De Waard Tents
General sales and delivery terms
De Waard Tenten B.V.
established in Doetinchem (The Netherlands)
registered with the Chamber of Commerce under no 72325429.
General sales and delivery terms
De Waard Tenten B.V.
established in Doetinchem (The Netherlands)
registered with the Chamber of Commerce under no 72325429.
1.1. purchaser: every (legal) person requesting offers or quotations for Goods and/or Services of De Waard or who orders such and on whose behalf said offers, quotations, orders and (subsequent) Agreements have been brought about;
1.2. General conditions: these general sales- and delivery terms;
1.3. Services: all activities (in whatever form and whatever they are called) that De Waard carries out for or for the benefit of purchaser, also including assembly and installation, whether or not in conjunction with the delivery of goods;
1.4. De Waard: De Waard Tenten B.V.
1.5. Goods: all products that are sold by De Waard, not including the services provided by them;
1.6. Agreement: every (legal transaction to prepare the implementation of an) agreement with regard to the same and delivery of goods and/or services that is adopted between De Waard and purchaser, including all supplements and modifications thereto, and including the location and build-up checklist;
1.7. Parties: De Waard and purchaser.
2. Agreements, adoption, and modification
2.1. To all offers, quotations, agreements, and legal relationships between parties on grounds of an agreement or otherwise, these general conditions are exclusively applicable.
2.2. Deviating or additional clauses can only be appealed to by purchaser if and to the extent they have been accepted in writing by De Waard.
2.3. The applicability of general and/or other conditions applied by purchaser is hereby expressly rejected.
2.4. The purchaser with whom is contracted once on the basis of the underlying conditions agrees to the applicability of the general conditions to later agreements between him and De Waard.
2.5. In case for whatever reason one or more of the provisions of these general conditions are void or annulled, the other provisions of these conditions will remain fully effective and purchaser and De Waard will enter into consultations in order to establish new provisions to replace the void and/or annulled provisions, whereby the purpose and tenor of the void and/or annulled provisions will be observed as much as possible. If De Waard for reasons that are relevant to them does not (always) demand strict compliance with the general conditions, this does nor imply the lapsing or loss of the right to still demand (full) compliance in other cases.
2.6. All offers from De Waard are non-committal, based on the information provided by purchaser and are valid for 30 days. The forwarding of applications and/or assignments and/or (other) documentation by purchaser does not oblige De Waard to accept. An agreement is only adopted after an application and/or assignment is accepted and confirmed in writing by De Waard, by a person authorised to do so, or otherwise because De Waard has started with the implementation or the making of preparations for the services to be provided. An offer from De Waard lapses without indebtedness of De Waard if the goods specified in the offer no longer are available.
2.7. A combined price quotation included in an agreement never obliges De Waard to carry out a part of the agreement against a corresponding/proportional part of the established price.
2.8. Pictures, descriptions, drawings, models, measurements, weights, and colours of goods in the documentation forwarded by De Waard only have as their purpose to sketch a general idea of the goods and/or parts thereof and are not binding with regard to the goods to be delivered or the services to be provided.
2.9. Each agreement is adopted by De Waard under the condition precedent that purchaser carries out the established advance payment and turns out to be sufficiently creditworthy for compliance with his payment obligations vis-a-vis De Waard.
3.1 Unless established otherwise, all prices are listed in Euros, exclusive of VAT and/or other duties and rights, whether or not imposed by the authorities, and costs in the matter of packaging, loading and unloading, placement, temporary accommodation of installation staff, insurance, foundation, and transport.
3.2 If after adoption of the agreement a change occurs to cost-determining factors of goods to be delivered (also including, though not limited to, wages effective for De Waard, price of cost of raw material and/or exchange rates, cost increases through measures announced by the authorities), De Waard has the right to correspondingly increase the established prices, without purchaser being allowed to rescind the agreement.
