General terms and conditions of sale of Netherlands Car Trading,
with its registered office at Meijewetering 19, 3543 AA, Utrecht, listed in the Commercial Register of the Chamber of Commerce in Utrecht, under file number 30004070
Article 1 – General
1.1. These general terms and conditions of sale, delivery and payment (hereafter: the ‘Conditions') form part of every agreement entered into between Netherlands Car Trading (hereafter: ‘Emil Frey Car Trading Netherlands') and any third party (hereafter: ‘Buyer’) and of all offers issued by Emil Frey Car Trading Netherlands, in respect of the delivery of new and used cars. Emil Frey Car Trading Netherlands and the Buyer are hereafter jointly referred to as the Parties.
1.2. Emil Frey Car Trading Netherlands's involvement with the delivery of new and used cars consists of two forms. Emil Frey Car Trading Netherlands can act as an agent and on behalf of the Buyer place an order with the supplier. In this case, Emil Frey Car Trading Netherlands itself will not become a party to the purchase agreement. In addition, Emil Frey Car Trading Netherlands may act as Seller. In such a case, Emil Frey Car Trading Netherlands will receive the order from the supplier and Emil Frey Car Trading Netherlands will sell on the new or the used car to the Buyer. In principle, Emil Frey Car Trading Netherlands shall clearly indicate for each agreement it concludes with a Buyer whether it is a brokerage agreement (also referred to by Emil Frey Car Trading Netherlands as ‘commission’), or a purchase agreement. If it has not been indicated what type of agreement it is, the Buyer must assume that it is a brokerage agreement.
1.3. If so requested, the Buyer will have to sign a separate brokerage agreement (also referred to by Emil Frey Car Trading Netherlands as ‘mandate’ or ‘power of attorney’. Both when Emil Frey Car Trading Netherlands acts as an agent and when Emil Frey Car Trading Netherlands acts as a Seller, the Buyer may be asked to declare to buy the car for his/her own use and not to have the intention to sell on the car in new condition.
1.4. Even when the Buyer contacts Emil Frey Car Trading Netherlands through an intermediary, Emil Frey Car Trading Netherlands will consider the Buyer to be the client. The Buyer must provide Emil Frey Car Trading Netherlands with an authenticated copy of registration with the Chamber of Commerce of the relevant intermediary. The Buyer must immediately inform Emil Frey Car Trading Netherlands of any changes in the activities, address and/or other relevant information of the intermediary.
1.5. Any deviations from these Conditions only apply to the extent that the Parties have expressly agreed to such deviations in writing. These deviations only apply to the offer or the agreement in which the deviations were made.
1.6. The new cars that can be bought from or through Emil Frey Car Trading Netherlands are manufactured for the Dutch market, unless it is explicitly indicated that this is not the case. The Buyer cannot invoke any deviations with respect to cars that have been manufactured for other markets.
1.7. Total or partial nullity or voidability of any provision of the Conditions shall not affect the validity of the other provisions of the Conditions. Emil Frey Car Trading Netherlands and the Contractor then will consult to replace the provisions that are null and void or have been declared null and void, with new provisions, taking into consideration, to the extent possible, the purpose and intent of the original provision.
Article 2 – Offers and formation of agreements
2.1. Every offer by Emil Frey Car Trading Netherlands is without obligation unless it has been expressly stated in writing that it is irrevocable, and terminates by operation of law after thirty (30) calendar days, counting from the date of the offer unless expressly determined otherwise in writing. Offers from Emil Frey Car Trading Netherlands can only be accepted in writing.
2.2. Agreements (both brokerage agreements and purchase agreements) between the Parties will not be concluded until the Buyer has signed for approval Emil Frey Car Trading Netherlands’s offer or Emil Frey Car Trading Netherlands’s order form, and has returned these to Emil Frey Car Trading Netherlands together with a copy of a valid identity document (passport or driving licence) by e-mail, post or fax and, after the order has been placed by Emil Frey Car Trading Netherlands with the supplier and Emil Frey Car Trading Netherlands has received a confirmation from the supplier, Emil Frey Car Trading Netherlands has sent the Buyer an order confirmation. The order confirmation contains the file number and an indicative delivery time.
