Terms and conditions

General terms and conditions of supply and warranty of PACAM

§ 1 Generalities – Applicability c

Only these present general terms and conditions of supply and warranty of PACAM are to be applicable to all contracts. The terms and conditions of purchase of the purchaser are not to be applicable in such cases. Any divergent agreements, in particular contradictory terms and conditions of business of the purchaser as well as any side agreements, are to require the written approval of PACAM for their validity.
These conditions form an integral part of all of our offers and contracts on deliveries and performance of the actual and future business relations.
Any divergences agreed are only to apply to the contract in hand. Alterations to these present terms and conditions are only to become effective when the purchaser is given notice thereof.

§ 2 Conclusion of Contracts

All offers and cost estimates are subject to change. All orders, whether placed directly, or via our representatives, as well as special arrangements, need to be confirmed in writing by PACAM. The acknowledgement of order is authoritative for the matter of the contract. PACAM hereby reserves the right to make technical alterations when such serve technical progress or improved use and/or operational security, respectively. The purchase conditions of the purchaser are not binding on PACAM, even if PACAM does not contradict them explicitly.
The purchaser shall be bound to its order for 6 weeks. The purchaser may only withdraw from the contract, if PACAM does not accept or acknowledge the order within this period. But such an order will not automatically become redundant thereby.
The indications given in the seller’s brochures of which the copyright is with PACAM concerning weight, dimensions and figures are not binding and only approximate values. The purchaser is not entitled to any special claims resulting from any deviations.
If the acknowledgement of order differs from the order itself, the contract shall be regarded as having been accepted according to the acknowledgement of order, if the purchaser does not contradict in writing within 3 days.
In principle the order is only binding to the scope and supply and as confirmed by PACAM. All other additional agreements, even if they have been defined in writing on the order, are only valid, if they do not contradict these conditions or have been confirmed in writing by PACAM.
The purchaser is not entitled to withdraw from the contract due to non-acceptance of additional or contradictory agreements. No legal rights shall arise to the purchaser that PACAM accepts additional agreements. The acceptance or non-acceptance of such agreements is at the own discretion of PACAM.
All other or contradictory terms are only binding to PACAM, if PACAM accepts them expressly and in writing.

§ 3 Prices

The prices of PACAM are understood in Euros if not indicated otherwise, plus the legal value-added tax.
If no fixed prices have been agreed upon explicitly, the prices valid on the day of delivery shall apply. Admissible recalculations valid on the date of delivery and the raising of prices and taxes shall be regarded as having been agreed upon.
If no special arrangements have been made, the prices are ex works, but without packing. PACAM hereby reserves the right to alter its prices appropriately when, after the conclusion of a contract, decreases or increases in costs occur. Such are to be evidenced to the purchaser on demand. The foregoing also includes any increase in gross prices as a result of changes in the rate of value added taxation.

§ 4 Conditions of Payment

Payment must be made at the PACAM’s place of business or to an account specified by the PACAM. Unless agreed otherwise, payment must be made using one of the following methods:

a. for counter sales: cash;

b. for payment in instalments:

- 50% of the total price when the materials have been delivered or, if the engagement does not include delivery of the materials, upon commencement of the activities;

10% of the total price upon completion;

c. in all other instances: within thirty days after the date on the invoice.

The payment conditions specified notwithstanding, the Client is obliged, at the PACAM’s request, to provide security for payment, to the Client’s satisfaction. Failure on the Client’s part to provide such security for payment within the period specified will immediately constitute default. In that event, the PACAM is entitled to dissolve the agreement and recover any damages from the Client.
The Client’s right to offset any claims on the PACAM is excluded, except in the event of the PACAM’s bankruptcy or if judicial debt rescheduling is applied in respect of the PACAM.
The full claim for payment is payable on demand in the following instances:

a. if any payment deadline has been exceeded;

b. if the Client has been declared bankrupt or requests suspension of payments;

c. if any of the Client’s assets or claims are seized;

d. if the Client (if a company) is dissolved or wound up;

e. if the Client (if a natural person) makes a request for judicial debt rescheduling, is placed under guardianship or dies.

