JC-Electronics V.O.F., having its official place of business in Leek
September 2013 version
Article 1 General
These terms and conditions apply to every proposal, quotation and agreement, made by or entered into with JC-Electronics. Once the parties have agreed that these terms and conditions apply to an agreement between the parties, the parties thereby agree that they will also, with the exclusion of all other agreements, apply to future agreements, without any re-application. If these terms and conditions are amended, a new version will be published on the website of JC-Electronics. The amended terms and conditions will apply to agreements entered into after such publication.
Supplements, amendments, further agreements, arrangements or derogation clauses pertaining to an agreement or these terms and conditions are not considered to have been agreed upon between the parties as long as they have not been confirmed in writing by JC-Electronics.
If one or more provisions in these general terms and conditions are entirely or partly void or voided in a specific case, the other provisions in these general terms and conditions will remain in full effect. In such an event JC-Electronics and the Other Party will hold consultations in order to agree on new provisions replacing the void or voided provisions, taking into account the purpose and scope of the original provisions as much as possible.
If JC-Electronics does not constantly demand strict adherence of these conditions, this does not mean that the provisions do not apply or that JC-Electronics would lose the right to require the strict adherence of the provisions at any given moment.
Article 2 Proposals and agreement
All quotations and proposals made by JC-Electronics are without obligation. A quotation or proposal is no longer valid by operation of law if before the acceptance thereof a change takes place in respect of the conditions under which the quotation or proposal was made, including availability and pricing of the products and services offered.
JC-Electronics cannot be held to a quotation or proposal if it contains an obvious mistake or error in writing, and the Other Party reasonably should have understood this to be the case.
If the acceptance (whether or not in respect of minor points) deviates from the offer contained in the quotation or the proposal, JC-Electronics is not bound to it. In such an event the agreement is not effected in conformity with this varying acceptance, unless JC-Electronics specifies otherwise.
A combined quotation does not oblige JC-Electronics to carry out part of the assignment for a corresponding proportion of the quoted price. Proposals or quotations do not apply to future orders.
An agreement is only entered into between the parties once JC-Electronics confirms a performed assignment or accepted quotation by means of a written confirmation of the assignment, or from the time that JC-Electronics carries out the assignment after having received it.
JC-Electronics can at all times require the Other Party to provide satisfactory security in advance to JC-Electronics for the fulfilment of its obligations. In particular, this may be done by providing a bank guarantee.
Article 3 Performance of the agreement
JC-Electronics will endeavour to perform the concluded agreement to the best of its ability and within the set period or periods. Stated periods are only target dates. If a period has been agreed upon or set for the completion of certain work or for the delivery of certain items, a failure to meet such a period therefore does not result in a breach under the agreement. Furthermore, completion dates and dates of delivery are never final deadlines within the meaning of the Dutch Civil Code. As such, default requires a notice of default.
If JC-Electronics requires information from the Other Party for the performance of the agreement, the processing time does not commence before the Other Party has made this information available to JC-Electronics correctly and in its entirety.
If the agreement is carried out in stages JC-Electronics can postpone those parts that are part of a next stage until the Other Party has approved in writing the results of the preceding stage.
JC-Electronics is entitled at all times to increase the agreed-upon price, if the price increase results from a right or obligation by virtue of legislation and regulations, or is caused by a price increase of raw materials, wages, or on other grounds that could not reasonably have been foreseen at the time the agreement was entered into. Price increases will be communicated in advance. If the other party considers this to be cause to terminate the agreement it must state so as soon as possible but within 24 hours. In such an event only the costs incurred up until that time will be charged.
If parties agree to make use of the "exchange service" offered by JC-Electronics, the following applies, among other things. JC-Electronics will send the Other Party a product that is in working order, after which the Other Party will send an identical, defective product to JC-Electronics within a two-week period. This defective product becomes the property of JC-Electronics. Exchange returns are not accepted if:
- The returned products are in such a bad, defective or incomplete condition that they can no longer be repaired. In such an event JC-Electronics will provide the Other Party with 10 days to return a product that is accepted by JC-Electronics.
- The Other Party does not observe the two-week period in which it must return the returned product. At the end of the 2 weeks in which the returned product should have been returned, JC-Electronics will point out to the Other Party its failures by means of a single e-mail and will provide the Other Party with another 7 business days to return the product.
