General Terms and Conditions APM-TS B.V. – Chamber of Commerce no. 64538842
Article 1 - Parties
In these terms and conditions, the following definitions apply:
APM-TS: the private company APM-TS, located at binnenhaven 125-127 7547BG in Enschede
Otherparty: a person who acts in the exercise of a profession or business and enters into an agreement with APM-TS.
Article 2 - Application
- These terms and conditions apply to every offer, quotation and agreement between APM-TS B.V., hereinafter referred to as: "APM-TS", and a Counterparty to which APM-TS has declared these terms and conditions applicable, insofar as these terms and conditions have not been explicitly deviated from by the parties in writing.
- The present terms and conditions also apply to agreements with APM-TS, for the execution of which APM-TS must involve third parties.
- These general terms and conditions are also written for the employees of APM-TS and its management.
- The applicability of any purchase or other conditions of the Other Party is expressly rejected.
- If one or more provisions in these general terms and conditions are at any time wholly or partially void or should be annulled, the rest of these general terms and conditions remains fully applicable.
- If there is uncertainty about the interpretation of one or more provisions of these general terms and conditions, the interpretation must take place 'in the spirit' of these provisions, as well as in the situation that a situation arises that is not regulated in the present provisions.
- If APM-TS does not always require strict compliance with these conditions, this does not mean that the provisions thereof do not apply, or that APM-TS would to some extent lose the right to demand strict compliance with the provisions of these terms and conditions in other cases.
Article 3 - Quotations and offers
- All quotations and offers of APM-TS are without obligation, unless a term for acceptance has been set in the quotation. A quotation or offer expires if the product to which the quotation or offer relates is no longer
- APM-TS cannot be held to its quotations or offers if the Other Party can reasonably understand that the quotations, offers, or mentions on the website, or part thereof, contain an obvious mistake or error. This is also subject to printing and typing errors.
- The prices stated in a quotation or offer are exclusive of VAT and other government levies as well as any costs to be incurred in the context of the agreement, including shipping costs, unless otherwise indicated.
- If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or the offer, APM-TS is not bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless APM-TS indicates otherwise.
- A composite quotation does not oblige APM-TS to perform a part of the contract at a corresponding part of the specified price. Offers or quotations do not automatically apply to future orders.
Article 4 - Contract duration; delivery terms, execution, amendment of the agreement and price increase
- The agreement between APM-TS and the Other Party is entered into for an indefinite period of time, unless the nature of the agreement results otherwise or if the parties expressly agree otherwise in writing.
- The agreement is binding on the Other Party as soon as this agreement has been accepted, without reservation, by the APM-TS in any form and an order confirmation has been sent to the Other Party by e-mail.
- If a term has been agreed or specified for the completion of certain activities or for the delivery of certain goods, this is never a deadline.
- APM-TS is entitled to execute the agreement in several phases and to partially invoice the partially executed one.
- If the agreement is executed in phases, APM-TS may suspend the execution of those parts that belong to a subsequent phase until the Other Party has approved the results of the preceding phase in writing.
- If APM-TS needs data from the Other Party for the execution of the agreement, the execution period does not start until after the Other Party has made it correctly and completely available to APM-TS.
- If the agreement is amended or supplemented, APM-TS is entitled to implement it only after approval has been given by APM-TS and the Other Party. The non-execution or not immediately execution of the amended agreement also does not constitute a breach of contract on the part of APM-TS and is not a ground for the Other Party to terminate the agreement.
- If the Other Party should fail to comply with the proper fulfilment of what it is obliged to APM-TS to do, the Other Party is liable for all damage (including costs) on the part of APM-TS arising directly or indirectly as a result.
- If APM-TS agrees on a certain price at the conclusion of the agreement, then APM-TS is nevertheless entitled to increase the price under the following circumstances, even if the price was not originally specified under reservation. if the price increase is the result of an amendment to the agreement;b. if the price increase results from a liability to APM-TS or a liability to APM-TS resting obligation under the law;c. in other cases, this on the understanding that the Other Party is entitled to the agreement by a to dissolve written statement if the price increase exceeds 10% and takes place within three months after the conclusion of the agreement.
Article 5 - Suspension, dissolution and premature termination of the agreement
- APM-TS is authorised to suspend the fulfilment of the obligations or to dissolve the agreement immediately and with immediate effect, if:
- the Other Party does not, not fully or not timely fulfils the obligations under the agreement;
- after the conclusion of the agreement APM-TS come to the knowledge of circumstances give good reason to fear that the Other Party will not fulfil the obligations;
- at the conclusion of the agreement, the Other Party has been requested to provide security for the fulfilment of its obligations under the agreement and this security is not provided or is insufficient;
- due to the delay on the part of the Other Party, APM-TS can no longer be expected to comply with the agreement under the originally agreed conditions;
- circumstances arise that are of such a nature that compliance with the agreement cannot reasonably or unalteredly be required of APM-TS.
- If the dissolution is attributable to the Other Party, APM-TS is entitled to compensation for the damage, including the costs, arising directly and indirectly as a result.
