General Terms and Conditions of Sale and Delivery De Waard Tenten B.V.established in Doetinchem filed with the Chamber of Commerce under no. 72325429.
1. Definitions
1.1.
Buyer: any (legal) person who requests offers or quotations for or orders Goods and/or Services from De Waard and on whose behalf said 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 name) performed by De Waard for or on behalf of the Customer, including 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, which does not include Services provided by it;
1.6.
Agreement: any (legal act in preparation for the execution of an) agreement regarding the sale and delivery of Goods and/or Services concluded between De Waard and the Customer, including all supplements and amendments thereto, and including the location and set-up checklist;
1.7.
Parties: De Waard and the Customer.
2. Agreements, formation and amendment
2.1.
All offers, quotations, Agreements and legal relations between the Parties on the basis of agreement or otherwise, are subject exclusively to these General Terms and Conditions.
2.2.
Deviating or additional terms may only be invoked by the Customer if and insofar as they have been accepted by De Waard in writing.
2.3.
The applicability of any general and/or other terms and conditions used by the Customer is hereby expressly rejected.
2.4.
The Customer with whom a contract has once been concluded on the basis of the present terms and conditions, agrees to the applicability of the General Terms and Conditions to subsequent agreements between him and De Waard.
2.5.
In the event that, for any reason whatsoever, one or more of the provisions of these General Terms and Conditions should be void or nullified, the other provisions of these Terms and Conditions will remain in full force and effect, and the Customer and De Waard will consult in order to agree on new provisions to replace the void or nullified provisions, whereby the object and purport of the void or nullified provision will be taken into account as much as possible.
If De Waard, for reasons of its own, does not (always) require strict compliance with the General Terms and Conditions, this does not imply any cessation or loss of the right to require (full) compliance in other cases.
2.6.
All offers of De Waard are without obligation, based on the information provided by the Customer, and are valid for 30 days.
Forwarding of requests and/or orders and/or (other) documentation by the Customer does not oblige De Waard to accept.
An agreement will only be concluded after an application and/or instruction has been accepted and confirmed in writing by De Waard, by a person authorized to do so, or because De Waard has commenced performing or making preparations for the Services to be performed.
An offer made by De Waard will lapse without any liability for compensation on the part of De Waard in the event that the Goods specified in the offer are no longer available.
2.7.
A composite quotation included in an Agreement never obliges De Waard to perform part of the Agreement at a corresponding / pro rata part of the agreed price.
2.8.
Images, descriptions, drawings, designs, models, sizes, weights and colors of Goods in the documents sent by De Waard are only intended to give a general impression of the Goods and/or parts thereof and are not binding with respect to the Goods to be delivered or the Services to be performed.
2.9.
Each Agreement is entered into by De Waard under the suspensive condition that the Buyer makes the agreed down payment and proves to be sufficiently creditworthy for the fulfillment of its payment obligations towards De Waard.
3. Prices
3.1 Unless otherwise agreed, all prices are in Euros, exclusive of VAT and/or other government-imposed levies, duties, and costs with respect to packaging, loading and unloading, placement, assembly, temporary accommodation of installation personnel, insurance, foundation and transport.
3.2 If, after the formation of the Agreement, a change occurs in the cost-determining factors of the Goods to be delivered (including, but not limited to, labor wages applicable to De Waard, cost prices of raw materials or materials and/or exchange rates, cost increases due to measures promulgated by the government), De Waard will be entitled to increase the agreed prices accordingly, without the Customer being entitled to dissolve the Agreement.
3.3 If, after the formation of the Agreement, it appears necessary for its reasonably continued execution to modify it, the Parties shall adjust the relevant Agreement by mutual consultation.
If, however, the Agreement is materially amended after its formation at the instruction of the Customer, De Waard may regard this amendment as an instruction for additional work, and may adjust the originally agreed prices on the basis of the price determining factors applicable at the time the additional work is performed.
Additional work may also modify the other conditions and terms of delivery/performance originally agreed in the Agreement.
