GENERAL TERMS AND CONDITIONS V 2021-01

Of Moto-Master Europe BV, a Private Limited Liability Company

Article 1 Definitions

In these Terms and Conditions the Service Provider, Moto-Master Europe BV is hereinafter referred to as “Seller”

While the Client, the Sellers counterparty, is hereinafter referred to as” Buyer”.
Agreement: the agreement between the Seller and the Buyer.

Article 2 General

2.1 These General Terms and Conditions apply to every offer, quotation, order and Agreement concluded between the Seller and the Buyer, insofar as the parties have not expressly deviated from these Terms and Conditions in writing.

2.2 Any applicability of the Buyer’s general terms and conditions is hereby expressly excluded, unless the parties have agreed otherwise in writing.

2.3 If both parties' general terms and conditions apply, the provisions of the Seller’s General Terms and Conditions will prevail in the event of any contrariety between its General Terms and Conditions and the Buyer’s.

2.4 If one or more provisions in these General Terms and Conditions are null and void or nullified, the remaining provisions of these General Terms and Conditions will continue to apply.

2.5 If the Seller concludes Agreements with the Buyer more than once, the present General Terms and Conditions will apply to all subsequent Agreements, irrespective of whether they have been explicitly declared applicable.

2.6 These General Terms and Conditions will apply unless they are deviated from in the special terms and conditions.

Article 3 Offers, quotations and Agreements

3.1 All offers, whatever their form, will be without obligation, unless a term for acceptance is stated in the offer.

3.2 If the Seller is asked to issue a quotation but no Agreement is concluded based on same, the Seller may charge the costs related to the issue of the offer or quotation, as appropriate, to the Buyer.

3.3 Agreements to which the Seller is a party will be presumed to have been concluded:

a) after an Agreement drafted for that purpose has been signed by both parties; orb) following receipt and approval of the written acceptance by the Buyer with respect to an offer made by the Seller; or c) once the work is commenced or performed.

3.4 In the event of an oral Agreement, the invoice will be presumed to contain a correct and complete representation of the Agreement, unless a complaint is lodged within seven days of the invoice date.

3.5 Agreements made or commitments undertaken by the Seller’s employees will be binding on the Seller only if it has sent the Buyer written confirmation of these agreements and/or commitments.

3.6 If a natural person concludes an Agreement on behalf or for the account of the Buyer, he or she will be presumed to declare - by signing the Agreement – that he or she is authorised to do so. That natural person, in addition to the Buyer, will be jointly and severally liable for all obligations ensuing from that Agreement.

3.7 If the acceptance deviates from the offer laid down in the quotation, the Seller will not be bound to same. In that event, the Agreement will not be concluded in accordance with that deviating acceptance, unless the Seller indicates otherwise.

3.8 The Seller reserves the right to refuse orders and/or assignments without stating its reasons.

3.9 A composite quotation will not oblige the Seller to fulfil part of the offer or quotation for a corresponding part of the stated price.

Article 4 Models/illustrations

4.1 If the Buyer has been shown a model, a demo or an illustration, this should be presumed to have been shown as an indication only, unless it has been expressly agreed that the good to be supplied will be entirely identical.

4.2 Any models, illustrations, numbers, measurements, weights or descriptions contained in catalogues/offers/advertisements/price lists are shown as indications only.

Article 5 Prices/Applications info/Product range

5.1 The prices stated in the said offers and quotations will be in euros, exclusive of Dutch VAT [BTW] and other government levies and charges, as well as exclusive of any dispatch, transport, export, insurance, loading, packaging and handling charges and costs, unless explicitly stated otherwise.

5.2 The prices are based on the rates; wages, taxes, fuel prices, levies, prices, etc. as such apply on the date of the offer or the conclusion of the Agreement, as the case may be, under normal circumstances and during normal working hours.

5.3 Because the products are subject to price fluctuations, the Seller may, after 60 days, pass on price rises exceeding 5% if, between the time of acceptance and the time of the delivery, changes have occurred in, for instance, exchange rates, wages or the prices of raw materials or packaging materials.

