1.1. These general terms of delivery (“General terms of Delivery”) apply to and shall form part of all quotations and offers submitted by Albers Trading B.V. (“Albers Trading”), as well as every acceptance by Albers Trading of the orders placed by the Purchaser (“Purchaser”) and all agreements (“Agreements”) concerning the resale by Albers Trading of goods and services (“Products).
1.2. A reference from the Purchaser to other general terms does not lead to applicability thereof. Applicability of any general term of the Purchaser is explicitly rejected by Albers Trading.
1.3. Agreements that deviate from these terms and conditions shall only be binding if and insofar confirmed in writing by Albers Trading and applicable only for the relevant agreement. Albers Trading reserves the right to modify these terms and Conditions. Modifications shall enter into force 30 days after notification by Albers Trading. In case the Purchaser does not wish to agree to the modification, he is entitled to terminate the Agreement, within two weeks after notification referred to in this article, without any right to compensation.
2.1. An offer or a quotation made by Albers Trading is not binding and shall be considered only as an invitation to place an Order by the Purchaser. Unless otherwise specified, all offers and quotations made by Albers Trading will expire automatically 30 days after the date of publication of the offer or quotation.
2.2. An agreement between the Purchaser and Albers Trading shall only be concluded if and insofar Albers Trading accepts an order from the Purchaser or in case Albers Trading executes an assignment. Albers Trading has the right to not accept any orders or assignments or to execute them under the condition that the payment will be effected cash on delivery or in advance.
3.1. the tariffs mentioned in the offers, quotations or order confirmations are exclusive (sales) tax and other government levies and inclusive normal freight- and packing costs, unless otherwise stated therein.
3.2. Albers Trading has the right to charge you an amount for shipping – and administration costs in case the order, in Albers Trading’s judgment, has a low value. The costs for shipments by cash on delivery will be borne by the Purchaser. Albers Trading reserves the right to charge additional costs for special packaging or packaging commissioned by the Purchaser which shall be borne by the Purchaser.
3.3. Albers Trading at all times reserves the right to modify the agreed tariff between her and the Purchaser.
Delivery and execution
4.1. Unless otherwise agreed in writing, Albers Trading will determine the method of shipment. The risk with regard to the Products will pass to the Purchaser of the moment the products are offered for delivery at the specified address. In case the Purchaser has commissioned a specific method of shipment, the risk of the Products, from the moment the Products have been shipped, will be for the account of the Purchaser.
4.2. Albers Trading reserves the right to deliver and invoice the ordered Products in parts.
4.3. Agreed and indicated delivery times are indicative. Repair orders will be executed as soon as possible. The exceeding of the delivery time or the expected repair time, due to any cause whatsoever, does not entitle the Purchaser to any compensation.
4.4. The Purchaser is obliged to accept the Products upon delivery. If the Purchaser does not accept the Products delivered by Albers Trading, the Products will be stored for the account and the risk of the Purchaser. If the Purchaser has not collected the Products within three months, Albers Trading has the right to sell the products to third parties and hold the original Purchaser liable for any loss. The original Purchaser is obliged at all times to compensate the costs for the storage here mentioned and (extra) shipping and administration costs made by Albers Trading.
4.5. The Purchaser is obliged to check the Products upon delivery for conformity and visible defects. Any abnormalities in number or quality must be reported in writing within 5 days after receipt by the Purchaser to Albers Trading, failing which any claims from the Purchaser against Albers Trading will lapse. In the case of missing goods or goods not ordered the Purchaser has to accompany the packing list with the notification mentioned herein.
4.6. Return of the Products will be executed for the account and the risk of the Purchaser. Albers Trading accepts Products sent back only if and provided that she has agreed to this return in writing and provided that the products will be delivered at the address indicated by Albers Trading in the original package and in the same conditions in which the products were delivered or offered by Albers Trading. Any claims with regard to products which are part of a partial shipment have no effect on previous or next partial shipments that form part of the same order.
4.7. Eventual refund following a return will be effected based on the amount which has been invoiced to the Purchaser, provided that the amount to be credited shall never exceed the price Albers Trading would invoice the Purchaser the day on which the returned Products are delivered to Albers Trading.
Retention of title
5.1 Title to the delivered Products by Albers Trading will be vested in Albers Trading. The title shall pass to the Purchaser if the Purchaser has complied to all following obligations regarding all agreements with Albers Trading:
Consideration (s) with regard to Products delivered or to be delivered by Albers Trading:
All claims of Albers Trading against the Purchaser due to breach of the agreement(s) with Albers Trading by the Purchaser.
