. However, the Other party shall never be entitled to any compensation for penalties or damages. Exceeding the delivery time – for whatever reason – shall not entitle the Other party to carry out work or have work carried out for the execution of the agreement without judicial authorisation.
- Part deliveries are permitted and may not be refused by the Other party. The related additional freight costs are at the expense of BBA Pumps, unless the part deliveries take place at the request of the Other party.
- If it has been agreed that delivery will take place ‘on a call-off basis’ by the Other party, the Other party is obliged to call off delivery of the purchased products and to take delivery of them within the agreed period, or in the absence thereof within 10 working days after a written request by BBA Pumps to that effect.
- The packaging of the products to be delivered by BBA Pumps shall take place according to requirements of sound craftsmanship and normal commercial use.
- Returns will not be accepted by BBA Pumps unless BBA Pumps has given its express written consent. Returns are at the expense and risk of the Other party. In case of return shipment of pumps used for pumping corrosive or other hazardous substances, the type of substance with specification and warning shall be clearly indicated.
- The Other party is obliged to purchase the products at the moment they are delivered to it in accordance with the applicable Incoterm as set forth in the agreement or these general conditions. If the Other party refuses to take delivery of the products or fails to provide information or instructions necessary for the delivery, the products will be stored at the Other party’s risk. In that case, the Other party shall owe all additional costs, including in any case the storage costs. BBA Pumps also has the right to dissolve the agreement without prejudice to its right to claim full compensation of costs incurred and/or damage or loss suffered (including possible loss of income). BBA Pumps is also entitled to take the measures described above for orders that are concluded involving call-off deliveries, if the purchased products are not purchased within 10 working days after a written request from BBA Pumps to that effect.
- A contractual penalty for exceeding the delivery time shall be deemed to replace any right of the principal to damages. Such a penalty shall not exceed 0.5% of the part of the order, the execution of which has been delayed, for each full week of delay, with a maximum of 5% of the price of that part. Such a penalty shall not be due if the delay in delivery is the result of force majeure.
- The Other party is responsible towards BBA Pumps for the correct and timely execution of all facilities, provisions, conditions and/or data and/or drawings provided by the Other party that are necessary for the set- up of the product to be assembled and/or the correct functioning of the product in the assembled state, except if and insofar as that execution is carried out by or on behalf of BBA Pumps according to data provided and/or drawings made by or on behalf of BBA Pumps.
- Without prejudice to the provisions of subclause 1, the Other party shall in any case at its own expense and risk ensure that:
a. the personnel of BBA Pumps, as soon as they have arrived at the installation site, can start and continue to carry out their work during normal working hours and moreover, if BBA Pumps deems this necessary, outside normal working hours, provided that BBA Pumps has informed the Other party in a timely manner whether there is a situation of force majeure as a result of which this is necessary;
b. suitable housing for the equipment and/or all facilities required by government regulations, the agreement and use for the staff of BBA Pumps are available;
c. the access routes to the installation site are suitable for the necessary transport;
d. the designated installation site is suitable for storage and assembly;
e. the necessary lockable storage places for materials, tools and other products are available;
f. the required and customary auxiliary staff, auxiliary machinery, auxiliary and industrial materials (including fuels, oils and lubricants, cleaning material and other consumables, gas, water, electricity, steam, compressed air, heating, lighting, etc.), as well as measuring and testing equipment commonly used by the Other party’s business, are at the disposal of BBA Pumps, at the right time and place, free of charge;
g. all necessary safety and precautionary measures have been taken and are maintained, as well as that all measures have been taken and are maintained in order to comply with the applicable government regulations in the context of the assembly/installation;
h. at the start of and during assembly, the products sent are present in the correct place.
- Damage and costs that arise as a result of the conditions set out in this clause not being met or not being met on time are at the expense and risk of the Other party.
- Clause 11 applies mutatis mutandis with regard to the assembly/installation time.
- BBA Pumps has the right to outsource the assembly and installation work to a third party.
