GENERAL TERMS AND CONDITIONS JOS MENTEN BV
DEFINITIONS:
In these general conditions “Menten” is understood to be one of the following companies:
Jos Menten Metaalrecycling BV
Jos Menten Metaalhandel BV
These General Terms and Conditions exclude all printed or written delivery conditions of the supplier or any other branch organisation.
1.1 These conditions apply to all agreements to be made by Menten with third parties unless Menten has expressly confirmed in writing that they are not or not fully applicable.
1.2 The conditions operated by third parties do not apply. These conditions shall prevail even if priority is stipulated in the aforementioned conditions.
1.3 Any agreed non-standard conditions apply exclusively to the specific agreement concerned. If one or more provisions of these terms and conditions prove to be invalid or are annulled, this shall not affect the legal force of the remaining provisions.
1.4 The address provided by the other party before or when concluding the agreement will remain the valid address for Menten until the other party has notified Menten in writing of the new address.
2.1 All offers made by Menten are subject to contract. No agreement is concluded until the order has been confirmed in writing by Menten to the client. If the other party accepts an offer, Menten has the right to withdraw it within five working days of its receipt.
2.2 A confirmation sent by Menten, which is not contested in writing within two working days of the date of sending, constitutes full evidence of the agreement’s content.
2.3 Any changes and additions to an already existing agreement will only be binding on Menten if confirmed by Menten in writing.
3.1 All prices quoted by Menten are exclusive of VAT and are given in Dutch currency/euros in so far as not exempted from VAT. Menten has the right to pass on to the client any increases in the price of raw materials and other cost factors that arise after the agreement’s conclusion, without this entitling the other party to dissolve the agreement wholly or partially.
3.2 All payments must be made within 14 days of the invoice date without any deduction or setoff.
3.3 Menten has the right to set off its claims against claims of the customer on Menten. Set-off by the client is expressly prohibited.
3.4 Payment shall not be construed as any recognition by Menten of the soundness of the goods in the state in which they have been delivered and shall not relieve the supplier of any liability in this respect.
3.5 Payment releases Menten from all obligations resulting from the agreement concerned and cannot be considered payment of any other claim made by the other party against Menten.
3.6 If Menten has not received payment within 14 days of the invoice date, the invoiced party will be considered to be in default, and Menten has the right to charge a default interest of 3% per year on top of the legal interest. The invoiced party will in that case also owe Menten all costs related to the judicial or extra-judicial recovery of debts. The extrajudicial debt collection costs shall be determined in accordance with the collection rate of the Netherlands Bar Association.
3.7 Menten is not obliged to make any further deliveries or proceed with activities for as long as all due and payable claims have not been paid to Menten.
4.1 Unless agreed otherwise, the goods will be delivered ex-works, or facility or ex-workshop, ex-warehouse or ex-storage place, determined by Menten. Menten’s delivery times are indicative and shall never be considered firm deadlines unless explicitly agreed otherwise in writing.
4.2 As soon as the goods stipulated in paragraph 1 of this article have been delivered, the risk of these goods is entirely for the other party, who must also arrange for transport and adequate insurance.
4.3 Without prejudice to the provisions of paragraphs 1 and 2 of this article, the goods are deemed to have been delivered by Menten and accepted by the other party:
a. In the case of delivery ex works, installation, workshop, warehouse or storage place: as soon as the goods have been loaded into or onto the means of transport.
b. In case of delivery carriage-paid: as soon as the goods have been delivered to the location and – if agreed – have been unloaded. In case of delivery carriage paid, the condition is that the means of transport can reach the place of unloading unhindered on the paved road, to be decided at the discretion of Menten
c. In case of delivery including processing: as soon as the goods are processed in or at the building site.
4.4. If, in the case of delivery including processing, the goods have been delivered to the worksite and, either due to circumstances beyond the control of Menten, processing cannot be started immediately or the construction method for the work concerned is such that the goods can only be processed in intervals, the goods shall be deemed to have been accepted as soon as they have been delivered to the site and unloaded.
4.5. On the dates agreed in the delivery schedule for the processing of the goods to be delivered by Menten, the constructions, facilities, materials or services to be delivered by parties other than Menten must in all cases, without prejudice to the other agreed conditions of delivery or processing, be of sufficient quality that the processing can be carried out without delay and without interruption, failing which Menten may charge the other party for the costs arising from this.
