GENERAL TERMS AND CONDITIONS
ARTICLE 1 - DEFINITIONS
The following definitions are used:
- The supplier: the seller/contractor,
- The client: the purchaser/principal (individual) who does not act in the course of his business (consumer);
- The arbitrator: the Board of Arbitration Water Recreation in The Hague.
ARTICLE 2 - APPLICATIONS
- The General Conditions apply to all agreements with the supplier related to buying and selling (excluding second hand purchases and sales), all agreements concerning contract work, all offers by the supplier, and in particular to all contracts concerning the purchase, sale or building of new pleasure craft and hulls, including integral fixtures and fittings.The General Conditions also apply to any offer or agreement concerning alterations, finishing and internal fittings, repairs or maintenance to or of pleasure craft or parts thereof, as well as to any further agreements resulting from the above.
- These conditions may be translated from Dutch into another language. In the case of discrepancy between the texts resulting from translation, the Dutch text will prevail.
ARTICLE 3 - OFFERS
- A written offer shall be binding during the stated period or if no period is mentioned, for ten working days after receipt, unless there is a different provision or the credit worthiness of the client is estionable. If the client fails to accept an offer within the stated period, the offer will be withdrawn.
- Any offer must include prices, dimensions, weights and delivery date as well as engine size and speed if applicable. The offer must include designs, pictures, drawings, plans and specifications if relevant and to the extent they are not supplied by the client.
- Internal fittings and refurbishments directly related to the purchase, shall be separately costed (contract price) by the contractor giving the completion date.
- All designs, pictures, drawings, plans, specifications and other explanations and clarifications included with the offer for fitting out, refurbishment or repairs, remain the property of the supplier. They are protected under the Copyright law and may not be passed on to a third party, unless this is essential for the repairs and maintenance to be carried out.
- Except in the case of essential repair and/or maintenance work as indicated in the previous paragraph, the client shall not publish or multiply such documents, nor show them to third parties without written permission.
ARTICLE 4 - THE AGREEMENT
- Any purchasing agreement or contract for work to be carried out costing more than € 2.270,00 (excluding turnover tax) and any subsequent agreements must be confirmed in writing.
- Any subsequent agreements and/or amendments or promises made by the personnel or staff of the supplier are binding as long as they have been confirmed in writing. If there is no written agreement or confirmation of an agreement or further arrangement, both parties are bound by such an agreement or further arrangement, as long as one of them can prove by means of other written documents that an agreement or further arrangement was actually made.
- Without prejudice to article 10 item 2 of the General Conditions the supplier may charge extra costs if they are the result of changes in the work to be carried out or of interruptions, if they were caused by circumstances for which the supplier was not responsible.
- An agreement for refurbishment or repairs only extends to work the supplier could have reasonably anticipated. If the extent of the work is greater than could have been foreseen, the supplier must halt the work immediately and discuss with the client whether work should be continued and in which manner. The supplier may in any case charge for work carried out to date and any related costs.
- If supplementary agreements substantially affect the price, delivery date, dimensions, weight or engine capacity and speed, the supplier must advise accordingly.
- The client must have reasonable opportunity to check up on the work during normal working hours. The client may engage one or more third parties to perform such checks or supervision, and must advise the supplier at his request of the names of such persons.
ARTICLE 5 - GUARANTEE
- The supplier guarantees that he will supply a pleasure craft or hull, including fixtures and fittings as agreed, to the agreed specifications. The supplier shall also ensure that whatever he supplies is suitable, under all circumstances, for normal use or any special use as agreed.
- The supplier guarantees that the work done by him or in his name shall comply with the contract and shall be done to a high level of workmanship and using good-quality material.
- In compliance with the above, the supplier guarantees that for a period of twelve months after delivery no defects shall become apparent or develop. For maintenance work on, and repairs to, motors, navigation equipment and/or electronic equipment, there is a warranty period of three consecutive months after such motors or equipment are actually put into operation; this period shall not, however, extend longer than six months after the date of sale or the date on which the work was done. the above periods of three and six months shall be extended by the period during which the vessel is laid up during the winter. For components supplied by third parties and fitted by the supplier, the warranty conditions of these third parties shall apply, insofar as the relevant warranty certificates are given to the client. If maintenance and/or repair work is involved, no warranty shall be given on painting or coating work done within the scope of such work.
- Without prejudice to other rights he has under the law, the client is entitled to have any defect or replacement of faulty parts carried out free of charge and within reasonable time at the boat yard of the supplier. The client may charge the supplier for any necessary repairs he has done by a third party, provided the costs are reasonable. To determine what would be reasonable costs, the supplier's price level will be taken into consideration. The supplier appoints the contractor who shall carry out the necessary repairs, after consultation with the client. Repairs can only be carried out on the premises of the third party if:
- the supplier is unable to do the repair in his own yard or cannot do so in time;
- the costs of transporting the craft to the supplier's boat yard is out of proportion to the costs of repairs at the yard;
- through circumstances the client cannot be expected to have the repairs done at his supplier's boat yard.
