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terms for EU and Non EU residents
General Terms and Conditions applied by CMS to the sale of products and services to consumers within the EU
- Article 1 - Definitions;
- Article 2 - Identity - Communications;
- Article 3 - Applicability;
- Article 4 - Product Range Offered;
- Article 5 - Agreement;
- Article 6 - Delivery dates;
- Article 7 - Supply/Acceptance/Changing delivery address;
- Article 8 - Conformity;
- Article 9 - Cancellation right;
- Article 10 - Complaints;
- Article 11 - Payment/Retention of Ownership;
- Article 12 - Liability;
- Article 13 - Force majeure;
- Article 14 - Personal data;
- Article 15 - User Terms and Conditions;
- Article 16 - Applicable law;
- Article 17 - Amending Terms and Conditions.
Article 1 -Definitions
1.1 In these Terms and Conditions, the following definitions apply:
- CMS-EU-Consumer Terms and Conditions: the general terms and conditions apply to direct sales made of products by CMS to consumers in the EU, which terms and conditions may be reviewed, downloaded and stored at length;
- CMS: the private limited liability company Consolidated Motor Spares B.V. incorporated under Dutch law, see also Article 2.1. concerning "Identity of the Enterprise/Communications");
- Consumer: the natural person who is domiciled in a Member State of the European Union (EU) who does not act professionally or as a company;
- EU:the Member States of the European Union;
- Day: calendar day;
- Agreement: the agreement concluded at arms' length in which connection the sales system, organized by CMS for the distance sales of products, without any simultaneous presence on the part of CMS and the consumer, through which means the agreement is concluded, solely makes use of one or more means of distance communications;
- Cancellation period: the period during which consumers retain the right to dissolve the agreement at arms' length;
- Product:each and every product offered on the grounds of the agreement, at a distance, by CMS, to be supplied by CMS or delivered by CMS and any product which may be equated therewith;
- Electronics product: products which work using electronics and/or electro-magnetic fields;
- Precision mechanical products: fine or precision mechanical products with or without measuring and control mechanisms and/or products which are electronically operated;
- Sealing: transparent plastic protection;
- User Terms and Conditions: the terms and conditions which apply to visiting and using the website and which are referred to on the website;
- The website: www.CMSNL.com, through which communications may be channelled electronically with CMS and via which product data, order information and the terms and conditions for using the CMS website may be reviewed.
Article 2 - Identity of the enterprise - Communications
2.1 Name of the enterprise: Consolidated Motor Spares B.V., Address of the enterprise: Artemisweg 245, NL 8239 DD Lelystad, the Netherlands; Chamber of Commerce Trade Registry in the Netherlands: file number 32062478.
2.2. Communications betweenCMS and consumers shall be on-line, in which connection the consumer may log into the website and make use of the clearly described support ticket system or the telephone, during opening hours: telephone n umber: + 31 (0)320-265120 - Monday through Friday, from 9 a.m. to 5 p.m. or by telefax using fax number + 31(0)320-268496.
Article 3 -Applicable Terms and Conditions
3.1 These CMS-EU-Consumer Terms and Conditions apply to each and every offer made by CMS and each agreement concluded at arms' length between CMS and a consumer, via the website: www.CMSNL.com
3.2. Before the Agreement is concluded electronically, at a distance, the text of these CMS-EUConsumer Terms and Conditions is provided to the consumer electronically in such a way that the consumer can easily store them so as to be able to consult this information in the future, which allows for an unchanged reflection of the information stored but if this is not possible in all reasonableness, before the agreement is concluded at a distance, an indication will be given as to where the consumer terms and conditions may be consulted electronically and how they may be requested by the consumer and sent electronically by CMS or provided free of charge to the consumer by some other means.
3.2 Aside from the rights which consumers may derive from the CMS-EU-Consumer Terms and Conditions, the rights retained by and the legal redress available to consumers pursuant to the applicable law to protect consumers remain in full force.
3.4. The CMS-EU-Consumer Terms and Conditions have also been lodged with the Trade Register of the Chamber of Commerce for the Central Netherlands, filed under number ( 32062478 ).
Article 4 - Product range offered
4.1 The products offered by CMS are clearly described and referenced using an Article Number, and where available, (factory) model-specific data in order in part to review for suitability, compare and/or replace any other product and/or part of any composite product. Illustrations of the products offered are accurate. Errors or apparent mistakes in the product range shall not bind CMS.
