Article 1: Definitions
- Q Watersports BV, established in Zevenaar, Chamber of Commerce number 09209675, is referred to in these general Terms and Conditions as seller.
- The other party of the seller is referred to as buyer in these general Terms and Conditions.
- The parties together are seller and buyer.
- The agreement means the purchase agreement between the parties.
Article 2: Applicability of general conditions
- These conditions apply to all quotations, purchase price lists, offers, agreements and deliveries of services or goods by or on behalf of seller.
- Deviating from these Terms and Conditions is only possible if the parties have agreed this explicitly and in writing.
Article 3: Payment
- The full purchase price is always paid immediately upon ordering. For reservations, in some cases a deposit is expected. In that case, the buyer receives proof of the reservation and the prepayment.
- If the buyer does not pay on time, he is in default. If the buyer remains in default, the seller is entitled to suspend the obligations until the buyer has fulfilled his payment obligation.
- If the buyer remains in default, the seller will take action to recovery. The costs related to this recovery will be borne by the buyer. These recovery costs are calculated on the basis of the reimbursement for extrajudicial recovery costs.
- In the event of liquidation, bankruptcy, attachment or suspension of payment of the buyer, the seller’s claims against the buyer shall become immediately due and payable.
- If the buyer refuses to cooperate with the execution of the order by the seller, he is still obliged to pay the agreed price to the seller.
Article 4: Offers, purchase price lists, quotations and price
- Offers are without obligation, unless a term for acceptance is mentioned in the offer. If the offer is not accepted within that period, the offer will lapse.
- Delivery times in quotations are indicative and do not give buyer the right to dissolution or compensation if these are exceeded, unless parties have explicitly agreed otherwise in writing.
- Offers and quotations do not automatically apply to repeat orders. The parties must expressly agree this in writing.
- The price stated on offers, purchase price lists, quotations and invoices consists of the purchase price excluding VAT and any other possible government levies.
Article 5: Modification of the agreement
- If it becomes apparent during the execution of the agreement that it is necessary for a proper execution to change or supplement the work to be performed, the parties shall adjust the agreement accordingly in good time and in mutual consultation.
- If the parties agree that the agreement will be amended or supplemented, the time of completion of the execution may be affected. The seller will inform the buyer as soon as possible.
- If the change or supplement to the agreement has financial and/or qualitative consequences, the seller will inform the buyer about this in writing in advance.
- If the parties have agreed on a fixed price, the seller will indicate to what extent the change or supplement to the agreement will result in an exceeding of this price.
- Contrary to the provisions of the third paragraph of this article, the seller will not be able to charge additional costs if the change or supplement is the result of circumstances that can be attributed to him.
Article 6: Delivery and risk transition
- Once the buyer received what was purchased, the risk passes from seller to buyer.
Article 7: Inspection, claims
- The buyer is obliged to inspect the delivered goods at the time of delivery, but in any case within as short a time as possible. In doing so, the buyer should inspect whether the quality and quantity of the delivered goods correspond with what the parties have agreed, at least that the quality and quantity meet the requirements that apply to normal (commercial) traffic.
- Claims regarding damage, shortages or loss of delivered goods must be submitted in writing to the seller within 10 working days after the day of delivery of the goods.
- If the claim is considered well founded within the set term, the seller has the right to either repair or to re-delivery, or to relinquish delivery and send the buyer a credit invoice for that part of the purchase price.
- Minor and/or customary deviations and differences in quality, quantity, size or finish cannot be invoked against seller.
- Claims relating to a certain product have no influence on other products or parts belonging to the same agreement.
- No claims will be accepted after processing the goods at the buyer.
Article 8: Samples and models
- If a sample or model has been shown or provided to the buyer, then it is presumed to have been provided as an indication only, unless it is expressly agreed that the goods to be delivered will correspond exactly to it.
- In the case of agreements concerning immovable property, the indication of the surface area or other dimensions and indications shall also be presumed to be intended as an indication only, without the goods to be delivered having to correspond thereto.
Article 9: Delivery
- Delivery is made ‘ex warehouse’ in Zevenaar, The Netherlands, unless otherwise agreed in writing. This means that all costs are borne by buyer.
- The buyer is obliged to take delivery of the goods at the moment that the seller delivers them or has them delivered to him, or at the moment at which these items are made available to him according to the agreement.
- If the buyer refuses to take delivery or is negligent in providing information or instructions that are necessary for the delivery, the seller is entitled to store the goods at the expense and risk of the buyer.
- If the goods are delivered, the seller is entitled to charge any delivery costs.
- If the seller requires information from the buyer for the execution of the agreement, the delivery period commences after the buyer has made this information available to the seller.
