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KIWA KZD Stiba

General terms and conditions of sale and delivery of Schmidt Trucks B.V. Chamber of Commerce number: 10033366

Article 1. Definitions

In these general terms and conditions of sale and delivery, the terms below have the following meaning, unless explicitly indicated otherwise.
▪ Schmidt Trucks: the Dutch private company with limited liability Schmidt Trucks B.V. as the user of these general terms and conditions;
▪ Commissioner/buyer: the commissioner/buyer as the other party;
▪ Agreement: the sale/delivery and/or assembly agreement concluded between Schmidt Trucks and the commissioner/buyer.

Article 2. General

2.1 These general terms and conditions apply to any proposal, offer and agreement between Schmidt Trucks and the commissioner/buyer, to which Schmidt Trucks has declared these terms and conditions to be applicable, to the extent that the parties have not explicitly deviated from these terms and conditions, confirmed in writing.

2.2 These terms and conditions also apply to all agreements concluded with Schmidt Trucks, for which Schmidt Trucks employs third-party services.

2.3 Any deviations from these general terms and conditions are only valid if these have been explicitly agreed in writing.

2.4 The applicability of any purchase or other general terms and conditions of the commissioner/buyer is explicitly excluded..

2.5 If one or more provisions of these general terms and conditions are void or are rescinded, the remaining provisions of these general terms and conditions continue to apply in full force. In that case, Schmidt Trucks and the commissioner/buyer will agree on new provisions to replace the void or rescinded provisions, in which the objective and the nature of the original provisions is taken into account.

Article 3. Proposals, offers and agreement

3.1 1 All offers and price quotations provided by Schmidt Trucks, in whatever manner and submitted wherever by whomever on behalf of Schmidt Trucks, are always without obligation and are submitted based on the prices and specifications established at the moment the agreement was concluded.

3.2 Agreements in which Schmidt Trucks is a contract party are only considered to be concluded in the following situations:
a. after both parties have signed an agreement drawn up to that intent, starting on the day of signing, or:
b. after the commissioner/buyer has received and approved the acceptance in writing of a proposal submitted by Schmidt Trucks, or;
c. after Schmidt Trucks has received the agreed and invoiced price through payment by the commissioner/buyer;
d. or when the commissioner/buyer has handed over to Schmidt Trucks the object to be processed, revised, disassembled or repaired and/or relevant documents required for the assignment;
e. or when the purchased goods have been delivered (transfer of ownership) or these have been paid (in cash) to the company of Schmidt Trucks.

3.3 If an individual concludes an agreement with Schmidt Trucks on behalf or at the expense of another individual, he declares to be authorized to do so by concluding the agreement. Together with the individual, this person is jointly and severally liable for all obligations arising from the agreement.

3.4 Delivery periods in Schmidt Trucks offers are estimates and do not entitle the commissioner/buyer to dissolve the agreement or claim damages when they are exceeded, unless explicitly otherwise agreed in writing.

3.5 If Schmidt Trucks and the commissioner/buyer have a difference of opinion with regard to the contents of the agreement concluded between them, the confirmation/invoice of Schmidt Trucks is decisive.

Article 4. Delivery, transfer of risk and execution

4.1 Schmidt Trucks will execute the agreement to the best of its knowledge and capacity, and in accordance with high standards.

4.2 Delivery of the purchased goods to the commissioner/buyer will only take place after the purchase price has been (fully) paid to Schmidt Trucks, unless explicitly agreed otherwise.

4.3 Delivery of the purchased goods will take place ex works/warehouse of Schmidt Trucks, by actual transfer of ownership of the purchased goods to the commissioner/buyer, unless otherwise agreed.

4.4 Delivery of the purchased goods is deemed to have taken place correctly as of the moment that Schmidt Trucks has made the purchased goods available in accordance with the arrangements made with the commissioner/buyer.

4.5 If it does not appear to be otherwise from the agreement and/or from these general terms and conditions, the risk of the purchased goods is transferred to the commissioner/buyer at the moment of delivery or availability, and Schmidt Trucks is no longer liable for the purchased goods.

4.6 If the purchased goods concern moving vehicles (e.g. company car, full or semi-trailers), as of the moment of delivery Schmidt Trucks is no longer liable for the purchased goods, nor their state and/or compliance with statutory provisions, inspections or other requirements.

4.7 The Incoterm Ex Work (EXW) applies to all deliveries of Schmidt Trucks, which means that the commissioner/buyer will pick up the purchased/delivered goods ex works/warehouse of Schmidt Trucks. As soon as the commissioner/buyer has picked up or takes control of the purchased/delivered goods, any damage is at the risk of commissioner/buyer. Any export costs are payable by the commissioner/buyer.