3.If the agreement is dissolved, the claims of APM-TS against the Other Party are immediately payable. If APM-TS suspends the fulfilment of the obligations, it retains its claims under the law and agreement.
4.If APM-TS proceeds to suspension or dissolution on the grounds as mentioned in this article, it is therefore in no way obliged to compensate damage and costs arising or compensation as a result, while the Other Party is obliged, on the grounds of non-performance, to pay compensation or compensation in any way.
- In the event of liquidation, of (application for) suspension of payments or bankruptcy, of attachment - if and insofar as the attachment has not been lifted within three months - at the expense of the Other Party, of debt restructuring or any other circumstance as a result of which the Other Party can no longer freely dispose of its assets, the APM-TS is free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation to pay any compensation or indemnification. In that case, the claims of APM-TS against the Other Party are immediately payable.
- If the Other Party cancels an order placed in whole or in part, the goods ordered or prepared for this purpose, plus any supply, removal and delivery costs thereof and the working time reserved for the execution of the agreement, will be charged in full to the Other Party, all without prejudice to the right of APM-TS to full compensation due to loss of profit, as well as of the other damage resulting from the cancellation.
Article 6 - Complaints and returns
- The Other Party is obliged to check the delivered goods immediately after receipt for defects, defects, damage, deviations in numbers or missing or incorrectly delivered products and to report them to the APM-TS within 48 hours after receipt.
- If a complaint has not been reported to the APM-TS within the period stated in the previous paragraph, the goods are deemed to have been received in good condition and to comply with the agreement.
- No complaints are possible with regard to minimal color differences and minor mutual color deviations.
- No complaints are possible with regard to goods that have changed in nature and / or composition after receipt by the Other Party or have been processed in whole or in part or are no longer in the original packaging.
- Complaints do not suspend any payment obligation of the Other Party.
- Products that are returned by the Other Party without the prior consent of APM-TS do not have to be accepted by APM-TS.
- Return shipment takes place in a manner to be determined by the APM-TS and in the original packaging or packaging.
- The Other Party must enable the APM-TS to investigate the complaint and in this context to provide all information relevant to the complaint to the APM-TS. If return shipment is necessary for the investigation into the complaint, this will be done at the expense and risk of the Other Party, unless the complaint subsequently proves to be well-founded.
- If a defect is reported later, the Other Party will no longer be entitled to repair, replacement or compensation, unless a longer period arises from the nature of the item or the other circumstances of the case.
- If it is established that an item is defective and that a party has been complained about in time, APM-TS will replace the defective item within a reasonable period of time, after return receipt thereof, or take care of repairing it, or pay substitute compensation for it to the Other Party. In the event of replacement, the Other Party is obliged to return the replaced item to APM-TS, unless APM-TS indicates otherwise.
- If it is established that a complaint is unfounded, then the costs arise as a result, including the research costs, on the part of APM-TS as a result, will be borne in full by the OtherParty.
Article 7 - Force majeure
- APM-TS is not obliged to fulfil any obligation towards the Other Party if it is hindered to do so as a result of a circumstance that is not due to fault, and is not for its account by virtue of the law, a legal act or generally accepted views.
- In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this respect in the law and jurisprudence, all external causes, foreseen or not foreseen, on which APM-TS can exert no influence, but as a result of which APM-TS is unable to fulfil its obligations. APM-TS also has the right to invoke force majeure if the circumstance that prevents (further) compliance with the agreement occurs after APM-TS should have fulfilled its obligation.
- APM-TS may suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than two months, each of the parties is entitled to dissolve the agreement, without obligation to compensate the other party for damage.
- If APM-TS has partially fulfilled its obligations under the agreement at the time of the onset of force majeure or will be able to fulfil them, APM-TS is entitled to invoice the part that has already been fulfilled or to be fulfilled separately. The Other Party is obliged to pay this invoice as if there were a separate agreement.
Article 8 - Payment and collection costs
- Payment must be made in advance before shipment, in a manner to be indicated by APM-TS, unless otherwise indicated in writing by APM-TS. APM-TS is entitled to invoice periodically.
- If the Other Party fails to pay an invoice on time, the Other Party is in default by operation of law. The Other Party then owes the statutory interest. The interest on the amount due will be calculated from the moment that the Other Party is in default until the moment of payment of the full amount due.
- APM-TS has the right to have the payments made by the Other Party serve in the first place to deduct the costs, then to deduct the interest that has fallen open and finally to deduct the principal sum and the current interest.
- APM-TS may, without thereby being in default, refuse an offer for payment, if the Other Party designates a different order for the allocation of the payment. APM-TS can refuse full repayment of the principal sum if the outstanding and current interest and collection costs are not also paid.
- Objections to the amount of an invoice do not suspend the payment obligation.
- If the Other Party is in default or in default in the (timely) fulfilment of its obligations, all reasonable costs for obtaining payment out of court will be borne by the Other Party. The extrajudicial costs are calculated on the basis of what is customary in Dutch debt collection practice at that time. However, if APM-TS has incurred higher costs for collection that were reasonably necessary, the actual costs incurred are eligible for reimbursement. Any judicial and enforcement costs incurred will also be recovered from the Other Party. The Other Party also owes interest on the collection costs due.
