|Article 1. Applicability
- These conditions are applicable to all quotations, offers or proposals and/or deliveries made by Delorean Europe, also acting as DMC Service, hereinafter to be referred to as "DMC" and agreements and/or other legal relationships between DMC and Customer, the resulting provisions and related activities regardless of whether or not they are based on a verbal, written, and/or electronic agreement, unless otherwise agreed upon in writing.
- These conditions also apply to agreements between DMC and Customer for which DMC involved third parties for the implementation of the agreement.
- By ordering to DMC, Customer agrees to comply with these conditions.
- The applicability of purchase conditions or any other conditions from Customer or from third parties on behalf of Customer is expressly rejected by DMC, unless explicitly accepted in writing by DMC.
- If one or more terms (or part of a term) of these conditions is nullified, declared to be nullified annihilable, or has lost its validity in another way, the other terms (or part of the term in question) will remain in force undiminished. DMC and Customer will then discuss new terms to replace the nullified or to be nullified terms, where the replaced terms will be in scope of the original terms.
- If the explanation of one or more terms in these conditions are unclear, the explanation must be in scope of these terms and conditions.
- If a situation arises between parties in which these general conditions do not provide, the situations must be judged in scope with these conditions.
- If DMC does not always require strict compliance of these general conditions, this does not mean that the terms of the general conditions are not applicable or that DMC loses in any way the right to require strict compliance of these terms in other cases.
- The headings of the sections of the General Conditions are inserted for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of the General Conditions.
|Article 2. Prices, quotations, advice
- All quotations, offers and proposals (hereinafter to be referred to as "quotations") are made by DMC without engagement, unless a specific expiry date is mentioned by DMC.
- Acceptance of a quotation by Customer is only valid when made on or before the expiry date or period as mentioned by DMC.
- A quotation is cancelled when the product that the quotation, or part thereof, relates to has become unavailable in the meantime.
- Customer's acceptance of a quotation by e-mail or internet is only valid when this in turn has been confirmed by DMC.
- DMC cannot be bound to quotations when Customer can reasonably understand that the quotations, or a part thereof, contains a apparent error.
- All prices are exclusive of V.A.T. (Dutch: "B.T.W.") and any other impositions by law or by government, exclusive of any expenses to be made in accordance of the agreement, travel, lodging, dispatch and administrative costs comprehended, unless otherwise agreed upon in writing. The currency in mentioned in the price.
- DMC cannot be bound to a quotation in case acceptance (whether or not on minor points) by Customer deviates from the quotation. The agreement will not be effected according to the deviant acceptance unless otherwise agreed upon in writing.
- A compound quotation does not oblige DMC to perform a part of the order against a corresponding part of the quoted price. Quotations are not automatically applicable to future orders.
- DMC has the right, without reasons given, not to accept an order, or to accept an order only under deviant conditions. When an order is accepted by DMC under deviant conditions, Customer has the right to cancel the order without any costs.
- Customer cannot derive any rights from advice or information given by DMC when the advice or information is not directly related to Customer's order.
|Article 3. Agreement; times of delivery and period of execution, time for consideration, core deposit, fulfilment and modification of agreement; increase in price
- Definition of a "agreement" in these General Conditions is:
- the agreement of buy and sale of a used car or the parts and accessories of a used car, and/ or
- the agreement to assemble and/ or demolish and/ or repair and/ or maintain, the agreement of inspection and/ and damage valuation, all separately or in commonly called "activities".
- The time of delivery and period of execution that are set by DMC, are stipulated based on the circumstances known to DMC at the moment of stipulation. In case there are one or more changes in the circumstances compared to the known circumstances at the moment of stipulation, DMC is allowed to extend the time or period with the amount of time necessary to fulfil the order under the changed conditions.
- All (delivery) dates and (execution) periods which may be named by and may be applicable to DMC shall never be considered to be absolute (delivery) dates or (execution) periods within which must be delivered, but a time period within which DMC shall strive with best efforts to deliver the agreed upon terms. Therefore, if a given (delivery) date is exceeded, Customer must declare DMC in default in writing. DMC must then be given a reasonable amount of time to fulfil DMC's contractual obligations as yet.
- DMC will fulfil the agreement to DMC's best insight and capacity and according to the requirements of good craftsmanship.