3.3 If it turns out to be necessary after adoption of the agreement that a reasonably to be pursued implementation thereof forces to change it, then parties modify the relevant agreement in mutual consultation. If the agreement after adoption, however, is materially changed upon instruction of purchaser, then De Waard can consider this modification as an instruction for additional work, and they can adjust the established prices based on the price-determining factors that are effective at the moment that the additional work is carried out. Additional work can also modify the other conditions and terms of delivery/implementation originally established in the agreement. Such modifications of the agreement do not provide purchaser grounds for the (partial) rescission of the agreement. Additional work is only carried out after written acceptance by both parties with regard to the changed prices, terms, and other conditions. If during the implementation of an agreement by or on behalf of the purchaser or supervisor at the place of installation/assembly an assignment for additional work is given, such additional work will be carried out after receipt by De Waard of a work order signed by or on behalf of purchaser or supervisor in the matter of such an assignment for additional work. Subsequently, purchaser is bound by the prices, terms, and other conditions thus modified for this assignment for additional work. De Waard is at liberty to refuse requests for additional work and/or other modifications to the agreement without committing malperformance towards purchaser.
4.1. Unless expressly established otherwise, the delivery of goods occurs in conformity with the delivery condition EXW location De Waard or another location to be designated by De Waard (Incoterms 2010). Any possible transport by De Waard to locations to be designated by purchaser, as well as any possible transport by De Waard to the location of storage or assembly/installation of the goods takes place at the expense and risk of purchaser.
4.2. Delivery terms are only given by approximation and are effective with regard to the implementation of obligations by De Waard as strict time limits, unless expressly established otherwise in writing. Deliveries may occur in batches and may be invoiced by De Waard as far as the part already carried out is concerned. If an agreement is carried out in batches, De Waard has the right to suspend the implementation until implementation of the previous part has been approved by purchaser and has been paid in full.
4.3. Purchaser must report transport damage immediately after receipt of the goods to the transporter and send a copy thereof, including pictures, to De Waard.
4.4. Goods that have not been accepted by purchaser after expiry of the delivery term remain available for purchaser and are stored by De Waard at the expense and risk of purchaser. De Waard will inform purchaser within three business days after such storage has taken place of the fact that the goods have been stored, as well as of the location of storage. This leaves unaffected, however, the payment obligation of purchaser.
4.5. Assembly and/or installation only belongs to the obligations to be fulfilled by De Waard under an agreement if this was established in writing. If the assembly and/or installation was thus established, purchaser determines the place of installation and he must make sure that:
a. the place of installation is even, clean, horizontal, sufficiently big for unloading and pre-assembly within 10 metres of the final installation location, and is cleared of surface material;
b. that the rubble, asphalt, and concrete is removed from the place of installation;
c. the place of installation can be reached well and safely, and unhindered within the established period by the means of transport of De Waard and/or third parties deployed by them;
d. the place of installation is free from the presence of cables and conduits;
e. at the place of installation, the infrastructure required for the implementation of the agreement, including power and sewerage, is present and that this infrastructure is clean, properly functioning, and compliant with all effective legislation, standards, rules, and permits;
f. all (packaging) material that is released is disposed of to the extent it will not be disposed of by De Waard;
g. before the start of the installation, a representative is present on behalf of purchaser to coordinate the correct placement;
h. the goods on location can be safely installed and assembled, without violation of the rights of third parties.
4.6. Not or not to a sufficient degree complying with the obligations in this article can never lead to any liability of De Waard. Compliance with the obligations of purchaser in the matter of the installation location will be confirmed by a location checklist signed by parties, without the complete filling out and signing of which De Waard has the right to suspend the fulfilment of their obligations under the agreement.
4.7. Entry onto the premises by purchaser where De Waard carries out the agreement occurs at the expense and risk of purchaser. De Waard is not liable for any damage incurred by purchaser - and purchaser must safeguard De Waard against any third-party damage - that flows from the presence of purchaser or the implementation of activities by purchaser on the premises where De Waard carries out the agreement. De Waard is not liable for damage as a result of the transportation or storage of the goods on the location of purchaser.
4.8. Unless expressly established otherwise, De Waard is authorised upon the implementation of the agreement to deploy third parties or to let the agreement be carried out completely or partially by third parties. Appeal to the provisions comprised in these general conditions, also including, though not limited to, the provisions of liability, and applicable law and jurisdiction, also falls to all subordinates of De Waard and all third parties deployed directly or indirectly by De Waard and their subordinates who are involved in the implementation of the agreement.
4.9. Purchaser is responsible for and will take care of the permits, exemptions, and similar rulings that are required to carry out the agreement, and that they are timely obtained so that Waard can commence at the moment intended with the implementation of their obligations.