If the Other Party does not comply with the exchange conditions of JC-Electronics, JC-Electronics is entitled to send the Other Party an invoice for the difference between the exchange and the sales price of the product or products in question.
Article 4 Suspension, rescission and early termination of the agreement
In addition to its statutory rights, JC-Electronics is entitled to suspend the fulfilment of its obligations if:
- the Other Party does not fulfil its obligations, whether in respect of payments or otherwise, or does not fulfil them completely or in time;
- circumstances that JC-Electronics has learned of give good reason to fear that the Other Party will not fulfil its obligations, at the discretion of JC-Electronics;
- 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;
- with respect of the Other Party its bankruptcy or liquidation / suspension of payments is applied for or is declared or ordered, or if an attachment is made against the Other Party.
In addition to the statutory provisions, if the Other Party does not fulfil its obligations arising from the agreement, JC-Electronics is entitled in each case to rescind the agreement at once and with immediate effect without being obliged to pay any damages or compensation, while the Other Party, by reason of attributable failure to perform, is obliged to pay compensation. In any event, if the agreement is rescinded the Other Party, in addition to obligations arising from the law, is obliged to pay JC-Electronics compensation in the amount of the work that has been carried out up to that time.
Furthermore, JC-Electronics is entitled in each case to rescind the agreement if circumstances arise that are of such nature that performance of the agreement is impossible or if circumstances arise in any other way that are of such nature that unaltered maintenance of the agreement cannot reasonably be required of JC-Electronics. For example, during the performance of the work circumstances may arise due to which the agreement cannot be fulfilled as expected, for instance because defective parts cannot be repaired or replaced.
Additionally, in the event of winding-up, of an application for a suspension of payments or bankruptcy or liquidation, of attachment - if the attachment is not lifted within three months - against the Other Party, of debt management or restructuring or another circumstance due to which the Other Party is no longer able to freely make use of its assets, JC-Electronics is at liberty to terminate the agreement at once and with immediate effect or to cancel the order or agreement, without being obliged to pay any damages or compensation.
A request to cancel the assignment can only be honoured if JC-Electronics is paid an amount of compensation, to be set by JC-Electronics, for the costs already incurred at that time and for the profit lost due to the cancellation. JC-Electronics is entitled at all times to refuse a cancellation request.
Article 5 Price and payment
Unless explicitly agreed otherwise, JC-Electronics will charge its customary prices for the work it has performed. All prices stated by JC-Electronics are exclusive of VAT.
If a price has been agreed upon and the performance of the agreement by JC-Electronics requires more time or entails more costs than it could reasonably expect, JC-Electronics is entitled to adjust the agreed-upon price in conformity with the work actually carried out.
JC-Electronics will notify the other party in advance of a price increase in accordance with Article 5.2. In such an event and within 14 days of such notice being given, the other party is entitled to rescind the agreement with JC-Electronics, in which case compensation is owed for the work that has already been performed at that time.
JC-Electronics is entitled in each case to require advance payment of the (reasonably to be expected) price before performing the agreement. Additionally, JC-Electronics is entitled to send invoices during the term of the agreement before the work is completed in its entirety.
All invoices sent by JC-Electronics must be paid within 14 days of the invoice date, unless otherwise agreed. Complaints about the invoice must also be stated within this period, at the risk of forfeiting all rights. If a payment is not made in time the other party is in default by operation of law, without a notice of default being required. While the Other Party remains in default JC-Electronics is entitled to a payment of interest at 1.5 per cent per month on the outstanding amount. In this respect, a part of a month is considered to be a whole month. Additionally, reimbursement of the costs actually incurred, both in and out of court, is owed, which costs are fixed at 15 per cent of the outstanding amount, unless the actual costs are higher. Payments made by the Other Party are first applied to reduce the costs, then to reduce the accumulated arrears interest, and finally to reduce the principal sum.
The other party cannot claim suspension or set-off on any grounds in respect of all that the Other Party owes JC-Electronics.
Article 6 Guarantees, inspections and complaints, limitation period
Items delivered by JC-Electronics meet the customary requirements and standards that can reasonably be required of them at the time of delivery and for which they are intended, taking into account normal use in the Netherlands. In the event of use outside the Netherlands the Other Party must itself verify whether or not the delivered items are suitable for its intended use. JC-Electronics does not guarantee that items it has delivered can be used outside the Netherlands. Services provided by JC-Electronics, including repairs and expert inspections in particular, entail an obligation to be performed to the best of its ability. JC-Electronics endeavours, as much as can be expected of it, to achieve the goals and repairs desired by the Other Party, but does not guarantee that its efforts will lead thereto.
