General Terms and Conditions of the private company with limited liability, Brus Motors B.V. at Schijndel.
1.1 These terms and conditions shall apply to all legal relationships between the parties.
1.2 Offers and other communications from Brus Motors shall be deemed to be non-binding. They shall be deemed to be without obligation, unless an unequivocal statement is made to the contrary.
1.3 The General Terms and Conditions of the counterparty of Brus Motors (hereinafter referred to as "the Customer"), shall not apply, unless prior agreement is given in writing.
2.1 All prices stated shall be deemed to be ex works from Schijndel and shall always be exclusive of VAT or any other government taxes.
2.2 Any changes in wage costs or in the cost price of parts, semi-finished goods or materials that are incurred or used in direct relation to the service being provided and occur more than three months following the issuing of an offer or the conclusion of an agreement, shall be charged to the Customer by Brus Motors.
3.1 Orders for engines, gearboxes and other parts shall be executed as rapidly as possible, subject to available supplies and the time required for processing, production and delivery.
3.2 Orders, fitting and repairs shall in principle be carried out within a reasonable period of time, however any agreements with regard to the time required shall be deemed to be indicative only, unless expressly agreed otherwise in writing between the parties, either at such time as the Agreement itself is concluded, or at a later date. This article shall not apply in the event that Brus Motors is reliant upon information, parts or materials to be provided by the Customer or any third party, nor shall it apply in the event of force majeure.
3.3 In the event that additional equipment or information is required in order to enable any vehicle entrusted to Brus Motors to function, the Customer shall ensure that Brus Motors receives these as quickly as possible after the request is submitted.
3.4 All engines, gearboxes or other parts supplied, fitted or replaced by Brus Motors shall remain the property of Brus Motors, until such time as full payment of the invoice drawn up by the same, unless agreed otherwise in writing. Article 5.1 shall apply, as appropriate.
3.5 In the event that a Customer is not in agreement with a price quotation for engines, gearboxes or other parts submitted for fitting or repair, Brus Motors reserves the right to charge the Customer for all costs associated with the examination thereof, in the event that additional investigation is required.
3.6 The examination costs referred to under Article 3.6 shall encompass, but shall not be limited to, the following: hourly rate, administrative costs and any travel or dispatch costs or costs charged by third parties.
3.7 The return of engines or parts that have been ordered or supplied in line with the Customer's requirements (i.e. of a specific type or engine code) shall not be accepted upon cancellation of order, unless a claim is being made under the guarantee. Brus Motors shall be entitled to determine whether the return of the goods supplied shall be permitted and whether or not costs shall be charged for this.
3.8 No rights may be derived from the kilometrage figures specified and no guarantees shall be afforded in this regard.
4.1 Unless otherwise agreed in writing, invoicing may take place as soon as the service being provided by Brus Motors is completed, or at such time as the Customer has neglected to confirm the acceptance thereof. Payment shall be made in cash upon collection or delivery, or must have been credited to the account number of Brus Motors BV at the time of delivery.
4.2 We reserve the right to require provisional or partial payment when carrying out an order or a repair.
4.3 Brus Motors shall be entitled to exercise its right of retention in respect of the vehicle and the parts, in the event that the Customer does not effect payment in respect of the work or parts, or only does so in part. The same shall also apply in the event that the costs involved relate to work carried out or parts supplied by Brus Motors for the same vehicle at an earlier time. Brus Motors shall also be entitled to exercise its right of retention in the event that the dispute regarding the work undertaken has been referred to a court of law. Brus Motors shall not, however, be permitted to exercise the right of retention in the event that the Customer has provided sufficient (alternative) securities.
4.4 With effect from the date upon which a payment falls due, the Customer shall be liable to pay interest at the rate of 2% per month. Any costs of collection or of enforcement by legal means that are reasonably incurred by Brus Motors, including any costs incurred by third-party experts in addition to the costs determined by law, shall be reimbursed by the Customer. Such costs shall be calculated on the basis of the collection rates of the Netherlands Bar Association [Nederlandse Orde van Advocaten], subject to a minimum amount of € 115,00.
5.1 Engines, gearboxes or other parts supplied by Brus Motors shall remain the property of Brus Motors and Brus Motors shall reserve the right to avail itself of any rights to be granted or trans ferred, until such time as the Customer has fully effected the payment that is owing in accordance with the supply or service agreement concluded with Brus Motors.
6.1 Unless otherwise stated on the invoice and in all cases in which engines, gearboxes or parts are being supplied, the Customer shall be obliged to provide to Brus Motors the old parts of the same make and type in a complete and assembled state within a period of 14 days following delivery. In the event that the Customer neglects to do so, the difference in price shall be charged, as if no part-exchange had taken place.
7.1 The Customer shall remain liable in respect of all vehicles and other items in which engines, gearboxes or other parts are being installed, even in the event that these are in the hands of Brus Motors for repair, processing or otherwise. Brus Motors cannot be held liable for risks, calamities, theft, misap propriation or otherwise,even if the items involved are in the hands of Brus Motors at the time.
7.2 The liability and responsibility of Brus Motors in this regard shall extend no further than the responsibility that the Customer itself should regard as being equivalent to a proper degree of care in relation to its possessions.
7.3 The dispatch of goods and transportation of engines, gearboxes or parts shall in all cases be undertaken at the Customer's risk and expense.
8.1 Unless stated otherwise on the invoice, Brus Motors shall provide, with effect from the date of the invoice and subject to usage under normal conditions, a guarantee for any engines, gearboxes and other parts it supplies. The guarantee shall remain valid for a period of three months following the date upon which the invoice is issued to the Customer, subject to the conditions listed below.
8.2 The Customer may only derive rights from a guarantee in the event that the markings or seals applied by us remain undamaged.
