Terms & conditions

Article 1: Applicability, Definitions

These general terms and conditions apply to every offer and every contract of purchase and sale - whether or not concluded via the websites - of J.A. van Heerewaarden trading as Moto Group, located in Tiel, hereinafter referred to as "Moto Group."
The buyer will be further referred to as "the counterparty."
Various provisions in these general terms and conditions concern a natural person acting outside his business or professional activity. In these provisions, the counterparty is referred to as "the consumer."
"Offer" means: any offer from Moto Group, whether or not in the form of a written quotation.
"Written" means: by letter, email, fax, or any other means of communication that, given the state of the art and prevailing social norms, can be equated with it.
"The website" means the following website of Moto Group: https://oemmotorparts.com;
The possible non-application of a (part of a) provision of these general terms and conditions does not affect the applicability of the other provisions.
In case of discrepancy or inconsistency between these general terms and conditions and a translation thereof, the Dutch text shall prevail.
These general terms and conditions also apply to subsequent or partial orders resulting from the agreement.

Article 2: Offer, Prices

Unless a validity period is mentioned in/an offer, this is a non-binding offer. Moto Group may revoke this offer within 2 working days after receiving the acceptance.
The prices stated in an offer or price list are exclusive of VAT and any costs, such as transport costs, shipping costs, administration costs, handling costs, and invoices from third parties. For each product, the applicable VAT amount and any costs are clearly indicated.
A composite offer does not obligate Moto Group to deliver part of the offered goods for a corresponding part of the price.
If the offer is based on information provided by the counterparty and this information proves to be incorrect/incomplete or changes afterwards, Moto Group may adjust the prices and/or delivery times stated.
The offer and prices do not automatically apply to subsequent orders.
Displayed and/or provided samples, models, indications of colors, dimensions, weights, and other descriptions in brochures, promotional materials, and/or on the website are as accurate as possible but are for indication purposes only. The counterparty cannot derive any rights from this.
The provided samples and models remain the property of Moto Group and shall be returned to Moto Group at its first request, at the expense of the counterparty.
a. If cost-increasing circumstances occur for Moto Group between the conclusion of the agreement and its execution due to changes in legislation and regulations, government measures, currency fluctuations, or changes in the prices of necessary materials or raw materials, Moto Group may increase the agreed prices accordingly and charge them to the counterparty.
b. In case of price increases within 3 months after the conclusion of the agreement, the consumer may terminate the agreement by means of a written statement. Unless the consumer notifies Moto Group within 14 days of notification of the price change that he wishes to exercise his right of termination, Moto Group may assume that the consumer has agreed to this change.

Article 3: Conclusion of Agreements

The agreement is concluded after the counterparty has accepted Moto Group's offer, even if this acceptance deviates on minor points from this offer. However, if this acceptance deviates substantially, the agreement is only concluded after Moto Group has agreed to these deviations in writing.
Moto Group is only bound by:
a. an order without a prior offer;
b. oral agreements;
c. additions or amendments to the general terms and conditions or agreement; after written confirmation to the counterparty or as soon as Moto Group - without objection from the counterparty - has started the execution of the order or agreements.
Unless stated otherwise on the website, Moto Group is only bound to an order via the website after it has confirmed this in writing - whether or not through an automated message - to the counterparty.

Article 4: Distance Selling - Cooling-off Period, Right of Withdrawal

This article applies exclusively to the consumer in a distance sale within the meaning of Article 6:230g paragraph 1 of the Civil Code.
In a distance sale, the consumer has a cooling-off period. Within this period, the consumer may withdraw from the agreement without stating a reason.
The cooling-off period referred to in the preceding paragraph is a period of 14 calendar days from the day on which the consumer or a third party designated by him (other than the carrier):
a. has received the item;
b. has received the last item, if the consumer has ordered multiple items in one order and these items are delivered separately;
c. has received the last shipment or the last part, if the delivery of one item consists of several shipments/parts;
d. has received the first item for an agreement that aims at the regular delivery of items over a certain period.
The withdrawal takes place through a written notification from the consumer to Moto Group, with or without the use of a model form provided by Moto Group.
By withdrawing in accordance with the preceding paragraphs, any additional agreements are also automatically terminated.
The consumer does not have the right of withdrawal for the delivery of:
a. specific items made to his specifications or items clearly intended for a specific person;
b. items that, for reasons of health protection or hygiene, are not suitable for return and whose seal has been broken after delivery;
c. items that, by their nature, are irrevocably mixed with other items after delivery.
If the consumer wants to return the delivered item because it does not meet what the parties have agreed, the provisions of the complaint article apply.