5.4 Although every effort is made to ensure provided product application information is correct, Seller accepts no liability for any errors or any consequences which may arise due to such errors.

5.5 Seller reserves the right to change specifications, discontinue or introduce new products without prior notice.

5.6 Discounts may only be agreed in writing.

Article 6 Performance of the Agreement

6.1 The Seller will perform the Agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship. Such performance will be delivered on the basis of state-of-the-art technology and in accordance with the requirements and specifications set by Dutch law.

6.2 The Seller will determine the manner in which the Agreement is performed, to the extent that the parties have not expressly agreed otherwise in writing.

6.3 In the event and to the extent required for a satisfactory performance of the Agreement, the Seller will be entitled to have certain work performed by third parties.

6.4 The Buyer shall ensure that all information, documents and materials which the Seller indicates are necessary or which the Buyer should reasonably understand are necessary for the Agreement’s performance are made available to the Seller in good time. If the data required for the Agreement’s performance are not made available to the Seller on time, the Seller will be entitled to suspend performance of the Agreement and/or to charge the Buyer the additional costs arising from the delay in accordance with its usual rates.

6.5 The Seller will not be liable for damage of any nature caused by the fact that it has operated on the basis of incorrect or incomplete data provided by the Buyer.

6.6 If it has been agreed that the Agreement will be performed in phases, the Seller may suspend its performance of those parts belonging to a subsequent phase until the Buyer has approved the results of the preceding phase in writing.

6.7 The Buyer shall indemnify the Seller against any claims of third parties that may incur damage in connection with the performance of the Agreement, which damage is attributable to the Buyer.

Article 7 Amendments to the Agreement

7.1 If, during the Agreement’s performance, it proves necessary to amend or supplement the work to be performed in order to ensure proper performance of the Agreement, the parties will amend the Agreement accordingly in mutual consultation and in good time.

7.2 If the parties agree that the Agreement will be amended or supplemented, this may affect the time at which the Agreement’s performance is completed. The Seller will inform the Buyer of any such change in the completion time as soon as possible.

7.3 If an amendment or supplement to the Agreement has any financial and/or qualitative consequences, the Seller shall inform the Buyer thereof in advance.

7.4 If a fixed price has been agreed, the Seller will indicate the extent to which the amendment or supplement to the Agreement will result in such fixed price being exceeded.

Article 8 Delivery & completion

General

8.1 If the Seller has stated a completion or delivery term, that term will be indicative only. A stated completion or delivery date may therefore never be considered a firm deadline. If a term is exceeded, the Buyer should give the Seller written notice of default and grant it a reasonable period of time to comply as yet.

8.2 If the Seller requires certain data from the Buyer in the context of the Agreement’s performance, the time of completion/delivery cannot be determined until the Buyer has made the relevant information available to the Service.

Delivery of goods

8.3 Unless stated in writing otherwise, all Sellers deliveries are “EX-Works Incoterms 2020”.

8.4 The Buyer will be obliged to take delivery of the goods at the time that the Seller delivers or has others deliver same to it, or at the time at which the goods are made available to it in accordance with the Agreement.

8.5 If the Buyer refuses to take delivery of the goods or fails to provide information or instructions necessary for the delivery, the Seller will be entitled to store the goods at the Buyer’s expense and risk. If the Buyer does not take delivery of the goods within two months, the Seller will be entitled to destroy or sell the goods. The damage incurred by the Seller as a result of such destruction or sale will be for the Buyer’s account.

8.6 If the goods are delivered, the Seller will be entitled to charge the Buyer the delivery costs, unless the parties have agreed otherwise in writing.

Completion

8.7 If the period within which the order is to be completed is expressed in days, a day will be presumed to be a working day, not including days of rest or national holidays. Days on which the Seller cannot perform any activities due to unworkable weather will not be counted as working days.

8.8 The order will be presumed to have been approved if and insofar as it has been taken into use. The date on which all or part of the order is taken into use will be considered as the date of approval of the order or the relevant part of the order.

8.9 The order will also be presumed to have been approved if the Seller sends the Buyer an invoice for the last instalment and the Buyer does not indicate within eight days of the invoice’s dispatch that it has not approved the order.