If payment has not been made by the payment deadline specified, the Client is immediately liable to pay the PACAM interest. That interest is payable at a rate of 12% per year, or at the statutory rate if that is higher. For the purposes of calculating the interest, partial months are counted as full months.
If payment has not been made by the payment deadline specified, the Client is immediately liable to pay the PACAM all extrajudicial costs, to a minimum of €75. The costs are calculated in accordance with the following table:

over the first €3,000 15%

over the excess up to €6,000 10%

over the excess up to €15,000 8%

over the excess up to €60,000 5%

over the excess from €60,000 3%

If the actual extrajudicial costs exceed those based on this formula, the Client is liable to pay the actual costs.
If judicial proceedings are decided in the PACAM’s favour, all costs incurred by the PACAM in connection with those pro-ceedings are for the Client’s account.

§ 5 Retention/Compensation

The purchaser is not entitled to transfer any rights from the contracts with PACAM to a third party without its prior written consent.
If PACAM does not contradict any counterclaim of the purchaser or the counterclaims are due and legally ascertained, the purchaser is not authorized to refuse its performances, to retain or to set them off against eventual demands from former business of the actual business relation.

§ 6 Credit Protection/Credit-Worthiness

When the order is accepted the credit-worthiness of the purchaser is assumed. PACAM reserves the right to call for securities or to stop the execution of the order, if on the basis of later information there are justified doubts in the credit­worthiness of the buyer.
If bills are not discounted by the bank or cheques are not accredited, or in other circumstances where a lack of solvency of the purchaser may be concluded, PACAM is entitled to demand the immediate cash payment of all outstanding debts, to withdraw dates of payment, and to make possible current documents due without regards to their duration. On cash payment the bills and cheques drawn shall be given back to the purchaser.

§ 7 Reservation of Title

The goods supplied are to remain the property of PACAM until complete and entire payment, i.e. until the receipt of all financial claims in existance at the point in time of the conclusion of a contract including all financial claims from subsequent orders, follow-up orders and the like. In the case of payment by bill the goods are only regarded as having been paid completely after PACAM has been released from the liability.
Commercially the goods delivered remain the property of PACAM until all claims resulting from the business relationship, including all claims which arose after the delivery and become due in future, have been paid. In a case of a current account business any negative balance has to be settled.
Provided that there is no default of payment and PACAM has agreed in writing, the purchaser is entitled to process and/or sell the goods delivered under reservation of title and to handle the goods with due care. Any processing or elaboration of the goods supplied will be deemed by PACAM to be conducted under the reservation of its property rights on condition, that property rights in the processed or elaborated unit concerned shall pass to PACAM on the basis of proportionate values (invoiced values). The same applies to a connection or mixture with other goods. The purchaser shall keep the co-ownership arising from the modifications, changes, connection or mixture, free of charge.
Pledge or assignments by way of security are not allowed. In the case of claims of a third party to the goods delivered under reservation of title, the purchaser shall point out that the goods are the property of PACAM and inform PACAM immediately.
Any claims resulting from the resale or other legal reasons (insurance benefit, inadmissible action) with relation to the goods under reservation of title, shall be transferred to PACAM. If PACAM is only co-proprietor of the object, the transfer is limited to the invoiced price of the goods. The purchaser may call in the debts for claims transferred with regular business transactions. This authorization may be withdrawn, if the purchaser does not meet its payment obligations in time, or, for other reasons which could lead to a violation of our rights. Upon request the purchaser has to inform its debtors of the transfer of the claim and give to PACAM the information and documents required for the independent enforcement of the demands transferred.
As soon as the purchaser is in default, in whole or in part, with its obligation or the purchaser violates its obligation, a return of the goods under reservation of title combined with a withdrawal from the Dutch sales contract, may be demanded or a period of grace to comply with the terms of payment be fixed. Infringements of the foregoing contractual duties are to be, among other things, payment arrears of the purchase price, any sundry infringements of contractual duties (e.g. incorrect treatment of the subject matter of the purchase) as well as any onward sale of the subject matter in infringement of contractual duties. Without express withdrawal from the sales contract all other contractual obligations of the purchaser shall remain valid.
Provided that the purchaser has been released from its obligation to accept delivery and the goods have been taken back by PACAM, PACAM may demand damages of 25% of the amount invoiced due to non-performance. The contractual parties hereby expressly declare and agree, that such an amount is not, on the basis of a normal treatment of the matter, in any event to exceed the amount of any anticipated damages. Should a greater amount of damages be incurred, such is to be evidenced to PACAM in detail. A minor loss can be proved by the purchaser. If the securities in form of goods that PACAM is entitled to exceed more than 20% of the claims to be secured, PACAM is prepared to release these securities correspondingly upon request of the purchaser and as decided by PACAM.