Article 5: Distance Selling - Return Shipment, Refund

Unless Moto Group collects/arranges for the delivered items to be collected, the consumer must return the items promptly - but in any case within 14 days of withdrawal - in the original packaging, unused, and at his own expense and risk to Moto Group or a third party authorized by Moto Group.
Moto Group will reimburse all amounts received from the consumer - in the context of the relevant agreement - within 14 calendar days of withdrawal, in the same manner and currency as used by the consumer.
Moto Group is not obliged to refund any additional costs incurred because the consumer has expressly chosen a different delivery method than the least costly standard delivery offered by Moto Group.
Unless Moto Group collects/arranges for the delivered items to be collected, the consumer can only claim a refund after Moto Group has received the items returned or the consumer has proven that the items have been returned by him, whichever occurs first.
Moto Group may refuse returned items or refund only a part of the payments received from the consumer if the items are not in the original packaging, have been altered, used (beyond what is necessary to establish the nature, characteristics, and functioning of the item), and/or damaged. Moto Group informs the consumer immediately upon receipt of the items.
The consumer is liable for any depreciation of the item if his handling of the item has gone beyond what is necessary to establish its nature, characteristics, and functioning.
The consumer is never liable for costs solely for exercising his right of withdrawal.

Engagement of Third Parties

If Moto Group deems it necessary, he may have certain deliveries carried out by third parties.

Artikel 7: Obligations of the Counterparty

The counterparty ensures that he provides all necessary information for the execution of the agreement to Moto Group in a timely manner and in the manner desired by Moto Group, and that this information is correct and complete.
Goods delivered by Moto Group may only be resold by the counterparty in the original packaging originating from Moto Group or its supplier. The counterparty may not make any changes to the original packaging and must prevent damage.
If the counterparty does not (timely) fulfill the aforementioned obligations, Moto Group may suspend the execution of the agreement until the counterparty has fulfilled his obligations. The costs and other consequences arising from this are at the expense and risk of the counterparty.
If the counterparty fails to fulfill its obligations and Moto Group does not immediately demand performance, this does not affect Moto Group's right to later demand performance.

Article 8: Confidential Information

Moto Group keeps all information obtained from or about the counterparty in connection with the conclusion and execution of the agreement confidential. Moto Group only discloses this information to third parties to the extent necessary for the execution of the agreement.
Moto Group takes all reasonably necessary precautions to keep this information confidential. This obligation of confidentiality also applies to its employees and third parties involved in the execution of the agreement under its responsibility.
The obligation of confidentiality does not apply if, as a result of legislation and/or regulations or a court decision, Moto Group is required to disclose the confidential information and cannot invoke a statutory or judicially approved privilege. This exception also applies to employees and other persons referred to in the preceding paragraph.

Article 9: Delivery, Delivery Deadlines

Agreed deadlines are never firm deadlines. If Moto Group fails to fulfill its obligations (timely), the counterparty must notify it in writing and allow a reasonable period for compliance.
An agreed deadline starts when Moto Group has received all necessary information for delivery and any agreed (advance) payment from the counterparty. If this causes a delay, the deadline is proportionally extended.
Moto Group may deliver in installments and invoice each partial delivery separately.
The risk for the delivered goods passes to the counterparty at the moment they leave Moto Group's premises, warehouse, or store, or Moto Group has notified him that the goods are ready for pickup.
Shipment or transport of the goods takes place at the expense and risk of the counterparty and in a manner determined by Moto Group. Moto Group is not liable for any damage related to the shipment or transport.
Unless the parties agree on a different deadline, the delivery to the consumer is within a maximum period of 30 days after the conclusion of the agreement. The risk passes to the consumer when the goods are actually made available to him or a third party designated by him (other than the carrier). If the consumer appoints the carrier himself (not being a carrier proposed by Moto Group), the risk passes to him upon receipt of the goods by this carrier. Shipment or transport is at the expense of the consumer.
If, due to a cause within the risk sphere of the counterparty, it is not possible to deliver the ordered goods (in the agreed manner) to the counterparty or they are not collected, Moto Group may store the goods at the expense and risk of the counterparty. The counterparty then enables Moto Group to deliver the goods within a reasonable period set by Moto Group or collects them.
If the counterparty fails to fulfill his obligation to accept the goods after the aforementioned reasonable period, he is immediately in default. Moto Group may then immediately terminate the agreement in whole or in part by written notice and sell the goods to third parties without being obliged to compensate for damages, costs, and interest. This does not affect the counterparty's obligation to compensate for any (storage) costs, damages, and loss of profit of Moto Group and/or Moto Group's right to demand performance.

