General conditions of delivery and payment GUTTS B.V., established in Amsterdam under Reg.nr (KvK): 58012869.
Amsterdam, 27th January 2014
Article 1. Definitions
A. In these general conditions: “GUTTS” means: the private limited company with limited liability GUTTS B.V., established in Amsterdam.
B. In these general conditions “buyer” means: the natural person or private legal person in private law as well as cooperation’s without legal entity on whose behalf, based on the conditions mentioned below, products are manufactured, installed and/or delivered or services are carried out by GUTTS.
Article 2. Applicability of these conditions
A. These conditions apply to all offers by GUTTS, orders for delivery and/or the manufacturing of products and/or supplying services, as well as the delivery and completion, unless explicitly agreed otherwise with GUTTS. Reference by buyers to their own conditions is not acceptable to GUTTS. It is GUTTS’ responsibility that these general conditions are accepted by the competitors
B. If the conditions have been applied once they also apply to all new orders between parties without further explanation, unless explicitly excluded, and to all non-orderual relations between parties. Any changes to these Term and Conditions when applied to buyers in the Belgian Rally Championship, need to be approved by the RACB, prior to implementation.
Article 3 Quotations
A. All orders shall only be realised after they have been confirmed by GUTTS or a person explicitly authorised by GUTTS or carried out without preceding order confirmation, even when made by intermediaries employed or not employed by GUTTS.
B. The written invoice shall be considered correct and agreed, unless GUTTS receives objections in writing within 3 working days after dispatch.
Article 4 Changes in the order.
A. If changes in the execution of the order are requested after the order has been placed, GUTTS must be informed in writing and in time. If mentioned changes are given by telephone or verbally the risk of an incorrect execution of the changes shall be for the buyer.
B. GUTTS reserves the right to adjust prices in the event of changes to the order.
C. Changes in a given order can result in exceeding the agreed delivery time. GUTTS is not responsible for such delays.
Article 5. Execution of the order
A. GUTTS determines the manner in which the order shall be fulfilled. GUTTS is obliged when asked to inform the buyer beforehand about the way in which the execution is carried out, unless this is in conflict with the nature of the order.
B. GUTTS reserves the right to outsource the order, or parts of the order, or to have execution carried out by third parties not employed by GUTTS, without the permission of the buyer, if GUTTS believes that in doing so execution of the order shall be carried out correctly or efficiently, unless this is in conflict with the nature of the order.
Article 6 Prices
A. GUTTS’s prices are exclusive of VAT and without reduction of discount, unless agreed otherwise.
B. GUTTS’s prices are ex works for so called out of competition deliveries, when product is included in Refueling Services delivery is included. If the buyer requests delivery elsewhere the additional related costs are for the buyer’s account.
C. Prices are only given based on the prices valid at the time of the placement of order.
Article 7 Delivery
A. GUTTS supplies product to buyers in two delivery methods; drum delivery of product, where product is delivered to a stated address and refuel delivery, where the product is fysically put in a competitors car in a refuelzone during any of the BRC events via a refuelprocedure.
B. Drum Delivery times are free of commitment and are only approximate. If the delivery time is slightly exceeded and this is not caused deliberately or by negligence of GUTTS, there can never be an entitlement to compensation for loss or damage.
C. Refuel Delivery times are stated prior to each event of the BRC via the formal communication channels of the organisers. During these times product is delivered to buyers only in the refuelzone via the described refuel procedure.
D. From the moment of delivery of product to the buyer, risk and responsibility are for the account of the buyer.
E. Delivery is considered to have taken place by presenting the goods at the agreed place or at the point. GUTTS is free to choose the means of transport.
F. When sold goods or services offered by GUTTS to a buyer are not accepted by the buyer for whatever reason which are not a risk to GUTTS, they shall be at the disposal of the buyer for three weeks. During this period the goods shall be stored for his account and at his own risk.
G. After the above mentioned period GUTTS has the right – at GUTTS’s prerogative- either to demand compliance with the order or to cancel without judicial interference, without prejudice to his right to compensation towards the buyer.
H. If a buyer places a call-off order this shall be bought and collected within the period set by the buyer and accepted by GUTTS. If the buyer does not comply with the aforementioned terms within 8 days after the end of the call-off period then GUTTS has the right to charge the buyer for the sold goods and to store these for the buyer’s account and risk, or cancel the order.
