- The conditions set down below are applicable to all our offers, deliveries and work. By the acceptance of our offer or by the giving of an order to us, the buyer/principal accepts these conditions. Any other conditions shall only bind us if these have been explicitly accepted by us in writing. The applicability of any other general conditions, which the buyer/principal might use in any way, is herewith explicitly rejected.
- Deviations from these conditions may only be agreed upon in writing and apply exclusively to the agreement for which they have been made.
- All our offers are without obligation and expire upon the elapse of 2 months after their date at the latest, unless explicitly mentioned otherwise. An agreement shall only be established once the order or commission has been confirmed in writing on our part by the persons who are duly entitled to represent our company. The scope of our obligations shall be determined in this written confirmation.
- Documents that form a part of our offer and which contain illustrations, drawings, weights, measurements, specifications or other data, only apply as approximates, unless the accuracy thereof is explicitly guaranteed by us. We retain the copyright on the designs, illustrations, drawings, sketches and specifications furnished with our offer. All documents that form a part of our offer and which contain illustrations, drawings and weights, measurements, specifications or other data, remain our property and may not be copied, disclosed or shown to third parties or used in any other manner whatsoever without our explicit consent. If the order for the execution of the work is not given to us, the offer complete with designs, illustrations, drawings, sketches and specifications shall be returned to us, registered delivery carriage paid, within 14 days after the decision date. In the event of conflict between either the drawings made by us and approved by the principal at whatever moment on the one hand and the construction documents and specifications originating from the principal on the other hand, the drawings made by us and most recently approved by the principal at whatever moment shall prevail.
- The prices quoted shall apply to delivery ex workplace, ex factory, ex yard, ex warehouse or ex shop, exclusive of VAT. In the event the moment of the commencement of the work or the transfer (oplevering) or delivery (levering) period is exceeded on account of fault of the buyer/principal, we shall be entitled to on-charge the damages suffered by us to the buyer/principal, and if one or more of the cost price factors has been subjected to an increase, to increase the agreed price mutatis mutandis.
- The packaging is not included in the price and may be charged separately.
- The following are not included in the agreed price of contracted work: installation work, building and construction work, welding work, paintwork, scaffolding work, foundations, ready to depart trials/surveys, tests and/or inspections and cleaning with the exception of ‘swept clean’.
- The law of the Netherlands is applicable to the agreements with the buyer/principal. The Convention on the International Sale of Goods 1980 (Weens Koopverdrag 1980: “CISG”) shall not be applicable.
- In the event of any dispute between us and the buyer/principal, in the first instance the judge of the District Court at Dordrecht shall exclusively be competent, nevertheless, we reserve the right to bring the buyer/principal before another court.
- If and in so far as on the basis of the principles of reasonableness and fairness or the unreasonably onerous nature any provision of these general conditions cannot be invoked, a meaning as similar as possible shall be attributed to the relevant provision as concerns the content and the purport thereof. The invalidity or the nullification of a provision of these general conditions does not entail that the other provisions may be deemed invalid or nullified.
Delivery, transfer, delivery time and place of delivery
- Delivery times shall be determined as approximates and commence on the days that both of the following events have taken place: written confirmation by us of the order and receipt by us of all data, documents and objects that we require in order to start with and execute the order, such at our discretion. The moment of receipt referred to here shall be notified to the buyer/principal. The delivery time notified by us is not a firm date, nor shall we enter into default by the mere exceeding thereof. If, on account of circumstances which cannot be imputed to us a delay should arise, the delivery time shall be extended mutatis mutandis.
- If in the event of sale, carriage paid delivery is agreed, the goods and the packaging thereof shall be for the account and risk of the buyer, such that unloading can be commenced at the agreed place of delivery. If the buyer has not designated any means of transport, we shall elect what we deem the most appropriate means of transport. If for any reason whatsoever the buyer does not take delivery of the goods, we shall be entitled to store and seal these at whatever place, for the account and risk of the buyer. If 2 months after the offering for delivery, the goods have still not been taken in delivery, we shall be entitled to dissolve the agreement, to alienate or to repossess the goods, and the buyer shall be obliged to compensate to us for loss of profit and all other damages.
