General Terms and Conditions of Sale and Delivery of De Waard Tenten B.V.,
having its registered office in Doetinchem, the Netherlands, and filed with the Chamber of Commerce under number 72325429.
1. Definitions
1.1. Customer: any natural person or legal entity requesting quotations or offers for Goods and/or Services from De Waard, or placing orders therefor, and on whose behalf such offers, quotations, orders and (subsequent) Agreements are concluded;
1.2. General Terms and Conditions: these general terms and conditions of sale and delivery;
1.3. Services: all activities (in whatever form and under whatever designation) performed by De Waard for or on behalf of the Customer, including but not limited to assembly and installation, whether or not in connection with the delivery of Goods;
1.4. De Waard: De Waard Tenten B.V.;
1.5. Goods: all products sold by De Waard, excluding Services supplied by De Waard;
1.6. Agreement: any (legal act preparatory to the performance of an) agreement concerning the sale and delivery of Goods and/or Services concluded between De Waard and the Customer, including all amendments and additions thereto, and including the site and installation checklist;
1.7. Parties: De Waard and the Customer jointly and each individually.
2. Agreements, Formation and Amendments
2.1. These General Terms and Conditions shall apply exclusively to all offers, quotations, Agreements and legal relationships between the Parties, whether arising from contract or otherwise.
2.2. The Customer may only invoke deviating or supplementary stipulations if and insofar as such stipulations have been expressly accepted by De Waard in writing.
2.3. The applicability of any general or other terms and conditions used by the Customer is hereby expressly rejected.
2.4. A Customer who has once contracted with De Waard on the basis of these General Terms and Conditions shall be deemed to have agreed to their applicability to subsequent agreements between the same Parties.
2.5. If, for any reason, one or more provisions of these General Terms and Conditions are null and void or annulled, the remaining provisions shall remain in full force and effect. The Parties shall consult in order to agree upon new provisions replacing the null and void or annulled provisions, taking into account as much as possible the purpose and intent of the original provision. Failure by De Waard to demand strict compliance with these General Terms and Conditions shall not constitute a waiver of its right to demand full compliance at a later time.
2.6. All offers made by De Waard are without obligation, are based on the information provided by the Customer, and are valid for thirty (30) days. Submission of requests, orders or other documentation by the Customer shall not oblige De Waard to accept them. An Agreement shall only be concluded after a request and/or order has been accepted and confirmed in writing by De Waard through an authorized representative, or once De Waard has commenced performance or preparatory activities. An offer shall lapse, without any liability on the part of De Waard, if the Goods stated therein are no longer available.
2.7. A composite quotation shall never oblige De Waard to perform part of the Agreement at a proportionate part of the agreed price.
2.8. Images, descriptions, drawings, designs, models, dimensions, weights and colours of Goods contained in documentation provided by De Waard are intended solely to give a general impression and shall not be binding.
2.9. Every Agreement is entered into under the suspensive condition that the Customer has paid the agreed advance payment and has proven to be sufficiently creditworthy to meet its payment obligations.
3. Prices
3.1. Unless otherwise agreed, all prices are stated in Euro and are exclusive of VAT and/or any other government-imposed levies, duties and costs relating to packaging, loading and unloading, installation, assembly, temporary accommodation of installation personnel, insurance, foundations and transport.
3.2. If, after the conclusion of the Agreement, cost-determining factors (including but not limited to wages, raw materials, exchange rates or government measures) increase, De Waard shall be entitled to adjust the agreed prices accordingly, without the Customer being entitled to terminate the Agreement.
3.3. If modification of the Agreement becomes necessary for proper performance, the Parties shall amend the Agreement by mutual consultation. If the Agreement is materially amended at the instruction of the Customer, De Waard may treat this as additional work and adjust prices and terms accordingly. Additional work shall only be performed after written agreement of the Parties regarding amended prices and conditions. De Waard shall be entitled to refuse requests for additional work without being in default.
4. Delivery
4.1. Unless expressly agreed otherwise, delivery of Goods shall take place in accordance with EXW (Ex Works) De Waard’s premises or another location designated by De Waard (Incoterms 2010). Transport arranged by De Waard at the request of the Customer shall be at the Customer’s expense and risk.
4.2. Delivery periods are indicative only and shall not constitute strict deadlines unless expressly agreed in writing. Partial deliveries are permitted and may be invoiced separately. De Waard may suspend further performance until prior delivered parts have been approved and paid in full.
4.3. The Customer must report transport damage to the carrier immediately upon receipt and provide De Waard with a copy, including photographs.
4.4. Goods not collected after expiry of the delivery period shall be stored at the Customer’s expense and risk, without prejudice to the Customer’s payment obligation.
4.5. Assembly and/or installation shall only form part of De Waard’s obligations if expressly agreed in writing. The Customer shall ensure that the installation site complies with all requirements set out in this Article, including accessibility, safety, absence of cables and pipelines, and availability of required infrastructure.
4.6. Failure by the Customer to comply with its obligations under this Article shall never result in liability on the part of De Waard. De Waard may suspend performance until a duly completed and signed site checklist has been received.
4.7. Entry by the Customer onto any site where De Waard performs the Agreement shall be at the Customer’s own risk. The Customer shall indemnify De Waard against third-party claims arising from such presence.