4.2 Offers made by CMS are non-binding and remain valid as long as stocks last.
4.3 On the basis of the information which consumers provide when visiting the website, CMS provides clear information about the price of the product including the taxes levied within the EU, the costs of delivery, as well as the manner in which consumers may check the information provided in connection with the Agreement, before concluding it and if required improve that information.
Article 5 - The Agreement
5.1 The Agreement shall be concluded, conditional upon that determined in section 3 of this Article, at the time the consumer accepts the offer as well as accepting the applicable terms and conditions.
5.2 If the consumer has accepted the offer, CMS shall confirm this electronically without delay. For as long as receipt of that acceptance remains unconfirmed by CMS, the consumer may dissolve the Agreement. The consumer is required to check the order confirmation immediately upon receipt. If the consumer finds any errors or mistake this shall be communicated without delay to CMS in order that timely measures can be taken to correct matters prior to CMS commences activities for the delivery of goods ordered.
Article 6 -Delivery dates
6.1 The delivery dates set by CMS are determined on the grounds of information known at the time the order was placed. Delivery dates set are solely indicative dates of intended supply and depend in part on stocks on hand of special and/or unique products available from suppliers world-wide and never apply as deadlines.
6.2. If it is impossible to deliver an order (or a part thereof) within a time period of 45 days, the consumer shall receive a notice of this no later than within 45 days after placing an order and in that case shall retain the right to cancel the order free of charge. In that latter case, CMS shall restitute the amount the consumer paid as soon as possible and do this no later than 30 days after cancellation.
Article 7 - Supply and Acceptance of orders/changing delivery address
7.1 The delivery venue shall be the address which the consumer provides to CMS which address shall also be referred to on the order confirmation. The risk of damage and/or loss of products remains with CMS until the time delivery is made of the goods to the consumer or to a representative thereof made known in advance to CMS.
7.2 Consumers are bound to take receipt of products ordered when physically handed to them by the transporter at the delivery venue. If any consumer refuses to take receipt of goods ordered and/or frustrates delivery in any manner and/or fails to sign in token of receipt, the order shall be returned by the transporter to CMS and the costs of the return shipment, storage, carriage and other customary expenses thus incurred for returning ordered goods to CMS by the transporter shall be charged to the consumer. CMS is entitled to off-set those costs against any payments made by the consumer to CMS for and in connection with the order.
7.3. Changing the delivery address given for the order may solely be done after permission for this shall have been granted by CMS. A request to change the delivery address is to be submitted by the consumer using the "support ticket - contact facility" provided via the CMS website.
7.4 CMS shall inform the consumer after receipt of any request made to change the delivery address as referred to above in section 7.3 as to whether or not that request may be honoured. CMS is entitled to make any request made to change a delivery address subject to further conditions concerning the transport risk to be taken together with the risk of loss and/or damage to the products to be transported and also impose conditions concerning the full payment of the purchase price for the order and any other orders connected therewith as well as additional transit and/or transport costs.
7.5 The consumer may not inform the transporter directly, hence outside the knowledge of CMS as to any changes concerning the delivery address given for the order. In that case, CMS shall not be responsible for correct supply and the risk of the loss of and/or damage to the ordered products shall be transferred to the consumer and any damage, of whatever kind, arising out of the change made to the delivery address shall never be charged to CMS.
Article 8 -Conformity
8.1 CMS guarantees that the products offered meet the terms of the agreement and comply with the specifications referred to in the offer, conforming with the reasonable demands of suitability for use given the technical durability to be attributed to the products and the safety and environmental norms which apply and do so given the year of production and time of production of the products in question. The suitability of products offered for another purpose than normal use or any special use intended to be made of the products by the consumer is explicitly excluded by CMS unless extraordinary purposes for use are unconditionally agreed in writing between CMS and the consumer.
Article 9 - Cancellation right
9.1 The consumer may dissolve the Agreement when purchasing products and do this without giving any reasons for a period of fourteen days. This period of period of time to consider the matter shall commence on the day on which the consumer or a third party designated by the consumer, which is not the transporter, has received the goods, or, if the consumer ordered multiple products in the same order, which are delivered separately, shall commence on the day on which the consumer or a third party designated by the consumer received the last of those goods.