- DMC has the right to hire third parties to perform certain activities. The applicability of Article 7:404, 7:407 section 2 and 7:409 BW (Dutch Civil Code) is expressly rejected.
- Delivery is made from the address of DMC office. Customer is obliged to buy the goods at the moment the goods are placed at Customer's disposal. If Customer refuses off take or is negligent of giving information or instructions necessary for delivery, DMC has the right to store the goods on account and for risk of Customer. Any risk of loss, damage or depreciation is on account of Customer at the moment the goods are placed at Customer's disposal.
- Orders placed by Customer or on behalf of Customer on the internet (by the way of DMC's website or by email) and that are send to Customer on Customer's request must be paid in full including postage before the goods will be sent.
- Exclusively for orders for new products made by Customer by way of DMC's website, Customer may dissolve the underlying agreement within seven (7) working days after reception of the order by or on behalf of Customer. Customer does not have to give a reason. For delivered used products the possibility of returning the used goods is expressly excluded.
- Should Customer wish to dissolve the agreement according to of these conditions, Customer must notify this to DMC in writing (by the way of email or letter). Customer must return any by DMC delivered goods after consultation with DMC to an address determined by DMC. The goods must be packed in the original packing that may not be damaged. Customer is to carry all costs for transport and the risk of transportation. DMC will not accept opened packing; opening a packing entails that Customer will keep the goods. DMC will return these goods to Customer en will charge all expenses for returning the goods to Customer.
- Should Customer already have made payments at the time that Customer revokes the agreement according to Article 3.8 and 3.9, DMC will repay these payments within fourteen (14) working days after DMC has received the returned goods subject to a 20% "restocking charge" and transport or postage costs. DMC reserves the right to refuse returned goods or to credit only part of already made payments in case there are grounds to suspect that the packing was already opened, used or on account of Customer (as opposed to DMC's or supplier's account) is damaged.
- If a product is returned by Customer and that, to DMC's judgement, is damaged due to Customer's handling or negligence or Customer carries the risk of damage in any other way, DMC will inform Customer in writing (by the way of email or letter). DMC has the right to deduct the depreciation of the product due to the damage from the amount to be repaid to Customer.
- For certain parts extra costs can be charged to encourage you to return the original old part so that it can be rebuild. For certain parts these costs are high because they are irreplaceable. If these parts are not returned they may no longer be available for rebuilt in the future. These costs will not be charged in case Customer returns the exact old replaced part (i.e. with the exact same part number) within four (4) weeks of invoice date of the replacing part. A coupon stating the amount of the extra costs is enclosed with the invoice. Customer is to return the exact same part that Customer received from DMC, complete and assembled, empty of fluids and reasonably clean. By ordering such parts, Customer grants DMC irrevocably the authorisation to charge Customer's credit card for the extra costs in case the parts are not swiftly returned.
- DMC is entitled to execute the agreement in stages and to invoice the executed stages separately.
- When the agreement is carried out in stages, DMC may suspend activities of a next stage until Customer has approved the results of the previous stage in writing.
- In case DMC needs information of Customer in order to execute the agreement, the period of execution does not start before Customer has supplied DMC with all needed information correctly and in full.
- Should it become apparent during execution of the agreement that for a rightful execution it is necessary to change or to amplify the agreement, parties will timely and in mutual consultation adapt the agreement. In case the nature, scope or content of the agreement, whether or not by request or indication of Customer, of competent authorities et cetera, is adapted and the agreement due to this is changed in quality and or quantity, this may have consequences for the original agreement. Therefore, the originally agreed upon amount may be increased or decreased. DMC will quote the price as much as possible in advance. Due to the alteration of the agreement the original named execution period may be changed. Customer accepts the possibility of alteration of the agreement, including changes in price or execution period.
- If the agreement is altered, including additions, DMC has the right to execute the agreement only after DMC's director has agreed and Customer has agreed with the altered price and other conditions, including the then to be determined start date of execution. If DMC does not or not immediately executes the altered agreement, this is not a non-fulfilment in itself and not a reason for Customer to dissolve the agreement.
- DMC may refuse a request to alter the agreement without being in default, if the alteration concerns the quality or quantity of for instance the to be delivered activities or to be delivered goods.