4.8 If delivery of the purchased goods by Schmidt Trucks has to take place at a delivery address to be indicated by/on behalf of the commissioner/buyer (e.g. port, etc.), the transport of the purchased goods ex works/warehouse of Schmidt to the delivery address is at the expense and risk of the commissioner/buyer, unless explicitly otherwise agreed in writing, notwithstanding the circumstance that Schmidt Trucks is insured with regard to this transport. The provision also applies to delivery of damaged trucks and car components.

4.9 Delivery of trucks at the delivery address indicated by/on behalf of the commissioner/buyer is deemed to have taken place without damage, complete and in driving condition, which will also be stated on the CMR waybill.

Article 5. Payment

5.1 Unless explicitly agreed otherwise, payment must be made in advance, before delivery of the purchased goods.

5.2 All payments must be made in the manner and within the period indicated by Schmidt Trucks. For international payments (by transfer), a payment period of 8 days after the invoice date applies. For national payments (by transfer), a payment period of 14 days after the invoice date applies.

5.3 In the case of payment in cash, the commissioner/buyer must pay Schmidt Trucks the agreed purchase price prior to delivery.

5.4 If the commissioner/buyer fails to meet his obligations with regard to correct and prompt payment, the commissioner/buyer is in default under operation of law. In that case, the commissioner/buyer must pay interest of 1% per month or part of a month, unless the statutory or commercial interest is higher, in which case the highest interest applies. The interest on the payable amount will be calculated from the moment the commissioner/buyer is in default to the moment the full amount has been paid.

5.5 In the case of liquidation, (a petition for) bankruptcy, granting of statutory debt adjustment under the Dutch Debt Restructuring Natural Persons Act [Wet Schuldsanering Natuurlijke Personen], attachment or a (provisional) suspension of payment of the commissioner/buyer, the claims of Schmidt Trucks are immediately due and payable.

Article 6. Retention of title

6.1 All items and components delivered by Schmidt Trucks remain the property of Schmidt Trucks until the commissioner/buyer has fulfilled all obligations arising from the agreement concluded with Schmidt Trucks.

6.2 The commissioner/buyer is not authorised to pledge any items to which retention of title applies, nor to encumber them in any other way.

6.3 If third parties attach delivered items to which retention of title applies or want to establish rights on them, or enforce rights against them, the commissioner/buyer is obligated to notify Schmidt Trucks of this as soon as possible.

6.4 The commissioner/buyer undertakes to insure the delivered items to which retention of title applies, and to keep them insured, against fire, explosion and water damage, as well as against theft and destruction, and to provide the insurance policy for review upon first request.

6.5 If Schmidt Trucks wants to exercise its right of ownership indicated in this article, the commissioner/buyer here and now grants Schmidt Trucks or a third party to be assigned by them the unconditional and irrevocable consent to enter all sites that house Schmidt Trucks property and to take back this property.

Article 7. Prices

7.1 In principle, the parties agree on a fixed price when establishing the agreement, unless explicitly otherwise indicated in writing by Schmidt Trucks.

7.2 Prices are based on delivery ex works/warehouse of Schmidt Trucks, unless agreed otherwise in writing.

7.3 Exchange engines/exchange parts will only be delivered in exchange for an old exchange engine or traded part, which cannot be broken, torn, welded or otherwise damaged or incomplete, and of which the various parts can be overhauled in a normal manner. If an exchange engine or traded part is handed in with these defects, the higher costs will be borne by the commissioner/buyer, unless otherwise agreed in writing.

Article 8. Review, complaints

8.1 Complaints about delivered goods and/or work performed need to be reported by the commissioner/buyer to Schmidt Trucks in writing, in a language that Schmidt Trucks understands (Dutch, German or English) within 8 days after delivery or performance of the work, with a detailed description of the failure, so that Schmidt Trucks can respond adequately.

8.2 The commissioner/buyer is obligated to review the delivered goods at the moment of delivery, to confirm that the quality and/or quantity of the delivered goods match what has been agreed.

8.3 If a complaint is well-founded, Schmidt Trucks will replace the delivered goods or remedy the established defects, or refund the purchase price, without compensating any damage and/or costs.

Article 9. Nonconformity, warranty

9.1 No warranty applies to deliveries of used vehicles and/or used parts, unless explicitly otherwise agreed in writing.

9.2 Only the warranty provided by the manufacturer or importer for new vehicles and/or parts applies to deliveries of these goods.

