General Terms and Conditions ZEMCO

Clause 1. Applicability

1.1. These terms and conditions apply to all orders, offers, offers, agreements and obligations entered into by ZEMCO, unless ZEMCO expressly deviates from these terms and conditions in writing.

1.2. In the following, the following terms have the following meanings

ZEMCO: registered trade name of the limited liability company AUTONAMICS B.V., with its registered office in Amsterdam and registered office in Zwolle, registered in the Dutch Trade Register under number 08066538.

Customer: any legal or natural person or several persons acting in concert, regardless of whether they are legal persons or not, who enters into or intends to conclude a contract with ZEMCO, to which ZEMCO submits an offer, for which ZEMCO provides a supply or service, as well as their legal successors.

Products: a product or component intended for installation in a vehicle, as well as the associated software, accessories and/or documentation, all in the broadest sense.

Contract: any contract concluded between ZEMCO and the Customer, any amendment or amendment thereto, as well as all (legal) acts for the preparation and execution of such a contract.

1.3. Deviations from these terms and conditions must be made in writing and signed by the management of ZEMCO.

1.4. If the court declares one or more provisions to be inapplicable or invalid for any reason, these terms and conditions shall remain in full force and effect and the derogating provisions shall apply exclusively to the contract in respect of which they were agreed.

1.5. The customer’s general terms and conditions do not apply unless they are accepted in writing by ZEMCO.

 

Clause 2: Quotations/Quotations

2.1. All offers made by or on behalf of ZEMCO, including the data in the attached appendices, prices and other conditions, are non-binding and do not bind ZEMCO.

2.2. Unless otherwise agreed in writing, an offer made by ZEMCO expires after a period of two weeks if the customer has not accepted the offer by then.

2.3. If the order is not placed with ZEMCO, ZEMCO shall be entitled to invoice the Client for all costs incurred by ZEMCO in preparing the offer.

 

Clause 3: Contracts

3.1. Agreements only become binding upon written acceptance in a contract confirmation signed by ZEMCO or upon execution of the contract by ZEMCO.

3.2. The date of conclusion of the contract is the date of confirmation of the contract by ZEMCO or the date of execution of the contract by ZEMCO.

3.3. Subsequent changes and additions to the contract are only valid if they are confirmed in writing by ZEMCO or carried out by ZEMCO.

3.4. Verbal orders of the buyer are only binding after written confirmation by the buyer or their acceptance by ZEMCO.

3.5. A composite offer does not oblige ZEMCO to fulfill any part of the contract at a corresponding part of the stated price.

3.6. The content of brochures, printed matter, websites, etc. is not binding on ZEMCO, unless expressly referred to in the contract.

3.7. ZEMCO reserves the right not to accept orders or agreements without giving reasons or only under the condition that the order is confirmed in writing by the participant and/or that the shipment is made by cash on delivery or after prepayment.

 

Clause 4: Implementation

4.1. ZEMCO and/or its agents shall execute the contract carefully and in accordance with the terms agreed with the Buyer and shall represent the interests of the Buyer to the best of its knowledge and belief.

4.2. Announcements about the expected performance of the products to be supplied by ZEMCO are completely non-binding and are for non-binding information purposes only.

4.3 The customer shall ensure that the products are used in accordance with the specifications and instructions provided by ZEMCO or the manufacturer for correct use in its own products and/or organization or the results of the services to be provided by ZEMCO.

4.4 If agreed, ZEMCO can install or commission the products at the customer’s request at a price to be agreed.

 

Clause 5: Prices

5.1. The prices quoted by ZEMCO are based on the conditions prevailing on the day of the offer, such as cost prices and/or purchase prices and/or dealer prices, exchange rates, freight rates, wages, salaries, government taxes, social security costs, transport costs, material prices and the like.

5.2. If one or more of the circumstances referred to in paragraph 1 change in the period between the date of the offer and that of delivery, ZEMCO is entitled to increase the price, unless this is contrary to a statutory provision. In this case, the previously stated prices will be voided immediately.

