General Terms and Conditions
1. General and representation
In these general terms and conditions the following is understood as:
1 .1 BMAIR: BMAIR means one or more of the following private companies with limited liability: BMAir International B.V. and BMAir Benelux B.V., having their registered office at Kuiper 15, 5253 RJ, Nieuwkuijk, the Netherlands.
1 .2 Other Party: the party who requests an offer from BMAIR, concludes a sale or lease agreement with BMAIR, commissions BMAIR to carry out Activities, concludes any agreement whatsoever with BMAIR as well as the party who carries on negotiations with BMAIR about the conclusion of an agreement within the meaning of this article. The Other Party shall be understood to comprise the Representative of the Other Party intended below as well as the proxy (proxies), successor(s) in title and heir(s) / beneficiary (beneficiaries) of the Other Party.
1 .3 Representative of the Other Party: if BMAIR concludes an agreement with a natural or a legal person and upon the conclusion thereof the Other Party is represented by a third party, this representative of the Other Party and the Other Party are jointly and severally liable vis-à-vis BMAIR for the obligations by virtue of the agreement, unless the contrary shall have been stipulated and shall have been accepted by BMAIR. In the event the representative within the meaning of this article appears not be authorised to commit the Other Party vis-a-vis BMAIR this shall imply that the representative shall independently be liable for all obligations by virtue of the agreement, whereas the representative shall have accepted this liability even if at an earlier stage BMAIR sent an invoice, order confirmation or other document to the Other Party and not to the representative.
1 .4 Activities: all activities carried out by or on behalf of BMAIR, which can also include repairs and revision, including the necessary parts, materials and tools.
1 .5 Manual: the manuals delivered by BMAIR with its products.
1 .6 In Writing: a message sent by post, facsimile or email.
1 .7 Intellectual Property Rights: all intellectual property rights vested on or in connection with the goods delivered by BMAIR including, but not limited to, patent rights, model rights, trademark rights, copyrights or rights to confidential information or trade secrets.
2. Scope of application
2.1 Unless stipulated otherwise In Writing, these general terms and conditions are applicable to all business agreements concluded by and between BMAIR and its Other Party and they form an inextricable part of offers of BMAIR, any agreement whatsoever with BMAIR and negotiations prior to the conclusion of an agreement with BMAIR.
2.2 These general terms and conditions are applicable to agreements where a third party requests the Other Party for an offer with regard to the goods delivered by BMAIR, the Other Party concludes a sale or lease agreement with regard to the goods delivered by BMAIR or any agreement whatsoever with regard to the goods delivered by BMAIR with a third party. The Other Party is obliged to render the general terms and conditions available to the relevant third party. The Other Party must in the aforementioned instances also ensure that the goods delivered by BMAIR are used in accordance with the Manual. The Other Party is obliged to render the Manual available to the relevant third party.
2.3 Should the Other Party use general terms and conditions which are declared applicable to agreements concluded with or to be concluded with BMAIR, or to negotiations prior to that, BMAIR expressly refuses the applicability of these terms and conditions of the Other Party, unless BMAIR expressly informed to conform to the same. The general terms and conditions of BMAIR shall, in any case, always prevail over the general terms and conditions of the Other Party, to the extent that the terms and conditions of the Other Party are in violation of or deviate from the general terms and conditions of BMAIR.
2.4 The Other Party with whom contracting once took place on the basis of the present terms and conditions agrees with the applicability of these terms and conditions to later agreements concluded by and between the same and BMAIR.
2.5 Invalidity or inapplicability of one or more provisions or part of a provision, in general or in a specific instance, occurring in these general terms and conditions shall not affect the effect and validity of the remaining provisions. With these general terms and conditions BMAIR pursues not to violate any imperative statutory provisions.
3. Offers and agreements
3.1 Each and every offer, in any form whatsoever, of BMAIR is always completely without engagement and can be revoked by BMAIR within five working days after the acceptance by the Other Party.
3.2 Each and every offer expires — if this is not excluded by BMAIR In Writing — after six weeks have lapsed since the date of the offer and the offer has not unambiguously been accepted by the Other Party, unless in case of an offer In Writing of BMAIR a longer time limit has been granted to the Other Party and the offer In Writing has not unambiguously been accepted by the Other Party within this longer time limit.
3.3 Each and every acceptance by BMAIR takes place In Writing so that, failing acceptance In Writing an agreement is not concluded, barring the situation where BMAIR can demonstrate that as a result of an interruptive circumstance the Other Party did not receive the acceptance In Writing.
