Article 1 - General -
1.1 “Cemex Trescon” means Cemex Trescon B.V., also trading under the name Cemex Trescon, registered with the Chamber of Commerce under no. 24147391 having its registered office in Zoetermeer, the Netherlands.
1.2 “Conditions” means the general sales conditions of Cemex Trescon.
1.3 “Customer” means the (potential) contracting party of Cemex Trescon or a natural person or legal entity acting on the Customer's behalf.
1.4 “Contract” means the contract and/or additional or follow-up contracts between Cemex Trescon and the Customer.
1.5 “Consequential damage” means, inter alia, trading loss, loss due to stagnation in operations, loss of profit or loss of income.
1.6 “Shipment on approval” means a shipment agreed as such in writing whereby the Customer has the option of returning the shipment within 30 days.
1.7 “Force majeure” means, inter alia, circumstances which impede the performance of the obligation and which are not attributable to Cemex Trescon. Circumstances, which in any event are not at Cemex Trescon's expense: conduct, subject to intent or gross negligence, of persons of whom Cemex Trescon makes use in the performance of the obligation; unsuitability of goods which Cemex Trescon uses in the performance of the obligation; exercising by a third party vis-à-vis the Customer of one or more rights, with regard to a shortcoming of the Customer in the performance of the contract made between the Customer and such third party with regard to the goods delivered by Cemex Trescon, work strike, illness(es), import, export and/or forwarding prohibition, transport problems, non-performance of the obligations by the suppliers of Cemex Trescon, boycott of Cemex Trescon or of its suppliers, weather circumstances, natural and/or nuclear disasters, riot, fire, war and threat of war.
1.8 “Other costs” means, inter alia, installation costs, packing, administration costs, transport costs, insurance costs and all taxes and other levies.
1.9 “Packing” means packing materials including pallets, cages, crates, boxes, casks and containers.
Article 2 - Applicability -
2.1 These Conditions apply to all legal relationships whereby Cemex Trescon acts as (potential) Seller and/or supplier.
2.2 Deviations from these Conditions may only be effected explicitly and in writing. Such a deviation does not have effect with regard to any other (future) contracts.
2.3 Applicability of the general conditions applied by the Customer are explicitly rejected.
Article 3 - Offers -
3.1 All offers, quotes and price specifications made by Cemex Trescon are without commitment.
3.2 All illustrations, models, samples, are only an approximate.
Article 4 - Contract, making, change and addition -
4.1 A contract between Cemex Trescon and the Customer will first be made after Cemex Trescon has confirmed the Customer's assignment in writing by means of its order confirmation, or after Cemex Trescon has started the execution of the assignment.
4.2 A change in or an addition to a contract is only valid if it has been explicitly agreed between Cemex Trescon and the Customer in writing.
Article 5 - Prices -
5.1 The prices are in Euros, unless otherwise agreed.
5.2 The prices are, unless otherwise agreed, exclusive of other costs which are charged individually.
5.3 Cemex Trescon is entitled in the event of an increase in one or more cost price determining elements by more than 10%, to increase the agreed price in accordance with this increase.
Article 6 - Payment -
6.1 The Customer must pay the agreed price and other costs of machines in three instalments. One-third upon acceptance of the assignment, one-third upon delivery and one-third within 30 days after the invoice date, unless the Customer pays the entire price and other costs in full upon acceptance of the assignment.
6.2 The Customer must pay the agreed price and other costs of other goods or services provided by Cemex Trescon within 30 days after the invoice date to Cemex Trescon.
6.3 The day of payment is the day of deposit on one of the bank and/or giro accounts of Cemex Trescon.
6.4 The payment is to be made in the Netherlands, unless otherwise agreed.
6.5 The Customer is in no case entitled to any discount and/or set-off and/or suspension.
6.6 If the Customer does not pay the invoice within the time period stipulated by Cemex Trescon, is declared bankrupt or applies for a moratorium, the Customer will be in default without the need for notice of default and all payment obligations are therefore immediately due.
6.7 In the event of late payment the Customer owes Cemex Trescon damages for the delay of 2 % interest per month as of the day that the payment obligation has become due, whereby part of a month is counted as a full month.
6.8 In the event of late payment the Customer will owe all reasonable costs to obtain payment judicially or extrajudicially (including insofar as these costs exceed the costs to be liquidated), including enforcement costs.
6.9 If Cemex Trescon doubts on reasonable grounds whether the Customer is able to perform its payment and other obligations, Cemex Trescon is entitled to demand of the Customer that advance payment of the agreed price and the other costs takes place, or that the Customer gives proper security, or that delivery is for cash on delivery. Until the Customer has done such, Cemex Trescon is entitled to suspend the performance of the contract.
6.10 The amount of the advance payment, or the amount of the security to be given, will be assessed by Cemex Trescon.
Article 7 – Retention of title -
7.1 Cemex Trescon retains title to the goods delivered by it until the Customer has performed all its obligations. In the event of shipments on approval Cemex Trescon retains title to the goods delivered by it until the stipulated time period within which goods can be returned has passed.
