Truck & trailer parts specialistNew and used parts

Truck & trailer parts specialistNew and used parts

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  1. (New parts)
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  1. (New parts)
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General conditions of sale and delivery TruckParts1919.com B.V.


I. GENERAL

  1. These conditions shall apply to all offers, orders, assignments, agreements for purchase/sale of goods and other legal relationships (including negotiations regarding such agreements) with TruckParts1919.com B.V., with registered office in Vuren, The Netherlands, hereinafter referred to as PARTS, insofar as not stipulated otherwise in the offer or agreement. These terms can be quoted as AVW-PARTS.
  2. Additions or exceptions to these conditions must be agreed in writing. Such additions and exceptions shall only apply to the agreement for which they are made.
  3. The rights and obligations arising from agreements between PARTS and client may not be transferred by client to third parties, except with the written consent of PARTS.
  4. The applicability of additional or deviating conditions or general conditions used or referred to by client or other conditions customary in the sector is explicitly rejected.
  5. In case of a dispute between the English text of these general terms and translations thereof, the Dutch version will prevail over any translations of this text.
  6. In the event a specific agreement between PARTS and client is concluded to which these general conditions apply, the provisions of such specific agreement shall prevail in case of a conflict between the provisions of such specific agreement and the AVW-PARTS.


II. OFFERS

  1. All offers shall be without obligation and are based on performance of the agreement under normal conditions and during normal working hours according to the information supplied by client, unless explicitly indicated otherwise.
  2. All offers shall be valid for a period of 30 days, unless otherwise agreed in writing. An offer which contains a time-limit may nevertheless be revoked by PARTS, even after receipt of the order or confirmation, provided this is done within 3 days.

 

III. AGREEMENTS

  1. An agreement shall be concluded under the condition precedent that PARTS has approved and confirmed the order in writing (including electronically), whether or not by sending an invoice or when PARTS commences the execution of the order placed by client. The content of the agreement shall be determined by the offer, order confirmation and/or invoice of PARTS and the AVW-PARTS.
  2. In the event an agreement between PARTS and client is concluded electronically, PARTS is not obliged to confirm the receipt of the statements of client and client is not allowed to dissolve the agreement based on the absence of such a confirmation of receipt.
  3. Client’s orders are deemed irrevocable. Cancellation or amendment of an order is only possible with PARTS’s written consent and to the extent this can reasonable be expected from PARTS and provided client pays cancellation costs in the amount of 15% of the invoice (excluding VAT). Return shipments must take place in their original packaging, unused and undamaged and are at client’s expense. If client’s request for amendment or additions imposes additional costs on PARTS, PARTS is entitled to charge these costs in full to client. In that case, PARTS is also entitled to set a new delivery date.
  4. PARTS is entitled to terminate negotiations with client at any time and/or to refuse acceptance of an order in whole or in part, whether the order is made electronically or in writing, within 24 hours after receipt of the order, without becoming liable to pay costs and/or damages to client and without having to state any reason.
  5. All quotations, advertisements, pictures and other descriptions are made with care, but PARTS does not warrant that there will be no deviations. If client proves that the goods delivered deviate from the indications made by PARTS to such an extent that it can reasonably be no longer required from client to take delivery of these goods, client is entitled to request delivery of lacking parts or rescind the agreement to the extent justified by the deviation.
  6. PARTS is not obliged to verify whether the order, information and documents provided by client are correct. Failure or delay by PARTS in the performance of its obligations due to incorrect or incomplete information provided by client cannot be attributed to PARTS. Client is liable for the costs and damage resulting from incorrect or incomplete information.
  7. Client is obliged to provide PARTS with all information reasonably necessary to identify the client (know your customer), the purpose of the order or agreement with PARTS and the (final) destination of the goods to be delivered by PARTS etc. in order to enable PARTS to comply with applicable laws and regulations.

 

IV. PRICES

  1. All price quotations and the prices which PARTS charges are the prices applicable at the time of the quotation or of conclusion of the agreement, Ex Works Vuren, excluding VAT and other costs ensuing from the agreement, such as levies and tariffs.
  2. Where after making a quotation a change occurs in one of the factors determining the price, PARTS shall be entitled to adjust the prices accordingly, even if the agreement has in the meantime been concluded.
  3. Price increases of more than 10% entitle client the right to rescind the agreement, provided this is done in writing and within seven days of receipt of notification thereof. Such a cancellation shall not entitle client to compensation for any damage whatsoever.