- A delivery period stated by the seller is indicative. This is never a fatal deadline. If the term is exceeded, the buyer must give notice of default to the seller in writing.
- Seller is entitled to deliver the goods in parts, unless the parties have agreed otherwise in writing or if the delivery in part does not have an independent value. The seller is, upon delivery in part, entitled to invoice these parts separately.
Article 10: Force Majeure
- If the seller cannot, not timely or not adequately fulfil his obligations under the agreement due to force majeure, then he is not liable for damage suffered by the buyer.
- Force majeure in any case means any circumstance that the seller could not take into account at the time of entering into the agreement and as a result of which the normal execution of the agreement cannot reasonably be demanded by the buyer, such as, for example, illness, war or war danger, civil war and riots, molestation, sabotage, terrorism, power failure, flooding, earthquake, fire, occupation, strikes, workforce exclusion, altered government measures, transport problems, and other disruptions of the seller’s business.
- Furthermore, the parties understand force majeure to include the circumstance that subcontractors on which the seller depends for the implementation of the agreement, do not fulfil the contractual obligations towards the seller, unless this can be blamed on the seller.
- If a situation as referred to above arises as a result of which the seller cannot fulfil its obligations towards the buyer, these obligations will be suspended as long as the seller cannot meet his obligations. If the situation referred to in the previous sentence has lasted 30 calendar days, the parties have the right to dissolve the agreement in writing in whole or in part.
- In case the force majeure lasts longer than three months, the buyer has the right to dissolve the agreement with immediate effect. Dissolution can only be invoked by registered mail.
Article 11: Transfer of rights
- Rights of a party deriving from this agreement cannot be transferred without the prior written consent of the other party. This provision applies as a clause with a property law effect as referred to in article 3:83, second paragraph, Dutch Civil Code.
Article 12: Retention of title and right of retention
- The goods present with buyer and the goods and parts delivered shall remain the property of the seller until the buyer has paid the entire agreed price. Until then, the seller may invoke his retention of title and take the goods back.
- If the agreed amounts to be prepaid are not paid or not paid in time, the seller has the right to suspend the work until the agreed part has been paid. In this case a creditor’s default is at hand. Late delivery can in that case not be held against the seller.
- Buyer is not entitled to pledge the goods falling under his retention of title or encumber them in any other way.
- Buyer undertakes to insure the goods delivered by the seller under retention of title and to keep them insured against fire, explosion and water damage as well as against theft and to make the policy available for inspection on first request.
- If goods have not yet been delivered, but the agreed payment in advance or price has not been paid as agreed, the seller has the right of retention. The item will then not be delivered until the buyer has paid in full and in accordance with the agreement.
- In the event of liquidation, insolvency or suspension of payment of the buyer, the obligations of the buyer are immediately due and payable.
Article 13: Liability
- Any liability for damage arising from or connected with the execution of an agreement is always limited to the amount that is paid by the liability insurance(s) taken out in the relevant case. This amount is increased by the amount of the excess based on to the relevant policy.
- The seller’s liability for damage resulting from intent or deliberate recklessness on the part of the seller or his managerial subordinates is not excluded.
Article 14: Complaint obligation
- Buyer is obliged to immediately report complaints about the work performed to the seller. The complaint must contain as detailed a description of the shortcoming as possible, so that the seller is able to respond adequately.
- If a complaint is well-founded, the seller is obliged to repair the goods and to replace them if necessary.
Article 15: Warranties
- If warrantees are included in the agreement, the following applies. Seller warrants that the sold goods comply with the agreement, that they will function without defects and that they are suitable for the use that the buyer intends. This warranty applies for a period of two calendar years after actual commissioning by the buyer.
- The warranty in question is intended to create such a risk distribution between seller and buyer that the consequences of a breach of a warranty are always fully for the expense and risk of the seller and that the seller being in breach of a warranty can never invoke article 6:75 Dutch Civil Code. The provisions of the previous sentence also apply if the infringement was known to the buyer or could have been known by conducting research.
- The said warranty does not apply if the defect arose as a result of injudicious or improper use or if the buyer or third parties – without permission – have made changes or attempted to make changes or used the purchased goods for purposes for which they are not intended.
- If the warranty provided by the seller relates to a case produced by a third party, the warranty is limited to the warranty provided by that producer.
Article 16: Applicable law
- Dutch law applies exclusively to this agreement between seller and buyer. The Dutch judge is competent.
- The applicability of the Vienna Sales Convention is excluded.
- If one or more provisions of these general Terms and Conditions are regarded as unreasonably onerous in legal proceedings, the remaining provisions will remain in full force.
Article 17: Choice of forum
- All disputes arising from this agreement are submitted exclusively to the competent court.