9.2. During this time period, the consumer shall treat the product and the packaging thereof with care and solely unpack the products to the extent this is necessary to assess whether or not the consumer wishes to retain the product(s). However, the product may not be assembled or fitted, for test purposes or for any other purpose, or connected to or with any other (composite) product nor may the product(s) be connected to any electric current.
9.3 Due to the nature of the products offered, including parts and auxiliaries, electronic products and/or fine or precision mechanical products, these products shall be either sealed at the factory or by CMS and hence protected by a transparent seal against deleterious influences exercised by atmospheric circumstances, induction tension, or any other damaging influences from the outside. During the period of reflection, the consumer shall not remove or break any such seal.
9.4 If the consumer makes use of any right to dissolve the agreement, the products and any and all auxiliaries supplied shall be required to be returned to CMS in their original condition, without damage and/or without any traces of having been assembled and with un-removed and un-broken seals and - if possible in all reasonableness - in the original packaging. The consumer shall adhere to and follow the instructions for this clearly provided by CMS on the website under the heading: "Returning Goods - Replacement Policy".
9.5 The shipment costs of any returned goods shall be for the account of the consumer. CMS shall reimburse the consumer for amounts received no later than within 4 days after CMS has taken receipt of returned goods or after the consumer has shown that the goods in question have been returned, depending on which of these to moments in time takes place first.
Article 10 -Complaints
10.1 Complaints are to be submitted to CMS within a reasonable time, in full and complete with a clear description after the consumer has discovered the flaws in question. Submitting a complaint may be done using the ticket system referred to on the website under the heading: "Service and Help". Complaints are dealt with within 24 hours of receipt; CMS endeavours to resolve a complaint within 14 days of being notified but should a complaint require an unforeseeable longer period to resolve, CMS shall inform the consumer in question, within the aforementioned time frame of fourteen days, and provide the complainant with an indication as to when the consumer may expect a substantive reaction from CMS.
Article 11 - Payment and Retention of Ownership
11.1 To the extent no other agreement is concluded, the amounts to be paid by the consumer shall be paid within the payment period determined by the offer unless advance payment is agreed with the consumer.
11.2 In the case of non-payment, CMS retains the right to place its receivable into the hands of a debt collection agency in which case collection costs shall be charged to the consumer in accordance with the Netherlands Out of Court Collection Costs Act.
11.3 All products delivered under the terms of an Agreement remain the property of CMS until the consumer has paid in full all that due on the grounds of any agreement to CMS. If CMS is required to exercise its retention of ownership rights, the consumer shall be bound to cooperate in full in order to allow CMS to retrieve the goods in question.
Article 12 - Liability
12.1 CMS shall be liable on the grounds of that determined in Book 6, Title 3, Chapter 3, article 185 and thereafter of the Civil Code of the Netherlands, for products which due to being flawed cause damage to goods or persons, all this in accordance with the standards which apply to (the properties of) products dating from older production years and/or times are determined in and by Article 6: 186, section 2 of the Civil Code of the Netherlands.
Article 13 - Force majeure
13.1 In the case of force majeure, CMS shall not be bound to perform its obligations in respect of the consumer and/or CMS shall be entitled to postpone the performance of its obligation for the duration of said force majeure.
13.2 Force majeure shall include all external causes which render CMS unable to perform its obligations arising out of the Agreement from a distance or at arms' length. This shall include strikes at the premises of third parties, internet service disruptions or disruption to telecommunications facilities and/or the stagnation of deliveries from suppliers or other third parties deployed as well as causes due to measures imposed by government.
Article 14 - Personal data
14.1 The information provided by the consumer shall be incorporated into the CMS customer database. That database also includes data necessary for dealing with orders such as order, delivery and payment information. The customer database is used to carry out and deal with orders and for marketing purposes. CMS only sends out special offers, newsletters and other mailings after receiving explicit permission for this from consumers. If any consumer no longer wishes to receive any further notices of special offers, or no longer wishes to receive any notices of any kind from CMS, giving notice to CMS of the wish to no longer receive notices using the most recent newsletters from CMS will suffice.