5.3. All prices quoted by ZEMCO or on behalf of ZEMCO are exclusive of VAT.

5.4. The costs of packaging, transport and delivery to the place indicated by the customer are not included in the sale price and are borne in whole or in part by the customer, as determined by ZEMCO; delivery will be made ex works in accordance with the Incoterms, unless otherwise agreed in writing.

5.5. Without prejudice to the provisions of Section 2, if government measures are announced which lead to an increase in the cost of goods sold by ZEMCO and which cannot be regarded as a normal business risk, ZEMCO shall be entitled to levy corresponding surcharges on the prices of current orders and/or orders.

 

Clause 6: Payment and Security

6.1 The customer is obliged to pay the amounts owed to ZEMCO within 14 days of the invoice date without deferral, offsetting or deduction of cash discount in the manner specified by ZEMCO.

6.2 If the Client fails to pay within the period specified in the preceding paragraph, the Client shall be in default without prior notice of default and shall owe ZEMCO interest at the rate of 1% per month on the outstanding amount from the due date until the date of full payment.

6.3 By way of derogation from Article 6:96 (4) of the Civil Code, in the case of customers who are not natural persons and who are not acting in the exercise of a profession or business, all collection costs shall be borne by the customer, with the customer owing an amount of extrajudicial collection costs equal to 15% of the amount still due, but not less than €250 excluding VAT, all to the exclusion of the relevant national regulations,  if the customer is domiciled outside the Netherlands.

6.4 Payments made by the customer will first be used to settle all interest and costs due and then to settle the longest outstanding invoices due, even if the customer indicates that the payment relates to a later invoice.

6.5 Notwithstanding the foregoing, ZEMCO may, when concluding a contract or during the term of a contract, require the customer to provide ZEMCO with sufficient security for the performance of the services owed by the customer under the contract.

6.6 If the customer does not provide the security required by ZEMCO or only insufficiently, ZEMCO has the right to terminate or dissolve the contract, including by means of an out-of-court declaration to the customer, without prejudice to the customer’s right to claim damages.

6.7 Objections to invoices must be submitted in writing to ZEMCO within 14 days. Complaints do not entitle the customer to suspend all or part of his payment(s).

 

Clause 7: Retention of Title

7.1 All products supplied by ZEMCO remain the property of ZEMCO until the customer has fulfilled all obligations under the contract, including interest and costs.

7.2 The customer is obliged to handle the delivered products with care until full payment has been made by the customer, and the customer has no further obligations towards ZEMCO in relation to the delivered products. Only after full payment of the purchase price and any additional costs is the customer entitled to charge, sell, rent, deliver or transfer the products to third parties in any way.

7.3 At the request of ZEMCO, the customer undertakes to declare to any third party who wishes to charge the products that he is not entitled to do so.

7.4 The Client grants ZEMCO or a third party designated by ZEMCO the unconditional and irrevocable permission to enter and bring the Products to all places where ZEMCO’s property is located in all cases where ZEMCO wishes to exercise its proprietary rights.

7.5 If a third party seizes the products delivered under retention of title or wishes to establish or assert rights to them, the customer must notify ZEMCO as soon as possible.

7.6 In the event of seizure, (provisional) deferral of payment or bankruptcy, the customer must immediately notify the bailiff, the administrator or the insolvency administrator of ZEMCO’s (property) rights.

 

Clause 8: Delivery and Risk

8.1 The products sold are delivered from ZEMCO’s warehouse or company, and from this point on, the risk is transferred to the customer, regardless of the actual place of delivery and regardless of the person transported.

8.2 The customer is obliged to accept the purchased products at the moment when they are delivered to him or when they are made available to him in accordance with the contract. If the Buyer refuses to accept the delivery or fails to provide the information or instructions necessary for the delivery, the Products shall be stored at the Buyer’s expense and risk. In this case, the customer owes ZEMCO all additional costs, in any case also the storage costs.