9.3 With regard to purchase, repairs and/or maintenance, the commissioner/buyer cannot invoke rights in respect of nonconformity within the meaning of Book 2 of the Dutch Civil Code.

Article 10. Cancellation

10.1 If the commissioner/buyer wishes to cancel an agreement after it has been concluded, 10% of the purchase price will be invoiced as cancellation costs, notwithstanding the right of Schmidt Trucks to full damages, including loss of profits.

10.2 If the commissioner/buyer, in the case of cancellation, refuses to receive items already purchased by Schmidt Trucks, such as materials and parts, whether or not processed, the commissioner/buyer is obligated to refund to Schmidt Trucks all costs arising from this.

Article 11. Collection costs

11.1 If the commissioner/buyer is in default with regard to (prompt) fulfilment of his obligations, all reasonable extrajudicial costs to obtain fulfilment are at the expense of the commissioner/buyer. The commissioner/buyer is at least liable for collection costs in the case of a monetary claim. The collection costs will be calculated in accordance with the collection rate as recommended by the Netherlands Bar [Nederlandse orde van advocaten] in collection cases.

11.2 If Schmidt Trucks has incurred higher costs that were reasonably necessary, these qualify for reimbursement.

11.3 Judicial and execution costs are also payable by the commissioner/buyer.

Article 12. Liability, indemnification

12.1 If goods delivered by Schmidt Trucks are defective, the liability of Schmidt Trucks towards the commissioner/buyer is limited to what has been arranged under "Warranties" in these terms and conditions.

12.2 In the case of delivery of vehicles and/or car parts (e.g. engines), Schmidt Trucks is in no manner whatsoever liable for the delivered goods and/or the state of the delivered goods as of the moment of delivery.

12.3 Schmidt Trucks is never liable towards the commissioner/buyer for damage, arisen for whatever reason, including all direct and indirect damage (such as consequential damage or loss, or loss of income), except for the liability for damage that has been caused by intent or gross negligence on the part of Schmidt Trucks.

12.4 If and to the extent that Schmidt Trucks were liable in any way, this liability is limited at all times to the value of the performance, which will be established based on the agreement underlying the invoice. Any liability will be at least limited to the amount that will be paid by the insurer of Schmidt Trucks with regard to the liability.

12.5 Schmidt Trucks does not accept any liability for deliveries and work outsourced to third parties, at the request of the commissioner/buyer.

12.6 The commissioner/buyer indemnifies Schmidt Trucks against all claims from third parties that state to have suffered damage by an item and/or work that Schmidt Trucks delivered to or performed for the commissioner/buyer. The commissioner/buyer will refund to Schmidt Trucks all damage (including costs) that it has suffered as a result of or with regard to such third-party claims.

Article 13. Sale with trade-in, exchange, acquisition

13.1 If the commissioner/buyer, when selling a company car by trading in a used vehicle, continues to use the traded vehicle pending the delivery of the purchased vehicle, the ownership of the traded vehicle will only transfer to Schmidt Trucks after the actual transfer of possession to Schmidt Trucks has taken place.

13.2 During this use, all costs are at the expense and risk of the commissioner/buyer, without exclusions and especially the costs for maintenance and any damage caused whatsoever, also as a result of loss, including not handing over the complete vehicle registration certificate.

13.3 When possession of the vehicle to be traded in is actually transferred, this vehicle needs to be in the same state as when it was appraised. If the vehicle to be traded in is no longer in the same state, Schmidt Trucks has the right to refuse the vehicle to be traded in and to request full payment of the agreed purchase price of the vehicle, or to appraise the vehicle to be traded in again.

13.4 At the moment of actual transfer of possession, the vehicle to be traded in must include the required vehicle registration certificates and transfer certificates, unless explicitly otherwise agreed in writing. If the documents above are not complete, Schmidt Trucks reserves the right to invoice costs to the commissioner/buyer for obtaining the missing documents and the decrease in value related to that.

13.5 Returning and/or exchanging the goods delivered by Schmidt Trucks can only take place provided that Schmidt Trucks grants approval and reviews the goods. Thus, the commissioner/buyer is not entitled to return/exchange items purchased from Schmidt Trucks.

13.6 If the commissioner/buyer wants to return or exchange purchased goods, this needs to take place at least within 8 days after the date of delivery.