- If Customer is in default regarding the fulfilment of Customer's obligations towards DMC, Customer is liable to all damages (including expenses) that occur because of this directly or indirectly on the side of DMC. This includes costs for storage if Customer does not retrieve the car within the time agreed.
- If DMC agrees on a certain price when closing the agreement, DMC is still entitled to increase the price in the following circumstances, also in case the price was originally not quoted under restriction or by approximation:
- In case the price increase is due to an alteration of the agreement;
- In case the price increase results from DMC's authority or any legal obligation DMC may have;
- In case the price increase results from a higher currency rate;
- In case price increase results from a price increase of raw materials, wages et cetera;
- In case the price increase results from changes in manufacturer's or importer's prices;
- In any other cases that were reasonably not to be foreseen at the moment that the agreement was made
- In case the price increase, but not an increase in price as a result of an alteration in the agreement, amounts to more than 10% and occurs within three months after closing the agreement, then the Customer, only when acting as a private person as opposed to professionally (in accordance with Title 5, section 3 book 6 of the Dutch Civil Code) is entitled to dissolve the agreement by written declaration with due regard to a term of notice of two weeks and with the obligation to pay DMC damages for all activities that have already taken place, unless DMC:
- In that case as yet is prepared to execute the agreement as it was originally closed;
- In case the price increase results from DMC's authority or any legal obligation DMC may have;
- In case it was stipulated that delivery would take place more than three months after closing the agreement;
- Or, in case of delivery of a good, if it was stipulated that delivery would take place more than three months after closing the sale.
|Article 4. Suspension, dissolution and termination of agreement
- In the following cases, DMC has the right to suspend compliance with the obligations of the agreement or to immediately terminate the agreement:
- If Customer fails to perform in whole or in part or in good time Customer's obligations following from the agreement;
- If after closing the agreement DMC learns that there are circumstances of Customer that give good reason to fear Customer's compliance with the agreement;
- If Customer when closing the agreement is asked to secure Customer's compliance with the agreement and this certainty cannot or not in whole be delivered;
- If due to delay by Customer DMC can no longer be demanded to comply with the original conditions of the agreement, DMC has the right to terminate the agreement;
- If circumstances occur as a result of which compliance with the agreement has become impossible or unaltered conditions cannot reasonably be demanded of DMC.
- If Customer is accountable for the termination, DMC is entitled to damages, including direct of indirect costs that follow from the termination.
- If the agreement is terminated, the claims of DMC against Customer are immediately repayable. If DMC suspends compliance of the obligations of the agreement, all legal rights and rights following from the agreement are maintained.
- If DMC does suspend or terminate the agreement based on the grounds mentioned in this Article, DMC cannot be held accountable in any way for any damages and any costs that arise from the suspension or termination, whereas Customer is on account of non fulfilment obligated to pay damages and indemnity.
- In case DMC terminates the agreement DMC will take care of transfer of the still to perform activities to one or more third parties in consultation with Customer, unless termination is accountable to Customer. Any extra costs that may be involved in the transfer of activities are at the expense of Customer. Customer is obliged to pay these costs within the stated period of time, unless DMC declares otherwise.
- In case of liquidation, (applied) suspension of payment or bankruptcy or seizure (for a period of more than three months) of Customer, debt cleansing or any other circumstances that unables Customer to free access of customers properties, DMC is authorized to terminate the agreement with immediate effect or to annul the order or agreement without any obligations to pay any damages or indemnities. In that cases, the claims of DMC against Customer are immediately repayable.
- If Customer cancels an already placed order in whole or in part, Customer will be charged for all performed activities and ordered or prepared goods, any transportation or delivery costs and the labour time reserved for the order.
|Article 5. Force Majeure
- DMC cannot be bound to DMC's obligations towards Customer in case DMC is hindered to do so due to circumstances that cannot be attributed to DMC or that are for DMC's account by law nor act of law or norms under common practice.
- Including all that is defined by law or jurisprudence, the definition of Force Majeure in these General Conditions includes any and all circumstances, whether or not unforeseen, that cannot be influenced by DMC but which unable DMC to perform DMC's obligations. DMC is also entitled to appeal to Force Majeure if the circumstance that unables DMC to (further) comply with the agreement occurs after DMC should have complied with the agreement.