Article 15 - User Terms and Conditions
15.1 The terms and conditions for the use of the CMS website apply to each and every visitor to the website, including any consumer who places an order via the website ( User Terms and Conditions - CMS) .
Article 16 - Applicable law
16.1 All agreements concluded between CMS and any consumer covered by these CMS-EUConsumer Terms and Conditions shall be governed by and subject to Dutch law.
Article 17 - Amending terms and conditions
17.1 CMS shall retain the right to amend these CMS-EU-Consumer Terms and conditions in which connection such amendments shall only come into force after they shall have properly published and in which connection, for the duration of any offer made to a consumer, the most advantageous and applicable stipulations shall prevail.
17.2 These CMS-EU-Consumer Terms and Conditions are available in Dutch, English, French and German. The Dutch text of these CMS-EU-Consumer Terms and Conditions shall always prevail in any explanation to be given of the English, French and German stipulations corresponding therewith.
CMS/NON-EU-Residents - General Terms and Conditions of Sale
Article 1 -Definitions
1.1 - In these Terms and Conditions, the following definitions apply:
- CMS: the private limited liability company Consolidated Motor Spares B.V. incorporated under Dutch law, established at NL8239 DD Lelystad at Artemisweg 245;
- Agreement: each and every agreement concluded between CMS and the Customer concerning the supply of products by CMS on the basis of these Non-EU-Residents General Terms and Conditions of Sale;
- EU:the European Union;
- Customer: the natural or (legal) entity who or which places an order with CMS as a professional or as a company who or which is not domiciled within a Member State of the ER or another state which is a party to the Agreement on the European Economic Area;
- Product:each and every product offered on the grounds of the agreement by CMS, to be supplied by CMS or delivered by CMS and any product which may be equated therewith;
- User Terms and Conditions: the terms and conditions which apply to visiting and using the CMS website;
- The website:the CMS website: www.CMSNL.com;
- CMS-NON-EU-Residents General Terms and Conditions of Sale: these general terms and conditions of sales, which apply to all offers made by CMS and to all agreements concluded between CMS and customers;
Article 2 - Applicability
2.1 These CMS/Non-EU Residents General Terms and Conditions of Sale apply to all offers and agreements for CMS products, of whatever kind and whatever they may be called which are delivered to a customer.
2.2 The applicability of any general terms and conditions and/or general terms and conditions of purchasing applied by a customer or any branch and sector organization is explicitly excluded.
2.3 Deviations from and supplements to these CMS/Non-EU Residents General Terms and Conditions of Sale shall solely be valid if agreed in writing between parties.
2.4 If any stipulation of these CMS/Non-EU Residents General Terms and Conditions of sale is deemed to be inapplicable in law, invalid or unlawful, this shall not have any effect whatsoever on the validity and applicability of the remaining stipulations of these General Terms and Conditions of sale. In that case, CMS and the customer shall confer with a view to replacing the null and void stipulations with new stipulations in which the purpose and scope of the invalid or null and void stipulations shall be respected.
Article 3 - Communications
3.1 Communications between CMS and the customer may be channelled electronically. The electronic files of those Communications, stored by CMS shall constitute evidence thereof, aside from counter-evidence to be provided by the customer.
3.2 The customer guarantees the correctness and completeness of the information and contact details provided by the customer to CMS. If that information is not received by CMS or is received incompletely and/or received in a mutilated form, this shall be for the risk of the customer.
Article 4 - Offers
4.1 All offers and tenders made by CMS are non-obligatory.
4.2 All sizes and data provided in diagrams, illustrations, catalogues, pricelist, websites, tenders, NEN norms and standards, norms and standards tables, etc. solely apply as approximations unless explicitly otherwise stated by CMS.
4.3 Minor deviations in products supplied from the specifications thereof, which are technically unavoidable, or generally accepted in trade, shall never constitute grounds for dissolving the agreement. Errors and mistakes which are clearly such in any offer, shall not bind CMS.
Article 5 - Prices and price increases
5.1 All prices are expressed in Euros and do not include sales tax or any other local levies. Products which are to be exported to countries outside theEuropean Union are not subject to the levy of sales tax.
5.2 The prices listed on the website may be changed without any prior notice being given thereof in connection with a rise in cost price factors, taxes and other government levies, import duties and fluctuations in currency exchange rates.