8.10 Small defects that can be properly repaired during the defects liability period cannot constitute grounds for withholding approval, provided that they do not prevent the order from being taken into use.

8.11 The Seller will be entitled to complete the order in parts, unless this provision is deviated from by Agreement or unless such partial completion has no independent value.

Article 9 Complaints

General

9.1 The Seller should be enabled to verify any complaints submitted and it should be offered the opportunity to repair any faults in the performance or the supply. The Buyer will, however, remain obliged to pay for the work performed and the goods purchased.

9.2 Complaints regarding invoices should likewise be submitted in writing, within eight days of the invoice date.

9.3 After the expiry of the terms specified in this Article, the Buyer will be presumed to have approved the relevant goods, performance or invoice, as appropriate.

9.4 In the event of any unfounded complaints, the Seller will be free to charge the Buyer the costs of investigating the relevant complaint.

complaints in respect of goods supplied

9.5 The Buyer will be obliged to inspect the delivered goods, or have others do so, upon their delivery or transfer. In doing so, the Buyer should inspect, inter alia, whether the quality and quantity of the goods supplied are in accordance with the agreements made. Any visible defects and deviations must be stated on the packing list/invoice and reported to the Seller in writing within 48 hours, in default of which the goods delivered will be presumed to be sound.

9.6 Any defects that could not have been discovered upon the delivery or transfer should be reported to the Seller in writing within eight days of delivery, or in any case within 24 hours of their discovery.

9.7 If a timely complaint is submitted and if the Seller finds such complaint to be well-founded, the Seller shall, at its discretion, supply new goods or repair the defects, or will take the goods back in return for a credit entry of the purchase price in favour of the Buyer.

9.8 If it has become impossible or pointless to perform repairs, the Seller will be liable only within the limits of the Articles ‘Liability’ and ‘Warranty’.

Complaints in respect of work performed

9.9 The Buyer should communicate to the Seller any complaints pertaining to performances delivered verbally and in writing immediately during such performance or, if this is not possible, in writing within eight days of the relevant performance. The notice of default should specify the defect in as much detail as possible, so as to enable the Seller to respond adequately.

9.10 If a complaint is well-founded, the Seller will perform the services agreed as yet (or have others do so), unless such performance has now become demonstrably pointless to the Buyer. In that case, the Buyer should notify the Seller thereof in writing.

9.11 If it is no longer possible or has become pointless to perform the agreed activities as yet, the Seller’s liability will be limited in accordance with the provisions laid down below under the headings ‘Liability’ and ‘Warranty’.

Article 10 Cancellation of non-resalable (private label /on special order made) goods.

10.1 If the Buyer cancels the Agreement, the Buyer will be obliged, in accordance with the arrangement laid down below, to pay the Seller a fixed percentage of the agreed price (including Dutch VAT) in cancellation costs, without prejudice to the Seller’s right to full damages, including loss of profit.

10.2 In the event of cancellation up to two weeks before the scheduled delivery/performance: 60%

In the event of cancellation up to one week before the scheduled delivery/performance: 80%;

10.3 If, upon the Agreement’s cancellation, the Buyer refuses to accept specially purchased goods already acquired by the Seller, irrespective of whether they have been treated or processed, the Buyer will be obliged to pay the Seller all resulting costs.

10.4 Notice of cancellation must be given in writing.

Article 11 Payment

11.1 Payment should be made within 30 days of the invoice date, in the manner indicated by the Seller and in the currency in which the invoice is drawn up, unless the parties have agreed otherwise. Any complaints pertaining to the amounts stated in invoices will not suspend the corresponding payment obligation. The Seller is entitled to demand advance payment of all or part of the amount due, as a down payment. Only after such advance payment has been made will the Seller commence its performance of the work.

11.2 If the Buyer fails to effect payment within the agreed period of time, the Buyer will be in default by operation of law. In that event, the Buyer will owe the Seller interest at a 1.5% rate per month or part of a month, unless the statutory interest rate or the statutory commercial interest rate is higher, in which case the highest interest rate will apply. The interest on the payable amount will be calculated from the time that the Buyer defaults to the time of full payment of the amount due.