8.3 If an inspection by the customer has been agreed for the products sold by ZEMCO and the customer has not accepted the request within fourteen days, the products sold shall be deemed to have been approved and accepted by the customer after the expiry of this period.

8.4 If the customer makes comments and/or complaints regarding the products sold during one of the above inspections, ZEMCO has 14 days to eliminate such comments and/or complaints or have them eliminated before the products sold can be definitively rejected or rejected by the customer.

8.5 Intended returns must be notified to ZEMCO in advance and approved in writing by ZEMCO before the customer can proceed with the shipment. Consumer customers have the right to return products purchased at a “distance” within 14 days at their own expense. Products specially ordered and/or manufactured for the customer will not be taken back under any circumstances.

 

Clause 9. Terms of Delivery

9.1 The delivery dates given by ZEMCO are non-binding and informative. It is based on the circumstances applicable to ZEMCO at the time the contract was concluded and, insofar as it depends on the performance of ZEMCO’s suppliers, on the information received by ZEMCO from these suppliers. ZEMCO cannot be obliged to carry out the delivery within the delivery period, but ZEMCO will comply with this as far as possible.

9.2 If the delivery deadline is exceeded, the customer is not entitled to compensation. In such a case, the customer is also not entitled to terminate the contract, unless the delivery deadline is exceeded in such a way that the customer cannot reasonably be expected to maintain the relevant part of the contract. In this case, the customer is entitled to terminate the contract, provided that this is strictly necessary and the above provisions are complied with.

9.3 ZEMCOB.V. is entitled to deliver in parts at any time.

 

Clause 10.

10.1 The transport of the products sold is always carried out from the warehouse or from the company ZEMCO, unless otherwise expressly agreed in writing.

10.2 All transport costs are at the expense of the client.

10.3 All risks of any kind in connection with the transport of the products sold are entirely at the expense and risk of the customer, so that ZEMCO is in no way obliged to compensate the customer for any damage caused to the products sold during transport.

10.4 ZEMCO will only take out transport insurance for the products sold at the expense and for the benefit of the customer if this has been expressly agreed in writing between the parties.

 

Clause 11. Intellectual Property

11.1 ZEMCO reserves the rights and powers to which it is entitled under the Copyright Act. The copyrights and all other intellectual property rights in the Products, Software, Deliveries, Documentation or other materials supplied or made available to the Customer by ZEMCO in any way are owned exclusively by ZEMCO or its suppliers, and the Customer acquires only the rights of use expressly granted in these Terms.

11.2 The Customer is aware that the Products and/or other materials referred to in paragraph 1 may contain confidential information, unique article numbers and trade secrets of ZEMCO or its suppliers, and the Customer undertakes to keep such data, products and/or other materials confidential and not to disclose or use them to third parties.

11.3 The Customer is not permitted to remove, alter or reproduce the trademarks or copyright, trademark, etc. notices affixed to the Products or their packaging, including those relating to the confidentiality and secrecy of the Software.

11.4 ZEMCO is permitted to take technical measures to protect the software used.

11.5 ZEMCO declares that, to the best of its knowledge and belief, the Products do not infringe any intellectual property rights of third parties applicable in the Netherlands. In the event of a third-party claim for infringement of such rights, ZEMCO may, if necessary, replace or modify the product in question or terminate the contract in whole or in part. The customer is only entitled to terminate the contract if he cannot reasonably be expected to maintain the contract.

11.6 The customer is obliged to inform ZEMCO immediately of any claims by third parties due to the infringement of intellectual property rights in connection with the products.

 

Clause 12. Complaints and Warranty

12.1 Under no circumstances does ZEMCO provide a warranty beyond the warranty it may have received from its manufacturer/supplier. In this case, the warranty granted by ZEMCO to the customer is a manufacturer’s warranty. In this case, the manufacturer/supplier remains responsible for processing the complaint or granting the warranty and the warranty conditions of the manufacturer/supplier ZEMCO apply.