The guarantee mentioned in paragraph 1 of this Article is valid for a period of 12 months after delivery of repaired items and for 12 months following the delivery of sold items, unless the nature of the delivered item provides otherwise or unless the parties have agreed otherwise. If the guarantee provided by JC-Electronics concerns an item that was produced by a third party, the guarantee is limited to the guarantee as provided by this third party to JC-Electronics, unless stated otherwise.
JC-Electronics cannot be held liable in respect of a defect that results from improper use or misuse of the item in question, or use after the expiry date, improper storage or maintenance of the item by the Other Party and / or by third parties if, without written permission from JC-Electronics, the Other Party or third parties have made changes to the item or have attempted to do so, have attached other items to it that should not be attached to it or if these were converted or adapted in a manner not prescribed. The Other Party is also not entitled to the guarantee if the defect was caused by or is the result of circumstances that cannot be influenced by JC-Electronics, including weather conditions.
The Other Party is obliged to inspect the delivered item or items or to have them inspected, as soon as is reasonably possible from the time that the items have been made available to it. In doing so, the Other Party must - to the extent that this is reasonably possible - investigate if the quality and/or quantity of the delivered item or items corresponds with what was agreed upon and complies with the requirements that the parties agreed on in that respect. Defects must be reported to JC-Electronics in writing within seven days of delivery, at the risk of forfeiting all rights. Defects that have arisen later, only to the extent that these could not be discovered sooner, must immediately, though in any case within three days of discovery thereof, be reported to JC-Electronics in writing. The report must contain a description of the defect that is as detailed as possible, so that JC-Electronics is able to respond adequately. The Other Party must provide JC-Electronics with the opportunity to investigate a complaint or to have it investigated and to immediately send it to JC-Electronics on request and at its own expense.
If it has been established that an item or service was delivered or provided defectively and a complaint in that respect was lodged in time JC-Electronics will do the following in respect of the defective item, within a reasonable period of having received the item or - if it cannot reasonably be returned - after a written notice pertaining to the defect: either replace, or ensure repair thereof, or credit the amount charged for the item, all this to be decided by JC-Electronics. In the event of replacement or repair the Other Party is obliged to return the defective item to JC-Electronics at its own expense, unless JC-Electronics states otherwise. If the other party is of the opinion that JC-Electronics has not fulfilled its obligations under the agreements, has not fulfilled them correctly or has fulfilled them insufficiently, it is obliged at all times to return to JC-Electronics the items it has repaired and/or delivered, in order to allow it to correctly perform the obligations under the agreement. If the other party does not comply with this obligation every right in respect of the non-fulfilment lapses. Apart from the stipulations in this Article JC-Electronics will not owe compensation.
If it is established that a complaint is groundless, for example because a defect has arisen due to incompetent use, the costs that have arisen as a result thereof, including the inspection, testing and transport costs, are to be borne by the Other Party.
Contrary to the statutory limitation period, the limitation period of all claims and defences in respect of JC-Electronics is one year, counting from the time at which the claim arose.
Article 7 Performance and non-performance
JC-Electronics is not obliged to perform any obligation in respect of the Other Party if it is hindered from doing so as a result of a circumstance that cannot be attributed to it, and that it cannot be held accountable for under the law, a legal act or according to generally accepted standards.
The parties agree that force majeure will in any case include: strikes, product shortages, labour force shortages, technical failures, raw material shortages, power/water failures, inadequate or incomplete performance by third parties, including postal and parcel services, all this independently of whether or not the circumstance in question can be attributed to JC-Electronics.
While the force majeure remains in effect, JC-Electronics may suspend its obligations. If this period continues for more than two months, each party is entitled to rescind the agreement, without being obliged to pay compensation to the other party. If at the time of commencement of force majeure JC-Electronics has partly performed its obligations under the agreement or is able to perform them, and the performed or to be performed part has an independent value, JC-Electronics is entitled to send a separate invoice for the performed or to be performed part. The Other Party is obliged to pay this invoice as if it were a separate agreement.