7.2 If the Customer is obliged to pay compensation, title will only pass after the entire compensation has been paid.
7.3 As long as the title to the goods still lies with Cemex Trescon the Customer is obliged to store the goods delivered subject to retention of title carefully and recognisably marked as the property of Cemex Trescon and it cannot transfer the goods as security to third parties and/or encumber them with a right of security.
7.4 If the Customer fails in the performance of its obligations vis-à-vis Cemex Trescon, or if Cemex Trescon has a reasonable ground to fear that the Customer will default on the performance of said obligations, Cemex Trescon is entitled to take back the delivered goods without prior notice at the Customer's expense, without prejudice to Cemex Trescon's right to compensation.
7.5 The Customer pledges to Cemex Trescon the claims which the Customer acquires vis-à-vis third parties to whom the Customer resold the delivered goods.
7.6 Packing delivered by Cemex Trescon will remain the property of Cemex Trescon and will be taken back if Cemex Trescon has charged a monetary amount therefore. The packing to be delivered must be in such condition, both physical and hygienic, that it is suitable for reuse. Cemex Trescon assesses whether the requirements of this article have been met.
7.7 The packing must be sorted and ready for transport and placed at the disposal of the transporter on the day when the packing is to be picked up.
7.8 Cemex Trescon B.V. does not have to accept packing which was not delivered by Cemex Trescon B.V.
7.9 Insofar as the packing has been individualised, the same packing must be returned.
Article 8 – Intellectual property -
8.1 Cemex Trescon reserves all intellectual property rights relating to the goods which have been sold. All illustrations, models, samples, etc. provided by Cemex Trescon may not be copied or produced, nor made available to third parties without its explicit written consent and must be returned upon first request.
8.2 The Customer is only entitled to make use of trade names, marks and packing, which are used by Cemex Trescon in trade, subject to explicit written consent.
Article 9 – Risk and delivery -
9.1 All risks in the goods pass upon delivery. Delivery will be effected when the goods are made available to the first transporter for shipment to the Customer, or, if the contract also encompasses transport, if the goods are made available by the transporter at the address specified by the Customer.
9.2 (Installation) work is at the Customer's risk.
9.3 Cemex Trescon does not guarantee that the goods will be delivered on the agreed delivery date. In the event of late delivery Cemex Trescon must be given written notice of default, whereby it is given a reasonable term of at least four weeks to effect performance.
9.4 Cemex Trescon is permitted to deliver the goods in part shipments. In such case Cemex Trescon is entitled to send individual invoices and the Customer is obliged to pay these invoices as if they were invoices for individual contracts.
9.5 If delivery from stock has been agreed, this is subject to the reservation that the goods to be delivered are in stock. If it turns out that the goods are not present in stock, if so requested Cemex Trescon will inform the Customer thereof as soon as possible.
Article 10 – Transport documents -
10.1 Unless the contract also encompasses transport, Cemex Trescon's copy of the transport document which was received by the transporter without comments and was signed for receipt, will be full proof of shipment of the quantities set out on the transport document, and the external good condition of the goods.
Article 11 – Taking receipt -
11.1 The Customer is obliged as of the agreed delivery date to take receipt of goods upon presentation by Cemex Trescon.
11.2 If the Customer does not take immediate receipt of the goods Cemex Trescon is, with retention of the other rights to which it is entitled, entitled to store the goods with Cemex Trescon or with third parties at the Customer's expense and risk.
Article 12 – Shipments on approval -
12.1 A shipment on approval will be effected at the Customer's expense and risk.
12.2 Returning a shipment on approval will only be effected after prior consultation with Cemex Trescon.
12.3 If a shipment on approval is not returned in the original packing, packing costs will be charged.
Article 13 – Duty to inspect and complaints -
13.1 The Customer must inspect the goods, in view of the circumstances, within the shortest possible term after delivery.
13.2 If the contract also encompasses the transport of the goods, the inspection can be postponed until immediately after the arrival of the goods at their destination.
13.3 In all cases the Customer loses the right to claim that the goods do not correspond with the contract, if he has not given Cemex Trescon written notice of shortcoming at latest within 5 working days after the goods have been made available to the Customer in accordance with article 13.2, or 5 days after a hidden defect has been noted; said written notice must set out the nature of the shortcoming.
13.4 Cemex Trescon is at all times entitled to itself carry out an investigation.
Article 14 - Liability -
14.1 Cemex Trescon is never liable for consequential loss suffered by the Customer.
14.2 If the goods delivered do not correspond with the contract, the Customer is only entitled to compensation or price reduction. The Customer is not entitled to cancel the contract.
14.3 Delivered goods may only be returned to Cemex Trescon with Cemex Trescon's written consent.
14.4 Every liability of Cemex Trescon is limited to a maximum of the agreed price exclusive of other costs of the delivered goods, but in any event up to a maximum of an amount of € 1,250,000 and a maximum of € 500,000 for tangible damage and destruction due to fire and/or explosion.
14.5 Cemex Trescon is never liable for loss as a result of inaccurate or careless use or maintenance of the goods by the Customer.