12.2. The warranty period begins on the invoice date. The customer has no other rights against ZEMCO than to demand the fulfilment of ZEMCO’s warranty obligations towards the customer.

12.3. If ZEMCO fulfils the manufacturer’s/supplier’s warranty obligation, ZEMCO is free to remedy the defects complained of at its own discretion or to replace the product or parts thereof free of charge or to enable the manufacturer/supplier to fulfil the warranty.

12.4 The customer must inform ZEMCO in writing of any complaints regarding the products supplied by ZEMCO within 8 days of discovering or should have discovered the defect. The complaint must be described clearly and as precisely as possible.

12.5 Such complaints do not entitle the customer to suspend all or part of his payments.

12.6 All rights of action expire if:

• the customer or a third party makes or causes changes to be made to the delivered goods;
• the goods supplied are not or have not been used or handled in accordance with the supplied or applicable (manufacturer’s) instructions or user manual; be or have been improperly used or otherwise handled;
• the goods supplied are or have been used for purposes other than those intended;
• the goods delivered are or have been used in a way that ZEMCO could not reasonably expect;
• the customer does not cooperate or does not cooperate insufficiently within a reasonable period of time in the investigation of the merits of the complaint;
• the goods have not been sold by ZEMCO;
• the complaints are submitted only after the expiry of the warranty period;
• after the expiry of 1 year from the sale or delivery of the product or, if the warranty period is different, after this period.

12.7 The fulfilment of the guarantee obligation shall be considered as the sole and complete compensation. The warranty is expressly limited to the product sold and therefore does not extend to compensation for personal injury and/or property damage, whether or not it belongs to third parties.

12.8 After a repair or replacement, the replaced parts become the property of ZEMCO without the customer being able to assert a claim for damages.

12.9 If it turns out that the goods offered for repair or replacement do not have any defects for which ZEMCO is responsible, the resulting costs will also be borne by the customer during the warranty period.

 

Clause 13. Failure, Suspension and Dissolution by ZEMCO

13.1 ZEMCO shall not be liable for any failure to perform that is not attributable to the fault of ZEMCO or for which ZEMCO is not at fault under the law, a legal act or custom.

13. 2 Negligence through no fault of its own (force majeure) shall also include and is contractually equivalent to restrictive official measures of any kind, total or partial default by a third party from whom goods or services are to be obtained, default by a carrier and all other circumstances which ZEMCO could not reasonably have foreseen and over which it or its supplier has no influence,  as well as all circumstances on the basis of which it would not have concluded the contract or would not have concluded it on the same terms if it had been aware of such a circumstance at the time the contract was concluded. In all such cases, ZEMCO shall be entitled, without notice of default or judicial intervention, either to suspend the contract for a maximum period of 12 months or to dissolve it in whole or in part, without being obliged to pay compensation or provide a guarantee, and without prejudice to its other rights, to terminate all other current contracts with the other party, insofar as they have not yet been performed,  suspend or dissolve, in whole or in part, under the same conditions.

13.3 In addition to the rights of suspension and (partial) termination referred to in the previous paragraph, ZEMCO shall also have this right in the event of bankruptcy, deferral of payment, total or partial cessation of business, liquidation, transfer, death, bankruptcy or if the statutory debt restructuring regime for natural persons is applicable or declared applicable to the customer,  as well as in the event of attachment of the customer’s goods prior to judgment or enforcement.

13. 4 If the Client fails to perform one or more obligations, fails to do so properly or fails to do so on time (including in the event of failure to make a payment at the agreed time), or if there are serious doubts as to whether the Client will fulfil its contractual obligations towards ZEMCO, ZEMCO shall be entitled, at its sole discretion and without notice of default or judicial intervention, to terminate the contract either for a maximum of 12 months suspend or dissolve it in whole or in part, without liability for any damages or warranty and without prejudice to any other rights to which it may be entitled. ZEMCO is also entitled to suspend or terminate all other current contracts with the customer under the same conditions, insofar as they have not yet been performed, in whole or in part.