 

V. PAYMENT

  1. Client shall be obliged to pay all invoices prior to delivery of the goods in question (payment in advance), unless agreed otherwise in writing, and without deduction, set-off or discount. PARTS shall not deliver the goods in question or carry out the work in question until the invoice has been paid in full, or, at PARTS’s choice, until adequate security for payment is provided by client.
  2. Where invoices are not paid in cash in accordance with Article V.1, client shall be in default simply by the passing of the agreed payment date, without any notification of default being required, irrespective of whether the exceeding of such payment date is attributable to client or not.
  3. Notwithstanding PARTS’s other rights and remedies, PARTS shall then be entitled to charge interest on the outstanding amount of 1% per month (whereby part of a month is calculated as an entire month), chargeable from the due date in question.
  4. PARTS is entitled to postpone delivery of new orders until client has paid all outstanding invoices.
  5. All extrajudicial and judicial costs incurred by PARTS by virtue of a dispute with client, both as plaintiff and as defendant, shall be for account of client. The extrajudicial collection costs shall be established at 15% of the outstanding amount with a minimum of EUR 100.- per case and the judicial collection costs shall be established at the actual amount paid by PARTS for the legal proceedings, even if this exceeds the liquidated costs of the proceedings.
  6. Incoming payments shall serve to settle the longest outstanding items - including interest and costs - even where client states otherwise in this respect.
  7. In case of late payment, any adverse exchange rate difference shall be for account of client. Reference dates are the due date of the invoice and the date on which payment is made.
  8. PARTS may at any time set off its obligations towards client, in whatever currency and whether or nor due and payable, against any claims which it may have against client, in whatever currency and whether or not due and payable.


VI. DELIVERY TIME, DELIVERY, RISK

  1. The time of delivery mentioned or agreed in the offer and/or order confirmation is not of the essence, not even if the time of delivery is expressly accepted by client. In case of late delivery, PARTS shall only be in default after written notification of default. Time of delivery shall also include time of repair.
  2. The time of delivery mentioned or agreed shall in any case, but not exclusively, be automatically extended by the period(s) during which:
    - there is a delay in the supply and/or dispatch and/or of any other circumstance temporarily holding up the execution, irrespective of whether this is attributable to PARTS and/or was foreseeable;
    - client defaults in one or more of its obligations towards PARTS or, to PARTS’s sole opinion, there is good reason to believe that client will default;
    - client does not enable PARTS to execute the agreement, which shall among others be the case if client fails to state the place of delivery if applicable or fails to provide PARTS with the information, goods or facilities necessary to perform the agreement.
  3. Delivery in the Netherlands shall take place Ex Works Vuren, unless otherwise agreed in writing. All goods shall be transported for account and risk of client, even where the dispatch is made carriage paid to.
  4. Where PARTS on request of client is responsible for dispatch of the goods or where the agreed parity of the ICC Incoterms lays this responsibility on PARTS, the time and method of dispatch and dispatch route shall be at PARTS’s choice. Goods in transit insurance shall only be taken out by PARTS on the express request of client and all related costs shall be for client's account.
  5. Delivery shall be deemed to have taken place at the time when the goods are made available to client at PARTS’s premises. If client does not take delivery of the goods, client shall be immediately in default and the goods shall be stored at client’s account and risk. If client does not collect the goods concerned within the newly stipulated term, PARTS is entitled to rescind the agreement in whole or in part and to dispose of the goods concerned in any manner it deems fit, without any compensation whatsoever being due by PARTS. PARTS shall be entitled to recover its claim on client from the proceeds.
  6. Delivery outside the Netherlands shall be carried out Ex Works (EXW), unless another Incoterm of the International Chamber of Commerce (ICC), most recent edition, is agreed.
  7. Partial deliveries shall be permitted and can be invoiced separately by PARTS.
  8. PARTS is entitled to stipulate that certain goods can only be supplied in minimum quantities.

 