§ 8 Delivery Period

The delivery period given with reservation presupposes that the approvals, drawings, releases etc. required are presented on time. All the contractual duties of participation on the part of the purchaser are, in particular to be conscientiously complied with as a material precondition.
Any alterations in a contract or the occurrence of unanticipated circumstances outside of operational activities not under the sphere of influence of PACAM, are to have the effect of appropriately and reasonably postponing any delivery time period, for at least the duration of the delay, unless PACAM confirms an alternative delivery time period. The foregoing are also to include temporary hindrances in the fulfilment of PACAM incurred by subcontractors and PACAMs, for which PACAM cannot be held responsible.
The delivery dates are only binding, when they have been agreed upon expressly and in writing. Partial deliveries are agreed upon to be permitted.
Should unforeseen circumstances arise at the works of PACAM or those of the subcontractor, such as breakdowns, rejects, delays in delivery of essential raw or engineering material being of great importance on the completion or the delivery of the object, the time of delivery shall be prolonged accordingly.
 In the event that the Client has not taken delivery of any object after the delivery deadline has passed, those objects will remain available to the Client. Any objects of which the Client has not taken delivery will be stored for the Client’s account and risk. The Sup-plier may at any time invoke the powers granted by the Dutch Civil Law.
When the dispatch is delayed upon request of the purchaser, PACAM will charge the costs arising from the storage of the goods but at least 0.5% of the invoice amount for each month started and beginning one month after the purchaser has been informed that the equipment is ready for dispatch. PACAM is entitled to dispose of the goods otherwise after having fixed an acceptable period and to deliver with an appropriately prolonged delivery period at unsuccessful expiration of the term.

§ 9 Acceptance

If an accept of the equipment is desired and carried out, the conditions thereof have to be determined on entering into the contract at the latest and to be confirmed in writing by PACAM.
The acceptance has to take place at the contractor’s plant immediately after the purchaser has been informed that the equipment is ready for dispatch. The purchaser will be charged with the cost of the acceptance.
If an acceptance is not desired, the goods shall be regarded as having been delivered according to the conditions at their dispatch from the works of PACAM.

§ 10 Transfer of Risk, Receipt, and Place of Jurisdiction

Place of jurisdiction is the works of PACAM at Doctor Huub van Doorne weg 40A, NL 5753 PM DEURNE

The Netherlands

The risk is transferred to the purchaser on acceptance or receipt, or on delivery of the goods at the latest. The same shall apply to partial deliveries, or, if other contractual obligations, such as transport, installation or commissioning still have to be carried out by PACAM. Upon the request of the purchaser, PACAM will insure the goods at the cost of the purchaser against breakage, damages caused by transport, fire and water.
If the transport is delayed due to circumstances for which PACAM cannot be held responsible, the risk shall be transferred to the purchaser from the day on which the equipment is ready to be dispatched; PACAM is, however, obliged to effect a policy of insurance at the cost of the purchaser and as requested by him.