Article 6 -Payment conditions of retention of ownership rights
6.1 All payments from a customer arising out of the agreement shall be paid in Euros.
6.2 The customer shall not be entitled to postpone any payment nor be entitled to off-set any payment due to CMS from the customer for whatever reason.
6.3 If a customer fails to pay amounts due or fails to make payment of amounts due in a timely manner, interest shall be charged at the standard commercial rate, without any reminder or default notice being required to be sent out, on the entire outstanding receivable due from the date payment was due until the time at which full payment is received. If a customer remains in default after having been declared in default and the receivable(s) remain unpaid, CMS shall be entitled to place the receivable(s) into the hands of a debt collection agency and the customer shall be bound to pay all out of court costs incurred, set at 15% of the total amount due with a minimum amount due of € 300.00 for each invoice and shall also be required to reimburse CMS for all costs incurred in connection with legal assistance and procedural expenses.
6.4 All payments made by a customer shall initially defray interest due and/or out of court cost due as well as the costs of judicial collection and thereafter shall defray the most senior outstanding invoices.
6.5 All products supplied by CMS shall remain the property of CMS until the customer has performed all of the customer’s obligations arising out of the agreement(s) concluded with CMS in full, including, alongside the purchase price, any supplements, interest, costs and compensation for damage due to CMS pursuant to the application of these Non EU Residents General Terms and Conditions or the agreement(s). 6.6 The products supplied by CMS which on the grounds of the previous section of this Article are covered by CMS’ retention of ownership rights may not be sold on and may never be used as payment. The customer shall not be entitled to pledge the products covered by CMS’ retention of ownership rights nor may the customer encumber those products in any manner whatsoever. The customer shall be bound to retain the products and goods supplied under CMS’ retention of ownership rights with due care and caution and in such a manner as to clearly designate them as the property of CMS and refrain from removing the original packaging and seals of said products and goods.
Article 7 - Delivery dates
7.1 The delivery dates set by CMS are determined on the grounds of information which was known at the time the order was placed. Delivery dates are solely indicative and never apply as deadlines. CMS shall do everything within its power, in all reasonableness to abide by these delivery dates but is not bound to comply with any delivery date set which due to circumstances beyond its control may not be feasible.
Article 8 - Delivery and acceptance of products
8.1 The delivery and supply venue shall be the address which the customer makes known to CMS. The customer shall be bound to accept the products which physically delivered to that supply venue.
8.2 If a customer refuses to accept goods delivered and/or frustrates delivery in any other manner and/or fails to sign in token of receipt of goods, the order shall be returned to CMS by the transporter and the costs of returning goods, storage, carriage and import duties levied as well as customary reimbursements for transport charged by transporters deployed by CMS shall be charged to the customer. CMS shall be entitled to off-set those costs in full against any payments made by the customer arising out of the agreement concluded with CMS and may dissolve the agreement without prejudice to the right to receive compensation for damage.
Article 9 - Changing the delivery address
9.1 Changing the delivery address given when placing the order shall solely be possible with permission granted for this by CMS. A request to change a delivery address is to be submitted to CMS by the customer via the website using the electronic "support ticket - contact facility".
9.2 CMS shall inform the customer after receipt of any request submitted as referred to above in section 9.1 as to whether or not that request may be honoured. CMS shall be entitled to impose further conditions on any request made in connection with the transport risk to be taken and the risk of loss and/or damage to the products to be transported as well as in connection with the purchase price being paid in full for the order, and, any other orders connected therewith, as well as additional transit or transport costs.
9.3 The customer may not make changes directly with the transporter deployed by CMS; if the customer makes a direct request of this kind to the transporter without notifying CMS the risk of the loss of and/or damage to the products shall be transferred immediately from that moment to the customers and any damage, of whatever kind or nature, or damage due to delay shall never be charged to CMS.
Artikel 10 -Conformity and Guarantee
10.1 CMS guarantees that the products meet the reasonable demands of suitability and/or use, given the specifications referred to in the offers as well as the technical demands which in all reasonableness may be attributed to the products and that the products meet these demands in accordance with the time of their production, which demands are related to technical durability, safety and the environment . The suitability of the products offered for any other purpose than normal use is explicitly excluded by CMS unless exceptional and extraordinary use is unconditionally agreed in writing between CMS and the customer.