5.2 The Products delivered by Albers Trading, which are part of the retention of title based on article 5.1, will only be authorized to be resold in the frame of its normal company management. The Purchaser is not authorized to modify the delivered Products, to pledge them or encumber them with any rights. If third parties wish to encumber the goods delivered subject to retention of title with any right or if they wish to exercise such right, the Purchaser shall be obliged to inform Albers Trading thereof as soon as may reasonably be expected.
5.3 The Purchaser is obliged to make sure the Products remain identifiable as Products delivered by Albers Trading. The brands as well as the type – and identification numbers or signs, fitted on the Products delivered by Albers Trading, including the packaging, cannot be removed, damaged or modified.
5.4 At all times the Purchaser has to allow Albers Trading admittance to the location where the Purchaser has stored the products delivered by Albers Trading. If the Purchaser does not comply with the obligations with respect to Albers Trading, or if Albers Trading suspects the Purchaser will not be able to comply with his obligations in time or fully, than on first request of Albers Trading, the Purchaser is obliged to return the Products for account of the Purchaser as well as to provide Albers Trading all necessary cooperation to enable Albers Trading to take back her Products.
5.5 The Purchaser is obliged, at first request of Albers Trading, to pass over all claims against third parties, as a result of deliverance of Products, which are part of the retention of title mentioned in article 5.1, to these third parties, or at request of Albers Trading to create a pledge and for that purpose perform any necessary acts. Eventual additional costs will be borne by the Purchaser.
5.6 The Purchaser is obliged to insure the delivered Products which are part of the retention of title and to keep them insured against fire, damage caused by explosions or water and theft. The Purchaser has to submit the policy at first request of Albers Trading. The Purchaser is obliged to pass over or at first request of Albers Trading to pledge, all claims of the Client against the insurance companies regarding delivered Products which are part of the retention of title to Albers Trading, in accordance with article 3:239 BW.
6.1. Unless otherwise agreed in writing the payment for the delivered products has to be executed on the bank account of Albers Trading B.V. on behalf of Albers Trading, as indicated by Albers Trading on the invoice or in any other way possible to the Purchaser.
6.2. Unless otherwise agreed in writing, the payment for reparation has to be done in cash at the moment the Products are collected by the Purchaser. Shipment of repaired Products will be done by cash on delivery. In that case the reparation costs and shipping costs will be done by the Purchaser upon delivery.
6.3. Payment has to be executed without any right to discount, suspension or deduction within thirty days after date of invoice, unless otherwise agreed. If the payment term is exceeded the Purchaser , without notice of default being necessary, shall be in default by operation of law and from the due date liable for a compound interest of two (2) percent a month. In addition the Purchaser has to compensate Albers Trading for all extrajudicial and judicial collection costs. The extrajudicial collection costs in principal will be set to ten (10) percent of the payable amount, with a minimum of EUR 250,–. And this without prejudice of any other legal claims by Albers Trading for compensation of costs and damage.
6.4. Payments made by the Purchaser shall initially always serve as payment of those claims Albers Trading may have against the Purchaser of which no retention of title applies, subsequently as payment of all interest and costs due and finally as payment of payable invoices which have been outstanding the longest, even if the Purchaser states that the payment relates to a specific claim or invoice.
7.1. Without prejudice to the provisions of article 10. and taking into account the provisions of this article Albers Trading guarantees that the Products by her delivered for the duration of 24 months after delivery as meant in article 7 lid 3 have the characteristics necessary for the agreed use. This warranty does only apply to non visible defects to the Product at the moment of delivery, of which the Client proves that these have occurred solely or mainly as a direct consequence of poor construction or material.
Minor deviations common in the trade or technically unavoidable deviations and deviations in colour, size or finish, are not considered to be a defect.
7.2. For all Products under warranty, Albers Trading at its own discretion has the choice to repair, replace or to take back the product crediting the purchase price. All costs, exceeding the only repair or replacement, such as (but not limited to) costs for transportation, shipment, travel and accommodation and (dis)assembly, shall be borne by the Purchaser. As part of the warranty the replaced Products or any parts become property of Albers Trading. There is no warranty on repaired or replaced Products.
7.3. Unless otherwise agreed in writing, the following defects are excluded from the warranty, defects occurring, in part or in whole as a result of:
Not complying to the operation and maintenance instructions, non standard use;
Repairs, (dis) assembly or other work to the Product made by a third party, the Purchaser included;
Use other than for its normal purposes;
Use in an aggressive environment or exposure to extreme conditions;
Leakage of batteries;
Damage to the exterior.
7.4. The Purchaser cannot make any warranty claim if the type- or serial number of a Product has been removed or modified, if the Purchaser does not give Albers Trading enough opportunity to remedy the defect or if the Purchaser does not fulfil his obligations under the concluded agreement with Albers Trading.