13.5 In the event of suspension or full/partial termination of the Agreement by ZEMCO in accordance with the foregoing, without prejudice to ZEMCO’s other statutory rights, the following shall apply:

• ZEMCO is entitled to demand immediate payment for all of its work up to the time of suspension or (partial) dissolution;
• During the suspension, ZEMCO is entitled – and after its termination also obligated – to
• choose between the performance or total or partial termination of the contract;
• The dissolution or partial dissolution shall be effected by a written declaration to this effect;
• The customer is not entitled to demand the retroactive termination of the contract;
• All reasonable costs incurred by ZEMCO in the out-of-court assertion of claims shall be borne by the customer.

 

Clause 14. Termination by the Customer

14.1 If the customer wishes to terminate the contract in whole or in part, he must do so in writing by registered mail.

14.2 In the event of a complete or partial dissolution by the customer, the customer shall be liable for the immediate payment of all costs incurred by ZEMCO up to that point as well as a lump-sum compensation of at least 25% (in words: twenty-five) of the total agreed sales price, unless ZEMCO is in default.

14.3 Without prejudice to the provisions of Section 2, ZEMCO shall be entitled to demand compensation for such damage in the event of a higher actual damage.

 

Clause 15. Liability

15.1 ZEMCO shall not be liable for direct or indirect, material or immaterial damages incurred by the customer or a third party in connection with the non-performance of the contract by the customer or its vicarious agents, unless there is intent or gross negligence on the part of its management.

15.2 If ZEMCO can be held liable under the preceding paragraph, ZEMCO’s liability shall be limited to direct damage (excluding loss of sales and/or profits) up to the amount of the sum insured that can be claimed under liability insurance taken out by ZEMCO.

15.3 If the damage is not covered by the insurance or if the insurer does not pay in any case, ZEMCO’s liability shall be limited to the aforementioned direct damage, but not more than the price paid by the customer for the products or services in question, excluding VAT, which gave rise to the liability, without prejudice to ZEMCO’s obligations under product liability.

15.4 The customer indemnifies ZEMCO against all damages and legal claims of third parties.

15.5 In addition, the customer unconditionally indemnifies ZEMCO against all claims arising from product liability if and to the extent permitted by applicable law.

 

Clause 16. Confidentiality

16.1 The customer is obliged to maintain the confidentiality of all confidential documents and information received from ZEMCO, and to claim full compensation or damages for any infringement, under penalty of a contractual penalty of € 50,000 (in words: fifty euros), without prejudice to ZEMCO’s right.

 

Clause 17. Transfer of Rights and Obligations

17.1 ZEMCO is entitled to transfer the rights and obligations described in a contract with the customer to third parties. In the event of a transfer of ZEMCO’s obligations, ZEMCO will, if possible, inform the customer in advance, and the customer has the right to terminate the contract with effect for the future at the time of the transfer. ZEMCO is not liable for any compensation in this context.

17.2 The customer is not entitled to transfer his rights and/or obligations under the contract to a third party without the prior written consent of ZEMCO.

 

Clause 18. Governing Law and Disputes

18.1 These terms and conditions, as well as all offers, offers, orders, contracts and other obligations of ZEMCO, whatever they may be called, shall be governed exclusively by Dutch law and shall be subject to the exclusive jurisdiction of the Dutch courts.

18.2 The applicability of the Vienna Convention on Contracts for the International Sale of Goods is excluded.

18.3 All disputes shall be settled by the competent court at the registered office of ZEMCO, unless there is a mandatory provision to the contrary, without prejudice to ZEMCO’s right to bring proceedings before the court having jurisdiction under the law. If the Client is based outside the EU or in Denmark, the parties agree to submit their dispute to the Dutch Arbitration Institute in accordance with its rules (www.nai-nl.org). Only one arbitrator will be appointed and the proceedings will be conducted in English. The venue for the hearings is Amsterdam.

18.4 The foregoing is without prejudice to the possibility for either party to bring urgent proceedings in urgent cases before the competent court in the territory in which the other party is domiciled.