2.3. Emil Frey Car Trading Netherlands will only order the new or used car from the supplier after Emil Frey Car Trading Netherlands has received the deposit indicated (at least 10% of the order amount).
2.4. Amendments or additions to an already formed agreement as well as any side agreements are only binding if the supplier agrees with these changes and Emil Frey Car Trading Netherlands has confirmed these changes to the Buyer in writing.
2.5. The supplier can, after formation of the agreement, change prices, equipment standard or delivery times. The price changes are integrally passed on to the Buyer. Emil Frey Car Trading Netherlands is not responsible for changes in the equipment standard or the delivery time.
Article 3 – Prices
3.1. All prices referred to by Emil Frey Car Trading Netherlands in its offers are, unless expressly agreed in writing, not binding.
3.2. The payment of local taxes which are levied on the car is the responsibility of the Buyer. A certificate of conformity, issued by the supplier, forms in principle a guarantee that the car shall also be allowed on the road in other countries.
3.3. All prices are exclusive of turnover tax (VAT).
Article 4 - Delivery and delivery time
4.1. If Emil Frey Car Trading Netherlands shows or provides a drawing, photograph, model, design, calculation or any other information, this is done by way of indication only. The final goods to be delivered may deviate from what has been shown.
4.2. Emil Frey Car Trading Netherlands will handle the transport of the car from the supplier to the location of delivery indicated by the Buyer. Unless otherwise agreed, delivery will be ex Works (Incoterms 2010) and after payment in full from one of the locations of delivery: The business site of Emil Frey Car Trading Netherlands in Utrecht, from one of the business sites of the companies of Emil Frey Netherlands, from the site of Autodistributiecentrum Gefco Benelux in Oosterhout or from the site of Fleetpoint B.V. in Schijndel. The time of delivery will be the time when the car leaves the indicated location of delivery. As of delivery the risk in the car will be for the Buyer even when the ownership has not yet been transferred.
4.3. The Buyer will sign a transit declaration if the car is transported abroad by road. If the car is transported by a carrier, the Buyer must submit to the Emil Frey Car Trading Netherlands, within 7 working days after the departure of the car from Emil Frey Car Trading Netherlands, the signed CMR waybill as proof of arrival in a member state outside the Netherlands. Emil Frey Car Trading Netherlands demands 21% of the purchase price as a deposit as security for the fulfilment of the above. This deposit must be paid by the Buyer at the time of payment of the car. The deposit will be refunded into a bank account indicated by the Buyer. If the documents have not been submitted to Emil Frey Car Trading Netherlands within the relevant 7 working days after the departure of the car from Emil Frey Car Trading Netherlands, the deposit will revert to Emil Frey Car Trading Netherlands. If the Buyer wants Emil Frey Car Trading Netherlands to handle the transport, this will be done at the risk and cost of the Buyer, unless otherwise agreed in writing.
4.4. The Buyer must take delivery of the car within 14 calendar days after Emil Frey Car Trading Netherlands’s announcement that the car is at the disposal of the Buyer. If the Buyer refuses to take delivery or fails to provide information or instructions required for delivery, the goods will be stored at the risk of the Buyer. In this case, the Buyer must pay the storage costs, without prejudice to Emil Frey Car Trading Netherlands’s right to still claim performance and/or full compensation and to proceed to terminate the agreement.
4.5. The car shall be delivered with the necessary documentation such as (if agreed for an extra charge) an export registration number, insurance and a certificate of conformity (CoC).
4.6. If the Buyer has the car collected from the chosen delivery location by a carrier, the carrier must have the chassis number of the relevant car.
4.7. After the car has been provided with a permanent registration number, after or upon delivery to the Buyer, a copy of the registration number must be sent to Emil Frey Car Trading Netherlands by return mail. If this is not done within a period of thirty (30) calendar days, the Buyer shall pay a penalty of 15% of the purchase price, without prejudice to Emil Frey Car Trading Netherlands’s right to still claim performance and/or full compensation.