7.5. The Purchaser is obliged to indicate any complaints in connection with defects in writing to Albers Trading, within fourteen days after the Purchaser has discovered the defect or could reasonably be expected to have discovered it, this under penalty of any claim made by the Purchaser against Albers Trading being declared null and void.
7.6. Failing to comply with the eventual warranty obligations does not exempt the Purchaser of his obligations under the concluded agreement with Albers Trading.
Liability and Indemnity
8.1. Our liability is explicitly limited to the fulfilment of the warranty obligations included in article 7.
8.2. Without prejudice to the stipulations of the previous sub-article any liability of Albers Trading for damage shall only apply in case of an attributable breach Albers Trading will be in default after being served with a written notice of default.
8.3. The total an cumulative liability of Albers Trading shall be limited in all cases to an amount of ten percent (10%) of the last paid invoice by the Purchaser with a maximum of EUR 5.0000,–. Without prejudice to the previous restrictions the liability of Albers Trading for damage is limited to the amount of the payment made by the insurer. The liability of Albers Trading for indirect or consequential damage, including (but not limited to), loss of profit, loss of turnover, missed savings, reduced goodwill, damage due to company stagnation, is completely excluded.
8.4. These restrictions included in article 8 and exclusion of liability are solely applicable to the extent permitted by the law.
8.5. All rights of claim of the Purchaser expire no later than one year after the arise.
8.6. The Purchaser is bound to indemnify Albers Trading from and against all claims of damage which may be caused, as well as any claims against Albers Trading from third parties in connection with the performance of the contract.
Waiver of right
9.1. If the Purchaser in the context of a warranty claim or a repair order has handed over the Product put at his disposal (again) within three months after the Product has been handed over or replaced, the relevant Product has not been collected or if he refuses to pay for the costs for the return shipment and the product for that reason cannot be delivered to him, he is bound to waive the right to that Product for the benefit of Albers Trading and shall indemnify Albers Trading against all (third-party)claims for this matter, unless the Purchaser can prove that he has been unable to collect or accept the Product due to a for the Purchaser non-accountable failure.
10.1. In case of Force majeure Albers Trading has the right to postpone the Agreement until the situation, in which the force majeure continues, or, unless the force majeure has continued for a month, to terminate the Agreement in part or fully without legal intervention, without being obliged to pay any compensation for damage.
10.2. In addition to the provisions of legislation and case law, force majeure by Albers Trading in these terms and conditions include, all external causes, foreseen or unforeseen, such as: strikes, destruction of the Product during shipment, water damage, government measures, delay of the shipment abroad, war, mobilization, transport restrictions and delays, import restrictions, export restrictions, failure of suppliers, as well as all circumstances which Albers Trading’s normal business operations might impede.
11.1. If the Purchaser does not comply in time or in full with his obligations to Albers Trading, as well as in case of (provisional) suspension of payment, bankruptcy, shutdown or liquidation of the company of the Purchaser, legal merger of the Purchaser, or in case of a substantial change of control of the Purchaser, Albers Trading has the right to terminate any Agreements made by the Purchaser (whether or not through dissolution) with immediate effect, in full or in part. Or to postpone her obligations toward the Purchaser, without the Purchaser having the right for compensation. The forgoing does not affect Albers Trading’s legal or Agreement’s rights.
11.2. In case of a situation mentioned in article 11.1 all claims of Albers Trading against the Purchaser shall become immediately due and payable in full and Albers Trading has the right to take back all Products delivered by Albers Trading subject to retention of title.
11.3. The Purchaser is not permitted to terminate an Agreement in part or in full or to destroy in part or in full, or to demand a change due to a mistake. If the appeal to this exclusion does not uphold by law, the Purchaser is not permitted to dissolve the Agreement without any non-accountable failure by Albers Trading who, in doing so after a prior notice of default from the Client, is in default.
12.1 In the event of one or more of the provisions of these General Conditions are null and void or voided, the remaining provisions of these General Conditions shall remain applicable. In case of an annulment of a provision Purchaser and Albers Trading will be obliged to agree upon a provision to replace the ineffective provision whose purpose should be approximated as much as possible, and which cannot be voided.
Applicable law and competent court
13.1 The legal relationship between Albers Trading and the Purchaser with regard to any and all disputes in connection with the agreement, including disputes arising as a result of the establishment of these Agreements shall only be governed by Dutch law, this with exclusion of the Vienna Sales Convention.
13.2. All disputes between Albers Trading and the Purchaser shall be resolved by the competent Court in Rotterdam, without prejudice of the right of Albers Trading to submit any disputes to the competent court according to the law.