4.10. Purchaser guarantees that De Waard will be given the opportunity and that all (sanitary) facilities will be available so as to carry out the established services at the time and location that were agreed upon or that De Waard wishes to carry them out, failing which, De Waard is no longer bound to carry them out or is allowed to suspend them, without prejudice to the right of De Waard to full payment and/or compensation of all damage incurred as a result.
5. Retention of title
5.1. The property of the goods only passes to purchaser after settlement by purchaser of everything De Waard has to claim pursuant to (earlier) agreement, including interest and costs, as well as on account of shortcoming in compliance with any agreement with De Waard of purchaser.
5.2. Purchaser is obliged to keep and/or render the goods that are subject to a retention of title to the benefit of De Waard identifiable and to keep them separate from the other goods that are located at purchaser.
5.3. If and as long as the property of the delivered goods is reserved by De Waard it is not permitted to purchaser to dispose of these goods or to establish any limited right in rem on such. In case of attachment or of the establishment of any right by third parties on matters delivered by De Waard under retention of title, then purchaser will immediately inform De Waard and do everything to secure the property of De Waard. Purchaser has an obligation of care with regard 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 as are customary in the sector, whereby De Waard in entitled in case of disbursement under such insurance to the funds to be paid out.
5.4. If purchaser falls short in complying with his payment obligations towards De Waard or De Waard has legitimate grounds to fear that he will fall short with those obligations, then De Waard has the right to recover the goods delivered under retention of title.
5.5. In order to enable De Waard to exercise the right of recovery of the goods as referred to in the previous section, purchaser presently grants permission already for such event to De Waard to (let) enter the premises and buildings where the goods are located to such effect. The costs of returning the goods are borne by purchaser.
6.1. Purchaser is obligated to control delivered goods and/or provided services immediately after delivery for quality and any possible shortcomings, and to report such as soon as possible, though no later than within an 8-day term after the goods have been delivered or the services have been carried out in writing, specifying grounds, to De Waard. Hidden defects must be reported within 8 days after the day the defects have been discovered, or at least within 8 days after the defect should reasonably have been discovered, in writing to De Waard.
6.2. Proof of timely submittal as well as of the correctness of the complaint lies with purchaser. Purchaser is obliged to render De Waard all assistance to carry out an investigation of the defects.
6.3. Minor defects and differences in quality, colour, quantity and the likes and/or such as are customary in the sector can never constitute grounds for complaints.
6.4. Purchaser can only return delivered goods if De Waard has consented to this beforehand in writing. Acceptance of a return shipment may never be considered by purchaser as acknowledgement by De Waard of defects of the delivered matters or as acknowledgement of liability.
6.5. If purchaser has not filed complaint within the terms indicated in the preceding sections, or if purchaser continues to dispose fully of the delivered goods, he is deemed to have approved the delivered matters and to have waived all rights and authority he can exercise on grounds of the law and/or the agreement. In case of complaint, purchaser does not have the right to suspend compliance with his obligations towards De Waard.
7. Warranty and liability
7.1. De Waard provides a warranty on their goods, which warranty is further described in the various product documents. Unless a deviating warranty term has been expressly stipulated in writing, to goods delivered by De Waard and used in the Netherlands a warranty term applies of 24 months after delivery. De Waard has the right to adjust their warranty conditions and terms to the country where purchaser is established or where the goods will be delivered and used; such conditions and terms will then be established separately between parties.
7.2. The warranty is not applicable in case of defects that arise due to normal wear, the natural warping of wood products, weathering, careless or inappropriate use, storage, maintenance or repairs, the careless or incorrect moving of the goods, the insufficient taking of protective measures with regard to the goods against snow, rain, ice, and other weather conditions, vandalism, rodents, accidents, mould, rust, algae, moss, or due to calamities including, though not limited to, damage by fire, flooding, extreme weather conditions (including extreme wind, snow, and rain). If purchaser himself or third parties deployed by him carry out assembly, no appeal to the warranty is possible.
7.3. De Waard is only liable during the established warranty term for either, at the option of De Waard, the replacement or the restoral free of charges of such defects as are identified and timely reported by purchaser, such at the option of De Waard and on condition of timely and correct complaint. Any defective goods that have to be replaced must be returned to De Waard without delay. Any further liability of De Waard, also including, though not limited to, loss of profit, loss of turnover, losses incurred and costs incurred as well as assignments missed and missed savings, investments not recovered, late deliveries, and damage due to the interruption or stagnation of production or business operations is excluded.