14.6 Limitations or exclusions of liability will only not apply insofar as the loss is the result of intent or wilful recklessness of managers of Cemex Trescon.
Article 15 - Guarantee -
15.1 In principle Cemex Trescon will only give a guarantee on new goods of three months to be counted as of delivery subject to the other provisions.
15.2 The guarantee encompasses repair or replacement of the goods but never encompasses more than the obligation of the supplier of Cemex Trescon. Only Cemex Trescon may make the choice between repair or replacement.
15.3 The goods taken back by Cemex Trescon under the guarantee will become the property of Cemex Trescon.
15.4 A guarantee will only be given in respect of machines insofar as they have been given a manufacturer's serial number.
15.5 A claim under the guarantee will only be honoured subject to article 14: a. if the goods have been used in accordance with the goal which the goods are intended for in accordance with the relevant manual(s); b. if the maintenance has been executed in accordance with the instructions, or in any event properly.
15.6 The guarantee does not apply if: a. The Customer or someone on behalf of the Customer has carried out repairs or adjustments without the consent of Cemex Trescon. b. There are errors and/or defects as a result of inexpert or careless use or conduct. c. There is normal wear and tear.
15.7 Work which is to be deemed part of the normal maintenance does not fall under the guarantee.
Article 16 - Quantities, dimensions, weights and further information -
16.1 Minor deviations with regard to specified dimensions, weights, numbers, colours and other such information are not deemed shortcomings. 16.2 Trade customs determine whether or not there are minor deviations.
Article 17 – Force majeure -
17.1 If Cemex Trescon cannot performs its obligations to the Customer due to force majeure, the performance of said obligations will be suspended for the duration of the force majeure situation.
17.2 Cemex Trescon will inform the Customer of a force majeure situation as soon as possible.
17.3 If the force majeure situation lasts thirty days or longer, both Cemex Trescon and the Customer have the right to cancel the contract in writing and without judicial intervention, in whole or in part, insofar as the goods have not yet been delivered. In that case Cemex Trescon is not bound to pay compensation or any other payment, other than payment in relation to a payment made which was not owed.
Article 18 – Cancellation and suspension -
18.1 If the Customer does not perform an obligation under any contract or these Conditions, does not perform such properly or in time, the Customer will be in default without notice of default and Cemex Trescon, without being bound to pay any compensation in this respect and without prejudice to any further rights it has, is entitled, with immediate effect and without judicial intervention, to suspend the performance of all its obligations and/or to cancel or terminate the relevant contract in whole or in part.
18.2 In the event of cancellation by Cemex Trescon, Cemex Trescon is entitled, at its election, by way of compensation to: a. The negative difference between the contract price and the market value of the goods in dispute on the day of non-performance, or b. the difference between the contract price and the price of the covering sale, c. without prejudice to Cemex Trescon's right to additional or replacement compensation.
18.3 Cemex Trescon is furthermore entitled, without being bound to pay any compensation in this respect and without prejudice to any further rights it has, with immediate effect and without judicial intervention, to cancel the contract with the Customer, if: a. the Customer is subject to a moratorium or in bankruptcy, or there is a risk of such, or any part of its assets are attached; b. the Customer ceases its activities, decides to liquidate, or otherwise loses its legal personality, transfers its company or merges; c. without prejudice to Cemex Trescon's right to additional or replacement compensation.
Article 19 - (Installation) Work -
19.1 If the contract also encompasses installation and commissioning, the Customer must: a. At all times and immediately after arrival at the destination give Cemex Trescon the opportunity to carry out its work. b. Make the necessary preparations and ensure that the necessary workmen, tools and materials, including gas, electricity and water are present. c. Take and enforce all safety and precautionary measures.
19.2 If the Customer fails on its obligations as referred to in article 19.1, it is liable for the costs ensuing therefrom, without prejudice to the further rights to which Cemex Trescon is entitled.
Article 20 - Indemnity -
20.1 The Customer indemnifies Cemex Trescon against all claims of third parties with regard to loss suffered by them.
Article 21 - Auxiliary parties -
21.1 Insofar as Cemex Trescon, to perform its obligations under these Conditions or the contract, makes use of the services and/or products of auxiliary parties, these Conditions apply on their behalf vis-à-vis the Customer insofar as possible.
Article 22 - Other -
22.1 If a provision of these Conditions is unenforceable or void, this will not have an effect on the validity of the other provisions laid down in these Conditions. In that case the conditions will be interpreted as if the unenforceable or void provision did not form part of these Conditions. These Conditions have been drawn up in Dutch and have been translated into German, English and French. In disputes relating to the interpretation of these Conditions, the Dutch text will prevail.
Article 23 – Time limits -
23.1 All claims on Cemex Trescon are time-barred one year after the date of the contract.
Article 24 – Applicable law and jurisdiction -
24.1 All legal relationships between Cemex Trescon and the Customer are governed by Dutch law. All disputes ensuing from or connected with these General Conditions or the contracts between Cemex Trescon and the Customer will exclusively be adjudicated by the District Court of Rotterdam. 070101 Cemax Trescon B.V.