8.3 The guarantee shall be personal and is therefore non-transferable.
8.4 The Customer shall not be able to invoke the guarantee in the event of any damage to installed engines, gearboxes or other parts that results from insufficient or overdue maintenance, intentional acts, using fuel of an incorrect type, incorrect installation or the involve ment of third parties. It shall be necessary to take account of the fact that the goods supplied need to be installed by a company with substantial experience in the field. Nor may the guarantee be invoked in the event that the items are deemed to have been subject to inappropriate use, or use that can not be regarded as constituting normal use of the items concerned, speed trials, competitions or the non-observance of instructions issued by Brus Motors.
8.5 Attachments that do not form part of the main body of the engine, such as the carburetor, the injector unit, the distributor, fuel pump or water pump shall not be included in the guarantee, unless agreed otherwise.
8.6 Guarantees shall not apply in the case of faults that are caused by attached parts forming part of the engine that have not been sup plied by Brus Motors.
8.7 "Installation guarantee". This installation guarantee requires the Customer to carry out a test run after installation, in order to establish whether the engine, gearbox or part fulfils the standard that may be expected of a second-hand part. The purpose of the said test run is to check for excessive oil or water consumption, excessive smoking of the engine, the generation of excess pressure in the cooling system and any audible noises. The deadline within which the Customer is required to submit any complaints to Brus Motors following such a test run shall be the deadline stipulated in Article 9. Once that deadline has passed, Brus Motors shall no longer be obliged to rectify any faults.
8.8 In the event that any items or parts supplied by Brus Motors are not produced by Brus Motors itself, but have been supplied and/or processed by another supplier and that supplier rejects any liability or guarantee, Brus Motors shall also be entitled to reject any guarantee claim brought by the Customer.
8.9 All guarantees shall be limited to the supplying of a replacement part, free of charge. Any consequential losses such as the costs of removal and installation or transportation shall not be reimbursed. Brus Motors shall be entitled to request that the vehicle or the part supplied be delivered to the address stated above, in order that it can carry out a proper evaluation under the guarantee. In order to have recourse to the guarantee, the old part must be returned. The scope of the guarantee shall not exceed the amount paid or owed to us by the Customer in relation to the relevant work undertaken or goods supplied.
8.10 Solely in the event that Brus Motors is unable to supply a comparable, equivalent part shall the Purchaser be entitled to claim a refund of the amount of the purchase. The part supplied must be returned in the same condition that in which it was supplied.
8.11 In the event that we are not informed in advance or have not given consent to any possible repairs carried out upon the part supplied by us during the guarantee period, any costs incurred in this regard shall not be reimbursed.
8.12 Unless otherwise stated on the invoice, the Customer may only invoke the guarantee if it has already aid Brus Motors' invoice in full.
8.13 Work carried out by Brus Motors in connection with a claim made under the guarantee when that claim is rejected by Brus Motors by virtue of the stipulations above, shall be charged at the current rate.
8.14 Brus Motors shall not be held liable for the consequences of manu facturing faults or damage in any vehicles, engines or parts submit ted to it for repair.
8.15 Brus Motors shall not be held liable for any (consequential) damage that occurs as a result of the work it carries out, except in cases involving intentional acts or gross negligence. Brus Motors shall take out an insurance policy against liability in the event of damage that occurs during or in relation to the execution of the work (repairs) agreed to with the customer.
8.16 Any obligations that may accrue to Brus Motors to indemnify the Customer in respect of damage, of whatever nature, shall never exceed the payment of any amounts that it shall receive in accor dance with the insurance agreement referred to under 8.15, except in the event of intentional acts committed by Brus Motors.
9.1 Any complaints submitted by a Customer to Brus Motors relating to the Agreement shall be made known in writing to Brus Motors within 8 days of delivery or of the date upon which the work is carried out. If not made known in this way, any claims that may have been brought against Brus Motors shall be deemed to have lapsed.
9.2 A complaint shall not release the Customer from an obligation to effect payment of any amount owing.
10.1 In the event of the onset of any circumstances that hinder the fulfilment of any obligations of the parties in the manner that may normally be expected for a transaction of that type, such that it may not be assumed that the parties would have accepted the obligation in the presence of such circumstances, the relevant obligations shall be mutually suspended. In the event that a situation such as the one referred to in the previous sentence endures for a period exceeding ninety days, the parties shall be en titled to terminate the Agreement in writing within a period of ninety days from this point. Any part of the Agreement that has already been fulfilled shall then be invoiced on a pro rata basis, without either party being owed any further amounts whatsoever.
11.1 In the evet that one of the parties requests a moratorium on payments or should be declared bankrupt, or, in the event that one of the parties becomes subject to the provisions of the Debt Rescheduling (Natural Persons) Act [Wet Schuldsanering Natuurlijke Personen (WSNP)], the other party shall be entitled to terminate, in writing, any agreements that have been concluded, or, if it so chooses, to suspend the fulfilment of its obligations. Any amounts owing to the entitled party shall then fall due for immediate payment. It is also the case that the relevant party shall continue to be subject to the full force of any rights that relate to the non-fulfilment of obligations.
12.1 Any disputes relating to matters that are governed by these Terms and Conditions shall be subject to a judgment handed down by the ordinary court in the location or district in which the premises of Brus Motors are located, notwithstanding the powers of the parties to seek a judgment from the judge in interlocutory proceedings of the Court.
13.1 All matters that arise in relation to these Terms and Conditions shall exclusively be subject to the laws of the Netherlands. In the event that one or more stipulations of any legal relationship in existence between the parties is null and void, the parties shall be bound by rules that correspond as closely as possible to the intention of the original that are not null and void.