- DMC reserves the right to appeal to Force Majeure in case of strikes at DMC's company or at third parties.
- DMC is entitled to suspend DMC's obligations during the period in which the Force Majeure lasts. If this period lasts longer than three months, both parties are entitled to terminate the agreement without any obligations to damages to the other party.
- If DMC has already complied with DMC's obligations in part or in whole at the moment that the Force Majeure occurs or DMC will be able to fulfil DMC's obligations and the (to be) fulfilled obligations can be granted a value, DMC has the right to invoice Customer separately. Customer is obliged to pay this invoice as if this were a separate agreement.
|Article 6. Payment, collecting charges and lien
- Payment must be made in cash at delivery of the car, parts or activities apart from orders placed through the internet (e-mail of DMC's website). For internet orders see Article 3.7 of these General Conditions. Cash payments include approved credit card transactions at the moment of delivery or timely received credit of the amount due at DMC's bank account.
- DMC is entitled to exercise lien on a car if and for as long as:
- Customer does not pay the costs of the activities in whole or in part or in good time;
- Customer does not pay the costs of activities previously performed by DMC for the same car in whole or in part or in good time;
- Customer does not comply in whole or in part with other obligations from the agreement with DMC.
- In case parties have agreed to waive the method of cash payment, except for online orders (see Article 3.7 of these General Conditions), payment is always to be made ultimately within 14 days of the date of the invoice in the way DMC has stated and in the currency stated in the invoice, unless otherwise stated by DMC in writing. DMC is entitled to invoice Customer periodically.
- Should Customer fail to fulfil any obligation, Customer is in breach without any further summation or notification of breach being required. Customer is then chargeable to pay interest. In case Customer is a private consumer the interest rate equals the legal percentage rate as determined by the Dutch authorities. In other cases Customer is chargeable to 2% per month, unless the above mentioned statutory interest is higher. Interest will be charged over the amount claimable as of the moment that Customer is in default until the moment that the amount due is paid in whole.
- DMC has the right to appoint the amount paid by Customer firstly to costs, then let Customer pay on account of interest due and finally on account of the principal sum and current interest.
- DMC may, without by doing so be in default, reject an offer from Customer to pay, if Customer designates a different order of appointment of payment. DMC may refuse redemption of the principal sum if the due and current interest as well as collecting charges are not also paid in whole.
- Customer is never allowed to settle the indebted amount with other amounts. Objections against the highness of an invoice do not suspend the obligation of Customer to pay. Customer that does not have the right of appeal as per section 6.5.3 (art. 231 up to and including 247 book 6 Dutch Civil Code) does not have the right to suspend payment of an invoice for any other reason either.
- If Customer is in default and/ or in breach due to non-compliance of Customer's obligations, all reasonable collecting charges, including judicial and extra-judicial expenses may be charged to Customer. Extra-judicial expenses are calculated based upon common practice with Dutch debt collecting agencies. If however the collecting costs were higher than reasonably necessary, the actual collecting expenses will be charged to Customer. Customer is also chargeable to pay interest over all collecting expenses.
|Article 7. Reservation of proprietary rights
- All by DMC delivered goods remain property of DMC until Customer has complied with all contractual obligations in full.
- All by DMC delivered goods mentioned in Art. 7.1 may never be re-sold or used as means of payment. Customer is not permitted to pawn or encumber the goods delivered by DMC in any way
- Customer is expected to always do everything possible that reasonably may be expected of Customer to secure all DMC's propriety rights.
- Customer must immediately inform DMC if a third party distains on goods delivered by DMC that fall under propriety rights, or if a third party has the intention to do so.
- Customer is obliged to insure, and keep insured, all goods delivered by DMC that fall under propriety rights against fire, explosion, water damage and theft. Customer must provide DMC with a copy of the insurance policy at DMC's first request hereto. As far as necessary, Customer commits oneself in advance to Customer's cooperation to do all that is or proves to be necessary or desirable in this context.