11.3 If the Buyer is liquidated, is declared bankrupt or its bankruptcy is filed for, is admitted to statutory composition pursuant to the Dutch Natural Persons Composition Act [Wet schuldsanering natuurlijke personen], is placed under guardianship, dies, attachment is levied against it or is granted a suspension of payments, provisionally or otherwise, the Seller’s claims vis-à-vis the Buyer will become immediately due and payable.

11.4 Any payments made by the Buyer will first be used to cover the costs, then to cover any interest due and finally to cover the principal sum and the accrued interest.

Article 12 Collection costs

12.1 If the Buyer is in default or breach of contract regarding the performance or timely performance of its obligations, all reasonable costs incurred in obtaining payment extra-judicially will be borne by the Buyer. The Buyer will in any case owe the Seller collection costs in the event of a financial claim. The collection costs will be calculated in accordance with the collection rate, subject to a EUR 350 minimum.

12.2 If the Seller has incurred higher costs which were reasonably necessary, those costs will also qualify for compensation. Court costs and enforcement costs will also be borne by the Buyer.

Article 13 Suspension and dissolution

13.1 The Buyer relinquishes its right to the Seller to claim deductions from and/or settlement of payments of all obligations in the agreement.

13.2 The Seller will be entitled to suspend performance of its obligations or to dissolve the Agreement in the following events:

- the Buyer fails to perform the obligations ensuing from the Agreement or fails to perform them in good time or in full;

- circumstances of which the Seller has learned following the Agreement’s conclusion give it good reason to fear that the Buyer will not perform its obligations, or will not perform them on time or in full; if there is good reason to fear that the Buyer will only perform its obligations in part or will not perform them properly, suspension will be permitted only insofar as this is justified by the relevant failure;

- upon the Agreement’s conclusion, the Buyer was requested to provide security for the performance of its obligations arising from that Agreement and such security was not provided or is insufficient. As soon as security has been provided, the right to suspend performance will lapse, unless the performance has been unreasonably delayed as a result.

13.3 In addition, the Seller may dissolve the Agreement or have it dissolved if circumstances arise of such a nature that performance of the Agreement is impossible or can no longer be required pursuant to standards of fairness and reasonableness, or if any other circumstances arise of such a nature that continued unamended maintenance of the Agreement can no longer reasonably be expected.

13.4 If the Agreement is dissolved, the Seller’s claims vis-à-vis the Buyer will become immediately due and payable. If the Seller suspends its performance of its obligations, it will retain its claims and rights by law and under the Agreement.

13.5 The Seller will at all times retain the right to claim damages.

Article 14 Force majeure

14.1 The parties will not be obliged to fulfil any obligation if they are prevented from doing so due to a circumstance which cannot be attributed to gross negligence or an intentional act or omission on the part of the party that is invoking that circumstance, and which is not for that party’s account pursuant to the law, a juristic act or generally prevailing opinion.

14.2 For purposes of these General Terms and Conditions, the term ‘force majeure’ will cover - in addition to its definition in law and legal precedent – all external causes, foreseen or otherwise, which the Seller is unable to influence, but as a result of which the Seller is unable to fulfil its obligations. This will include strikes at the Seller’s company, transport strikes, traffic congestion, tailbacks, car trouble, theft, fire, export impediments, power failures and delays in the supply of goods by suppliers.

14.3 The Seller will also have the right to invoke force majeure if the circumstance preventing the performance or further performance occurs after the Seller should have fulfilled its obligations.

14.4 The parties may suspend the obligations ensuing from the Agreement while the situation of force majeure lasts. If this period lasts more than two months, either party will be entitled to dissolve the Agreement without being obliged to pay the other party any damages.

14.5 Insofar as the Seller has performed part of its obligations under the Agreement or is able to perform part of same at the time that the situation of force majeure arises, and that part performed or to be performed has independent value, the Seller will be entitled to invoice the part performed or to be performed separately. The Buyer will be obliged to pay that invoice as if it pertained to a separate Agreement.