4.8. The Buyer shall check the delivery, within seven (7) calendar days after delivery has been made as stated in article 4.2, for technical and optical defects, the presence of parts and/or accessories and other shortages or damage, or to perform this check or to have this check performed after Emil Frey Car Trading Netherlands’s announcement that the car is at the disposal of the Buyer.
4.9. A statement as regards the delivery time is always by approximation only and is not a deadline, unless expressly agreed otherwise in writing.
Article 5 – Force majeure
5.1. In addition to the provisions of article 6:75 of the Dutch Civil Code, force majeure includes: industrial action (both official and unofficial) within the company of Emil Frey Car Trading Netherlands or the supplier, a general shortage of goods or services required for the realisation of the agreed performance and general transport obstructions, the (whether or not attributable) non-performance by the supplier of Emil Frey Car Trading Netherlands and lack of staff.
5.2. During a period of force majeure the obligations to deliver and other obligations of Emil Frey Car Trading Netherlands will be suspended. If the period, in which performance of Emil Frey Car Trading Netherlands’s obligations is no longer possible due to force majeure, should be more than six months, both Parties shall have the right to terminate the agreement, in whole or in part, without any obligation to pay damages or to cancel the agreement.
5.3. Emil Frey Car Trading Netherlands is entitled to claim payment for all that already carried out in the performance of the relevant agreement before the circumstance causing the force majeure became apparent.
5.4. Emil Frey Car Trading Netherlands is also entitled to rely on force majeure if the circumstance constituting the force majeure occurs after Emil Frey Car Trading Netherlands should have already delivered the performance.
Article 6 – Guarantee
6.1. A manufacturer’s warranty applies to all new cars which the Buyer can rely on with every arbitrary dealer of the relevant make within the European Economic Area (EEA).
6.2. Depending on the make, the age, and the damage and maintenance history, the remaining European manufacturer’s warranty applies to used cars, unless expressly indicated otherwise in writing.
6.3. The fact that the Buyer claims under the warranty does not release the Buyer of his obligations such as payment and taking possession by virtue of the agreement(s) entered into with the Emil Frey Car Trading Netherlands.
Article 7 – Complaints
7.1. In case of a purchase agreement, lodging a complaint must be done in writing and as soon as possible, but no later than within eight (8) calendar days after the delivery referred to in article 4.2 or in case of invisible defects within eight (8) calendar days after the defects reasonably could have been established, indicating precisely the nature and the ground of the complaint(s) and the alleged basis of the liability of Emil Frey Car Trading Netherlands for replacement, repair or damages. Complaints that are not, or not sufficiently, substantiated will not be processed by Emil Frey Car Trading Netherlands.
7.2. After expiry of the above term, the Buyer is deemed to have approved that what has been delivered. Complaints are then no longer processed by Emil Frey Car Trading Netherlands.
7.3. Returning the delivered can only occur with Emil Frey Car Trading Netherlands's prior written consent, in accordance with conditions to be determined by Emil Frey Car Trading Netherlands.
Article 8 – Liability
8.1. Emil Frey Car Trading Netherlands’s liability for any unlawful acts it has committed is excluded except insofar they are the result of an intentional act or wilful recklessness by managerial employees of Emil Frey Car Trading Netherlands. Also excluded is Emil Frey Car Trading Netherlands's liability for indirect and consequential loss suffered by the Buyer as a result of an attributable failure in the performance of Emil Frey Car Trading Netherlands’s obligations under any agreement, such as but expressly not limited to: loss of profit, lost turnover, immaterial damage, lost opportunities and injury to the good name, unless the loss is the result of an intentional act or wilful recklessness by managerial employees of Emil Frey Car Trading Netherlands.