3.4 Changes in an already concluded agreement shall only have binding effect if these changes have been stipulated by the parties In Writing. The Other Party must compensate BMAIR for damages and/or costs incurred by BMAIR as a result of the amendment of the agreement.
3.5 Provisions in pursuance of which BMAIR commits to a delivery obligation, without the Other Party committing to take receipt of the concerned goods, do not have binding effect.
3.6 BMAIR is always authorised to change the construction of the goods to be delivered, under the condition that the delivered goods properly serve the designated use of the Other Party, if and to the extent that such designated use has demonstrably been communicated by the Other Party.
4. Prices and fees
4.1 All prices indicated by BMAIR in offers, brochures, catalogues et cetera are without engagement. Possible discounts that are given by BMAIR are valid once-only and do by no means have binding effect on BMAIR in case of a follow-up assignment or later agreement.
4.2 All prices indicated by BMAIR or stipulated with BMAIR are net, hence excluding, among other things, VAT, import duties, other taxes, duties and levies, unless expressly indicated otherwise. They are moreover excluding the costs of packing, shipment, insurance and the like, unless expressly indicated otherwise. BMAIR is authorised to pass on each and every change in these fees to the Other Party.
4.3 All prices indicated by BMAIR or stipulated with BMAIR are based on cost price determining factors, applicable at the day of the conclusion of the agreement. If prior to or, in case delivery takes place in instalments, during the delivery any increase occurs in these cost price determining factors BMAIR shall be entitled to charge a corresponding price increase to the Other Party.
4.4 If a fixed fee has been stipulated and the Other Party desires changes in and/or additions to the assignment BMAIR shall inform the same of the consequences of these changes and additions for the price.
5. Delivery time and delivery
5.1 The dates stipulated with BMAIR when and/or the time limits within which the goods to be provided by the same are delivered and/or the Activities to be rendered by the same are carried out are approximate only. Overstepping of these dates and/or time limits shall never entitle the Other Party to compensation or non-compliance with any obligation by virtue of the agreement of its own.
5.2 The delivery time commences after the conclusion of the agreement, after BMAIR has all documents and data required and/or to be supplied by the Other Party for the implementation of the agreement in its possession and after a possibly stipulated advance has been received by BMAIR or security for payment for the benefit of BMAIR has been provided. If at the time of the conclusion of the agreement the Other Party is liable to pay any amount to BMAIR in pursuance of any agreement whatsoever with the Other Party the delivery time commences on the day when BMAIR received all that which is due to the same in pursuance of that other agreement.
5.3 Delivery times are extended by the time that the implementation of the agreement is delayed as a result of force majeure. They are also extended by the time that the Other Party is later with regard to the implementation of any obligation than that which has been stipulated or that which could within reason be expected by BMAIR. BMAIR reserves the right to extend deliveries if a due date has been stipulated and the Other Party desires changes in and/or additions to the assignment.
5.4 The goods to be delivered by BMAIR are deemed to have been delivered as soon as they leave the warehouse or the office of BMAIR for shipment to or for the benefit of the Other Party.
5.5 BMAIR is entitled to deliver in parts. For the purpose of these terms and conditions each and every partial delivery is qualified as an individual delivery.
6. Transfer of risk and title
6.1 The risk of the goods to be delivered by BMAIR is borne by the Other Party as from the moment that these goods have been delivered within the meaning of article 5.4.
6.2 Loading, shipment or transport, unloading and insurance of the goods to be delivered take place at the risk of the Other Party, even if BMAIR provides for this.
6.3 All goods sold and delivered by BMAIR shall remain the property of BMAIR up to the moment of full payment of all that which BMAIR has to claim from the Other Party in connection with the present agreement or in connection with earlier or later agreements with the Other Party of the same nature as the present agreement, such to include compensation, costs and interest. The Other Party is not entitled to a possessory lien in respect of these goods.
6.4 If the Other Party fails to comply with the execution of the consideration then BMAIR is entitled to take back the goods delivered by BMAIR, where necessary by accessing the properties of the Other Party and/or third parties. If and to the extent that access to the properties of the Other Party would require the approval or the cooperation of the Other Party, by means of acceptance of these general terms and conditions the Other Party already grants and/or lends BMAIR its approval and/or cooperation.
7. Force majeure
7.1 Force majeure is understood as any and all circumstances that cannot be blamed on the culpability of the parties nor can be blamed on the parties pursuant to the law, a legal act or generally accepted practice.