13.7 Acquisition of company cars by Schmidt Trucks will always take place under the condition that the purchased vehicle at actual transfer of possession is in the same state as when it was purchased. If the purchased vehicle is no longer in the same state at delivery, Schmidt Trucks has the right to appraise this vehicle again and to lower the agreed purchase price with the decrease in value, or the right to dissolve the purchase agreement, notwithstanding the right of Schmidt Trucks to reimbursement of damage, costs and/or loss of profit.

Article 14. Force majeure

14.1 Schmidt Trucks is not bound to fulfil any obligations if Schmidt Trucks is unable to do so as a result of circumstances that cannot be blamed on them, nor is payable by them according to law, legal acts or generally accepted standards.

14.2 If Schmidt Trucks, as a result of force majeure or other extraordinary circumstances, such as (but not limited to) non-delivery, incomplete and/or delayed delivery by the manufacturer or importer, war and war risk, full or partial mobilisation, import and export bans, measures of Dutch and/or foreign government bodies that make execution of the agreement inconvenient and/or more expensive than was anticipated when the agreement was concluded, frost, work strikes, epidemics, traffic disruptions, transport loss or damage, fire, theft, etc. either at Schmidt Trucks or at its supplier: is not able to fulfil the obligations of the agreement (on time), Schmidt Trucks has the right to execute the agreement within a reasonable period, or, if fulfilment is not possible within a reasonable period, to declare the agreement fully or partly dissolved.

14.3 In the case of force majeure or other extraordinary circumstances, the commissioner is not entitled to initiate dissolution of the agreement during the first six months of these circumstances. The commissioner/buyer never has the right to claim damages and is not entitled to this.

Article 15. Suspension, right of retention, right of pledge, insurance, dissolution

15.1 If the commissioner/buyer does not fully, promptly or partly fulfil one or more of his obligations arising from this agreement and other agreements concluded between the parties, Schmidt Trucks has the right, without further notice of default or judicial intervention, and without being obligated to pay any damages, to suspend the performance of the applicable agreement in whole or in part, and/or to dissolve the applicable agreement in whole or in part, notwithstanding all other rights of Schmidt Trucks.

15.2 At all times, Schmidt Trucks has the right to also suspend the fulfilment of their obligations during the performance of the agreement until the commissioner/buyer has provided security at the request of and to the satisfaction of Schmidt Trucks to fulfil all his obligations from this agreement and other agreements concluded between the parties. If the commissioner/buyer fails to satisfactorily provide security within ten work days after the request by Schmidt Trucks was made, Schmidt Trucks can dissolve the agreement without judicial intervention by a registered letter or fax message, and is the commissioner/buyer obligated to reimburse the goods already delivered or the work already performed by Schmidt Trucks.

15.3 Notwithstanding all other rights, Schmidt Trucks has the right to retain all goods of the commissioner/buyer that Schmidt Trucks is in control of, at the expense and risk of the commissioner/buyer, until the related claims, as well as all claims of Schmidt Trucks against the commissioner/buyer, have been paid in full and payment for this is not delayed.

15.4 The commissioner/buyer does not have the right to refuse or suspend fulfilment of his payment obligations based on alleged defects or for whatever other reason.

15.5 By providing Schmidt Trucks with goods to be in control of, the commissioner/buyer establishes a right of pledge for all he owes or will owe to Schmidt Trucks, for whatever reason. This will at least include claims in respect of agreements that have not yet been completed. They hereby agree that Schmidt Trucks as pledgee can turn this possessory pledge into a non-possessory pledge by registering the agreement applicable between them, together with a copy of these terms and conditions, as a private instrument.

15.6 The commissioner/buyer is not entitled to set-off.

15.7 In addition to the other rights applicable to them, Schmidt Trucks can at all times and without further notice of default of judicial intervention, and without the obligations to pay damages to the commissioner/buyer, dissolve the agreement with the commissioner/buyer with immediate effect if the commissioner/buyer continues to fail to pay the due and payable debts, becomes insolvent, if suspension of payment is requested for the commissioner/buyer, if the commissioner/buyer ceases the business operations and/or if the assets of the commissioner are attached and the attachment will not be lifted within 30 days after the date of attachment, or if the commissioner/buyer loses full or partial power of disposition of his assets in any other way.

Article 16. Choice of law/forum

16.1 Dutch law applies to all agreements and any other legal relationships between Schmidt Trucks and the commissioner/buyer, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 1980 (Vienna Sales Convention) or any other future international regulation with regard to the sale of movable goods.

16.2 All disputes arising from the agreements concluded by Schmidt Trucks, to the extent possible under the applicable legal provisions, with the exclusion of any other authority, fall within the competence of the Arnhem court district.