- The supplier is not responsible for design faults in the craft if he did not design it himself. Nor is the supplier responsible for the effectiveness and quality of materials and tackle ordered or supplied by the client.
- Unless otherwise agreed because of specific criteria, the following margins of error are acceptable under the contract:
± 1% in length from prow to stern;
± 1% in width overall
± 1% Depth
± 5% draught;
± 2% standing room beneath the beams;
± 1% maximum height above the water level;
± 10% weight;
± 5% engine capacity;
± 10% speed (with standard fittings).
- The supplier provides no warranty against (external) imperfections, resulting from the type and quality of the materials used, that do not detract from the soundness of the vessel.
- The supplier is not responsible for defects which have occurred after delivery of the goods due to ordinary wear and tear, improper use or carelessness, or are the result of alterations made by the client or third parties. Nor is the supplier responsible for any damage resulting from the above defects.
- Emergency repairs are not covered by the guarantee.
ARTICLE 6 - DELIVERY TIME
- By delivery time is meant the time between the date when the sales agreement is signed or the contract for refurbishment, finishing or repair is issued and the date of delivery ex yard or depot in The Netherlands.
- The supplier must advise the client in writing, giving adequate reasons, as soon as he expects that the delivery date will not be met and indicate how long the delay may be.
- The delivery time will be extended by the length of any delay caused by the client's failure, despite timely warning, to pay the supplier an advance when it is due, or by the client's failure to fulfill any other obligation. Any predictable extra costs resulting from such negligence will be charged to the client.
- The supplier is not in default until the delivery date has been exceeded through circumstances for which the supplier is responsible.
ARTICLE 7 - FORCE MAJEURE
- By force majeure is meant any unforeseeable circumstance delaying or preventing the execution of the agreement in as far as such a circumstance cannot be avoided by the supplier and cannot lawfully, or on the grounds of the agreement or social convention be ascribed to the supplier.
- Force majeure also covers delays caused by materials not being supplied on time, if the delay is not caused by circumstances the supplier should or could have foreseen or prevented.
- If force majeure causes the supplier to delay the work, the client shall also be released from his obligations for the period in question.
- If the agreement is cancelled through force majeure, the supplier can claim compensation for the costs of building, installation, refurbishment or repairs, in as far as such costs were incurred before the agreement could be expected to be terminated by force majeure, and to the extent that the client benefits from the work already completed.
- The supplier cannot claim force majeure if it occurs after the agreed delivery date has already been exceeded by 15% through his fault or through circumstances caused by him.
ARTICLE 8 - DELIVERY
- Delivery is ex-yard in The Netherlands. If a trial cruise is held, delivery will be at the place where the the trial cruise takes place.
- Prior to delivery the supplier shall give the client the opportunity to inspect (order the inspection of) the craft or other goods. In the case of repairs, refurbishment, installation, finishing or maintenance, the supplier shall give the client the opportunity to inspect (order the inspection of) the work. If there is to be a trial cruise, the supplier shall arrange for it to take place before handing over the goods to the client.
- Within ten working days of receiving notification from the supplier that the inspection and/or the (delivery) trial trip can take place, the client must use the opportunity offered. If the client does not use the opportunity offered to him within this period of ten working days, the vessel or object shall be deemed to have been delivered. The client shall then no longer be able to argue that the vessel or object exhibits deficiencies if he could reasonably be expected to have discovered them during the inspection and/or the (delivery) trial trip.
- If the craft or goods are deemed to have been delivered in accordance with items 2 or 3, the responsibility for the above transfers to the client.
- If following delivery the client fails to take possession of the craft or goods, they will be stored for the account and at the risk of the client.
- Any parts which have been replaced will be returned to the client when the work is complete, if he requested this when he commissioned the work. This does not apply to parts which under the guarantee must be dealt with separately; in that case the parts will be made available after any claims under the guarantee have been dealt with. In all other cases the replaced parts will become the property of the supplier, and the client will not have any claim on them.
- If a client, when buying or ordering a new boat to be built, agrees to trade in a used boat or other goods, the latter will not become the property of the supplier until it has actually been delivered. If the client continues to use the boat or goods which are to be traded in, whilst waiting for delivery of the new boat or goods, any damage or loss, howsoever sustained, will be for the account and at the risk of the client. All costs for maintenance and repair are for the client's account.
- If the client fails in his obligations while the object of the agreement has been registered, the client is obliged to co-operate in getting it removed from the register.