- In case DMC wishes to exercise DMC's propriety rights mentioned in this Article 7, Customer gives in advance ones unconditional and irrevocable consent to DMC and all by DMC (to be) appointed third parties to have access to places where DMC's properties are located and to retrieve these properties.
|Article 8. Warranty, check and complaints
- The warranties mentioned in this Article are exclusively meant for the Customer who acts as a private person as opposed to professionally. For a Customer who is not such a Customer as described above, the legal rights apply unimpeded.
- The goods (to be) delivered by DMC meet the customary requirements and standards that are reasonably put at the moment of delivery for normal use in the Netherlands. The warranty mentioned in this article applies to goods intended for normal use in the European Economic Area. In case the goods are used outside the European Economic Area Customer is to verify if use is suitable for that specific area and if the goods meet the requirements put in that specific area. DMC is entitled to appoint different warranty and/ or other conditions regarding the to be delivered goods or to be executed activities.
- The warranty mentioned in Article 8.1 applies to new parts for a maximum period of three months after delivery, unless from the nature of the delivered goods results differently or in case parties agree differently in writing. A maximum warranty period of three months is also applicable to delivered activities. Any warranty is expressly excluded for used parts and for consignation sales. In case the warranty by DMC is regarding a good produced by a third party, DMC's warranty is limited to the warranty given by the producer unless stated differently.
- When visiting the workshop concerning a warranty Customer is to take care of Customer's own transportation.
- No warranties apply for emergency repairs.
- All warranties lapse in case a defect has arisen due to injudicious or improperly use, use after the durability date, incorrect storage or maintenance by Customer and/ or third parties when without written consent of DMC Customer or third parties have modified the product or have tried to modify the product or in case other products have been attached to the product that are not to be attached to the product or in case they have been processed or treated in another manner than instructed. Nor can Customer claim warranty in case the defect has arisen due to or as a result of circumstances that cannot be influenced by DMC, including the whether (like for example yet not exclusively extreme rainfall or temperatures) et cetera.
- Customer must check the delivered goods, or must have the delivered goods checked, immediately at the moment that the goods are placed at Customer's disposal respectively the concerned activities are carried out. Customer has to check whether the quantity and quality of the delivered goods and/ or activities are in accordance with the agreement and meet the requirements that parties agreed upon. Any faults must be reported in writing to DMC within seven (7) days after delivery. The report must give a detailed description of the fault in order to allow DMC an adequate reaction. Customer must give DMC the occasion to examine the complaint or to have the complaint examined.
- The obligation to pay is not suspended in case Customer submits Customer's complaint swiftly. Also in that case Customer is kept to the purchase and payment from further ordered goods and everything Customer has placed an order for with DMC, unless these goods have no independent value.
- In case the defect has been reported later Customer loses the right to repair, replacement or indemnity, unless the nature of the good or other circumstances verify a longer period.
- In case it has been determined that the good has a defect and a complaint has been submitted swiftly, DMC will within a reasonable period of time after the good has been returned to DMC or if return is reasonably not possible, written notification regarding the defect by Customer, for the choice of DMC replace or take care of repair of the good or pay Customer a replacing compensation. In case of replacement Customer is to return the replaced good to DMC and to give ownership to DMC unless DMC specifies differently.
- If it has been determined a complaint is unfounded, all costs that have arisen as a result, including research expenses, on the side of DMC come to the expense of Customer completely.
- After expiration of the warranty period all costs for repair or replacement, including administration costs, dispatch costs and call-out charges will be charged to Customer.
|Article 9. Liability
- If DMC may be liable, DMC's liability is limited to what is determined in this Article 9.
- DMC is not liable to damage, of whatever nature, that has occurred because DMC has started from incorrect and/ or incomplete information provided by or on behalf of Customer.
- DMC is exclusively liable to damage directly and solely resulting from a shortcoming that can be imputed to DMC.
- Direct damage is exclusively understood as:
- the reasonable costs made in determining the cause and the extent of the damage, as far as the determination concerns damage in the context of these conditions;
- the possible reasonable costs made to make DMC's poor performance meet the agreement, as far as these can be can be attributed to DMC;
- the reasonable costs incurred in prevention or limitation of damage, to the degree that Customer can demonstrate that these costs have led to the limitation of the direct damage as meant in these General Conditions.