Article 8 Retention of title
The items produced, delivered and to be delivered by JC-Electronics remain the property of JC-Electronics until the other party has paid JC-Electronics all that it owes and will owe JC-Electronics for the produced, delivered or to be delivered items under an agreement with JC-Electronics.
Items in which JC-Electronics has retained title may only be sold on by the other party within the scope of its normal course of business.
In the event that the other party fails to perform its obligations to JC-Electronics, or if there is a well-founded fear that the other party will not do so, JC-Electronics is entitled to take away or have another party take away delivered items subject to a retention of title from the other party or from third parties keeping the items for the other party. The other party must provide JC-Electronics with its full cooperation for this purpose. If the other party fails to do so, it is liable to pay JC-Electronics an immediately payable fine of 10 per cent of the amount owed by the other party, for each day that it continues to fail to provide its cooperation to JC-Electronics.
All items delivered by JC-Electronics to the Other Party are delivered subject to an undisclosed pledge for the benefit of JC-Electronics. This undisclosed pledge relates to all that the other party owes or will owe JC-Electronics.
Article 9 Delivery and risk transfer
Delivery by JC-Electronics takes place under the "CPT" Incoterm. This means that JC-Electronics arranges the transport to the Other Party, at its own expense, but that the delivery and risk transfer takes place at the time at which the items are transferred to the (first) transporter. In the event of a delivery regarding rush orders the delivery costs are to be borne by the other party.
JC-Electronics chooses the means of transport by which the deliveries referred to in paragraph 1 will be affected. The delivery will take place at the address given in advance by the other party.
If the Other Party refuses to take delivery or fails to provide information or instructions that are necessary for the delivery, JC-Electronics is entitled to store the items at the risk and expense of the Other Party.
Article 10 Intellectual property
The other party guarantees that in performing the agreement JC-Electronics will not violate any intellectual property rights of third parties and that carrying out this work is not in any other way unlawful in respect of any third party. The other party indemnifies JC-Electronics against all claims by third parties in this respect.
If JC-Electronics suspects that rights of third parties are being violated as described in the first paragraph, it is entitled to either suspend the performance of its obligations under the agreement until it has been proved beyond a doubt that no rights of third parties are being violated, or it can rescind the agreement. In both cases JC-Electronics is not liable for compensation to the other party and the costs incurred by JC-Electronics are to be borne by the other party.
If (new) intellectual property rights arise during the performance of the agreement by JC-Electronics, these vest in JC-Electronics.
JC-Electronics grants the Other Party a non-exclusive and non-transferable right of use in respect of the intellectual property rights referred to in paragraph 3.
JC-Electronics has the right to use the knowledge it has acquired in performing the agreement for other purposes.
Article 11 Liability
Under no circumstances is JC-Electronics liable to the Other Party for an amount that is higher than the price that the other party owed JC-Electronics within the scope of the agreement in question.
JC-Electronics is not liable for damage and/or loss, caused by actions performed by itself, its employees and/or by persons it engaged, unless JC-Electronics itself or its executive employee or employees acted intentionally or acted grossly negligent.
JC-Electronics is not liable for damage and/or loss that is the result of a defect or defects in items supplied to JC-Electronics, which it supplied on to the other party, unless JC-Electronics can recover the damage and/or loss from its supplier.
Under no circumstances is JC-Electronics liable for consequential damage and/or pure financial losses; including consequential losses, lost profits, lost savings and losses due to business interruptions.
JC-Electronics is not liable for the consequences of the loss of data, software settings and parameters stored on items made available for repair work or inspection. Nor is JC-Electronics liable for the loss of company warranty in respect of items made available for repair work or inspection.
If the Other Party fails to properly perform all that it is obliged to do in respect of JC-Electronics, the Other Party is liable for all damage and/or loss, including costs, on the part of JC-Electronics that directly or indirectly resulted from this failure.
Article 12 Applicable law and competent court
All legal relationships to which JC-Electronics is a party are exclusively governed by the law of the Netherlands, even if an obligation is partly or completely performed abroad or if the party involved in the legal relationship resides there. The applicability of the Vienna Sales Convention is excluded.
All disputes will be resolved by agreement or, if this turns out to be impossible, by the court in Groningen, which has subject-matter jurisdiction. However, JC-Electronics is entitled to also to submit any disputes to a court that under the law has jurisdiction in the dispute.
These terms and conditions are available in various languages. In the event of a textual difference the Dutch, original version is decisive in all cases.