4.6. Menten accepts no liability whatsoever for the constructions, provisions, materials or services supplied or installed by parties other than Menten, as referred to in the preceding paragraph, or the consequences of complaints arising in those constructions, provisions, etc., during processing.
5.1. For as long as the other party has not met all its payment and other obligations, including costs or compensation in respect of Menten, all materials and goods delivered by Menten to the other party or supplied on the worksite, in so far as they are unprocessed, including those for which the invoices have already been paid, will remain at the risk of the other party and remain the property of Menten.
5.2. The other party is liable to Menten for any damage caused to the goods and materials which remain Menten’s property according to paragraph 1 of this article. The other party is obliged to properly insure the goods that are still the property of Menten against fire and theft. Claims under the insurance must be transferred unconditionally to Menten by the other party on first request.
6.1. Force majeure exists if the execution of the agreement, in whole or in part, whether or not temporarily, is prevented by circumstances outside the sphere of risk and fault of Menten, irrespective of whether those circumstances were foreseeable at the time of the conclusion of the agreement, as a result of which the fulfilment of the agreement can no longer reasonably be required. In case of the other party’s non-attributable failure to comply with the agreement, Menten has the right to dissolve the agreement in full or in part.
6.2. If Menten is prevented by force majeure as described in article 6.1 from taking delivery of the ordered and offered goods, this does not give the other party the right to demand any compensation or fulfilment of the order.
6.3. Menten will inform the other party as soon as possible of a case of force majeure.
6.4. In the event of a temporary non-attributable failure to comply with the agreement on the part of Menten, the other party will not be entitled to dissolve the agreement for a period of one month following the occurrence of this non-compliance.
7.1. Irrespective of whether guarantees have been given, complaints, in case of visible defects or loss of rights, must be received in writing by Menten from the other party within 8 days of the delivery of the goods or materials, failing which the other party will no longer be able to invoke the fact that the delivered goods do not correspond to the agreement against Menten. Complaints are only possible if the goods are in the same condition as when they were delivered. The other party is obliged, on penalty of forfeiture of rights, to allow Menten to check the goods forming the subject of the complaint (or to have them checked).
7.2. In case of hidden defects, claims must be received in writing by Menten within 8 days of their discovery, or when they should have been discovered.
7.3. A claim for hidden defects is no longer possible one month after the time of delivery has passed, contrary to the provisions in paragraph 2 of this article. Items not meeting the requirements of the agreement must be returned to Menten carriage paid within 8 days of delivery.
8.1. Irrespective of whether guarantees have been given, Menten cannot under any circumstances be held liable:
a. for complaints which are not in accordance with the provisions of article 7.
b. for delivered goods and/or materials that have been processed by the other party in any way.
8.2. If the other party fails to comply with one or more provisions of these conditions or further agreed special conditions, Menten has the right to immediately stop any delivery or activities without the other party thus gaining the right to claim any compensation.
8.3. Menten cannot under any circumstances be held liable for damage to or in connection with underground cables, tubes, pipes, foundations and other buried engineering works or obstacles in the ground etc., the existence, exact location and course of which, as well as any special risks present, such as a poor state of repair, have not been communicated to Menten in time and in writing before the acceptance of the order, nor for obstruction of the performance of the activities by such obstacles. The other party indemnifies Menten against claims by third parties in this respect and is also obliged to compensate Menten for the extra costs which the latter may incur as a result of such impediments.
8.4. If Menten is liable with respect to the delivered goods or materials, Menten has the choice to either replace the defective goods or materials or to credit the other party for that part of the amount of the invoice which is related to the defective goods or materials, or to repair them.
8.5. Menten is not liable to the other party for damage caused by its acts or omissions in the execution of contracted activities, or at least of activities connected with them. Actions or omissions by other persons engaged by or on behalf of Menten in relation to these activities are equated with actions or omissions by Menten.
8.6. The other party is fully liable for all damage caused by the use by Menten, by those who work for Menten, or by third parties engaged by Menten, of tools, operating resources, energy sources and the like, or by their absence or failure, which the other party places at the disposal of Menten. The other party is obliged to insure these goods and to keep them insured for as long as they are in the possession of Menten (or others).