- DMC's liability for indirect damage, including consequential damage, loss of profit, loss of savings, delays, losses, damage through corporate inactivity, is expressly rejected. In case Customer is a private consumer the limitation does not exceed the limitations allowed according to Article 7:24 lid 2 BW (Dutch Civil Code).
- DMC's total liability shall be limited to a maximum amount of the triple value of the order stipulated on the invoice, at least limited to that part of the order related to the liability.
- DMC has insurance against damage. DMC's liability is in any case limited to the amount of insurance money paid where appropriate.
- The limitations of DMC's liability mentioned in this Article are not applicable in case of malice or gross negligence of DMC or DMC's executive staff.
|Article 10. Term of limitation
- Contrary to legal terms of limitation, the term of limitation for all claims and defences towards DMC and towards by DMC involved third parties is one year.
- The provisions in Art. 10.1 are not applicable to legal claims and defences founded on facts that could justify the proposition that the delivered good does not meet the agreement. Such claims and defences become barred by the statute of limitations after two years after Customer has informed DMC of such nonconformity.
|Article 11. Passing of risk
- The risk of loss, damage or depreciation passes to Customer at the moment that DMC places the goods at Customer's disposal.
- Irrespective of the provisions of Art. 11.1 DMC and Customer can agree that DMC takes care of dispatch or that DMC sends the goods by mail to Customer. All risks of storage, loading, transportation and unloading rest also in those cases on Customer.
- In case of a barter involved in a purchase and Customer keeps using the good that will be traded in awaiting the delivery of the new good, use is for risk and account of Customer and all expenses are on the account of Customer until the ownership of the (to be)n bartered good is handed over to DMC. These costs include also costs of maintenance, possible damage however occurred, including damage that, in case of a car that will be traded in, results from the fact that the registration certificate of the car is not complete.
|Article 12. Protection
- Customer protects DMC against possible claims of third parties who due to the implementation of the agreement suffer damage and of which the cause is accountable to others than DMC.
- In case from serve account DMC is addressed by a third party Customer is held to assist by law or not and immediately do everything that may be expected from Customer. If Customer fails to take adequate measures, DMC self has the right to take adequate measures without having to declare Customer in default. All costs and damage that occur on the side of DMC come to the expense of Customer completely.
|Article 13. Intellectual property rights
- DMC reserves the rights and competences that belong to DMC based on the Copyright act and other law and legislation regarding intellectual property rights, DMC has the right to use all knowledge that was increased by executing the agreement for other purposes, as long as no strictly confidential information of Customer is made known to third parties.
|Article 14. Personal data
- The propositions in this article 14 are applicable to every visit to DMC's website, transaction or agreement.
- Customer's personal data are used by DMC to accept an order, to execute the agreements with Customer, relation management, to swiftly inform Customer about recent news regarding DMC, to make personalized offers to Customer and management information. Personal data can also be used to trace (attempts to) unlawful and/ or illegal behaviour against DMC.
- Customer's personal data are processed in the sense of the Law for Protection of Personal Data (Wet Bescherming Persoonsgegevens (Wbp)). Personal data will not be made available to third parties.
- In case Customer does not want to receive commercial information (anymore) or does not want that Customer's data will be used for direct mailing purposes, Customer can made this known to DMC in writing to: Delorean Europe, Driebanweg 23, 1607 ML HEM, the Netherlands. DMC will always honour such objections.
- DMC has taken proper technical and organisational measures to protect Customer's personal data against loss or any form of unlawful processing.
|Article 15. Applicable Law and Dispute Mechanism
- All agreements made between DMC and Customer are governed by the laws of The Netherlands, also when implementation of the agreement lies partially or in whole abroad or when Customer has residence abroad, unless otherwise agreed upon in writing. Parties explicitly agree that the Vienna Sales Convention (CISG) is not applicable. Any other international rules that may be excluded are not applicable either.
- Parties will only turn to a court after parties have exerted themselves to the utmost to settle a dispute in mutual consultation.
- All disagreements will exclusively be placed before a qualified court in The Netherlands.
|Article 16. Registration and modification of conditions
- These General Conditions are registered with the Chamber of Commerce in Hoorn, the Netherlands.
- The version applicable is the last registered version or if such should be the case the version valid at the time that the agreement was closed with DMC.
- The original Dutch text of the General Conditions is always determinative for the explanation of the meaning.