8.2. Emil Frey Car Trading Netherlands’s liability for direct loss suffered by the Buyer which is the result of, or is related to, an attributable failure on the part of Emil Frey Car Trading Netherlands in the performance of its obligations towards the Buyer under an agreement entered into with the Buyer, is limited to those cases in which the Buyer proves that the loss is the direct result of the attributable failure and is furthermore, per event or series of connected events with a common cause, limited to the value (exclusive of VAT) of the obligation(s) agreed as between the parties, in the performance of which Emil Frey Car Trading Netherlands has thus attributably failed, and in such event per delivered good, with a maximum of € 2,500 per event or series of events with a common cause, except insofar these are the result of an intentional act or wilful recklessness of managerial employees of Emil Frey Car Trading Netherlands unless a further-reaching limitation ensues from the following paragraphs.
8.3. Every claim against Emil Frey Car Trading Netherlands on the basis of an agreement entered into with Emil Frey Car Trading Netherlands, lapses by the mere expiry of period of a year, unless a legally valid summons has previously been issued. The due date starts the day following the day the Buyer has become aware of both the loss and the liable party.
8.4. Any defence which Emil Frey Car Trading Netherlands could derive from the agreement entered into with the Buyer to contest its liability can also be relied on against the Buyer by its personnel and any third party it has engaged in the performance of the agreement as if its personnel or the aforementioned third party were themselves party to the agreement.
8.5. Liability limiting, excluding or determining conditions which could be invoked by third parties against Emil Frey Car Trading Netherlands, can also be invoked by Emil Frey Car Trading Netherlands against the Buyer.
Article 9 – Indemnity
The Buyer indemnifies Emil Frey Car Trading Netherlands, its personnel and any possible third party engaged in the context of the performance of its obligations under the agreement, against any claim by other third parties for compensation for any (alleged) loss suffered by the last-named, caused by or otherwise related to, Emil Frey Car Trading Netherlands's performance under the agreement.
Article 10 – Payment conditions
10.1. Unless expressly otherwise agreed in writing, payment of each invoiced amount must be made no later than within thirty (30) calendar days after the invoice date (due to administrative reasons Emil Frey Car Trading Netherlands calls this invoice the ‘pro forma invoice' but this does not prejudice the Buyer’s obligation to pay the indicated amount on the basis of this invoice) and in the manner as indicated on the invoice. The payment must be made in the currency agreed and without any set-off, discount and/or suspension. Emil Frey Car Trading Netherlands will only deliver the car after payment in full has been made by the Buyer. If the Buyer pays in cash, € 45 administrative expenses must be paid. Upon or after delivery, the Buyer will receive a final invoice for administration purposes (in case of a brokerage agreement this invoice will be directly from the supplier).
10.2. When selling a used car, whereby Emil Frey Car Trading Netherlands organises the refund of the private motor vehicle and motorcycle tax (BPM - belasting personenauto's and motorrijwielen) with the Dutch Tax Authorities, Emil Frey Car Trading Netherlands receives 50% of the amount to be reclaimed from the Buyer with a minimum of € 2,500. The amount to be received by the Buyer shall be paid by Emil Frey Car Trading Netherlands immediately after receipt of the payment notification from the Tax Authorities. All cars exported by Emil Frey Car Trading Netherlands are exported permanently. This means that, within one year after export, an exported car may not be registered in the Netherlands.
10.3. In case of late payment of the invoice, without any notice of default, the Buyer will be in default and all payment obligations of the Buyer will be immediately due and payable. This will also be the case if the Buyer is declared bankrupt or applies for a moratorium.
10.4. In case of late payment of the invoice, the Buyer must pay the statutory (commercial) interest (Section 6:119 (a) of the Dutch Civil Code) plus 2% on the invoice amount outstanding.
10.5. Furthermore, if the Buyer is a non-consumer, all reasonable judicial and extra-judicial cost (including, but not limited to: bailiff’s costs and legal fees) made by Emil Frey Car Trading Netherlands in the context of the nonfulfilment by the Buyer of his/her obligations shall be borne by the Buyer, such with a minimum of 10% of the principal sum due (including VAT) or an amount of € 250, whichever is higher, which minimum fee must (also) be considered to be an incentive for the Buyer to properly fulfil his/her (payment) obligations (penalty clause). In case the Buyer is a consumer, all extrajudicial costs will be calculated based on the Extrajudicial Collection Costs (Fees) Decree.
