GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF FINDEQ B.V. (2023)
Article 1: Definitions
1.1 FINDEQ B.V. (CoC nr: 83395814) and its affiliated operating companies, as well as its legal successors under general title, are the user of these general terms and conditions and will hereinafter be referred to as: “we” and “us” and “our”.
1.2 “Other party” and/or “client” and/or “counterparty” means every (legal) person to whom we send our offers, as well as the person who submits offers to us and the person who gives us an assignment, or the person with whom we enter into an agreement and furthermore the person with whom we have a legal relationship and, apart from the latter, his representative(s), authorized representative(s), assignee(s) and heir(s).
Article 2: Applicability
2.1 These general conditions apply to all our offers, agreements, contracts of assignment (aimed at the performance of work by us) as well as all legal acts, deliveries, work and services performed by us, as well as services sold through us, including all pre-contractual situations, as well as legal relations to be entered into with us in the future, concerning, inter alia, the sale of (used) machines/ machinery/ equipment, (company) vehicles, parts and attachments, the performance of repair, maintenance and other work on the products/ goods/ items/ objects and/or machines/ machinery/ equipment and/or vehicles, and related services. This applies regardless of whether FINDEQ B.V. itself acts as seller/owner, broker for seller/owner or supplier for seller/owner.
Where the terms of sale refer to the machine(s)/ machinery/ equipment/ product(s)/ item(s)/ goods/ object(s), this means both the machine(s)/ machinery/ equipment/ product(s)/ item(s)/ goods/ object(s) itself that is sold and the parts/ attachments that go with it.
2.2 Purchase or other (general) terms and conditions of the customer and/or third parties are expressly rejected.
The most recent version of our general terms and conditions shall apply and we shall be entitled to amend and/or supplement the general terms and conditions unilaterally at any time.
2.3 Deviations and additions to these general terms and conditions shall only be binding on us if they have been agreed in writing.
2.4 If one or more provisions of these general terms and conditions are at any time wholly or partially nullified, declared null and void or annulled, the other provisions of these general terms and conditions shall remain fully applicable.
2.5 In the event of a conflict between the contents of the agreement concluded between the other party and us and these general terms and conditions, the provisions of this agreement shall apply.
2.6 If we do not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that we would to any extent lose the right to require strict compliance with the provisions of these terms and conditions in other cases. Customer automatically agrees to these terms and conditions upon payment of the invoice sent to him by us.
Article 3: Offers
3.1 All our offers and quotations are without obligation, unless they contain a deadline for acceptance, in which case the offer lapses after this deadline.
3.2 Changes and/or promises made and/or changed after the offer received, either orally or in writing by us, shall imply a new offer, in which case all previous offers shall lapse.
3.3 If an acceptance by the other party deviates from the offer, this shall constitute a new offer by the other party and a rejection of our entire offer, even if there is only a deviation on minor points.
3.4 We are entitled to revoke an offer within 2 days of acceptance that if the offer is based on information and data from the customer and this information/data turns out to be incorrect or incomplete, no rights can be derived from it. Offers and/or quotations are subject to obvious printing, typesetting, writing and/or typing errors and do not apply to future orders.
Article 4: Obligations of the client
4.1 The client is obliged to provide complete and accurate information, and to provide this information in a timely manner (failure to do so may result in suspension of the object and/or compensation for any additional costs incurred due to delay caused by late provision of necessary information). The client remains responsible for the completeness and accuracy of the information provided.
Article 5: Conclusion
5.1 The agreement is concluded, insofar as applicable within the term set by us, at the moment of receipt by us of a written acceptance of an offer. If the counterparty makes an offer and/or gives an assignment, at the moment we have approved and confirmed the offer and/or assignment in writing or when we have started to carry out the assignment.
5.2 If the counterparty has accepted the offer electronically, the agreement shall only be established after we have approved and confirmed it in writing. As long as the receipt of this acceptance has not been confirmed and approved by us in writing, the contract has not yet been concluded. Our invoice shall also serve as confirmation.
5.3 Additional agreements, modifications, and/or promises made after the conclusion of the agreement, whether verbal or written, by our staff, representatives, salespeople, or other intermediaries, are not binding unless confirmed by us in writing to the counterparty.
5.4 Orders placed through intermediaries, including agents, representatives, or resellers, are only valid after we have confirmed them in writing. Verbal agreements and clauses are only binding after they have been confirmed in writing by us by authorized persons.