Such adjustments to the Agreement provide the Customer with no basis for (partial) termination of the Agreement.
Additional work shall only be performed after written acceptance by both Parties with respect to the amended prices, terms and other conditions.
If, during the performance of an Agreement, orders for additional work are given by or on behalf of the Customer or work supervisor at the place of installation/assembly, such additional work will be carried out upon receipt by De Waard of a work order signed by or on behalf of the Customer or work supervisor in respect of such order for additional work.
The Customer shall thereafter be bound by the prices, deadlines and other conditions thus modified by such order for additional work.
De Waard will be free to refuse requests for additional work and/or other changes to the Agreement without being in default towards the Customer.
4. Delivery
4.1.
Unless expressly agreed otherwise, Goods will be delivered in accordance with the delivery condition EXW location De Waard or another place to be designated by De Waard (Incoterms 2010).
Any transport by De Waard to locations to be designated by the Buyer, as well as any transport by De Waard to the location of storage or assembly/installation of the Goods shall be at the expense and risk of the Buyer.
4.2.
Terms of delivery are only given by approximation and, with respect to the performance of obligations by De Waard, do not apply as deadlines, unless expressly agreed otherwise in writing.
Deliveries may be made in parts and may be invoiced by De Waard with respect to the part already performed.
If an Agreement is executed in parts, De Waard is entitled to suspend execution until execution of the preceding part has been approved by the Customer and paid in full.
4.3.
The Customer must report transport damage to the carrier immediately upon receipt of the Goods and send a copy thereof including photographs to De Waard.
4.4.
Goods not taken delivery of by the Customer after the expiry of the delivery period will remain at the disposal of the Customer and will be stored by De Waard at the expense and risk of the Customer.
Within three working days after such storage has taken place, De Waard will notify the Buyer of the fact that the Goods have been stored as well as the location of storage.
This, however, does not affect the Customer’s payment obligation.
4.5.
Assembly and/or installation are only part of the obligations to be performed by De Waard under an Agreement if this has been agreed in writing.
If assembly and/or installation has been so agreed, the Customer shall determine the place of installation and shall ensure that:
a. the place of installation is level, clean, horizontal, sufficiently large for unloading and pre-assembly within 10 meters of the final installation location, and cleared of surface material;
b. debris, asphalt and concrete present at the installation site has been removed;
c. the place of installation is properly and safely, and within the agreed period, accessible without hindrance to the means of transport of De Waard and/or third parties engaged by it;
d. the place of installation is free from the presence of cables and pipelines;
e. the infrastructure necessary for the performance of the Agreement, including electricity and sewerage, is present at the place of installation and that this infrastructure is clean, functions properly and complies with all applicable legislation, standards, rules and permits;
f. all released (packaging) materials are disposed of to the extent that they will not be disposed of by De Waard;
g. a representative on behalf of the Buyer is present prior to commencement of the installation to coordinate proper placement;
h. the Goods can be installed and assembled on site safely and without infringing on the rights of third parties.
4.6.
Non-compliance or insufficient compliance with the obligations in this article can never lead to any liability of De Waard. Compliance with the Customer’s obligations regarding the installation location will be confirmed by a location checklist signed by the Parties, without full completion and signature of which De Waard will be entitled to suspend the performance of its obligations under the Agreement.
4.7.
Entry by the Customer to the premises where De Waard performs the Agreement will be at the Customer’s expense and risk.
De Waard will not be liable for any damage suffered by the Customer – and the Customer shall indemnify De Waard for any damage suffered by third parties – arising from the presence of the Customer or the performance of work by the Customer on the premises where De Waard is executing the Agreement.
De Waard is not liable for any damage resulting from transport or storage of the Goods on the Customer’s premises.
4.8.
Unless expressly agreed otherwise, De Waard is authorized to engage third parties in the performance of the Agreement or to have all or part of the Agreement performed by third parties.