10.6. The payments made by the Buyer shall first be applied to settle all interest and costs payable and subsequently to pay those invoices which have been outstanding for the longest period, even if the Buyer states that the payment relates to a later invoice.
10.7. Irrespective of the foregoing, Emil Frey Car Trading Netherlands is at all times entitled to demand payment in cash or, before proceeding to any further performance of the work, demand adequate security from the Buyer for payment on time. The security is given by means of the provision an irrevocable bank guarantee from a Dutch banking institution of good standing, or by means of the provision of another security of reasonably equal standing.
Article 11 – Retention of title
11.1. In the case of a purchase agreement, all goods delivered to the Buyer will remain the property of Emil Frey Car Trading Netherlands until the moment of payment of everything the Buyer owes Emil Frey Car Trading Netherlands, on whatever grounds, including interest and costs.
11.2. The Buyer is not entitled to dispose the goods which are subject to the retention of title, unless disposal takes place in the context of the Buyer’s normal business operations. The Buyer is not entitled to pledge the goods or to establish any other right on them.
11.3. Without prejudice to any other rights to which it is entitled, Emil Frey Car Trading Netherlands shall be irrevocably authorised by the Buyer, if he does not perform his obligations entered into towards Emil Frey Car Trading Netherlands, or does not perform them on time, to, without any notice of default or judicial intervention being required, to take possession of the goods delivered by Emil Frey Car Trading Netherlands and to this end enter the place where these goods are to be found. During the period when the delivered goods are still the property of Emil Frey Car Trading Netherlands, the Buyer shall adequately insure them against the usual risks.
Article 12 – Termination and cancellation
12.1. Without prejudice to the provisions of Section 6:265 of the Dutch Civil Code, Emil Frey Car Trading Netherlands has the right to terminate the agreement concluded with the Buyer, without any obligation to pay damages and without any obligations for Emil Frey Car Trading Netherlands to cancel the agreement, in the event that:
a) the Buyer is declared bankrupt, files for bankruptcy or if his/her bankruptcy is filed for;
b) the Buyer applies for a (provisional) moratorium or goes into liquidation;
c) attachment is made of the assets of the Buyer or a part thereof;
d) the car has not been collected by the Buyer within 6 weeks of its arrival at Emil Frey Car Trading Netherlands (the Buyer then must pay for any damage incurred by Emil Frey Car Trading Netherlands).
12.2. Unless the supplier agrees with a (partial) cancellation in writing, the cancellation of a brokerage or purchase agreement which has been formed is not possible. If the supplier agrees to a (partial) cancellation, the Buyer is entitled to wholly or in part cancel (give notice to terminate) the agreement by means of written statement directed at Emil Frey Car Trading Netherlands, on a payment of 15% of the agreed order sum which corresponds with the part of the agreement that has been cancelled. The cancellation only comes into effect after the above payment has been received by Emil Frey Car Trading Netherlands.
Article 13 – Applicable law and disputes
13.1. All offers from, and agreements with, Emil Frey Car Trading Netherlands are exclusively governed by Dutch law, with the exception of the Vienna Sales Convention.
13.2. Any disputes, including those considered as such by only one party, arising from or relating to the agreement the Conditions apply to or relating to the Conditions itself and the interpretation or the implementation of the Conditions, both of a factual and legal nature, will exclusively be judged by the competent court of the Midden-Nederland Court District, unless Emil Frey Car Trading Netherlands prefers to submit the dispute to the competent court in the place of residence or the place of business of the Buyer. If the Buyer is a consumer and not domiciled in the Midden-Nederland Court District, the Buyer has the right, within 1 month after Emil Frey Car Trading Netherlands announced in writing that it will conduct legal proceedings before the competent court in the Midden-Nederland Court District, to inform Emil Frey Car Trading Netherlands that he/she wishes to conduct legal proceedings before the Court competent according to the law.
Article 14 – Inconsistency between the Dutch text and the translation
In the event of inconsistency between the text of these Conditions in the Dutch language and, in the relevant case, that in a different language, the Dutch version shall be binding.
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