VII. GUARANTEE/CLAIM

  1. The goods supplied by PARTS shall meet the specifications as set out in the corresponding agreement. PARTS trades in occasions (middleman) which contain a higher risk. Client is aware of and accepts this risk. No guarantee shall be given, unless otherwise indicated in the agreement and unless a manufacturer’s warranty is given in which case PARTS gives no further or other warranty than said manufacturer’s warranty
  2. Where client calls upon the guarantee given by PARTS in the corresponding agreement and makes a claim, PARTS shall assess the claim and if applicable, deal with the claim taking into account the provisions in the agreement in this respect. Guarantee claims cannot be transferred to third parties.
  3. Subject to lapse of its claim, client must inspect the goods upon delivery in order to evaluate whether there are visible defects. Claims regarding the invoiced amount or visible defects must be made in writing to PARTS within 3 days after receipt or delivery, giving an accurate description of the complaints. For all other claims, a period of 5 days after the defects became known or should have become known shall apply. If client fails to notify PARTS in time as meant in this article, client looses its right to claim under the warranty. The goods in question must be made available to PARTS upon PARTS’s first request for examination in the state they are in at the time of the claim.
  4. Claims under the warranty cannot be made if:
    - the goods have been used for purposes other than for which they are normally intended, or in the opinion of PARTS have been used or transported improperly or have been repaired, altered or adjusted by client or a third party;
    - the damage has been caused by negligence of client (for example by insufficient or incorrect maintenance or storage) or by client having acted contrary to instructions, indications and advice of PARTS;
    - the claim relates to parts which are subject to normal wear tear, parts of which the seal has been broken or accessories;
    - client has not fulfilled its obligations towards PARTS (both financially and otherwise).
    - client upon discovery of the defect has failed to take all actions and refrain from all actions to prevent further damage from occurring, for example by continuing to use the goods.
  5. PARTS never warrants the absence of defects, which are the consequence of complying with any mandatory governmental laws and regulations regarding the nature or the quality of the raw materials and/or materials applied in the delivered goods.
  6. Should client file a warranty claim under this article and the claim is found to be justified by PARTS, PARTS shall at its discretion, replace the goods involved free of charge (after which the replaced goods shall become PARTS’s property) or repair them or give a price reduction.
  7. The handling of a claim shall not suspend the payment obligation of client.
  8. Defects in part of the delivery do not entitle client to refuse the entire order.
  9. Where apart from the cases described above, consideration is given by PARTS to a complaint, this shall be carried out entirely without obligation and client may not derive any rights therefrom.
  10. Any claim and/or defense, based upon facts that would justify the claim that the goods delivered do not comply with the agreement, expires one (1) year after the date of delivery.

 

VIII. INSPECTION

Client shall have the right, for its own account, to inspect the goods prior to delivery at a time and place determined by PARTS.

 

IX. NON-FULFILMENT/CANCELLATION/SUSPENSION

  1. PARTS shall be authorised to rescind the agreement in full or in part or to suspend its performance under the agreement, with immediate effect, without judicial intervention, and without prejudice to PARTS’s other rights and remedies (to fulfilment and/or damages), if:
    - client acts in contravention of any provision of the agreement (including these AVW PARTS) between parties;
    - client applies for suspension of payment or makes an application for adjudication of bankruptcy;
    - bankruptcy of client has been applied for;
    - the business of client is shut down or liquidated;
    - a private composition is offered to client’s creditors.
    In these cases, any and all claims against client shall become immediately due and payable, without PARTS being liable to compensate for damages or to provide a guarantee.
  2. The provision of paragraph 1 of this article shall also apply if client, after being requested in writing to do so, has failed to provide in PARTS’s opinion satisfactory security within seven days. All costs in this respect are for client’s account.
  3. If client fails to make payment in time or fails to take delivery during a period of more than 14 days, PARTS is entitled, without being obliged to issue any further notice, to resell the goods, in which case client forfeits any down payment made to PARTS as compensation for losses incurred by PARTS, unless client proves that the losses incurred by PARTS are less than the down payment.

 


X. RESERVATION OF OWNERSHIP

  1. Delivery shall take place under retention of title. This retention of title applies with respect to all payment obligations for all goods delivered or to be delivered by PARTS to client by virtue of any agreement as well as with respect to all claims based on breach of these agreements.
  2. Client is obliged to store the delivered goods separately from the goods of third parties, properly insured and identifiable as being property of PARTS (for example through labelling).
  3. PARTS shall be authorised to take back the goods which have remained its property in accordance with the previous paragraph if client breaches its obligations or if PARTS has good reason to believe that client will breach its obligations. Execution of its retention of title shall be deemed to qualify as rescission of the agreement(s) concluded with client. Client authorises PARTS and its representatives irrevocably to enter all premises and to remove the goods in question (or have the goods in question removed) from where they are located and shall ensure this right of PARTS and its representatives with client’s customers. Client shall provide all cooperation necessary in order to effect PARTS’s retention of title. All costs related to the removal of the goods are for client’s account.
  4. Client shall be authorised, if and to the extent necessary in the ordinary course of its business, to dispose of the goods which are subject to retention of title but this does explicitly not include the right of client to pledge or otherwise encumber the goods (both contractually and in rem). Should client make use of this authority, client shall be obliged to deliver the goods which are subject to retention of title to third parties subject to this retention of the title of PARTS. Client shall also be obliged to grant PARTS on its first request a non-possessory first ranking pledge on all claims which client has or shall obtain on these third parties and to state in the deed of pledge that client is authorised to pledge and that the claims to be pledged are unencumbered. Should client refuse to do so, this provision shall be deemed to include an irrevocable power of attorney for PARTS to create this pledge.
  5. The property law aspects of retention of title to the goods shall be governed by Dutch law or, at PARTS’s discretion, by the laws of the country of destination of the goods, provided that (i) the laws of such country in respect of retention of title provide better protection to a creditor than Dutch law and (ii) the goods are actually imported in that country of destination.
  6. If a creditor of client levies execution against, forecloses on, or takes possession of, all or any part of the goods owned by PARTS or if client files for an application or an application is filed with regard to client for bankruptcy or if client is declared bankrupt, if an application for a (preliminary) suspension of payments with regard to client is made or granted, of if client is made subject to the WSNP, client shall immediately inform PARTS and shall inform the party making the attachment that it has obtained the goods subject to retention of title.