Reliance on the provisions contained in these General Terms and Conditions, including but not limited to the provisions of liability, and applicable law and jurisdiction, will also accrue to all subordinates of De Waard and all third parties engaged directly or indirectly by De Waard and their subordinates involved in the performance of the Agreement.
4.9.
The Customer is responsible for and shall ensure that the permits, exemptions and similar dispositions necessary to perform the Agreement are obtained in a timely manner so that De Waard can commence performance of its obligations at the time it intends.
4.10.
The Customer warrants that De Waard will be given the opportunity and all (sanitary) facilities are present to perform the agreed services at the time and location agreed upon or at which De Waard wishes to perform them, failing which De Waard will no longer be obliged to perform them or may suspend them, without prejudice to De Waard’s right to full payment and/or compensation of all damage suffered as a result thereof.
4.11.
De Waard shall not be obliged to perform agreed services and may discontinue the performance of any services at any time if, in De Waard’s opinion, doing so – for any reason whatsoever – would endanger persons, property or the environment.
5. Retention of title
5.1.
Ownership of the Goods will not pass to the Customer until the Customer has paid all amounts owed to De Waard by the Customer under any (previous) Agreement, including interest and costs, as well as any amounts owed to De Waard by the Customer on account of De Waard’s failure to perform any agreement with De Waard.
5.2.
The Customer is obliged to keep and/or make identifiable the Goods that are subject to retention of title for the benefit of De Waard, and to separate them from the other goods in the Customer’s possession.
5.3.
If and so long as De Waard retains title to the Goods delivered, the Buyer will not be permitted to dispose of these Goods, or to establish any limited right in rem on them.
In the event of attachment or the establishment of any right by third parties on goods delivered by De Waard under retention of title, the Buyer will inform De Waard immediately and do everything possible to secure De Waard’s title.
The Customer has a duty of care with respect to the Goods subject to the retention of title, and must insure them and keep them insured against snow and water damage, fire, explosion, theft, and all risks customary in the sector, whereby De Waard will be entitled to the monies to be paid in the event of a payment under such insurance policy.
5.4.
If the Customer fails to fulfil its payment obligations towards De Waard, or De Waard has good reason to fear that it will fail to fulfil those obligations, De Waard will be entitled to repossess the Goods delivered under retention of title.
5.5.
In order to enable De Waard to exercise the right to repossess the Goods referred to in the foregoing paragraph, the Buyer hereby grants De Waard permission, now for then, to enter the sites and buildings where the Goods are located, or have them entered.
The costs of returning the Goods shall be borne by the Buyer.
6. Complaints
6.1.
The Customer is obliged to check delivered Goods and/or Services provided immediately after delivery for quality and any shortcomings, as soon as possible, but no later than within a period of 8 days after the Goods have been delivered or the Services have been performed in writing and with a statement. of grounds to De Waard.
Hidden defects must be reported in writing to De Waard within 8 days after the day on which the defects were discovered, or at least within 8 days after the defect should reasonably have been discovered.
6.2.
Proof of the timely submission as well as the correctness of the complaint rests with the Customer.
The Customer is obliged to provide De Waard with full cooperation in initiating an investigation into the defects.
6.3.
Minor and/or industry-standard deviations and differences in quality, color, quantity, etc. can never constitute grounds for complaints.
6.4.
The Customer may only return delivered Goods if De Waard has agreed to this in writing in advance.
Acceptance of return shipment may never be regarded by the Customer as recognition by De Waard of defects in the delivered goods or as acknowledgment of liability.
6.5.
If the Customer has not complained within the periods referred to in the previous paragraphs, or if the Customer continues to have access to the delivered Goods, he is deemed to have approved the delivered goods and to have waived all rights and powers granted to him on the basis of the law and/or the Agreement.
In the event of a complaint, the Customer is not entitled to suspend fulfillment of its obligations towards De Waard.