ARTICLE 9 - CLAIMS
Complaints relating to implementation of the contract should be brought to the attention of the supplier, preferably in writing and clearly described and illustrated, within a reasonable period of the clients having discovered the deficiencies or his having been able to discover them. The consequences of late complaints shall be for account of the client.
ARTICLE 10 - PURCHASE PRICE AND CONTRACT SUM
- All purchase prices and contract sums are quoted net cash at the agreed place for delivery.
- Each price increase or decrease, in as far as it affects the purchase or contract price, will at the request of the claimant be passed on if it occurs after more than three months after the agreement was signed and no delivery has yet taken place, or the projected work has not yet been completed. However, the supplier will not pass on any price increase if it would not have affected the purchase or contract price had the materials in question been ordered in time. The term price increases and decreases include any changes in the rate of exchange for the currency the materials or goods are supplied in, in relation to the rate of exchange current at the time the purchase or contract price was fixed. If as a result of a price increase as mentioned in this item as well as in items 3 and 4 of this article, the purchase or contract sum increases by more than 15%, the client has the right to cancel the purchase agreement, or to turn down the agreement altogether.
- Any increase or decrease in wages and other labor conditions in force with the CAO, or binding wages agreement applied by the supplier, and any increases or decreases in social security contributions, are passed on in as far as they affect the contract price and have come into force more than three months after the agreement was signed.
- Unless there is a statement to the contrary, the purchase price and contract price always include the appropriate value added tax, import duties and other charges in force at the time of the agreement. Any amendments to these charges are reflected in the purchase or contract price. If any charges can be avoided by observing certain regulations, both parties have the obligation towards one-another to take the necessary action.
- Either party may insist that any price increase or decrease which may affect the purchase or contract price, and which can be ascribed to the negligence or delay of the other party, is reflected in the final price.
- Items 2,3, and 4 of this article do not apply if the purchase or contract price has been fixed.
ARTICLE 11 - CONDITIONS OF PAYMENT
- Unless otherwise agreed, payment is due on delivery. All payments shall be made in cash at the offices of the supplier, or by crediting the bank account specified by the supplier.
- In the case of contract work and for work where payment in advance is specified, the amount is payable in the installments and percentages as specified in the agreement. In the case of a purchase the client is not obliged to pay more than 50% of the purchase price in advance.
- If the client does not pay the amount owed by the agreed due date, or, if a due date has not been agreed, the client does not pay the amount owed within ten days of his being notified of default in this matter by the supplier, he shall be deemed automatically to be in default. In such a case, the supplier shall be entitled to charge the client the legal interest plus 3% p.a. over and above the amount owed. This interest shall be charged from the due date. The above does not affect the provisions of article 16 paragraph 10 of these terms and conditions.
- Should one of the parties need to take legal advice concerning a dispute about an agreement which is subject to these conditions, the defaulting party or the party which is ruled against, will (also) be liable for legal costs. Such extra-judicial expenses shall be 15% of the outstanding amount with a minimum of € 115,00 plus actual expenses, unless the other party can prove that a smaller minimum amount would have sufficed. The above is without prejudice to article 16 item 10 of the General Conditions.
- If completion of the agreement is delayed at the request of the client or because the client fails to honor his obligations on time, or prevents the supplier from carrying out his work on time, the supplier may demand payment of the purchase price or contract price on the date or dates when such payment would have been due if the agreement had proceeded in the normal manner.
- Complaints relating to invoices should be submitted to the supplier, preferably in writing and clearly described and illustrated, within a reasonable period of receipt of the invoice concerned.
ARTICLE 12 - DEFERMENT AND RESCISSION
- If one of the parties fails to carry out his obligations, the other party may defer his own activities. If the performance of one of the parties is merely incomplete or unsatisfactory, deferment by the other party is permissible only in relation to the extent of the default.
- If one of the parties fails to honor his obligations, the other party may rescind the agreement, unless the failure is due to exceptional circumstances or so trivial that it does not justify rescission.
ARTICLE 13 - RIGHTS OF OWNERSHIP
- Goods sold by the supplier do not become the property of the client until the selling price and any other amounts related to the transaction are paid in full to the supplier.
- In all cases when work is commissioned, including the building of a new craft, the craft and any related materials or appurtenances, whether at the boat yard of the supplier or elsewhere, belong to the client. The supplier has right of lien on such goods at all times, as well as on any insurance payments for damage to such goods, any unpaid part of the buildings costs, and any loss or damage he has suffered or may suffer if the client fails to honor the agreement.
- The goods mentioned in item 2 of this article are deemed to become the property of the client as soon as they arrive in the yard of the supplier or elsewhere into his custody. The client may ask the supplier to point out which goods have thus become his property and to have them duly marked for the safeguarding and identification of his property. When the supplier confirms receipt of the goods, the implication is that he is holding such goods (separately if necessary) for the client.