7.2 In case of force majeure on the part of BMAIR its obligations are suspended for the duration of the situation of force majeure. If the force majeure lasts longer than six months, both BMAIR and the Other Party are entitled to dissolve the agreement for the unenforceable part by means of a notice In Writing. The Other Party is only entitled to dissolution after payment to BMAIR of all the amounts then payable, whether or not due, to BMAIR.
8. Intellectual property rights
8.1 All Intellectual Property Rights on or in connection with the goods delivered by BMAIR are and remain vested in BMAIR. Reproduction
(imitation) or marketing of the goods delivered by BMAIR without the prior approval In Writing of BMAIR is not allowed.
8.2 The Other Party does not acquire Intellectual Property Rights or other property rights on or in connection with the goods delivered by BMAIR. The Other Party is not allowed to perform any registrations in order to acquire Intellectual Property Rights on or in connection with the goods delivered by BMAIR, including the registration of domain and trade names.
8.3 The Other Party shall forthwith inform BMAIR when it becomes familiar with any infringement or alleged infringement of the Intellectual Property Rights of BMAIR. BMAIR has the exclusive right to, at its sole discretion, take any action against infringement. On demand of BMAIR the Other Party shall lend its full cooperation to the institution of actions, claims or proceedings connected with the Intellectual Property Rights on the goods delivered by BMAIR.
8.4 Without the approval of BMAIR the Other Party shall neither make any promises or compromises nor agree on any settlement with regard to infringement or alleged infringement of the Intellectual Property Rights on or in connection with the goods delivered by BMAIR.
8.5 The Other Party acknowledges and confirms that the goods delivered by BMAIR comprise confidential information and trade secrets of BMAIR. The Other Party, its staff and/or third parties that are hired by the Other Party both during and after termination of the agreement with BMAIR are held to treat the confidential information and trade secrets comprised in the goods delivered by BMAIR as strictly confidential.
9. Warranty and complaints
9.1 BMAIR warrants the soundness of the delivered goods vis-a-vis the Other Party for a period of one year after the date of the invoice. In case of shortcomings resulting from construction errors during the warranty period in respect of which a complaint has been lodged in a timely fashion BMAIR shall either deliver again gratuitously or credit the Other Party within reason for the full or partial invoiced amount of the relevant goods, all at the discretion of BMAIR.
9.2 With regard to immediately visible shortcomings the Other Party must lodge a complaint In Writing within eight days after delivery, failing which each and every claim vis-à-vis BMAIR with regard to these kinds of shortcomings shall expire.
9.3 Immediately observed visible shortcomings must be reported by the Other Party on the delivery note and/or the invoice.
9.4 With regard to other shortcomings the Other Party must lodge a complaint In Writing within three working days after the discovery thereof at the latest, failing which each and every claim vis-a-vis BMAIR with regard to these kinds of shortcomings shall expire.
9.5 The submission of a complaint shall not suspend the payment obligation of the Other Party with regard to the disputed goods.
9.6 With regard to goods or parts of goods that BMAIR purchases from third parties the warranty obligations of BMAIR vis-à-vis the Other Party shall never exceed nor last longer than the warranty obligations of those third parties vis-a-vis BMAIR. In this context BMAIR shall be discharged at the moment it transferred its claim vis-à-vis this third party to the Other Party.
9.7 A claim under a warranty does not exist:
- if the indications or advice provided by BMAIR, among other things in the area of storage, assembly and/or use as laid down in the Manual, have not been followed exactly, including but not limited to the replacement of filters by filters that do not originate from BMAIR;
- if the delivered goods were used injudiciously or not in accordance with the stipulated or common designated use;
- if the Other Party does not, improperly or untimely comply with any of its obligations vis-à-vis BMAIR deriving from the present agreement;
- if the delivered goods have been affected by external causes, e.g. heat, fire, etc.; if repair or change of the delivered goods has, contrary to the guidelines in the Manual, been carried out by the Other Party.
10. Repair and maintenance
10.1 Repair and maintenance of the goods delivered by BMAIR is carried out in consideration of the provisions set forth elsewhere in these general terms and conditions, the Manual and the agreement with the Other Party.
10.2 Return shipments of goods delivered by BMAIR can only take place if the parties have reached agreement about this In Writing. The Other Party is never entitled to refuse and/or return a whole delivery if a complaint of the Other Party is only related to a part of the delivery.