Article 10: Packaging

Packaging intended for multiple uses remains the property of Moto Group and may not be used by the counterparty for purposes other than those intended.
Moto Group determines whether the counterparty should return the packaging or if Moto Group collects it, and who bears the cost of the latter.
Moto Group may charge a deposit for this packaging to the counterparty. If the packaging is returned by the counterparty free of charge within the agreed period, Moto Group will take back the packaging. The deposit will then be refunded to the counterparty or offset against the deposit for the packaging of a subsequent delivery. Moto Group may deduct 10% handling costs from the amount to be refunded or offset.
If the packaging is damaged, incomplete, or lost, the counterparty is liable for this damage and forfeits the right to a refund of the deposit. If this damage exceeds the deposited amount, Moto Group is not obliged to take back the packaging. Moto Group may then charge the counterparty the cost price, reduced by the deposit paid by the counterparty.
Packaging intended for single use may be left by Moto Group with the counterparty. Any costs for disposal shall be borne by the counterparty.

Article 11: Complaints

The counterparty shall inspect the delivered goods immediately upon receipt and shall note any visible defects, defects, damages, and/or deviations in quantities on the delivery note or accompanying invoice or report them in writing to Moto Group within 2 working days if no such documents are provided. If such complaints are not reported in a timely manner, the goods shall be deemed to have been received in good condition and in accordance with the agreement.
Other complaints shall be reported by the counterparty immediately upon discovery, but no later than within the agreed warranty period, in writing to Moto Group. All consequences of not reporting immediately are at the risk of the counterparty. If no warranty period is agreed, a period of 1 year after delivery applies.
In the absence of a timely complaint, no recourse to an agreed warranty is possible.
If ordered goods can only be delivered in (wholesale) packaging or minimum quantities or numbers available at Moto Group, the goods may exhibit minor - industry-accepted - deviations in specified weights, quantities, colors, and sizes. These deviations are not considered shortcomings on the part of Moto Group, and no warranty claim can be made.
Complaints do not suspend the counterparty's payment obligation.
The preceding paragraph does not apply to the consumer.
The counterparty enables Moto Group to investigate the complaint and provides all relevant information for this purpose. If return shipping is necessary for the investigation, this is at the expense of the counterparty unless the complaint is subsequently found to be justified. The transport risk is always borne by the counterparty.
Return shipments take place in a manner determined by Moto Group and in the original packaging or packaging.
No complaints are possible regarding:
a. imperfections in or properties of goods made from natural materials if these imperfections or properties are inherent to the nature of the materials;
b. discoloration and slight color variations;
c. goods that have been changed in nature and/or composition or entirely or partially processed or worked after receipt by the counterparty.

Article 12: Guarantees

Moto Group carries out the agreed deliveries properly and in accordance with the standards applicable in its industry, but never provides a warranty beyond what was expressly agreed.
Moto Group guarantees the usual quality and soundness of the delivered goods during the warranty period.
If a warranty is provided by the manufacturer or supplier for the goods supplied by Moto Group, that warranty applies between the parties in the same manner. Moto Group informs the counterparty accordingly.
If the purpose for which the counterparty intends to process, handle, or use the goods differs from the usual purpose, Moto Group guarantees suitability for this purpose only if confirmed in writing to the counterparty.
No warranty claim is possible as long as the counterparty has not yet paid the agreed price for the goods.
The preceding paragraph does not apply to the consumer.
Upon a valid warranty claim, Moto Group, at its discretion, provides free repair or replacement of the goods or refunds or discounts the agreed price. If there is additional damage, the provisions of the liability clause apply.
The consumer may always choose free repair or replacement of the goods, unless this cannot reasonably be required of Moto Group. In the latter case, the consumer may terminate the agreement by written declaration or demand a discount on the agreed price.