I. The waybill, delivery receipt or similar document presented on delivery is meant to accurately describe the quantity and quality, unless the buyer has objected to this in writing to GUTTS, immediately on taking delivery.
Article 8 Contract and Ordering
A. When making an order, Buyer must register for an account on the site and Buyer must follow the instructions on the site.
B. Irrespective of any previous price Buyer have seen or heard, once Buyer select a product that Buyer wish to order, Buyer will then be shown or told (on the Site) the charges Buyer must pay and any applicable delivery charges.
C. When Buyer submits an order to the site, Buyer agrees to do so subject to these terms and conditions current at the date Buyer submits the order. Buyer is responsible for reviewing the latest terms and conditions with each order.
D. A contract will relate only to those products whose dispatch we have confirmed in the invoice. GUTTS will not be obliged to supply any other products which may have been part of the order until we have sent an invoice in relation to those products.
Article 9 Payment
A.Buyer shall pay for the product in full at the time of ordering by supplying us with credit or debit card details from a credit or debit card company acceptable to us or by Paypal, which we require in order to process the order. Alternatively, Buyer may pay by any method that we have said is acceptable to us, but in any event we shall not be bound to supply before we have received cleared funds in full.
B.GUTTS holds the right to charge payment fees for certain payments methods, Buyer will see what charge is applicable.
Article 10 Default of Buyer
A. If the buyer has not on time, not properly or only partly complied with his obligation to pay or has not complied with any other clause of the order, or his assets are seized, applies for a suspension of payment or if his bankruptcy is filed or makes use of debt restructuring (WSNP = Wet Schuldsanering Natuurlijke Personen). This law is applicable only in the Netherlands) the buyer is legally considered to be in default and the total sum owed to GUTTS falls immediately due without an injunction or proof of default, irrespective of earlier made term orders with regard to payment.
B. The sum mentioned in sub A shall be increased by the legal business interest rate based on article 6: 119a B.W. (Burgerlijk Wetboek, Civil law book in the Netherlands) calculated from the invoice date (part of a month is calculated as a whole month) over the gross invoice sum, up to the moment of full payment.
C. In the cases mentioned in sub A, GUTTS is also entitled to suspend the implementation of current orders, i.e. to cancel any order with the buyer, fully or partly (at GUTTS’s discretion), without legal interference without any obligation on GUTTS’s part to any compensation whatsoever for the buyer insofar as this is justified by the default or the circumstances.
D. All costs arising due to extrajudicial collection of the claim are for the buyer’s account. The extrajudicial costs are set at at least 15% of the amount due, with a minimum of €300.
Article 11. Right of Retention
A. GUTTS is entitled to retain the buyer’s goods which GUTTS keeps for the buyer until settlement of all costs which GUTTS has made in order to execute orders for the aforementioned buyer, irrespective of the fact if these orders refer to the aforementioned or other goods of the buyer unless the buyer has set satisfactory guarantee for these costs.
Article 12 Property Restriction
A. All goods delivered or to be delivered by GUTTS remain the property of GUTTS, for as long as the buyer has not paid the invoice regarding the goods delivered or to be delivered, the invoices regarding additional work as well as possible claims for failures in compliance with the order. (including the interests owed and extrajudicial costs).
B. As long as the possession of the delivered, or to be delivered, goods is retained by GUTTS, as intended in the specified item of sub A, the buyer, other than in the normal running of his company, is not entitled to transfer or to burden, to rent out, to pawn or to put at the disposal of a third party under whatever name
C. When buyer breaches the specified rule in sub B he shall be liable to GUTTS for a fine with immediate effect to the amount of 1 times the net invoice value without prejudice to the right of GUTTS as complementary compensation for damages.
D. In the case of a order of purchase and sale with a buyer up until the moment of full payment the buyer is obliged either to have the delivered goods fully insured for his own account against damage by fire and theft, burglary, embezzlement, claims from third parties and own risk or he is liable to GUTTS for the full damage to these goods which may result from aforementioned circumstances.