Article 9 - Retention of title
- All goods delivered by APM-TS in the context of the agreement remain the property of APM-TS until the Other Party has properly fulfilled all obligations under the agreement(s) concluded with APM-TS.
- Goods delivered by APM-TS, which pursuant to paragraph 1. fall under the retention of title, may not be resold and may never be used as a means of payment. The Other Party is not authorized to pledge or in any other way encumber the goods covered by the retention of title.
- The Other Party must always do everything that can reasonably be expected of it to safeguard the property rights of APM-TS.
- If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereon, the Other Party is obliged to inform APM-TS immediately.
- The Other Party undertakes to insure the goods delivered under retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to give the policy of this insurance to APM-TS for inspection on first request. In the event of a possible payment of the insurance, APM-TS is entitled to these tokens. As far as necessary, the Other Party undertakes in advance vis-à-vis APM-TS to cooperate with everything that may (prove to be) necessary or desirable in that context.
- In the event that APM-TS wishes to exercise its property rights referred to in this article, the Other Party gives in advance unconditional and non-revocable permission to APM-TS and third parties to be designated by APM-TS to enter all those places where the properties of APM-TS are located and to take back those goods.
Article 10 - Guarantee
- The goods to be delivered by APM-TS meet the usual requirements and standards that can reasonably be set for them at the time of delivery and for which they are intended for normal use in the Netherlands. The warranty mentioned in this article applies to items intended for use within the Netherlands. When used outside the Netherlands, the Other Party must itself verify whether the use thereof is suitable for use there and whether they meet the conditions set for this.
- Any form of warranty will lapse if a defect has arisen as a result of or results from improper or improper use thereof, incorrect storage or maintenance thereof by the Other Party and / or by third parties. The guarantee also lapses if, without the written permission of APM-TS, the Other Party or third parties have made or have tried to make changes to the item, other items have been attached to it that do not need to be attached to it or if these have been processed or processed in a manner other than the prescribed manner. The Other Party is also not entitled to a warranty if the defect is caused by or is the result of circumstances over which APM-TS cannot influence, including weather conditions (such as, but not limited to, extreme rainfall or temperatures) et cetera.
- The warranty period is two years after delivery to the other party. An exception to the warranty period concerns shock absorbers with which 40,000 km or more have been driven within two years.
- The warranty period is not transferable to third parties.
Article 11 - Liability
- If APM-TS should be liable, this liability is limited to what is regulated in this provision.
- APM-TS is not liable for damage, of any nature whatsoever, arising from the fact that APM-TS has assumed incorrect and / or incomplete data provided by or on behalf of the Other Party.
- APM-TS is only liable for direct damage.
- APM-TS is never liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business or other type of stagnation.
- If APM-TS should be liable for any damage, the liability of APM-TS is limited to a maximum of the invoice value of the order, at least to that part of the order to which the liability relates.
- The liability of APM-TS is in any case always limited to the amount of the payment of its insurer in any case.
Article 12 - Transfer of risk
The risk of loss, damage or depreciation of the delivered goods passes to the Other Party at the moment when goods are brought into the power of the Other Party.
Article 13 - Indemnification
- The Other Party indemnifies APM-TS against any claims of third parties who suffer damage in connection with the execution of the agreement and whose cause is attributable to other than APM-TS.
- If APM-TS should be held liable by third parties on that basis, the Other Party is obliged to assist APM-TS both outside and in court and to immediately do everything that may be expected of it in that case. If the Other Party fails to take adequate measures, APM-TS is entitled, without notice of default, to do so itself. All costs and damage on the part of APM-TS and third parties arising as a result of this, are entirely at the expense and risk of the Other Party.
Article 14 - Intellectual property
APM-TS reserves the rights and powers that it enjoys under the Copyright Act and other intellectual laws and regulations. APM-TS has the right to use the knowledge gained by the execution of an agreement on its side for other purposes, insofar as no strictly confidential information of the Other Party is brought to the attention of third parties.
Article 15 - Processing of personal data
1.Insofar as Personal Data is processed in the context of the execution of the work, these Personal Data will be processed in a proper and careful manner and in accordance with the General Data Protection Regulation (GDPR) and the Privacy Regulations that are included on the website.
- Technical and organizational measures will be taken to protect the Personal Data against loss or any other form of unlawful processing, taking into account the state of the art and the nature of the processing.
Article 16 - Applicable law and disputes
- All legal relationships to which APM-TS is a party are exclusively governed by Dutch law, even if an obligation is fully or partially performed abroad or if the party involved in the legal relationship is domiciled there.
- The applicability of the Vienna Sales Convention is excluded.
- All disputes arising from the agreements concluded between the parties will be brought before the Court of Overijssel.
- The parties will only appeal to the court after they have made every effort to settle a dispute by mutual agreement.