- The Other party shall inspect the product and the work within 8 days of delivery as referred to in clause 11 or – if assembly/installation has been agreed – within 8 days of installation. If this period has elapsed without written and specified notification of justified complaints, the product is deemed to have been received and accepted in good condition.
- If a commissioning trial has been agreed upon, the Other party will give BBA Pumps the opportunity to carry out the necessary tests, as well as to make the improvements and changes that BBA Pumps deems necessary, after receipt or, if installation has been agreed upon, after installation. The commissioning trial will be held immediately after BBA Pumps’ request in the presence of the Other party. If the commissioning trial has been carried out without a specified and well-founded complaint, as well as if the Other party does not comply with the aforementioned obligations, the product will be deemed to comply with the set standards and to have been accepted.
- The Other party shall make the necessary facilities, including the materials to be processed as referred to in clause 12(2)(f), available to BBA Pumps in sufficient measure, in a timely manner and free of charge at the right place for the commissioning trial and for any tests, so that the conditions of use for the product foreseen by the parties can be simulated as closely as possible. If the Other party does not comply with this, subclause 2 of the last sentence applies.
- In case of shortcomings that do not or hardly affect the foreseeable use of the product, the product will be deemed to have been accepted, regardless of these shortcomings, given that the shortcomings do not prevent normal use. BBA Pumps will remedy such shortcomings as soon as possible.
- Without prejudice to the obligation of BBA Pumps to fulfil its warranty obligations, the acceptance according to the preceding subclauses will exclude any claim of the Other party regarding a shortcoming in the performance of BBA Pumps.
- BBA Pumps reserves the ownership of all products delivered by BBA Pumps to the Other party. The ownership of the products delivered to the Other party will not be transferred until the Other party has satisfied all its payment obligations under this or similar agreements and until the Other party has satisfied the claims of BBA Pumps for failure to fulfil such an obligation. At the first request of BBA Pumps, the Other party commits to establish a non-possessory pledge on the products whose ownership is being transferred by BBA Pumps to the Other party, as security for all existing and future claims of BBA Pumps, for whatever reason.
- As long as the Other party has not satisfied the above claims, the Other party is not entitled to establish a right of pledge or a non-possessory pledge on the products delivered by BBA Pumps for the benefit of third parties, to alienate, pledge or rent this product or to bring this product in any way or title whatsoever out of their control, except as provided in the following subclause.
- The Other party is allowed to use and/or sell the products in the normal course of its business, on the understanding that, until the Other party has paid for the products in full and fulfilled its other obligations under similar agreements with BBA Pumps, BBA Pumps will acquire the rights of the Other party with regard to payments to its customers. The aforementioned rights expressly include all claims and any current or future entitlements due to damage to or loss of delivered products. The Other party shall then transfer these rights to BBA Pumps to the extent necessary, which transfer BBA Pumps will accept. However, the Other party is not permitted to dispose of the products within the context of its normal business operations at the moment that the Other party has applied for a suspension of payments or the other Party has been declared insolvent.
- In case of non-payment of a due amount, suspension of payment, application for a suspension of payment, bankruptcy or liquidation of the Other party’s products or seizure of the products by a third party, BBA Pumps has the right to take back, without notice and without judicial intervention, the delivered, but not yet fully paid products that are the property of BBA Pumps.
- If one of the circumstances as described in the fourth subclause of this clause occurs, the Other party is obliged to inform BBA Pumps immediately in writing and also to inform the insolvency practitioner, attaching bailiff, administrator and the mentioned third party immediately orally and in writing about the retention of title of BBA Pumps.
- Unless explicitly agreed otherwise in writing, payment must be made within 30 days after the invoice date, without appeal to settlement, discount, deduction or suspension to a bank account specified by BBA Pumps. The date of payment shall be deemed to be the date on which said bank account is credited.
- If part delivery has been agreed, BBA Pumps is entitled to invoice each delivery (part delivery or otherwise) separately. BBA Pumps is entitled to demand payment for the part delivery(ies) before making the remaining part delivery(ies).