Article 15 Retention of title/possessory lien

15.1 All materials and other goods supplied by the Seller, be they processed or unprocessed, will remain the Seller’s property until the Buyer has fulfilled all its obligations under the Agreements concluded with the Seller.

15.2 The Buyer may not sell, rent, pledge or encumber in any other way any goods covered by the retention of title.

15.3 Goods delivered by the Seller subject to retention of title pursuant to paragraph 1 of this Article may be resold only in the context of normal business operations and may never be used as a means of payment.

15.4 Should the Seller wish to exercise its proprietary rights laid down in this Article, the Buyer hereby grants the Seller or any third parties designated by the Seller its unconditional and irrevocable permission to enter those places where the Seller’s property is located and to recover those goods.

15.5 If third parties levy attachment on the goods supplied subject to the retention of title or wish to create or enforce rights in same, the Buyer will be obliged to inform the Seller thereof as soon as possible.

15.6 The Buyer must insure the goods covered by the retention of title at their value when new. Any damages paid by the insurer will replace the aforementioned goods and will accrue to the Seller.

15.7 The Seller will have a possessory lien as long as:

- the Buyer has not paid all or part of the costs of the delivered goods;

- the Buyer has not paid all or part of the costs of earlier delivered goods; and/or

- the Buyer has not paid all or part of any other claims.

The Seller will not deliver the goods until the Buyer solves all claims Seller has against it or until the Buyer has provided sufficient security.

Article 16 Transport/Risk

16.1 If and insofar as the Seller is to provide for the transport, carriage, shipment, etc., the manner in which this is to be effected will be determined by the Seller, unless the parties have agreed otherwise.

16.2 The Buyer will accept all risks of transport, carriage and dispatch in this respect, including the risks relating to any fault or negligence on the carrier’s part, unless the parties agree otherwise.

16.3 In the event of cross-border transport, loading and unloading work will not be included in the transport. These costs will be charged to the Buyer separately.

16.4 The carrier will be obliged to ask the Buyer for instructions if any irregularities occur during the transport preventing certain performances or as a result of which the transport can no longer be effected in accordance with the assignment.

Article 17 Packaging

17.1 If it has been agreed that the Seller is to provide the packaging materials, the corresponding costs will be charged on to the Buyer, applying a surcharge. The same applies to any other additional packaging work and any costs to be incurred in that connection.

17.2 If the goods supplied require special packaging materials and/or techniques, the Buyer should so notify the Seller on time, in default of which the Seller will under no circumstances be liable for any loss or damage resulting from faulty packaging.

17.3 The Seller will be entitled to charge the costs of sustainable packaging materials separately. These costs will be credited by the Seller as soon as the packaging materials have been returned undamaged by the Buyer.

Article 18 Moto-Master Europe BV limited warranty.

Moto-Master Europe BV warrants its products to be free from defects in material and Workmanship during a two (2) year period. If a product proves to be defective in material or Workmanship during the warranty period and Moto-Master Europe BV is notified within the Warranty period, Moto-Master Europe BV will, at its sole option, repair or replace the product with a similar product. Replacement product or parts may include remanufactured or refurbished parts or components. The replacement unit will be covered by the balance of the time remaining on the customer's original limited warranty. In order to receive warranty service, proof of purchase by means of sales slip of the Moto-Master product is required.

Warranty period automatically starts on date of purchase.

The warranty does not cover:

1. Any product on which the serial number has been defaced, modified or removed.

2. Damage, deterioration or malfunction resulting from:

3. Accident, misuse, neglect, fire, or other acts of nature, unauthorized product modification, or failure to follow instructions supplied with the product

4. Repair or attempted repair by anyone not authorized by Moto-Master Europe BV.

5. Any shipment costs and damage of the product due to shipment.

6. Normal wear and tear.

7. Track day/circuit use, competition use.

8. Damage to, or abuse of, the surface of the disc through inappropriate braking in procedure, use of defect brake pads, mis-handling and cleaning with aggressive detergents.

Exclusion of damages:

Moto-Master Europe BV Liability is limited to the cost of repair or replacement of the product.