§ 11 Exoneration of PACAM

The purchaser hereby declares and agrees to keep PACAM harmless in entirety from all claims of third parties against PACAM if and in so far as goods supplied and services rendered on the part of the purchaser are causative for such claims.

§ 12 Withdrawal Reservation

PACAM hereby reserves, at its discretion the right to withdrawal or to require a surety for supplies, when, after the conclusion of a contract, a decline in its assets situation is suffered by the purchaser, in particular insolvency or over indebtedness, or when PACAM subsequently becomes aware of an existent worsening of the financial position of the purchaser at the point in time of the conclusion of a contract, of which it was previously unaware.

§ 13 Warranty

PACAM hereby warrants, within the scope of the following terms and conditions, that the subject matter of the purchase is free from material and legal defects and complies with the agreed characteristics. The granting of the warranty assumes, that the purchaser has entirely complied with the requirements of the Dutch Commercial Law as regards the duty of inspection and complaint . Otherwise, the goods shall be deemed as approved.
The purchaser is under a contractual duty hereby to send the servicing card to PACAM within 14 days of date of delivery. For the warranty to remain valid, the purchaser has to execute and to prove the execution of the inspections defined by PACAM.
Defect claims on the part of the purchaser are to require a written and complete description of the asserted defects to be submitted to PACAM.
Should the subject matter of the contract be defective, then PACAM at its discretion can initially select to remove the defect or to supply replacement subject matter free of defects.
To lodge any claims under guarantee the purchaser shall inform PACAM immediately in writing, within 7 days after detection at the latest, of the defects. He must state in detail: the cause of the defect (as far as possible by providing photos and/or sketches), date of the purchase contract and delivery date, name and address of the representative or of that person from whom the machine was purchased, vehicle and chassis type identification number and special options as well as the number of operating hours. For being able to keep the terms of our subcontractors the completed guarantee must be returned to us within 3 weeks after repair. All replaced parts shall be attached to the guarantee.
Should a complaint be unjustified, then the purchaser is to bear the costs thereby incurred and also when the circumstances leading to the unjustified complaint were unknown to the purchaser as a result of gross negligence.
The guarantee is limited to those defects which have existed ascertainable before the transfer of risk. Simple settings and repairs which do not require more than one hour can be carried out by the purchaser without prior consent of PACAM. More extensive works must be agreed with PACAM in writing according to the printed form. The parts exchanged shall become property of PACAM. If the purchaser does not grant sufficient time for repair work or compensation deliveries after having informed PACAM of any defects, PACAM shall be released from the warranty of defects. The original guarantee period for the delivered part itself shall not be prolonged upon delivery of a replaced part and/or a repaired part. If according to prior agreement with us defects are repaired by authorised specialised workshops, the costs involved have to be submitted together with the guarantee. The standard times and remuneration rates defined by PACAM shall apply.
The liability of the seller for third party products is the same as those of the subcontractor.
Defect claims shall not obtain, when the defects occurring are in causative connection with previously occurring defects not reported in due time as per Art. 13.5 hereof. No responsibility is taken for normal wear and tear or for damages caused by: unsuited or improper use, faulty installation, operation under extreme conditions, use of inappropriate operating material or for consequences from improper works performed at the engine, the hydraulic and electronic components.
The guarantee of PACAM does not cover any defects resulting from the construction and material definitions of the purchaser.
The guarantee shall become invalid, if the product is changed by a third party or by integrating parts of a
subcontractor, if the repair is not executed by an authorized special workshop or by using non-original spare parts. Furthermore we do not accept any responsibility if our operating manuals are not observed, if the goods are resold by the customer or if the seals at the components have been damaged.
The purchaser does not have any further titles, especially a claim for compensation for damages to parts that were
not included in the delivery contract. The notice of defect has no influence on the payments obligation of the purchaser, a right of retention shall be excluded.
In case of any subsequent failure of- or unsuccessful subsequent -fulfilment, the purchaser can at its discretion
withdraw from a contract or require the purchase price to be reduced and claim indemnity damages instead of fulfilment as per the stipulations of Art. 15 hereof when PACAM seriously and finally repudiates subsequent fulfilment as per Art. 13.4 hereof, or when the form of subsequent fulfilment selected by PACAM cannot be reasonably expected of the purchaser or when the purchaser has unsuccessfully set PACAM a reasonable time period for such fulfilment. Subsequent fulfilment is to be deemed as having failed after an unsuccessful third attempt, unless another situation might arise out of the type of circumstance or defect, or upon other grounds.
The purchaser is to have no claim hereunder to subsequent fulfilment or to a certain form of subsequent fulfilment.
Should the purchase price not have been paid in whole or in part, PACAM is to be entitled to make any subsequent fulfilment dependent on the purchaser paying an appropriate part of the purchase price under consideration of the defect claim asserted.
The entitlement to withdrawal from a contract and to indemnity damages instead of fulfilment as per Art. 13.13 is
hereby excluded when and in so far as the defects asserted fail to restrict, in whole or in negligible part the suitability of the subject matter - or subject matter of similar type – in its contractually envisaged usual employment.
Any liability of PACAM for defects on already used goods is generally excluded hereunder, unless the purchaser has, in individual cases received express consent to a warranty in writing.