- If the invoice amount has not been paid or has not been paid in full after the expiry of the term of payment as set out in the first subclause of this clause, the Other party shall be in default by the mere expiry of that term by operation of law.
- If the Other party is in default on the basis of the provisions in the previous subclauses and the Other party appears not to fulfil obligations and is therefore in default, BBA Pumps is entitled to terminate the agreement, without prejudice to BBA Pumps’ right to compensation.
- Without prejudice to the provisions of the law, the Other party shall be deemed to be in default if:
a. The Other party is in a state of insolvency;
b. The Other party is in a state of liquidation;
c. The Other party applies for a suspension of payments;
d. Any lawful seizure is levied against the Other party by a third party, unless this is lifted within one month, whether or not against security;
e. The Other party discontinues its business activities.
- From the day that the Other party is in default, the Other party is obliged to pay the statutory interest for commercial transactions, on the due and payable invoice amount until the day of full payment.
- If BBA Pumps proceeds to collect the invoice amount, the extrajudicial costs, which are set at 15% of the invoiced amount, with a minimum of EUR 250, are at the expense of the Other party. The costs of a winding-up petition, judicial and enforcement costs shall also be borne by the Other party.
- Any payments made by the Other party shall first be deducted from the interest and collection costs due and only then from the principal sum due.
- If the Other party cannot agree with the invoice sent by BBA Pumps or has any other comments about it, the Other party must inform BBA Pumps in writing of its complaints and/or comments within 8 days after the invoice date, in writing and stating its reasons. In the absence of this, the Other party shall be deemed to have accepted the invoice.
- Without prejudice to BBA Pumps’ right of retention and to the provisions of clause 6, BBA Pumps has the right, contrary to the provisions of the previous clause, to demand full or partial prepayment or security, if BBA Pumps deems this necessary in all reasonableness. This security or prepayment can be demanded by BBA Pumps at any time, both before and during the acceptance or execution of the assignment.
- If this security or prepayment is not provided to the satisfaction of BBA Pumps, BBA Pumps has the right to suspend its obligations under the agreement and will eventually have the right to dissolve the agreement in whole or in part without notice of default or judicial intervention, without prejudice to the right to payment of the products already delivered or work already carried out and without prejudice to the right to compensation for damages, so that BBA Pumps will be indemnified.
- Goods that have been brought under the actual control of BBA Pumps by the Other party, are considered to have been surrendered to BBA Pumps under possessory pledge as security for payment.
- Without prejudice to the following limitations, BBA Pumps vouches for the soundness of the product delivered by BBA Pumps and the services provided/performed by BBA Pumps, for the proper execution of the accepted work with regard to the construction and the material as far as BBA Pumps was free in its choice thereof, and that the product possesses the contractually promised properties and level of quality. BBA Pumps therefore grants a warranty period of 6 (six) months for the services provided by BBA Pumps and a warranty period of at least 12 (twelve) months for the products delivered by BBA Pumps after delivery, as further defined in the BBA Pumps Warranty Book. The above-mentioned warranty applies only to products and services provided by BBA Pumps. For products from suppliers, in particular engines (diesel and otherwise), the warranty conditions of the suppliers in question apply. The technical characteristics of the delivered products as stated by BBA Pumps are determined by accurate measurements. Minor deviations from this do not give any right to repair or replacement. If the assignment consisted of the processing of material supplied by the Other party, BBA Pumps guarantees the soundness of the processing for a period of at least 12 (twelve) months.
- Any defects covered by the warranty referred to in the first subclause will be removed by BBA Pumps by repair or replacement of the defective part, whether or not in the company of BBA Pumps, or by sending a part for replacement, all this at the discretion of BBA Pumps. All costs that exceed the sole obligation as described in the previous sentence, such as (but not limited to) transport costs, travel and accommodation costs as well as costs of disassembly and assembly, shall be borne by the Other party, unless agreed otherwise in writing in advance.