7.4. Without prejudice to what is established in the preceding, the liability of De Waard is limited in all cases to the invoice value of the delivered goods and/or services that the damage was caused by or, if the damage falls within the coverage of an insurance of De Waard, to the amount that is effectively disbursed by the insurer in the matter. Small differences and minor changes relative to the agreement never confer the right to purchaser to rescind the agreement and/or to compensation of damages. De Waard is never liable for any damage that has arisen as a result of incorrect or incomplete information provided by purchaser to De Waard.
7.5. Each claim of purchaser against De Waard, with the exception of warranty claims, lapses through the simple expiry of nine months, and lapses through the simple expiry of 18 months, after the moment of delivery of goods, implementation of the services, or the moment that delivery or implementation should have taken place.
8. Obligations of purchaser and indemnification
8.1. Non-compliance by purchaser with the agreement or with one or more of the provisions of these conditions or non-compliance with other instructions or prescriptions of De Waard from which damage flows for De Waard obliges purchaser to compensate all damage caused to De Waard as a result. Purchaser safeguards De Waard against all claims of third parties for the compensation of any damage incurred by these third parties in such case. In the event De Waard is addressed by third parties, purchaser will provide De Waard with all necessary assistance and information.
8.2. De Waard can oblige purchaser to withdraw goods they brought to the market and that are defective or for which a defect (possibly) threatens to reveal itself, within a term to be established by De Waard, from the market (recall), against compensation of such costs as are reasonably to be incurred by purchaser.
8.3. Purchaser will always provide De Waard with all necessary information that is required for the implementation of the agreement, failing which, De Waard has the right to suspend implementation of the agreement and to bill possible additional costs to purchaser. De Waard is never liable for damage as a result of untimely, incomplete, or incorrect information provided by purchaser.
8.4. If upon request of purchaser the goods must be installed on location, purchaser in any event provides information regarding the layout of the installation location, the course of the underground conduits including cabling, and the possible presence of obstacles and other impediments to the implementation of the established services. Purchaser will confirm at least 3 business days before any possible digging activities to De Waard that purchaser has made all (legally) required investigations and reports, failing which De Waard may assume that such reports and investigations have been carried out, and that on location no underground cables or conduits are present. Any damage or costs resulting from the failure of purchaser to carry out such a report or investigation are at the expense of purchaser, and purchaser safeguards De Waard against all damage that flows from the hitting or damaging of conduits, cables, or other obstacles. If purchaser does not fulfil his obligations in the matter, then De Waard has the right to suspend its performances under the agreement. During the implementation of installation activities by De Waard, purchaser and his possible clients or third parties he may have deployed have no access to the locations where the activities are carried out without the prior written permission of De Waard.
9. Payment and security
9.1. Purchaser is obliged within eight days after adoption of the agreement to make a down payment of 50% of the established invoice amount. De Waard is authorised to suspend the implementation of the agreement until this down payment has been received by them. De Waard has the right at all times to demand the advance payment or cash payment of the goods and/or services to be delivered and/or to demand security for the payment thereof. Purchaser is obligated to comply therewith.
9.2. Payment must occur in the currency indicated on the invoice, at the established time. If no time has been established, payment must take place within 30 days after invoice date.
9.3. If purchaser does not, does not timely, or only partially has complied with his payment obligations, he is legally deemed in default and what is owed to De Waard is immediately exigible without any further default notice, and purchaser also owes interest over the due amount, equal to the statutory commercial interest rate pursuant to 6:119a BW (Civil Code). De Waard has the right in such case as may occur to suspend the implementation of the agreement until the payment has been received. All costs incurred in this context for storage, as well as other costs occurring are borne by purchaser.
9.4. All judicial and extrajudicial costs related to the collection of any claim on purchaser are borne by purchaser. Included therein are in any case the costs of collection agencies, bailiffs, lawyers, and experts. The extrajudicial costs are furthermore deemed to amount to a minimum of 15% of the amount to be claimed, with a minimum of EUR 750.
9.5. All claims of De Waard on purchaser become immediately payable in case of (application for) bankruptcy, suspension of payments, liquidation, or an attachment at the charge of purchaser.
9.6. Every payment is deemed to be a payment of such interest as may be due and/or costs and subsequently of the oldest invoice still outstanding, regardless of whether it is stated otherwise upon the payment.