8.7. The other party will fully indemnify Menten and the persons working for Menten in the performance of the agreement against any claims for damages by third parties for direct or indirect damages, which are caused or are related to the activities under the agreement entered into.
8.8. However, Menten’s liability to the other party, for whatever reason, never exceeds compensation of the invoice value of the goods or materials as a result of which the other party has suffered damages. The liability of Menten for any consequential damages, trading losses, indirect damages, damage suffered by third parties or loss of profit is hereby expressly excluded.
8.9. The liability of Menten can never exceed the insured sum, less all costs to be made directly or indirectly by Menten, if and insofar as Menten has concluded an insurance agreement.
08:10. If Menten, on the instructions of the other party, has placed one or more containers, and third parties suffer or incur damage for any reason as a result thereof, then the other party is fully liable for such damage, which also includes damage to the container(s), and the other party is obliged to indemnify Menten against claims from third parties.
9.1. If Menten has good reason to fear that the other party will not fulfil its obligations under the agreement, Menten has the right, before or during the performance of the agreement, to suspend the fulfilment of its obligations until the other party, at the request and to the satisfaction of Menten, has provided security for the fulfilment of all obligations resulting from the agreement.
9.2. After the term set by Menten for the provision of security has expired, the other party will be in default by operation of law, and Menten may dissolve the agreement without judicial intervention by means of a written statement, without prejudice to Menten’s right to full compensation for damages.
10.1. Menten is authorised to withhold goods that it has or will have in its possession from the other party until the other party has paid all that Menten is entitled to under the agreement.
10.2. The risk of the items and other goods subject to this right of retention shall remain with the other party.
11.1. All our requests for offers, agreements and their performance thereof are governed exclusively by Dutch law.
11.2. All disputes arising from or related to the agreement to which these conditions apply shall be exclusively decided by the competent court in Roermond under Dutch law if no settlement can be reached amicably.
PURCHASE CONDITIONS
The following provisions apply in addition to those set out in Articles 1 to 11. The latter provisions shall as far as possible apply by analogy. In the event of a conflict, the provisions set out below shall apply.
13.1. Unless expressly stated otherwise in the offer, an offer made by the other party is binding to the other party.
13.2. The prices quoted include VAT and are carriage paid, including transport, packaging or wrapping, unless otherwise stated in the offer.
13.3. The agreement between Menten and the other party is deemed to be concluded and is fully demonstrated by the order confirmation issued by Menten. If and as far as the order confirmation of Menten differs from the offer made by the other party, the latter is obliged to make his objections known to Menten in writing within 5 days of the date of the order confirmation, in default of which the agreement is concluded per Menten’s order confirmation.
14.1. The stated delivery times are binding to the other party unless expressly agreed otherwise. The delivery term begins on the day on which the other party receives an order confirmation from Menten.
14.2. The other party shall deliver the goods at the place specified in the agreement. If no such place has been agreed, delivery will be made to Menten in Haelen.
14.3. Delivery shall be made carriage paid to the place specified in paragraph 2.
14.4. The risk of damage, destruction or loss of the goods to be delivered will not pass to Menten until the goods have been delivered to the place specified in paragraph 2. The goods are therefore transported at the expense and risk of the other party.
Ownership of the goods delivered will transfer to Menten immediately after they have been delivered in accordance with the provisions of paragraph 2 of the preceding article.
16.1. Invoices to be sent by the other party to Menten must meet the statutory requirements, such as those in or by virtue of the Dutch Turnover Tax Act 1968. Invoices that do not meet these requirements will be returned unpaid.
16.2. The other party is not entitled to increase the invoice with an early payment discount.
16.3. Unless expressly agreed otherwise, the goods delivered by the other party shall be paid for by Menten no later than 30 days after receipt of the invoice. At the end of this period, the other party must give notice of default to Menten by registered letter. In this letter, the other party must give Menten a reasonable period for compliance.
16.4. Menten is authorised to settle amounts due or which will be due by Menten under the agreement with amounts due or which will be due by the other party on any account whatsoever.
Menten is authorised to make amendments to these general conditions. These amendments shall take effect at the time announced by Menten. Menten will send the amended conditions to the other party in good time. If Menten has not notified the other party when the amended conditions come into force, the amendments will come into force for the other party as soon as he has been informed of the change in question.
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