- Faults that occur due to or are partly or fully caused by the following fall outside the warranty:
a. non-observance of operating and maintenance instructions or technical specifications or other than the intended normal use or improper application;
b. normal wear and tear (including seals, impellers and other wear-sensitive parts or spare parts;
c. assembly/installation, repair or modification by third parties, including the Other party;
d. the application of any government regulation concerning the nature or quality of the materials used;
e. used materials or products used in consultation with the Other party;
f. materials or products that have been provided by the Other party to BBA Pumps for processing;
g. materials, products, working methods and structures, insofar as applied on the explicit instruction of the Other party, as well as materials and products supplied by or on behalf of the Other party;
h. parts purchased by BBA Pumps from third parties, insofar as the third party did not provide a guarantee to BBA Pumps.
- If the Other party does not, does not properly or does not timely fulfil any obligation, resulting for the Other party from the agreement made with BBA Pumps or from a related agreement, BBA Pumps is not bound to any guarantee – by whatever name – with regard to any of these agreements.
- Any claim under the warranty shall be rendered invalid if the Other party, without the prior, written approval of BBA Pumps, disassembles, repairs or carries out other work with regard to the product, or arranges for any of this to be carried out.
- Complaints with regard to immediately noticeable defects must be made in writing as soon as possible after their discovery, but at the latest within 8 working days after delivery and must be duly substantiated. Complaints with regard to defects that are not immediately apparent must be made in writing as soon as possible after their discovery, but no later than 8 working days after delivery, and must be duly substantiated. If the above periods are exceeded, any claim against BBA Pumps in respect of these defects will lapse. No complaints will be accepted regarding products that have been fully or partially processed, applied and/or used.
- In compliance with BBA Pumps’ warranty obligation, BBA Pumps has the choice of repairing the defect in the product or replacing the delivered product free of charge.
- If BBA Pumps delivers new products or parts thereof in compliance with its warranty obligation, those products or parts thereof will be subject to all warranty provisions of the BBA Pumps International Limited Warranty Conditions, as included in the BBA Pumps Warranty Book.
- If BBA Pumps replaces parts/products in order to fulfil BBA Pumps’ warranty obligations, the replaced parts/products become the property of BBA Pumps. The shipping costs of replaced products or parts thereof shall be borne by the Other party.
- The alleged failure of BBA Pumps to comply with BBA Pumps’ warranty obligations does not relieve the Other party of the obligations that arise for the Other party from any agreement made with BBA Pumps.
- The Other party will immediately provide BBA Pumps with the product with respect to which the Other party has complained, in the absence of which the complaint will be declared unfounded and any guarantee obligation will lapse.
- In these general terms and conditions of delivery, force majeure is understood to mean any circumstance, independent of the will of BBA Pumps, that permanently or temporarily prevents the performance of the agreement, as well as, as far as not already included, but not limited to: war, threat of war, civil war, riots, strikes, lock-out of employees, failure of suppliers to fulfil their obligations, failure of transporters engaged in the performance of the agreement to fulfil their obligations, malfunctions in a telecommunication or other network or connection or used communication systems and/or the unavailability of the website at any moment, traffic impediments, and emergency situations, such as water damage, fire and theft at BBA Pumps, and/or other serious failures in the business of BBA Pumps or its suppliers.
- In case of force majeure, BBA Pumps has the right, at its discretion, to suspend the performance of the agreement until the force majeure situation ends or, if not yet executed, to terminate the agreement in whole or in part without judicial intervention and without being obliged to pay any compensation.
- In case of suspension as well as in case of termination, BBA Pumps has the right to demand immediate payment of the already processed and manufactured raw materials, materials, components, other products, and time (scheduled and otherwise) already supplied and reserved by BBA Pumps for the performance of the agreement, the foregoing at the rate/value that should reasonably be attributed to them.
- BBA Pumps accepts no further liability than the obligations for BBA Pumps under clause 17 towards the Other party.