§ 14 Statute-barring of defect claims

The entitlement of the purchaser under Arts. 13.4 and 13.13 hereof to a reduction in the purchase price or to withdrawal from contract, is to become statute-barred one year after the passing of the perils in the subject matter of the purchase.
When the subject matter of the purchase is new, statute-barring is to apply before the expiry of the one year time period, when and in so far as the operating hours on the machine counter have reached 1250 operating hours, as, on the basis of the characteristics of the machine, such an amount of operating hours corresponds with the appropriate and usual annual amount of use.
The effect of statute-barring is however to be restricted as long as negotiations are in progress between PACAM and the purchaser concerning defect claims or circumstances justifying such are pending. Such restrictions are to commence with a written notice of defects submitted by the purchaser and is to terminate with the written rejection of any defect claims on the part of PACAM, at the latest however 2 months after the submission of the last written declaration of one of the parties within the scope of such negotiations.

§ 15 Liability

If not otherwise agreed upon in these conditions or in separate agreements, any claims for damages against PACAM and its employees are excluded, if no gross fault or any other mental element of offence can be reproached. PACAM shall be only liable for gross fault of its legal representatives and executives.
As far as legally admissible, PACAM and its employees shall not be liable for loss of profit, savings, claims for damages of a third party against the purchaser and other consequential damages.
The liability of PACAM for other types of claim in cases of the slight negligent infringement of a main contractual duty on the part of PACAM or of its subcontractors or PACAMs, is to be limited to indemnities in respect of immediate, foreseeable, average and contractually-typical loss or damage. PACAM is not to be liable for any slightly negligent infringement of immaterial contractual duties hereunder.
Any other material- or legal liability of PACAM is hereby declared and agreed to be excluded hereunder, unless PACAM fraudulently conceals such or has adopted a warranty for the characteristics of the goods concerned.

§ 16 Applicable law and competent court

1. These Terms & Conditions are governed by the laws of the Netherlands.

2.The Vienna Sales Convention (C.I.S.G.) does not apply to these Terms & Conditions, nor do any other international regulations whose exclusion is permitted.

3.Only the Dutch civil court within whose jurisdiction the Supplier’s place of business is situated is competent to pass judgment on disputes, unless such is at odds with any mandatory rules of law. The PACAM is entitled to deviate from this jurisdiction clause and apply the statutory rules for jurisdiction.

4.The Parties may agree on another form of dispute settlement, such as arbitration or mediation.

PACAM
Doctor Huub van Doorne weg 40A
NL 5753 PM DEURNE
The Netherlands

23 June , 2017 Netherlands