Article 6: Prices
6.1 The prices quoted by us are net prices and are exclusive of turnover tax and other government charges and/or third-party costs (including bank transaction fees) incurred in connection with the sale and/or delivery and/or execution of the agreement, and are based on delivery from our location, unless otherwise agreed in writing.
6.2 The prices quoted by us are in Euros or in another currency agreed upon by us; any exchange rate differences are at the risk of the counterparty, unless otherwise agreed in writing.
6.3 If the term of payment in Article 8.1 is exceeded, we reserve the right to charge any exchange rate differences by means of a proportional price increase.
6.4 We reserve the right to charge the counterparty a proportional price increase if, after the conclusion of the agreement, a foreseen or unforeseen increase occurs in one or more price-determining factors and/or statutory levies, including labor costs, premiums, materials, (transport & shipping) rates (from third parties) and exchange rate changes.
6.5 Unless expressly agreed otherwise in writing, delivery costs, inspection costs, maintenance- and service costs, repaint costs, carrier- and shipping costs, etc., are never included in our price.
6.6 Price increases resulting from additions and/or modifications to the agreement shall be borne by the other party.
6.7 Costs incurred because the other party has failed to make the performance of the agreement possible and/or because circumstances occur that can be attributed to the other party as a result of which we have incurred costs, shall be charged by us to the counterparty.
6.8 We are not liable for any errors in photos, videos, blogs and texts of e-mails, mailings, whatsapp, social media expressions, printed matter, (online) advertisements, our website(s) and/or any other forms of our marketing communications.
Article 7: Cancellation
7.1 In case of cancellation by the counterparty, we are entitled to retain and not refund a portion of the deposit equal to 10% of the sales price with a minimum of € 1,500 per item as a cancellation fee, without prejudice to our right to demand additional compensation if the incurred costs (including carrier- shipping costs, storage, insurance, and parking costs) exceed the deposit amount.
Article 8: Payment
8.1 The counterparty is obliged to pay all invoices prior to delivery of the relevant goods or prior to the performance of the relevant services, unless expressly agreed otherwise in writing. We shall not deliver the relevant goods or perform the relevant services until full payment of all invoices has been received. All invoices must be paid within 7 days, unless expressly agreed otherwise in writing, after the conclusion of the agreement by the other party. Offsetting with claims that the other party asserts to have against us is not permitted.
8.2 However, we have the option to approve a payment delay. In doing so, we are entitled to forfeit the agreed discount and retroactively demand 2% interest per month on the outstanding amount from the other party, as well as demand €50 storage costs per machine or vehicle per day from the other party. Additionally, we reserve the right to terminate the agreement in whole or in part at any time..
8.3 If agreed, the other party is required to pay a deposit of at least 10% of the gross sales value of the objects within two days of the agreement being made, with a minimum of €1,500 per object, or another amount determined by us in the agreement or an attachment to it. In the event of non-payment or delayed payment, we are entitled to suspend our obligations.
8.4 If the down payment mentioned in article 8.3 is not received by us within two days, we are entitled to terminate the agreement or a portion of it without notice or judicial intervention.
8.5 In the event of non-payment or delayed payment of foreign currency amounts within the terms referred to in article 8.1 or 8.3, we reserve the right to pass on currency fluctuations against the euro to the counterparty.
8.6 Payments made by the other party will always be applied first to satisfy any outstanding interest and costs and then to satisfy the claims under the agreement that are most overdue, even if the other party indicates that the payment is intended for another claim.
8.7 FINDEQ B.V. and/or its affiliated companies, for whom we act as representatives with regard to the provisions of this article, are always authorized to set off everything we individually or jointly have to claim from or owe to the counterparty, against everything the counterparty has to claim from us and/or owes us, or to assert a right of retention with regard to one or more of those claims. FINDEQ B.V., its affiliated companies, and the counterparty agree that the right of set-off has been expanded and reciprocity for set-off is not necessary.
8.8 In the event of (application for) liquidation, insolvency, bankruptcy, or suspension of payment by the counterparty, the claims, from any cause whatsoever (including those of the parties mentioned in article 8.7), against the counterparty are immediately due and payable.
8.9 Cash payments can only be made in compliance with the legal requirements and upon presentation of a valid identity document. Our payment receipt shall serve as the only valid proof of payment.
8.10 In case of late or incomplete payment, the client shall be automatically be in default and we shall be entitled to charge statutory interest and (extra) judicial collection costs in the amount of 15% of the agreed total amount.