Article 13: Liability

Except for explicitly agreed guarantees or warranties provided by Moto Group, Moto Group accepts no liability.
Moto Group is only liable for direct damages. Any liability for consequential damages, such as business interruption, loss of profits, and/or consequential losses, delay damages, and/or personal or bodily injury damages, is expressly excluded.
The counterparty takes all necessary measures to prevent or limit the damage.
If Moto Group is liable, the obligation to pay damages is always limited to the maximum amount reimbursed by its insurer in the specific case. If the insurer does not pay out or the damage is not covered by insurance taken out by Moto Group, the obligation to pay damages is limited to the invoice amount for the goods supplied.
The counterparty must address Moto Group for damages within 6 months of becoming aware of or being able to become aware of the damage.
Notwithstanding the previous paragraph, a period of 1 year applies to the consumer.
Moto Group is not liable - and the counterparty cannot invoke the applicable warranty - if the damage arises from: a. improper use, use contrary to the purpose of the delivered goods, or use contrary to the instructions, advice, user manuals, leaflets, etc., provided by or on behalf of Moto Group; b. improper storage or maintenance of the goods; c. errors or omissions in the information provided to Moto Group by or on behalf of the counterparty; d. instructions or directives from or on behalf of the counterparty; e. or as a result of a choice by the counterparty that deviates from what Moto Group advised and/or is customary; f. or because the counterparty or third parties on behalf of the counterparty have carried out (repair) work or processing on the delivered goods without the express prior consent of Moto Group.
In the cases listed in the previous paragraph, the counterparty is fully liable for the resulting damages and indemnifies Moto Group against any claims by third parties.
The limitations of liability set forth in this article do not apply if the damage is due to intent and/or conscious recklessness of Moto Group or the senior management or if mandatory statutory provisions prohibit this. Only in these cases will Moto Group indemnify the counterparty against any claims by third parties.

Article 14: Payment

Moto Group may always request (partial) advance payment or other security for payment. The requested advance payment for consumers amounts to a maximum of 50% of the agreed price.
For orders placed via the website, payment is made in the manner indicated on the website, unless otherwise agreed upon in writing by the parties.
Payment must be made within a payment term of 30 days after the invoice date, unless the parties have agreed on a different payment term in writing. The accuracy of an invoice is deemed established if no objection has been made within this payment term.
If an invoice is not fully paid after the expiration of the term mentioned in the preceding paragraph or if automatic collection has not taken place, the counterparty owes Moto Group a default interest of 2% per month, cumulatively calculated on the principal amount. Portions of a month are counted as full months.
In the aforementioned situation, a default interest rate of 6% per annum applies to consumers, unless the statutory interest rate is higher. In that case, the statutory interest rate applies.
If payment is still not made after a reminder, Moto Group may also charge the counterparty extrajudicial collection costs amounting to 15% of the invoice amount with a minimum of €40.00.
Moto Group gives the consumer a minimum period of 15 days to pay after the aforementioned reminder. If payment is still not made, the extrajudicial collection costs for the consumer amount to: a. 15% of the principal amount for the first €2,500.00 of the claim (with a minimum of €40.00); b. 10% of the principal amount for the next €2,500.00 of the claim; c. 5% of the principal amount for the next €5,000.00 of the claim; d. 1% of the principal amount for the next €190,000.00 of the claim; e. 0.5% of the excess of the principal amount. All this with an absolute maximum of €6,775.00.
For the calculation of extrajudicial collection costs, Moto Group may increase the principal amount of the claim after 1 year with the default interest accrued in that year.
In case of non-payment in full, Moto Group may terminate the agreement without further notice by a written declaration or suspend its obligations under the agreement until payment has been made or a proper security has been provided. Moto Group also has the right of suspension mentioned above if, even before the counterparty/consumer is in default with payment, there are valid reasons to doubt the creditworthiness of the counterparty/consumer.
Received payments are first deducted from all due interest and costs, and then from the overdue invoices that have been outstanding the longest, unless the payment is explicitly stated in writing to relate to a later invoice.
The counterparty may not set off Moto Group's claims against any counterclaims he may have against Moto Group. This also applies if the counterparty applies for (provisional) suspension of payments or is declared bankrupt.
The preceding paragraph does not apply to the consumer.