1 1. Liability and indemnification
1 1.1 Each and every liability of BMAIR on account of the agreement with the Other Party is limited to the performance of the warranty activities specified in article 9.
11.2 Hence, BMAIR is never held to pay compensation, of any nature whatsoever. An exception to this only exists if and to the extent that damages are caused by intent or gross negligence on the part of BMAIR or its staff. Without prejudice to intent of the management of BMAIR, liability of BMAIR is, however, always excluded for trade losses, consequential and indirect damages.
11.3 In all instances where BMAIR is nonetheless liable to pay compensation this shall never exceed, at the discretion of BMAIR, either the invoiced amount of the delivered goods and/or the Activities carried out under its authority as a result of which or in connection with which the damages were caused or, if the damages are covered by an insurance of BMAIR, the amount that is actually paid by the liability insurer of BMAIR.
11.4 Each and every claim vis-à-vis BMAIR, barring those that are acknowledged by BMAIR, expires after the mere lapse of six months after the occurrence of the claim.
11.5 All liability limiting, excluding or establishing conditions, which in connection with deliveries can be enforced against BMAIR by suppliers or subcontractors of BMAIR, can also be enforced against the Other Party by BMAIR
11.6 The employees of BMAIR or auxiliary persons hired by BMAIR for the implementation of the agreement can rely on all defences borrowed from the agreement vis-à-vis the Other Party as if they were a party to this agreement.
11.7 The Other Party shall indemnify BMAIR, its staff and auxiliary persons hired by the same for the implementation of the agreement against any and all claims of third parties in connection with the goods delivered by BMAIR and with the implementation of the agreement by BMAIR, to the extent that these claims exceed or differ from those of the Other Party vis-a-vis BMAIR.
11.8 A possible liability of BMAIR expires if the Other Party does not fully comply with its obligations vis-à-vis BMAIR.
12. Payment and security
12.1 Payment of the purchase price by the Other Party must take place within 30 days after the date of the invoice in El-JR, unless the parties expressly stipulate otherwise, which shall be specified on the invoice.
12.2 If so desired by BMAIR or if immediately after the conclusion of the agreement it becomes apparent from circumstances that the creditworthiness of the Other Party threatens to be at risk, BMAIR can desire of the Other Party that the Other Party pays the full purchase price of the movable property prior to the delivery date or that the Other Party provides sufficient security for compliance with its obligations prior to the delivery date.
12.3 The Other Party waives any right to settlement of amounts payable back and forth. The Other Party is never entitled to suspend the payment.
12.4 If the Other Party does not pay any amount payable by the same in the manner outlined above, the Other Party shall automatically be in default. As soon as the Other Party fails to pay, all other claims of BMAIR vis-à-vis the Other Party immediately fall due and the default shall, without any notice of default being required, also have effect with regard to these claims. As from the day when the Other Party is in default the Other Party is liable to pay BMAIR the statutory commercial interest in pursuance of article 6:119a in conjunction with article 6:120 paragraph 2 of the Dutch Civil Code.
12.5 If BMAIR is, as a result of non-payment by the Other Party, compelled to take measures in order to obtain the purchase price or a part of the purchase price the judicial and extrajudicial costs consequently incurred by BMAIR are at the expense of the Other Party. The extrajudicial costs shall at all times amount to at least 15% of the total outstanding amount. By acceptance of these general terms and conditions the Other Party authorises BMAIR to, where possible, immediately set off these costs.
12.6 Payment of a specific amount shall first be applied to the costs, then to the interest already due and finally to the principal amount and the accruals, regardless of the fact as to whether the Other Party provides other payment instructions.
13. Termination of the agreement
13.1 In the event of a failure of the Other Party to comply with an agreement concluded with BMAIR, if the Other Party is declared insolvent, the Other Party files for (temporary) suspension of payment or loses power of disposal over its assets as a result of an attachment, a guardianship order or otherwise or if the Other Party does attributably not comply with any of its obligations in pursuance of these general terms and conditions BMAIR shall be entitled to terminate the agreement concluded with the Other Party either in whole or in part by means of a notice In Writing addressed to the Other Party, without prejudice to the other rights of BMAIR in pursuance of statutory provisions.
14. Disputes and applicable law
14.1 Dutch law is exclusively applicable to agreements concluded by BMAIR with the Other Party, unless expressly stipulated otherwise.
14.2 Unless expressly stipulated otherwise each and every dispute with regard to the agreement is brought to the cognisance of the competent court in the district of Breda.