Payment will be made without any deduction, set-off or suspension for any reason whatsoever. In case of late payment (not only in case of late payment of the down payment) we shall have the right to suspend the agreement or to terminate it by means of a written declaration.
Article 9: Delivery time, delivery, risk
9.1 Delivery times are determined in mutual agreement, however, the delivery times and/or delivery dates specified by us should never be considered as definitive terms unless agreed otherwise in writing. Delivery times are indicative and – if data/information is required from the customer – a delivery period starts from the moment the customer has provided all data. Even if changes occur in the agreement, this is considered force majeure and can have an impact on delivery times.
9.2 If the delay in delivery time is not our fault, the counterparty can never claim damages or termination of the agreement. If we engage a third party, such as a carrier or shipper, for the execution of an agreement with the counterparty, we are not liable for damages incurred by the counterparty in connection with shortcomings of this third party.
9.3 If delivery is made including transport and/or shipping, this is always at the expense and risk of the other party. This means that all costs associated with this transport are borne by the counterparty and the counterparty bears the risk of loss, damage, and untimely delivery of the purchased items as well as the risk that authorities may charge (unforeseen) costs related to this transport, such as costs for the inspection of the shipment by customs authorities.
We explicitly exclude our liability for all damage that occurs during loading and transport of goods to be transported and/or shipped by us (or our carriers/ shippers), in cases where such damage is related to inadequate securing of the cargo and/or exceeding the maximum axle loads and weight of the equipment used in this transport and/or exceeding the permitted dimensions for transport and/or shipping.
9.4 If, at the request of the counterparty, we take care of the shipment of the goods or if the agreed parity of the ICC INCOTERMS imposes this responsibility on us, the time, method of shipment and shipping route are at our discretion. A transport insurance will only be taken out by us if this has been expressly and in writing agreed with the counterparty; all related costs will be borne by the counterparty.
9.5 At least 2 working days before the object is to be collected, the counterparty must let us know in writing whether they require transport insurance. The costs of transport insurance are for the account of the customer.
9.6 Delivery always takes place from our yard or from the location of the object. We will inform the buyer in a timely manner if necessary.
9.7 If the counterparty does not take delivery of the goods within the agreed term or fails to enable us to deliver the goods, they will be immediately in default and the goods will be stored at the expense and risk of the counterparty. If the counterparty refuses to take delivery of the goods within the term set by us, we are entitled to terminate the agreement in whole or in part and to dispose of the goods in a manner determined by us, without being obliged to pay damages. We are entitled to enforce our claim on the proceeds.
9.8 The risk of the sold products, machines/ equipment and vehicles passes to the counterparty upon payment. In case of sale, the counterparty is obliged to insure the object from the moment of payment.
9.9 All purchased products and services must be purchased as a whole, a down payment cannot be used to pay for part of an order. Partial deliveries are only possible by means of a written confirmed change to the order.
9.10 Machines and vehicles are generally sold without registration and documentation. The counterparty must judge themselves whether the registration, machine, vehicle and export documentation present or to be supplied by us is sufficient for import or registration in the country of destination. We are in no way responsible or liable for this.
9.11 If we do not have the registration, machines, vehicle and/or export documentation requested by the counterparty and we are confident that we will obtain this documentation, we will give an indicative date of arrival, from which no rights whatsoever can be derived by the counterparty. If the counterparty has purchased a machine or vehicle from us and whishes to use it before all documentation is available, they do so entirely at their own risk, and any resulting damage cannot be claimed from FINDEQ B.V. The provision of the relevant documentation is solely an obligation of effort on the part of FINDEQ.
Article 10: Warranty, exclusion of liability
10.1 For all used machines, vehicles, parts and attachments it applies that they are sold without any form of warranty and in a condition as seen by the counterparty on the website or at the sales location and approved by the counterparty.
We are not liable for any hidden or visible defects. This exclusion of liability also includes liability for consequential damages and complete or partial loss of the sold item(s) as a result of the effect of hidden defects present at the time of delivery, such as significant mechanical damage or devastating fire caused by a relatively small hidden defect such as minimal fuel leakage. Only if and to the extent specified in the sales agreement, warranty is provided for used machines, vehicles, and/or parts.