4.8. De Waard is entitled to engage third parties in the performance of the Agreement. All provisions relating to limitation of liability and applicable law shall also apply to such third parties.
4.9. The Customer is responsible for obtaining all permits and authorizations necessary for performance of the Agreement.
4.10. If the Customer fails to ensure timely and adequate conditions for performance, De Waard shall be entitled to suspend or refuse performance without prejudice to its right to payment and compensation.
4.11. De Waard may suspend or terminate Services if, in its sole opinion, performance poses a risk to persons, property or the environment.
5. Retention of Title
5.1. Title to the Goods shall pass to the Customer only after full payment of all amounts due under any Agreement with De Waard, including interest and costs.
5.2. The Customer shall keep Goods subject to retention of title identifiable and separate.
5.3. Until title has passed, the Customer may not transfer or encumber the Goods. The Customer shall insure the Goods adequately and inform De Waard immediately in case of attachment or third-party claims.
5.4. If the Customer fails to fulfil its payment obligations, De Waard shall be entitled to repossess the Goods.
5.5. The Customer hereby grants De Waard advance permission to enter premises where the Goods are located to exercise its right of repossession.
6. Complaints
6.1. The Customer must inspect delivered Goods and Services immediately upon delivery and notify De Waard in writing of any defects within eight (8) days. Hidden defects must be reported within eight (8) days of discovery.
6.2. The burden of proof regarding timely and valid complaints lies with the Customer.
6.3. Minor or customary deviations shall not constitute grounds for complaint.
6.4. Returns are only permitted with prior written consent from De Waard.
6.5. Failure to complain within the prescribed period shall constitute acceptance of the Goods or Services.
7. Warranty and Liability
7.1. De Waard provides warranty on its Goods as specified in product documentation. Unless otherwise agreed in writing, a warranty period of twenty-four (24) months after delivery applies to Goods delivered and used in the Netherlands.
7.2. The warranty does not apply to defects caused by normal wear and tear, improper use, weather conditions, lack of maintenance, or installation by third parties.
7.3. During the warranty period, De Waard’s liability is limited to repair or replacement at its discretion. Any further liability, including for indirect or consequential damages such as loss of profit, business interruption or lost savings, is expressly excluded.
7.4. In all cases, De Waard’s liability is limited to the invoice value of the Goods or Services causing the damage, or to the amount actually paid under its insurance policy.
7.5. Any claim against De Waard, other than warranty claims, shall lapse nine (9) months after delivery and expire absolutely eighteen (18) months after delivery or the date delivery should have occurred.
8. Obligations and Indemnity of the Customer
8.1. The Customer shall compensate De Waard for any damage resulting from non-compliance with the Agreement and shall indemnify De Waard against third-party claims.
8.2. De Waard may require the Customer to carry out a product recall within a specified period.
8.3. The Customer shall provide all necessary information in a timely and accurate manner.
8.4. The Customer shall provide accurate information regarding the installation site and underground infrastructure and shall indemnify De Waard against any resulting damage.
9. Payment and Security
9.1. The Customer shall pay a 50% advance payment within eight (8) days of conclusion of the Agreement. De Waard may suspend performance until payment is received.
9.2. Unless otherwise agreed, payment shall be made within thirty (30) days of invoice date.
9.3. In case of late payment, statutory commercial interest pursuant to Section 6:119a of the Dutch Civil Code shall be due automatically, without notice of default.
9.4. All judicial and extrajudicial collection costs shall be borne by the Customer, amounting to at least 15% of the outstanding amount, with a minimum of EUR 750.
9.5. All claims become immediately due and payable in case of bankruptcy, suspension of payment, liquidation or attachment.
9.6. Payments shall first be applied to interest and costs, and subsequently to the oldest outstanding invoice.
9.7. The Customer is not entitled to set off any amounts unless agreed in writing.
9.8. No set-off is permitted with affiliated entities.
9.9. De Waard may demand adequate security before or during performance.
10. Force Majeure
10.1. Force majeure means circumstances beyond De Waard’s control preventing performance, including but not limited to war, natural disasters, epidemics, strikes, supplier delays, transport interruptions, government measures, and extreme weather conditions.
10.2. In case of force majeure, obligations shall be suspended. If the situation lasts longer than sixty (60) days, either Party may terminate the unperformed part of the Agreement without liability.
11. Termination
11.1. De Waard may terminate the Agreement without notice of default or judicial intervention if the Customer fails to comply with its obligations, becomes insolvent, is subject to attachment, ceases business, provides incorrect information, or fails to provide security. De Waard may reclaim delivered Goods and claim damages.
11.2. Cancellation by the Customer requires prior written approval. If cancelled before performance begins, 30% of the order price (including VAT) shall be due as cancellation costs, without prejudice to De Waard’s right to full damages.
11.3. Partial termination does not affect De Waard’s right to payment for work already performed.
12. Industrial and Intellectual Property Rights
12.1. All intellectual and industrial property rights relating to Goods, designs, drawings and documentation remain the property of De Waard.
12.2. The Customer shall not remove or alter trademarks or other proprietary indications.
12.3. The Customer shall immediately notify De Waard of any infringement claims and provide reasonable assistance.
13. Disputes and Applicable Law
13.1. All legal relationships between De Waard and the Customer shall be governed exclusively by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
13.2. Any disputes shall be submitted exclusively to the competent court of Gelderland, location Arnhem, the Netherlands.
