1 Definitions, applicability
The following definitions, both in the singular and in the plural, are used in these General Terms.
a) Contract: any quotation and acceptance there- of, agreement including its exhibits and addenda or other agreed course of conduct or legal act between JVM Europe and Customer, regardless whether these have been made orally, in writing, electronically or in any other form.
b) Customer: the party (a) to whom the offer of JVM Europe is addressed, (b) with whom JVM Europe has concluded the Contract or (c) for the benefit of whom the legal act is performed.
c) Ex Works (EXW): Incoterm® defining that the Products will be produced, packed, marked if applicable, and made available. Loading and clearing of the Products and shipping thereof is at risk and costs of Customer.
d) Force Majeure: with the exception of any events on the part of Customer’s client or Customer’s project, any event that incurs failure to perform beyond control and not caused by the negligence of the performing party, such as – without limitation – rulings (e.g. embargo’s), governmental measures, strikes, disruption in electricity supply, non-availability of telecommunication services, non-delivery of Products.
e) General Terms: the present version of general terms & conditions of JVM Europe, regardless of the form in which they are published (hard copy or electronically).
f) Products: all products, affairs, materials, parts (including – but not limited to – spare parts, documentation, merchandising goods, etc.) and services that are subject of Contract.
g) Invoice: commercial document issued by JVM Europe to Customer requesting payment of Products, indicating total amount, applicable taxes, bank transfer specifications and – if applicable – Purchase Order’s reference.
h) Intellectual Property (Rights): assignment of property rights through patents, copyrights, trade names and trademarks.
i) JVM Europe: JVM Europe BV with its statutory address at Niels Bohrweg 6218MD Lelystad, the Netherlands and registered at the Dutch Cham- ber of Commerce # KVK 32137355, and its subsidiaries.
j) More Work: all requested or necessary extra Products that are not included in the Quotation, proposition or task.
k) Purchase Order (PO): commercial document issued by Customer to JVM Europe authorizing a purchase transaction and indicating part number(s), trademarks, type(s) and/or description(s), and quantities of Products and/or prices.
l) Quotation: response to Customer’s request for quotation in which JVM Europe quotes its prices for the Products, payment condition and other terms and conditions.
The applicability of any terms of Customer is herewith explicitly excluded.
If there is any conflict, contradiction or inconsistency between these General Terms and a written Contract, the written Contract shall prevail.
2 Quotation
2.1 A Quotation is valid for the period stated in that Quotation. A Quotation without an indicated validity period may ultimately be revoked within 2 (two) working days after acceptance thereof.
2.2 A composed Quotation does not oblige JVM Europe to deliver a part of the Products to the according part of the total price.
2.3 If Customer’s information seems to be incorrect or incomplete or is changed at a later stage, JVM Europe may adjust the quoted prices and/or contract terms.
2.4 The Quotation does not automatically apply to reorders or future PO’s.
2.5 Models, part number(s), type(s) and/or description(s), indications of capacities and quantities of Products and other details mentioned on the website(s) or brochure(s) of JVM Europe serve only as an indication. No rights can be derived from these.
3 Concluding Contract
3.1 Apart from an agreement signed by both parties, a contract is also concluded at the moment that JVM receives a PO, even if the part number(s), trademarks, type(s) and/or description(s) in the PO slightly differ from the Quotation. However, if the difference between Quotation and PO is substantial, the Contract will only be concluded after JVM Europe’s written approval.
3.2 In the event of a PO without a prior Quota- tion or an oral agreement, the Contract will only be concluded after JVM Europe’s writ- ten approval (e.g. by Invoice) or by means of executing the Contract.
4 Obligations of JVM Europe
4.1 JVM Europe will execute the Contract in manner according to the Contract and the standards of industry. JVM Europe may engage one or more third parties to execute the Contract.
4.2 JVM Europe will check specifications, quantities, measures and/or weights before delivery.
4.3 JVM Europe will deliver the Products Ex Works (EXW). JVM Europe will place the Products, suitably labeled and packed in standard shipping cartons, at the disposal of Customer at its warehouse and send Customer a delivery notice.
4.4 Pending shipment JVM Europe will appropriately store the Products at Customer’s cost and risk.
4.5 Products will be delivered in minimal amounts that are available at JVM Europe. Minor deviations that are deemed acceptable within the appropriate industry with regard to quantities, weights and part number(s) of Products, and trademarks, type(s) and/or description(s) are not considered a shortcoming nor a Fundamental Breach.
5 Obligations of Customer
5.1 Customer assures that his information is accurate and releases JVM Europe from any claims that are or could be a result of his inaccurate information.
5.2 Upon delivery EXW Customer will arrange for shipment within five (5) working days of the delivery notice. The Customer will pay any additional costs incurred by failing to take delivery in due time.
5.3 Customer is allowed to a pre-shipment inspection. Unless otherwise agreed, Customer will bear all costs for pre-shipment inspection. Immediately after completion of the inspection, Customer shall report missing Products, externally visible defects, defects and/or damage to the Product to JVM Europe.
5.4 If no missing Products etc. are reported pre-shipment, the Products are deemed to be delivered properly according to the Contract.
5.5 Customer shall obtain at his own risk and expense any clearance or other official authorization required for the export and import of the Products and, if applicable, for transit through another country.
5.6 The Customer will not settle any Invoices with alleged claims against JVM Europe, nor can he suspend his obligations.
6 Postponement
6.1 If Customer does not fulfil his obligations, JVM Europe may postpone its execution of Contract as long as Customer does not fully meet its obligations.
6.2 JVM Europe may postpone its obligations, if its Invoice is due or if it has reason to doubt the creditworthiness of Customer, even before Customer is in default. The expenses caused by postponement, such as loss of working hours, the costs for the carrying out of extra services, may be charged to Customer.
6.3 The Customer may delay delivery of Products without penalty, provided that JVM Europe receives a written notice of delay before thirty (30) days prior to the originally scheduled delivery date.
6.4 If Customer delays delivery of Products within thirty (30) days prior to the originally scheduled delivery date, JVM Europe may charge either its actual damages and losses suffered during the postponement period, or a flat rate compensation equal to 25% (twenty five percent) of the invoiced amount.
6.5 If the Contract cannot be reasonably executed after the postponement is lifted, JVM Europe may terminate the Contract without being liable for any damages incurred by Customer.
7 More Work
7.1 More Work has to be approved or confirmed by JVM Europe and Customer in writing.
7.2 More Work will be charged if costs increase unforeseeable and/or if the Products come only in higher quantities or qualities.
7.3 Offsetting More Work takes place when drawing the final balance, unless both parties have agreed in writing to do otherwise.
8 Shipment
8.1 Customer shall select the carrier and method of shipment and obtain at its own risk and expense any clearance or other official authorization required for the export and import of the Products and, if applicable, for transit through another country. All freight, insurance, and other shipping costs, as well as any special packing expense, shall be met by Customer.