10.2 If the counterparty invokes the warranty granted by us in the relevant sales agreement within the specified period or makes a complaint, we will assess the warranty or complaint and, if necessary, settle it in accordance with the provisions of the agreement. Warranty claims and claims related to non-conformity stated by the other party are not transferable to third parties. All warranty requests and complaints must be submitted via [email protected]
10.3 Any complaints regarding imperfections in items delivered by us, such as for example our invoice, must be submitted in writing to us within 3 working days of receipt of the object, after performing the work, or receiving our invoice, with a precise statement of the facts on which the complaint is based. In the absence of a notification, the counterparty is deemed to have approved and accepted the delivered items without reservation. The right to complain lapses through continued use of the delivered items. For all other complaints, a period of 5 days applies after the shortages have become known or could have been known. The relevant items must be made available to us for examination upon first request.
Article 11: Machinery and vehicle history
11.1 When promoting items, we often rely on information provided by third parties and on the external condition of the items. In principle, we do not verify this information provided to us by third parties for accuracy, nor do we carry out any (technical) research. We do not contact dealers to inquire about the maintenance history of a machine, and we do not dismantle parts to examine the condition of a machine. The counterparty cannot derive any rights from errors or obvious mistakes in the information provided by us on this information (on our website).
11.2 The counterparty has the right to try to find out the above-mentioned details of machinery and vehicles on its initiative. If desired, we will cooperate in this investigation.
The costs of this investigation will be borne by the counterparty.
Article 12: Retention of title
12.1 Delivery takes place subject to retention of title. Ownership of the products/ items and/or machines and/or vehicles and/or parts/ attachments, notwithstanding actual delivery, only passes to the other party after it has paid all claims of ours regarding the consideration of the products delivered to the other party under the agreement, or any comparable agreement, or the products to be delivered, or any work performed or to be performed under such agreement also for the benefit of the other party, as well as in respect of claims due to failure to comply with such agreements.
Article 13: Dissolution
13.1 If the counterparty does not fulfill any (payment) obligations arising from any agreement concluded with us, or in the event of suspension of payment, application for suspension of payment, bankruptcy, receivership or liquidation of the other party’s enterprise, despite notice with a reasonable period, we are entitled to terminate the agreement or a part thereof without notice and without judicial intervention, whereby the entire down payment shall be retained and not refunded, without prejudice to our right to claim additional compensation if the costs incurred (including delivery, storage, insurance and parking costs) exceed the amount of the down payment.
13.2 If we exercise this right, we are not obliged to pay any compensation to the counterparty, and we cannot be held liable for damages to the counterparty on this basis.
Article 14: Suspension and right of retention
14.1 We are authorized to suspend our performance (including future partial deliveries) if the counterparty fails to comply with one or more of its obligations or if circumstances within our knowledge give us good reason to fear that the counterparty will not fulfill its obligations, except to the extent that mandatory legal provisions prohibit us from doing so.
14.2 We may exercise the right of retention on all items of the counterparty to which the execution of the agreement relates and which we actually have in our possession in the context of the agreement, if the counterparty fails to fulfill the obligations related to the execution of the agreement, or other agreements concluded with the counterparty, in whole or in part.
14.3 We are entitled to recover from the counterparty any damages (including loss of interest) that we have suffered and any costs that we have incurred in connection with the care of the goods that we actually have in our possession (including storage and handling costs).
Article 15: Sale with trade-in
15.1 If a machine and/or vehicle is sold with a trade-in of another machine and/or vehicle and the counterparty continues to use the traded-in machine and/or vehicle until delivery, the counterparty is obliged to take care of the machine and/or vehicle as a good custodian.
15.2 Ownership of the trade-in machine and/or vehicle will only be transferred to us once we obtain actual possession of the machine and/or vehicle.
15.3 The trade-in machine and/or vehicle should be free of third party financing and obligations.
15.4 Unless agreed otherwise in writing, the goods sold/traded-in by the counterparty to us should be complete, in good condition and free from any hidden defects.
15.5 Unless agreed otherwise in writing, all documents related to the machine and/or vehicle must be handed over to us at the moment the machine and/or vehicle becomes our property.
15.6 During the use referred to in paragraph 1 of this article, the risk for the machine and/or vehicle remains with the counterparty, and all costs, including maintenance and any damage caused by any cause, also resulting from loss, including the inability to provide the valid and complete registration and/or ownership documents and any other official documents, are the responsibility of the counterparty.