- The transfer of accepted work and the transfer in the case of the execution of work by us shall be understood to be the actual transfer to the principal or the actual transfer of a specific component agreed in advance. The work shall be deemed transferred if the entire or the specific component agreed in advance is complete, executed or assembled and notification thereof has been given to the principal. If, due to no fault of our own, any component cannot be delivered at the same time with the completion of the entire work, the transfer may nevertheless be effected. If, in the case of the contracting of work or of the execution of work by us, the principal does not take delivery of the goods after transfer, we have the right to store these at whatever place for the account and risk of the principal and to insure these for the account and risk of the principal. If delivery of the goods has not been taken 2 months after transfer, we shall be entitled to alienate or to repossess the goods and the buyer shall be obliged to compensate to us the loss of profit and all other damages.
- In the event of each delay on the part of the buyer/principal in the fulfilment of any obligations, we shall retain our right to suspend the transfer/delivery period.
- Exceeding of the transfer/delivery period shall never give rise to a claim for damages, nor shall it entitle the buyer/principal to dissolve the agreement, all this unless such is agreed in writing, or the buyer/principal proves intent or gross negligence on our part.
Modifications to the contracted work
- All modifications to commissioned work, either by special instruction of the principal or as a consequence of modification of the build or caused by the data furnished not corresponding with the actual model of the build shall, if extra costs arise therefrom, be deemed extra work and in so far as they give rise to lower costs, as less work.
- We retain our right to put one limit on the extra work to be commissioned, in other words, that no more extra work may ever be commissioned than a percentage to be determined by us at the moment of commission of the extra work or the still outstanding work. Extra work and less work shall be set-off in an equitable fashion from the payment of the principle sum or the periodic invoice thereof.
Retention of title
- For as long as the buyer/principle has not fully fulfilled any obligation vis-à-vis us under any agreement(s) entered into with us, we shall remain the owner of the goods, irrespective of whether these have or have not been treated, processed or are connected to other objects.
- For as long as the goods remain our property, the buyer/principal may only treat, process or resell in its normal course of business and it may not encumber these with any right of pledge, nor give a third party any other right whatsoever thereon.
- If the buyer/principal has treated, processed or resold the goods, the ownership of the goods thus produced shall immediately, without any further act being required, be transferred to us, or the right on the purchase price shall immediately, without any further act being required, be assigned to us.
- Payment shall be effected, net, 30 days after the invoice date at the latest. Any costs attached to the payment shall be for the account of the buyer/principal.
- The buyer/principal shall have no entitlement whatsoever to reduction or to set-off with any claim. Claims on account of deliveries/work executed shall never entitle the buyer/principal to withhold the purchase price/contract sum in whole or in part.
- If payment in instalments is agreed, default of payment with regard to one instalment shall cause the full remaining amount as well as that on another basis, whether or not already due and payable, that is due to us, become immediately due and payable without notice of default or demand for payment.
- As of the day on which a payment should have been effected, the buyer shall be due an interest rate on the amount in arrears of 1.5% a month, whereby a part of a month applies as one month.
- We are entitled to withhold the goods, monies and documents which pursuant to the agreements we have entered into with the buyer/principal we have or shall receive or are due or shall become due in our custody, until all that to which we are entitled by virtue of the agreements entered into with the buyer/principal, or on the basis of obligations arising from the law, has been satisfied. The goods, monies and documents and all claims, which the buyer/principal should have or acquire on us, serve us, in so far as susceptible thereto, as security for all that which we have or shall acquire to claim, on the basis of agreements with the buyer/principal or on the basis of obligations arising from the law.
Accountable shortcoming in fulfilment
- In the event the buyer/principal does not, not properly or not timely fulfil any obligation vis-à-vis us, enters into a composition with its creditors, requests suspension of payments or is subjected to a similar procedure, is declared to be in a state of bankruptcy, closes or transfers its business or if it is a company, is dissolved, as well as if any executory attachment is levied upon it, we shall have the right, without being obliged to pay any damages whatsoever, to immediately dissolve our agreement(s) with it or to suspend the implementation and to repossess goods already delivered.