- Except in case of intent or gross negligence on the part of BBA Pumps and except for the legal liability based on mandatory legal provisions, BBA Pumps shall never be liable for any damages incurred by the Other party. Liability for indirect loss/damage, consequential loss/damage, immaterial loss/damage, trading loss or damage to the environment, or loss/damage as a result of liability towards third parties, is also expressly excluded.
- If and to the extent that, despite the provisions of clause 19.2, BBA Pumps has any liability, for whatever reason, this liability shall be limited to the amount equal to the net invoice value of the products concerned, on the understanding that BBA Pumps will only be liable up to an amount equal to the invoice value per claim. For the purposes of this clause, a series of related events giving rise to damage or loss shall be regarded as one event/claim.
- The Other party indemnifies BBA Pumps against claims of third parties – and all resulting costs for BBA Pumps – with respect to damages, for which BBA Pumps has excluded its liability.
- BBA Pumps commits itself to guarantee the safety of the user of the web shop to the best of its ability but can under no circumstances be held responsible for loss or damage caused by the use of the web shop and in particular for loss or damage caused by third parties who abuse the website or the payment system.
- BBA Pumps is, except for intent and gross negligence, in no way liable for loss or damage resulting from the inaccuracy and/or incompleteness of the content of the website, the use (incorrect or otherwise) of the website and the provision of incorrect information by the Other party.
- If the Other party does not, does not properly or does not in a timely manner comply with any of the obligations arising for the Other party from the agreement(s) concluded with BBA Pumps or from an agreement related to it; or if there is a good reason to fear that the Other party is not or will not be able to comply with its contractual obligations towards BBA Pumps; or in case of bankruptcy, suspension of payment, shut down or stoppage, liquidation or partial transfer – whether or not as a security – of the Other party’s business (including the transfer of an important part of the Other party’s claim) BBA Pumps is entitled, without any judicial intervention and without any notification of default being required, to suspend the execution of each of the agreements with a reasonable period of time or to terminate the agreement, without BBA Pumps being obliged to pay any compensation or guarantee and without prejudice to the other rights to which BBA Pumps is entitled.
- Any claims of BBA Pumps regarding the already performed part of the agreement, as well as any loss or damage resulting from the suspension or termination, including storage costs for raw materials, materials and parts reserved, processed and manufactured by BBA Pumps and loss of profit, is immediately due and payable.
- In principle, cancellation of an order by the Other party is not possible. If the Other party nevertheless cancels an order in whole or in part, as a result of any cause whatsoever, it shall be obliged to compensate BBA Pumps for all costs reasonably incurred for the execution of the order (including costs of preparation, storage, etc.), without prejudice to the right of BBA Pumps to claim performance of the Other party’s obligations and/or compensation for loss of profit and other loss or damage.
- Subject to the applicability of subclause 2 of this clause and without prejudice to the possibility to request an interim injunction from the Interim Relief Judge of the court with territorial or subject-matter jurisdiction, all disputes that may arise as a result of an agreement to which the present general terms and conditions apply in whole or in part, or as a result of further agreements, will be exclusively settled by the competent court of Rechtbank Gelderland, location Zutphen, without prejudice to the authority of BBA Pumps to submit the dispute, if desired, to another competent court.
- The provision under 1. is without prejudice to the rights of BBA Pumps to obtain a ruling by means of arbitration by the International Chamber of Commerce in accordance with the Rules of Arbitration of the International Chamber of Commerce, by a single arbitrator. The place of arbitration shall be Amsterdam, the Netherlands. The arbitration procedure shall be conducted in the English language.
- All agreements to which these terms and conditions apply in full or in part shall be governed by Dutch law and the Dutch courts shall have jurisdiction. The applicability of the Vienna Sales Convention is excluded.
These general terms and conditions were filed with the Chamber of Commerce and Industry for Central Gelderland in Arnhem, the Netherlands, on May 7, 2020 under number 08073172.