15.7 If, in our opinion, the machine and/or vehicle to be traded in is not in the same condition at the time we obtain actual possession of it as it was at the time the agreement was concluded, we are entitled to refuse the trade-in and demand payment of the agreed purchase price for the machine and/or vehicle, or to re-evaluate the traded-in machine and/or vehicle and take its current value into account.
15.8 If, in our opinion, the traded-in machine and/or vehicle shows defects that could only be detected after actual delivery, but it is objectively established that these defects were already present at the time the agreement was concluded, the counterparty must compensate us for the damage caused by these defects. Damage includes a reduction in the valuation value.
Article 16: Force majeure
16.1 In the event of force majeure delaying or preventing the execution of the agreement, we are authorized to terminate the agreement in writing, without giving the counterparty any claim to compensation.
In the case of force majeure, we are not liable for any damages.
16.2 Force majeure on our part includes any circumstance beyond our control that prevents the normal execution of the agreement. Such circumstances include, but are not limited to:
– The production and/or delivery of a certain object being discontinued/canceled;
– If we have sold a machine and/or vehicle to the counterparty that is still to be exchanged, and if, due to circumstances beyond our control, the machine and/or vehicle cannot be delivered to the counterparty;
– Loss, damage and/or delay during transportation, extreme employee absence due to illness, actions/measures by customs, including (temporary) closure of certain geographic areas, fire, theft and other serious disruptions in our company or at our supplier(s).
16.3 If the manufacturer, importer or supplier makes modifications or (construction) changes to a product, we reserve the right to deliver the modified product, provided that the modified product possesses at least the normal utilisation properties as the original product, as well as the special utilisation properties, if and to the extent agreed in writing between us and the other party.
Article 17: Liability
17.1 Except in case of intent or wilful recklessness on our part or that of our management (including managerial subordinates), our liability is excluded, whether or not that claim is based on a contract concluded with us, tort or otherwise.
17.2 In the event that we may be liable for damages, our liability is always limited to direct damages to property or persons, and never extends to any consequential damage, including loss of income and costs associated with the rental of replacement machines and/or vehicles.
17.3 In the event that we may be liable for damages, our liability is also limited to the price for which the customer purchased the product, or to an amount that has been paid by the customer for the order, or at least up to the market value of the relevant object. The limitation period for claims for damages is one year.
17.4 We are never liable for damages caused by activities that are not part of our normal activities and are carried out by us as a service at the express request of the customer. These activities are at the expense and risk of the customer. We are also not liable for damages resulting from inaccuracies in free advice.
17.5 We are not liable for incorrect and/or incomplete data provided by or on behalf of the customer. The customer indemnifies us against claims by third parties.
Article 18: Deviating terms
18.1 If special conditions have been agreed in writing with the buyer for the sale of our objects, these special conditions shall prevail to the extent that they relate to those objects. In all other respects, these general terms and conditions remain valid.
Article 19: Processing of data
19.1 The data of the counterparty will be processed by us. We are also authorized to provide this data to third parties. Insofar as it concerns the processing of personal data, these are processing operations within the meaning of the General Data Protection Regulation (GDPR). Based on this processing, we can execute the agreement, fulfill the warranty obligations towards the counterparty, provide optimal service, provide the counterparty with timely product information, and personalized offers. If it concerns the processing of personal data for the purpose of direct mailing, any objection lodged by the counterparty with us will be honored.
19.2 The counterparty is aware that machines and vehicles sold by us may be equipped with software systems that store information about the vehicle. The counterparty indemnifies us against any liability in this regard.
Article 20: Sanctions
20.1 The counterparty declares not to resell the goods purchased from us to parties included in the EU sanction lists and/or the OFAC Specially Designated Nationals and Blocked Persons List (SDN).
Article 21: Applicable law, competent court and choice of forum
21.1 The provisions of the Vienna Convention on the International Sale of Goods do not apply, nor does any future international regulation on the sale of movable property, the application of which may be excluded by the parties.
21.2 Dutch law applies to all agreements concluded with us and to all (other) legal relationships between us and the counterparty.
21.3 All disputes arising from or related to the agreement between buyer and seller shall, except for mandatory legal provisions, be submitted exclusively to the competent court in the district of our place of business, unless we, as the plaintiff or applicant party, choose the competent court of the counterparty’s place of residence or business.
21.4 In case of an actual or potential dispute, we have the right to have one or more experts perform an expertise at the counterparty’s premises. The client must cooperate with such an expertise.
21.5 The agreement terminates if we are liquidated.
Version: 28 March 2023