- The buyer/principal is, by operation of law and without demand or notice of default, in default as soon as it fails to fulfil any obligation arising from the agreement.
- All judicial and extrajudicial costs caused by or in connection with the attributable shortcoming in the fulfilment by buyer/principal, this also including those which are not liquidated by the court, shall be for the account of the buyer/principal. The non-liquidated costs shall be determined at 10% of the total amount due to us including interest, without prejudice to our right to claim a higher compensation, if we can demonstrate that our costs are in fact higher.
- The extrajudicial costs shall be due on account of the mere fact that we put the claim into the hands of others for collection. These costs shall be equal to the fees charged to us by lawyers, attorneys, receivers and others.
- We warrant the proper execution of a contracted work with regard to construction, material and treatment, on the understanding that for all components which malfunction during a period of 12 months after transfer or delivery on account of deficient construction and/or defective materials, new components shall be delivered and assembled by us free of charge, provided the deficient construction and/or malfunction of the defective materials is timely notified to us by the buyer/principal.
- This warranty is limited to delivery and/or assembly in the Netherlands; in the case of delivery/assembly outside of the Netherlands, solely the costs in the case of delivery and/or assembly in the Netherlands shall be borne by us.
- Defects arising from normal wear and tear, improper treatment or use or improper, incorrect maintenance or that which occurs after modifications or repairs made by or on behalf of the buyer/principal itself or by third parties shall remain outside the warranty, such at our discretion.
- The warranty applies solely in the event the buyer/principal has fulfilled all its obligations vis-à-vis us (both financial and otherwise) under or arising from any agreement whatsoever. No warranty shall be issued for goods which have not been assembled by us, nor for those which were assembled by us but not delivered by us.
- The warranty shall in no event extend any further than to the delivery free of charge of new components and/or the assembly as described here above. The buyer/principal is required at all times to offer us the opportunity to repair any defect in this manner.
- In the event of goods with a manufacturer’s warranty, in deviation from that set out above, the warranty provisions determined by the manufacturer shall apply. If the manufacturer does not furnish a warranty, we shall also not furnish a warranty. In general, we have the authorisation (exclusively at our discretion) in certain cases to instead of deliver new components, replace that which was delivered entirely or to take it back.
Limitation of liability
- With respect to any delivery obligations, delivered goods, repairs or other work or advice we shall solely be liable for damages suffered by the buyer/principal which are the direct and exclusive result of our fault. This on the understanding that the amount for which we can be held liable shall in no event exceed that of the purchase price/contract sum, whereby the maximum amount for which we can be held liable shall be € 5,000,000.00.
- That which shall not be considered for compensation shall also include consequential damages or loss of profits (this including, but not limited to, interruption of operations, harbour/port dues and loss of income) which arise for any cause whatsoever.
- We shall not be liable for damages as a consequence of embezzlement or theft of any object, irrespective of whether that object was held by us or not.
- The other party is obliged to indemnify us, our subcontractors and suppliers, as well as their employees, against all damages which arise as a consequence of rights or claims of third parties in connection with the goods delivered by us, repairs executed or other work or advice rendered.
- Force majeur shall be understood to be: restricting government measures of whatever nature, epidemics, mobilisation, war, revolution, strikes, plant occupation, theft, fire, war and associated risks, attachment levied, lack of raw materials, semi-manufactured goods, auxiliary substances and/or energy, natural disasters, continuing full or part default of a third party from whom goods or services must be received and each other circumstance which we have reasonably been unable to foresee and on which we have no influence.
- If full or part suspension on account of force majeur should change our later performance so radically in significance for buyer/principal that acceptance thereof can no longer reasonably be desired, the buyer/principal shall be discharged from its further (purchase) obligations.
- In the contracting of work, or in the executing of work, in the case of force majeur, we shall be entitled to claim that the order will be changed/modified such that the execution of the work will become feasible, save when the execution will never be feasible as a consequence of the force majeur.
- The extra costs or less costs arising from the change/modification of the order shall be set-off, whereas in addition payment for already executed, nevertheless apparently useless work and deliveries, shall be made to us such as is reasonable and equitable. The set-off shall in this event take place within 4 weeks after the moment at which it is established that the work would not be executed further.