10.2 In all cases for which a guarantee is given for the products, this shall never exceed the factory guarantee which applies to the product in question. Each and every form of guarantee shall expire in the case of negligent, careless, faulty or other than normal use made of the products supplied.
Article 11 - Dissolution/The duty to provide information
11.1 The agreement shall terminate lawfully at the time at which the customer is declared bankrupt, applies for suspension of payments or when the customer loses control, either in whole or in part, of his/her/its assets due to those assets being frozen, seized or impounded.
11.2 The customer shall be bound to inform CMS at the earliest possible moment in time as to any circumstance prevailing as referred to in the previous section, while the customer shall also be bound to inform the trustee in suspension of payments or trustee in bankruptcy at the earliest opportunity of the retention of ownership rights which may be exercised by CMS.
Article 12 - Liability
12.1 CMS shall never be liable for indirect damage suffered by the customer or third parties, including intangible damage, loss of sales and profits, loss of data, connected with or arising out of the agreement or the use made by the customer of products supplied by CMS.
12.2 CMS’ liability for direct damage in respect of the customer for whatever reasons is limited for each occurrence (in which connection an interconnected series of occurrences shall be deemed to be one single occurrence) to the actual invoice amount paid by the customer to CMS on the grounds of the agreement, including shipping costs.
12.3 The right to receive any compensation for damage shall be conditional upon a customer always notifying CMS in writing as soon as possible after the discovery of said damage. Each and every claim for compensation for damage made against CMS shall expire solely due to the expiry of 2 months after that claim came about.
12.4 The exclusions and limitations referred to in sections 12.1 and 12.2 of this Article shall not apply if and to the extent the damage in question is caused by deliberate actions or conscious recklessness or negligence on the part of the Management of CMS.
Article 13 - Force majeure
13.1 In the case of force majeure, CMS shall not be bound to perform any obligation in respect of the customer and/or shall be entitled to postpone performing its obligations for the duration of said force majeure.
13.2 Force majeure shall include: attributable shortcomings and/or force majeure prevailing among CMS’ suppliers, general transport problems, government measures, electrical power cuts, internet disruptions, failures of a computer network or telecommunications facilities, as well as each and every situation or circumstance which prevails which is beyond the control of CMS and prevents CMS from performing according to the terms of the agreement, either permanently or temporarily.
13.3 If force majeure persists for longer than 90 days, each party shall retain the right to dissolve the agreement in writing without being due to pay compensation for damage to the other party.
Article 14 - Use of codes
14.1 If use is made of computer, data or telecommunications facilities when concluding the agreement or for other purposes, CMS shall be entitled to allocate access or registrations codes to the customer. The responsibility for using those codes rests solely with the customer. CMS accepts no responsibility whatsoever for the consequences of and any possible damage or costs incurred due to the unauthorized used or abuse made by the customer of the access or registration codes.
Article 15 - Data protection
15.1 The customer authorizes CMS to store, use and transfer the personal data provided by the customer to CMS for the performance and completion of the agreement and to store and transfer the personal data provided by the customer to CMS for allow CMS to meet its obligations pursuant to the application of the law.
Article 16 - Applicable law
16.1 Each and every agreement concluded between CMS and a customer is subject to and governed by Dutch law.
16.2 Ant and all disputes which might arise out of offers or agreements, whatever they may be called, between CMS and a customer shall solely be brought before the competent Dutch Judge of the District Court of the Central Netherlands - Utrecht/Lelystad.
16.3 The applicability of the CISG (The Vienna Mercantile Treaty) for international contracts for the sale of goods is explicitly excluded.
Article 17 - User Terms and Conditions
17.1 The terms and conditions for the use of the CMS website on the homepage of that website apply to each and every visitor including customers who or which place an order via the website (User Terms and Conditions - CMS).
Article 18 - General
18.1 These CMS-B2B General Terms and Conditions of Sale are referred to on the website and have also been lodged with the Trade Register of the Chamber of Commerce for the Central Netherlands under file number 32062478.
18.2 The most recent version remains applicable or the version which applied at the time the agreement was concluded with the customer.
18.3 There are also versions of these General Terms and Conditions in English, French and German. The Dutch text of these CMS-B2B General Terms and Conditions shall always prevail in connection with any explanation made of the corresponding English, French and German stipulations.