 


XI. RETENTION RIGHT

PARTS is authorised to suspend the fulfilment of its obligation to return goods owned by client, which PARTS has in its possession by virtue of the agreement, until the claim of PARTS with regard to this agreement has been paid in full, including interest and costs.

 


XII. LIABILITY

  1. PARTS shall not be liable for damage caused as a result of any default in the fulfilment of its obligation(s) towards client. The fulfilment of the obligations under guarantee/claim as described in article VII serves as sole and full compensation. Any other claim for compensation, including claims for trading losses (losses due to stoppage, loss of income, incurred losses, lost profits), personal accidents and any other consequential or immaterial losses of whatever nature, including damage as a result of liability in relation to third parties is explicitly excluded, unless in case of wilful intent or gross negligence of PARTS or its directors.
  2. PARTS shall not be liable for wilful intent or (gross) negligence of (non-managerial) subordinates or other parties which are engaged by PARTS under the agreement and for which PARTS can be held liable by law.
  3. PARTS accepts no liability for advice given by or on behalf of PARTS.
  4. PARTS shall not be liable for damage to motor vehicles of client and/or of third parties which are located on its premises.
  5. Client shall indemnify and hold PARTS harmless against any and all claims of third parties related to the delivered goods, to the extent such claims are in excess of or additional to claims which client is entitled to invoke vis-à-vis PARTS. Client shall indemnify and hold PARTS harmless against any and all claims for personal injury or death of employees of client or of third parties and/or damage to property of client and/or of third parties to the extent the event leading to such claim takes place at PARTS’s premises. The foregoing shall not apply to the extent the damage is caused by willful intent or gross negligence of PARTS or its directors.
  6. Legal and contractual limitations of liability which suppliers or subcontractors of PARTS can invoke vis-à-vis PARTS with respect to the goods delivered, can be invoked by PARTS vis-à-vis client.
  7. PARTS stipulates all legal and contractual defenses that it can invoke in respect of its liability towards client also for the benefit of its employees and agents for which it can be held liable by law.
  8. The foregoing provisions do not affect liability based on mandatory law

 


XIII. FORCE MAJEURE

  1. Force majeure shall mean any circumstance outside the will and control of PARTS, whether or not foreseeable at the time of entering into the agreement, as a result of which PARTS can reasonably no longer be held to fulfil its obligations towards client, such as war, import or export restrictions, governmental measures, lack of raw materials, factory or transport disruptions of any nature whatsoever, strikes, trade prohibitions, lockout or lack of personnel, quarantine, epidemics, hold-ups due to frost, default of suppliers or of third parties engaged by PARTS for the performance of the agreement, etc.
  2. In the event of force majeure, PARTS shall not be obliged to fulfil its contractual obligations. In such case, PARTS is entitled to perform within a reasonable period or to rescind the agreement in whole or in part, without being liable to pay damages. Client is in the event of force majeure for PARTS entitled to rescind the agreement, after client has granted PARTS a reasonable period within which to perform.

 


XVI. PARTIAL NULLITY

In the event that any of the provisions contained in these AVW PARTS or in the agreement with client are (partly) invalid and/or unenforceable, the remaining provisions shall continue to be in force to the fullest extent permitted by law. The invalid or non-binding part shall be replaced by provisions which are valid and binding and which come nearest to the intention of the parties and the aimed economic result.

 


XV. PLACE OF FULFILMENT, APPLICABLE LAW, COMPETENT COURT

  1. The place of business of PARTS shall be the place where client must fulfil its obligations towards PARTS.
  2. Solely Dutch law shall apply to all offers and agreements of PARTS, with the exception of the provisions of Section 6.5.3 BW (Dutch Civil Code) and the Vienna Convention on the International Sale of Goods.
  3. All disputes which may arise as a result of the agreement signed between client and PARTS, or from further agreements, arising therefrom or from these AVW PARTS shall, at PARTS’s sole choice, be settled by the competent court of Rotterdam, location Dordrecht or by arbitration by the Netherlands Arbitration Institute (NAI). The place of arbitration shall be Rotterdam, the Netherlands. The arbitral tribunal shall comprise of one arbiter who shall rule in accordance with the rules of law. The arbitral proceedings shall be conducted in the English language. The possibility to join the arbitral proceedings with other arbitral proceedings pursuant to article 1046 Dutch Civil Proceedings ACT is excluded. Notwithstanding the foregoing, nothing in this article shall preclude any of the Parties from applying injunctive relief in summary proceedings ("kort geding") before any competent court in the Netherlands instead of arbitrators.

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