- The fact that the client is the owner of the craft while it is being built, as well as of all the required building materials and accessories, even before the craft is finished and delivered, in no way alters or diminishes the Supplier's obligations as set out in the General Conditions.
- Without prejudice to the supplier's right of lien, cancellation of the building contract does not affect the property rights of the client until rescission is complete.
- If the client fails in his (financial) obligations and the object of the agreement has been registered, the client is obliged to co-operate in getting it removed from the register.
- The supplier may retain the craft in question, together with all its tackle, inventory and other accessories, until the client has paid all outstanding amounts, including any costs resulting from the right of lien. The supplier loses the right of lien as soon as the client refers a dispute to the Board of Arbitration mentioned in article 16, and the Board has confirmed to the supplier that the client has deposited the outstanding amount.
- In the cases mentioned in items 1 and 2 of this article, the supplier may, without legal intervention, sell the craft and all materials intended for it, and set the proceeds against any outstanding claim, if the client, having received a demand for payment by registered mail, has not paid the outstanding amount six months after receiving the demand, nor referred the dispute to the Board of Arbitration mentioned in article 16 and deposited the outstanding amount with the board. The supplier must transfer any difference between the proceeds of the sale and the amount owed by the client to the supplier within eight days after receiving the proceeds, if at all possible.
- The supplier cannot proceed with the sale until he has served a writ on the client, after the aforementioned period of six months, demanding payment of the outstanding amount within 15 working days.
ARTICLE 14 - INSURANCE COVER DURING BUILDING,
REFURBISHMENT AND FITTING OUT
- The supplier must insure a craft and all relevant materials, tackle and other accessories while it is being built or refurbished at his yard and during inspection and trial cruise until it is finally delivered, against all risks which are normally covered by a 'Nederlandse Beurscaspolis voor aanbouw 1947' or similar policy.
- The supplier shall transfer his entitlement to insurance payment to the client to the extent of the premiums paid by the latter. The insurer is not bound by the transfer until it has been accepted or signed, which is the responsibility of the supplier. The supplier is obliged to warn the client when the insurance policy runs out. The client has the right at all times to defer payment until the supplier has fulfilled the above obligations.
- Any insurance to cover damage shall be used to carry out the necessary repairs in the way and at the price agreed by the parties.
- The above does not apply if the craft is declared a total loss, in which case the agreement will no longer be valid.
- The goods must in any case carry sufficient insurance to cover current commitments.
ARTICLE 15 - LIABILITY
- The supplier is liable for damage affecting the client, resulting from negligence on the part of the supplier, his staff or persons employed by him for the work assigned by the client.
- The client is liable for damage affecting the supplier, resulting from negligence on the part of the client or his dependents.
ARTICLE 16 - DISPUTES: BOARD OF ARBITRATION AND REGULAR
COURTS OF LAW
- All disputes relating to the agreement are subject to Netherlands law. Only a Dutch court of law and the board of arbitration named hereafter are competent to deal with such disputes.
- Any dispute between the client and supplier about the contents or the execution of the agreement, may be referred to the Board of Arbitration Water Recreation, P.O. Box 90600, 2509 LP The Hague.
- The Board of Arbitration will only consider a dispute after the client has advised the supplier of his complaint within the set period.
- The client must refer the dispute in writing to the Board of Arbitration within three months after he advised the supplier of his complaint, together with the names and addresses of the client and supplier and a clear statement regarding the dispute and his claim.If the client has referred a dispute to the Board of Arbitration, the supplier is bound by this choice and can no longer appeal to a regular court of law.
- The Board of Arbitration is not competent to consider a dispute concerning merely the non-payment of an invoice if no material claim is involved. If the client fails to pay an invoice on time, the supplier may bring procedures in an ordinary court of law, providing the supplier has allowed the client one month after receiving the demand to refer the dispute to the Board of Arbitration.
- If the supplier refers a dispute to the Board of Arbitration, the Board will proceed only after the client has been allowed one month to declare in writing that he will abide by the Board's decision and has deposited any outstanding amounts with the Board of Arbitration.
- If the client refers a dispute to the Board of Arbitration, the Board will proceed only after the client has deposited any outstanding amount owed to the supplier with the Board of Arbitration. The client is allowed one month to pay the amount into an account indicated by the Board of Arbitration. Should the client fail to deposit the amount on time, he will be deemed not to accept the decision of the Arbitration Board.
- A charge will be made for arbitration of disputes.
- If a dispute is referred to the Board of Arbitration, items 3 and 4 of article 11 do not apply.
- For the consideration of disputes the regulations concerning the Board of Arbitration Water Recreation apply.
ARTICLE 17 - EXCEPTIONS TO THE GENERAL CONDITIONS
Individual exceptions, including additions and extensions to the General Conditions, must be confirmed in writing.