7. Warranty and liability
7.1. De Waard provides a guarantee on its Goods, which guarantee is further described in the various product documentation. Unless a different warranty period is expressly included in writing, a warranty period of 24 months after delivery applies to Goods supplied and used by De Waard in the Netherlands. De Waard is entitled to adjust its warranty conditions and terms to the country where the Customer is located or where the Goods will be delivered and used; such conditions and terms will then be agreed separately between the Parties. 7.2. The warranty does not apply to defects caused by normal wear and tear, natural working of wood products, weathering, careless or improper use, storage, maintenance or repair, careless or incorrect moving of the Goods, insufficient protective measures taken with regard to the Goods. against snow, rain, ice and other weather conditions, vandalism, rodents, accidents, mold, rust, algae, moss, or disaster including but not limited to damage due to fire, flood, extreme weather conditions (including heavy wind, snow and rain). If the Customer carries out installation itself or third parties engaged by it, no warranty claim can be made. 7.3. De Waard is only liable during the agreed warranty period for replacing or repairing, at De Waard’s discretion, free of charge any defects found and reported in a timely manner by the Customer, at the discretion of De Waard and on the condition of timely and correct complaints. Any defective Goods to be replaced must be returned to De Waard without delay. Any further liability of De Waard, including but not limited to lost profits, loss of turnover, losses suffered and costs incurred as well as missed orders and missed savings, unrecovered investments, late deliveries, and damage due to production or business interruptions or – stagnation is excluded. 7.4. Without prejudice to the above, De Waard’s liability is in all cases limited to the invoice value of the Goods and/or Services delivered as a result of which the damage is caused or, if the damage is covered by De Waard’s insurance, to the amount that is actually paid out by the insurer in this regard. Minor differences and minor changes compared to the Agreement never give the Customer the right to terminate the Agreement and/or compensation. De Waard is never liable for any damage arising as a result of incorrect or incomplete information provided by the Customer to De Waard. 7.5. Every claim of the Customer against De Waard, with the exception of warranty claims, expires after the mere passage of nine months, and expires after the mere passage of 18 months, after the moment of delivery of Goods, performance of the Services, or the moment that delivery takes place. whether implementation should have taken place.
8. Obligations of the Customer and indemnification
8.1.
Non-compliance by the Customer with the Agreement or one or more of the provisions of these conditions or non-compliance with other instructions or regulations of De Waard, which results in damage to De Waard, obliges the Customer to compensate all damage caused to De Waard as a result.
The Customer indemnifies De Waard against all claims from third parties for compensation for any damage suffered by these third parties in such a case.
In the event that De Waard is approached by third parties, the Customer will provide De Waard with all necessary assistance and information.
8.2.
De Waard may oblige the Customer to withdraw from the market within a period to be determined by De Waard (recall action) Goods that it has put into circulation and which are defective or which are (possibly) likely to reveal themselves. , against reimbursement of the reasonable costs to be incurred by the Customer.
8.3.
The Customer will always provide De Waard in a timely manner with all necessary information required for the execution of the Agreement, failing which De Waard is entitled to suspend performance of the Agreement and charge any additional costs to the Customer.
De Waard is never liable for damage resulting from untimely, incomplete or incorrect information provided by the Customer.
8.4.
If, at the request of the Customer, the Goods must be installed on site, the Customer will in any case provide information regarding the layout of the installation location, the course of the underground pipes including cable works, and the possible presence of obstacles and other obstacles to the implementation. of the agreed services.
The Customer will confirm to De Waard at least 3 working days before any excavation work that the Customer has made all (legal) required investigations and reports, failing which De Waard may assume that such reports and investigations have been made, and that there are no underground cables on site. whether pipes are present.
Any damage or costs resulting from the Customer’s failure to make such an investigation or report will be borne by the Customer, and the Customer indemnifies De Waard against all damage resulting from hitting or damaging pipes, cables or other obstacles.
If the Customer does not meet its obligations in this regard, De Waard is entitled to suspend its performance under the Agreement.
While installation work is being carried out by De Waard, the Customer and any clients or third parties engaged by it do not have access to the location where the work is being carried out without the prior written permission of De Waard.