Moto-Master Europe BV shall not be liable for:

1. Damage to other property caused by any defects in the product, damage or costs based upon inconvenience, loss of use of the product, loss of time, loss of profits or business opportunity, loss of goodwill or other commercial loss, even if advised of the possibility of such damages. Cost of disassembly and re-assembly on vehicle.

2. Any other costs or damages, whether incidental, consequential or otherwise.

3. Any claim against the customer by any other party.

Limitation of implied warranties:

There are no warranties, express or implied, which extend beyond the description contained herein.

USA and Canada;

This warranty gives you specific legal rights, and you may also have other rights which vary from locality to locality. Some localities do not allow limitations on implied warranties and/or do not allow the exclusion of incidental or consequential damages, so the above limitations and exclusions may not apply to you.

Article 19 Liability

19.1 The Seller is not liable for damage caused by the Buyer, including but not limited to, business-, indirect or consequential damages, as a consequence of acts or omissions of the Buyer or its agents, unless it is a matter of intent or gross negligence.

19.2 Any liability of the Seller vis-à-vis the Buyer is shall be limited to the amount paid out in the relevant case pursuant to the liability insurance of the contractor. On request, access shall be given to the applicable policy conditions. Should no payment be made by virtue of aforementioned insurance policy, regardless of the grounds, the liability of the Seller shall be limited to a maximum of 15% of the fee invoiced by the Seller in connection with the case concerned during a three month period directly preceding the date on which the event leading to liability occurred and is paid in time by Buyer, up to a maximum liability of € 25.000 for each occurrence or series of occurrences with the same cause.

19.3 The Seller may be held liable for damage resulting from deliberate acts/omissions or wilful recklessness on the part of the Seller or its management or subordinates.

19.4 The Buyer shall indemnify the Seller against any claims of third parties that may incur damage in connection with the performance of the Agreement, which damage is attributable to the Buyer.

19.5 The Buyer shall indemnify the Seller against any claims made by third parties resulting from product liability in consequence of a defect in a product which has been supplied to a third party by Buyer an consisted in part of equipment supplied by Seller. Buyer is bound to compensate the Seller for all damage sustained in this connection.

19.6 All right of claim the Buyer has in respect of the Seller, either by any shortcoming in the fulfilment of his obligation to the Buyer, by virtue of an act of unlawfulness or on any other ground, expire after one year has elapsed, counted from the day following that on which Buyer became aware, or reasonably could have become aware, of the existence of those claims and Buyer failed to submit any of these respective claims within that period of one year.

Article 20 Intellectual property and copyrights

20.1 Without prejudice to the other provisions of these General Terms and Conditions, the Seller reserves the rights and powers vested in it pursuant to the Dutch Copyright Act [Auteurswet].

20.2 All documents and items made available by the Seller, such as reports, recommendations, agreements, designs, sketches, drawings, brochures, photographs, films, software, etc., are intended for use by the Buyer only, and may not be reproduced, made public or disclosed to third parties by the Buyer without the Seller’s prior permission, unless the contrary ensues from the nature of the documents.

20.3 The Seller will retain the right to use any knowledge acquired during the performance of the activities for other purposes, to the extent that this does not involve making confidential information available to third parties.

20.4 Buyer obtains no ownership of, nor any other rights in or license to those or any other trademarks, service marks, trade dress, or any other intellectual property of Seller.

Article 21 Applicable law

All Agreements between the Seller and the Buyer will be governed by Dutch law.

Article 22 Disputes

Any disputes arising from or related to the Agreement will be settled by the competent court in the city or town where the Seller has its registered office, to the exclusion of all other courts. Nevertheless, the Seller will be entitled to submit such a dispute to the court that is competent in accordance with law.

Article 23 Translations of these Terms and Conditions

The Dutch-language version of these Terms and Conditions is the only authentic version. In the event of any discrepancy between the Dutch text and a translation, the Dutch text will prevail.

Article 24 Filing of the Terms and Conditions

These Terms and Conditions and are available on our website.
Upon request, these conditions of delivery and payment will be sent to you free of charge.