Article 15: Retention of Title

All goods delivered or to be delivered under the agreement remain the property of Moto Group until the counterparty has fulfilled all its payment obligations.
These payment obligations consist of paying the purchase price of the goods, plus claims for work performed related to the delivery and claims for attributable shortcomings of the counterparty, such as claims for payment of damages, extrajudicial collection costs, interest, and any fines.
In the case of delivery of identical, non-individualizable goods, each batch corresponding to the oldest invoices is deemed to have been sold first. Therefore, the retention of title always applies to all delivered goods that are still present in the stock, store, and/or inventory of the counterparty at the time of invoking the retention of title.
The counterparty may resell the goods in the course of its normal business operations, provided that it also imposes a retention of title on these goods on its customers.
As long as retention of title applies to the goods, the counterparty may not pledge them or bring them under the control of a financier in any way.
The counterparty shall immediately inform Moto Group in writing if third parties claim to have ownership or other rights to the goods.
As long as the counterparty has the goods in its possession, it shall keep them carefully and as identifiable property of Moto Group.
The counterparty shall ensure that the goods delivered under retention of title are at all times covered by a business or inventory insurance. Upon Moto Group's first request, the counterparty shall provide access to the insurance policy and accompanying premium payment receipts.
If the counterparty acts in violation of this article or Moto Group invokes the retention of title, Moto Group and its employees may enter the premises of the counterparty and reclaim the goods. This does not affect Moto Group's right to compensation for damages, lost profits, and interest, and the right to terminate the agreement without further notice by a written declaration.

Article 16: Bankruptcy, Incapacity, etc.

Moto Group may terminate the agreement without further notice by a written declaration to the counterparty at the time when the counterparty: a. is declared bankrupt or an application for bankruptcy is filed; b. applies for (provisional) suspension of payments; c. is affected by enforcement measures; d. is placed under guardianship or administration; e. otherwise loses the power of disposition or legal capacity with regard to (parts of) its assets.
The counterparty shall always inform the curator or administrator about the (content of the) agreement and these general terms and conditions.

Article 17: Force Majeure

In the event of force majeure affecting the counterparty or Moto Group, the latter may terminate the agreement by a written declaration to the counterparty or suspend the performance of its obligations towards the counterparty for a reasonable period without being obliged to pay any compensation.
Force majeure on the part of Moto Group shall be understood to mean: a non-attributable failure by Moto Group, its subcontractors, or suppliers, or other compelling reasons on its part.
In the following circumstances, force majeure on the part of Moto Group shall in any case be deemed to exist: war, riots, mobilization, domestic and foreign disturbances, government measures, strikes within the organization of Moto Group or threats thereof, disruption of existing currency relationships at the time of entering into the agreement, business disruptions due to fire, burglary, sabotage, power outages, internet or telephone connections failures, or activities of cybercriminals resulting in the website being unavailable (in full), natural phenomena, (natural) disasters, etc., as well as transport difficulties and delivery problems arising from weather conditions, roadblocks, accidents, import and export restrictions, etc.
If the force majeure situation occurs when the agreement has already been partially executed, the counterparty must fulfill its obligations towards Moto Group up to that moment.

Article 18: Cancellation, Suspension

This article does not apply to termination within the statutory cooling-off period as referred to in Article 4.
If the counterparty wishes to cancel the agreement prior to or during its execution, Moto Group may request a fixed compensation from the counterparty for all incurred costs and damages suffered due to the cancellation, including lost profits. At the discretion of Moto Group and depending on the deliveries already made, this compensation ranges from 20 to 100% of the agreed price.
The counterparty indemnifies Moto Group against any claims from third parties arising from the cancellation.
Moto Group may offset the due compensation against all amounts paid by the counterparty and any counterclaims of the counterparty
In case of suspension of delivery(ies) at the counterparty's request, the compensation for all deliveries already made becomes immediately due and payable, and Moto Group may invoice this to the counterparty. This also applies to all costs incurred or arising from the suspension.
Costs incurred by Moto Group for resuming the delivery(ies) are borne by the counterparty. If the execution of the agreement cannot be resumed after the suspension, Moto Group may terminate the agreement by a written declaration to the counterparty.

Article 19: Applicable Law, Competent Court

Dutch law exclusively applies to the agreement concluded between the parties.
The applicability of the Vienna Sales Convention (CISG) is explicitly excluded.
Any disputes shall be submitted to the competent court in the place of business of Moto Group, but Moto Group always retains the right to submit the dispute to the competent court in the place of business of the counterparty.
Regardless of Moto Group's choice, the consumer always retains the right to submit the dispute to the legally competent court. The consumer must notify Moto Group of this choice within one month of receiving the summons.
If the counterparty is located outside the Netherlands, Moto Group may choose to submit the dispute to the competent court in the country or state where the counterparty is located.

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