9.7. It is not permitted to purchaser to set off any debt to De Waard, whether or not contested, against any debt, whether or not contested, of De Waard to purchaser, unless such has been established in writing by both parties.
9.8. Purchaser does not have the right to set off amounts owed by him and/or companies affiliated with him to De Waard against amounts (allegedly) owed by De Waard to purchaser and/or companies affiliated with him, regardless of the grounds and obligation of these amounts.
9.9. De Waard has the right to demand proper security before the start or otherwise before the end of the implementation of the agreement for any outstanding bill and/or for payment of the pending order and in expectation thereof to suspend, interrupt or terminate, without any liability on their part, their obligations.
10. Force majeure
10.1. By force majeure the situation is intended that the implementation of the agreement is prevented completely or partially, whether or not temporarily, by circumstances outside the control of De Waard and of third parties deployed by them, even if such circumstances were foreseen already at the time of adoption of the agreement. Hereby is also intended, though not exclusively: war, rioting, and hostilities of whatever nature, boycotts, natural disasters, epidemics, prevention and interruption of transport options, (work) strikes, exceptionally high absenteeism, delays in or the failure to occur of deliveries by suppliers, communications-transport malfunctions, import and export restrictions, weather conditions due to which assembly or installation cannot be realized, government measures, accidents, and operational malfunctions.
10.2. In case of force majeure, the obligations of parties are suspended. If the force majeure lasts longer than 60 days, each of the parties has the right to rescind the agreement for the part that has not been implemented, without being bound mutually to pay any damages. If at the time the situation of force majeure enters into effect obligations have already been partially fulfilled by De Waard, they have the right to invoice such separately.
a. Purchaser does not, does not timely, does not completely, or does not correctly comply with any obligation towards De Waard;
b. Purchaser is declared bankrupt or a request to such effect has been submitted, suspension of payments has been applied for or granted, application of the debt restructuring arrangement has been applied for or granted;
c. An attachment has been levied on the entirety or a part of the property of purchaser;
d. Purchaser is dissolved or liquidated, a demerger or merger occurs;
e. Purchaser proceeds with the discontinuation or transfer of his company or of an important part thereof;
f. information provided by purchaser to De Waard turns out not to correspond with the actual situation; g. purchaser has not or has insufficiently lodged any established security; h. in the opinion of De Waard it can no longer be demanded of them that they will comply with the agreement in conformity with the original established conditions, and purchaser still has not complied with all his obligations towards De Waard, then De Waard has the right through the simple occurrence of one of the circumstances referred to, without any default notice or judicial intervention being required, to consider the agreement as rescinded and to reclaim what was delivered as their property, or otherwise to claim in its entirety any amount owed by purchaser to De Waard. In addition, De Waard has the right at all times to claim compensation of damages from purchaser.
11.2. Total or partial cancellation of the order for the delivery of goods and/or services by purchaser can only take place with the prior written approval of De Waard. If purchaser cancels the agreement after it has been adopted but before De Waard has started with the preparation or implementation thereof, then 30% of the order price (incl. VAT) is billed as a cancellation fee, all matters without prejudice to the right of De Waard to full compensation of damages, including lost profit.
11.3. In case of partial rescission by purchaser of the agreement, purchaser cannot appeal to the option of cancelling the performances already carried out by De Waard, and De Waard is fully entitled to payment of the performances already carried out.
12. Industrial and intellectual property rights
12.1. All industrial and intellectual property rights regarding goods manufactured and delivered by De Waard, as well as regarding pictures, descriptions, drawings, designs, tools, and models provided by De Waard, remain their property and must upon first request be returned by purchaser. The delivery of goods cannot be designated as an express or implicit license for the use, multiplication, or release to third parties of the intellectual and industrial property, unless De Waard has granted written permission for this.
12.2. It is not permitted to purchaser to remove or change any brands, trade names, or other indications of industrial and intellectual property rights attached to the goods in case.
13. Disputes and applicable law
13.1. To all undertakings between De Waard and purchaser, Netherlands legislation is exclusively applicable. The applicability of the UN Convention regarding International Purchase Agreements regarding Movable Property is excluded.
13.2. Any possible disputes pursuant to or in connection with the general conditions or the agreements or other undertakings between De Waard and purchaser will exclusively be settled by the Court of Gelderland, location Arnhem.