Article 13 Loan
A. Materials supplied on loan by GUTTS remain the property of GUTTS and can be recalled without the buyer’s permission. Aforementioned goods may not be supplied to third parties in the broadest sense of the word without GUTTS’s permission.2/2
Article 14 Force Majeure
A. GUTTS is not responsible for its orders which are not carried out, not correctly carried out or not carried out on time if these are the result of force majeure in the broadest sense of the word. The following are also considered and are orderually equated with force majeure: restrictive government measures of whatever nature, epidemics, insurgence, war, strikes, sequestration, interruption of production, lack of raw materials/semi-finished products, auxiliary materials and/or energy, natural disasters, fire, other calamities, transport difficulties and full or partly default of a third party whose goods or services have to be received, in so far as these circumstances may have direct results on the correct execution of the order.
B. As soon as a circumstance mentioned in sub A occurs, GUTTS shall notify the buyer.
C. If compliance by GUTTS is temporarily impossible, GUTTS is entitled to suspend the execution of the order until the circumstance which caused the force majeure no longer exists.
D. If compliance by GUTTS is permanently impossible, the buyer shall be entitled to cancel the order provided this has been notified to GUTTS within 8 days of cognisance and with the obligation of purchase and payment of the executed part of the order. The same applies when compliance by GUTTS is only temporarily impossible but is expected to last for more than 3 months.
Article 15 Liability
A. Subject to conditions of imperative law regarding (product) liability as well as compliance with the legal rules of public order and good faith, GUTTS is not obliged to give the buyer any compensation for damages of whatever nature, directly or indirectly, including loss of profits, damage to personal or real estate, or to people.
B. In any eventuality GUTTS’s liability does not extend further than the total amount to which he is insured, or if he has not taken out an insurance to the amount for which an entrepreneur with a company such as GUTTS tends to insure himself. In any case liability is limited to the invoice sum.
C. GUTTS has the right at all times if and when possible to cancel the losses of the buyer.
D. Specifications with regard to composition percentages or mixture proportions of GUTTS’s products are only averages, which are established approximately. GUTTS excludes any form of liability for deviations, as these are unavoidable within reasonable margins or error tolerances depending on individual cases, despite the required precision in the production and the determination of values.
E. Buyer is aware and responsible for the safe and correct storage of received product in concurrence with relevant safety laws and procedures current in the country of delivery and in compliance with the Safety Data Sheet of the product supplied.
GUTTS gives information about the use and application to the best of its knowledge, based on research and experience. Nevertheless all specifications and information regarding suitability and application of products are non-binding and do not release the buyer from his own trials and tests.
Advice is free of commitment and without liability.
E. Buyer indemnifies GUTTS against all third-party liabilities which are connected directly or indirectly with the fulfillment of the order. Buyer indemnifies GUTTS in particular against claims from third parties for damage caused by incorrect or insufficient information supplied by buyer and GUTTS, unless the damage was caused by GUTTS deliberately or through gross negligence.
Article 16 Claims
A. Immediately after delivery the buyer is obliged to check for defects, shortcomings etc. The right to claim expires if a complaint to GUTTS is not presented in writing at the shortest possible notice, but at the latest within 7 days. Defects, shortcomings and complaints which could not have reasonably been observed on inspection, shall on penalty of termination be notified in writing within 7 days at the latest after having been observed or within reason could have been observed according to criteria of a perceptive buyer.
B. Delivered goods can only be returned after previously given written permission from GUTTS under conditions established by GUTTS.
C. If the complaint appears to be well-founded GUTTS shall guarantee the replacement of the goods or the work carried out or the restitution of the payments minus expenses.
D. Complaints regarding the invoice shall be lodged in writing within 5 days after the invoice date.
E. The conditions mentioned under sub A do not apply if there is only a small deviation in what has been agreed. When assessing if a delivery deviates from the permissible limits an average sample has to be taken from the delivered product. Rejection cannot take place based on a few items or units.
Article 17.Limitation
A. All legal claims by the buyer based on this order, subject to one of these conditions shall become prescribed subject to imperative law, after the course of one year, calculated from the day on which the goods were delivered or should have been delivered, or from the day that the work was completed or should have been completed.
Article 18 Disputes
A. Dutchlaw applies to all orders to which the conditions relate fully or partly.
B. In possible disputes between parties arising on account of these orders, orders resulting from these and/or from these general conditions, the Dutch court has exclusive authority.
C. In so far as the trial of aforementioned disputes falls under the jurisdiction of a Court of Law these shall be in the first instance exclusively tried by the empowered judge within the court district where GUTTS is established.
The text of these general conditions of delivery and payment of GUTTS BV are published on website www.gutts.nl
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