GENERAL TERMS AND CONDITIONS
HOOD YACHTING GEAR VOF
P.O. BOX 6
8710 AA WORKUM
THE NETHERLANDS
REGISTERED AT THE CHAMBER OF COMMERCE LEEUWARDEN, THE NETHERLANDS
Number: 01109485


WORKUM, 1 DECEMBER 2006


Article 1. Applicability

  1. These terms and conditions apply to all our proposals and to all our agreements, under any name. These terms and conditions especially apply to agreements which we have made regarding the delivery of goods to our buyers.
  2. When, in these general terms and conditions the term ‘buyer’ is mentioned, this must be interpreted as any natural person or legal entity that has a contractual relation to us via an order confirmation, or wishes to engage a different type of agreement. In these general terms and conditions, the term ‘buyer’ especially means the party for which an order is being executed and for which expenses the goods are being delivered.
  3. Exceptions to these general terms and conditions can only be valid if this has been explicitly agreed in writing.
  4. Should the buyer refer to his, or her, general conditions, the buyer’s conditions do not apply. Exceptions to this are only possible if the buyer’s general conditions do not conflict our general terms and conditions.
  5. Where in these general terms and conditions the term “delivery” (of goods) is mentioned, this also means the delivery of services and other activities of any kind.


Article 2. Proposals

  1. All our proposals are to be interpreted as invitations to potential buyers to make an offer. They are in no way binding, unless the proposal itself explicitly and without room for interpretation (in writing) states differently. The order given to us is solely an invitation which only after written confirmation can be understood as an acceptation.
  2. Our proposals are inclusive of the designs, models, samples, specifications, images et cetera and possible appendices. All this remains our property and must be returned upon our request and may not be used without our explicit written consent and/or handed over to third parties. In addition we retain all intellectual rights and copy rights.


Article 3. Execution of agreement

  1. An agreement with us is only reached and valid when we have accepted an order in a written document. An agreement is valid from the moment at which we have sent the written order confirmation.
  2. The buyer is contracted to his order, in any which form given to us for a period of 8 days after the date on which the order is signed or (in case of an oral order) after giving the order. A statement from the buyer in which he wishes to cancel or alter the order given within the period of 8 days cannot prevent that the agreement based on the original order is executed, should we choose to accept/confirm the order within this period of 8 days.
  3. The contents of the order confirmation sent by us to the buyer is to be deemed to be correct and complete. The buyer is to be deemed to agree with the content of the order confirmation, unless he gives notice in writing within the period of 8 days after the date on which the order confirmation is signed that he does not agree with the content of the order confirmation.
  4. Additional agreements and/or statements made by us and/or our employees and/or other persons acting on behalf of us, are only binding if these agreements and/or statements are confirmed in writing by our authorised directors in writing.


Article 4. Prices

  1. Our prices are exclusive of value added taxes (VAT) unless explicitly and in writing different is agreed, exclusive of packaging, costs for transportation and other costs.
  2. The prices listed in the proposals, contracts and order confirmations are based on the execution of the cost factors applicable to the agreement, such as exchange rates, manufacturer prices, fabrics- and material prices, wages- and transportation costs, insurance premiums, taxes, import duties and other duties imposed by government.
  3. We retain the right to, if after the date on which agreement is valid, but before the date of delivery, invoice increases in one or more of these cost factors to the buyer. In addition we have the right to, should this be the case, to remit the agreement in total or partially without including legal interference. This latter right applies to the buyer, only after we are of the opinion within 3 months after validation of the agreement that changes in the aforementioned costs result in an increase in the price mentioned in the order confirmation. Should the buyer wish to apply this right, he should within 5 days after receipt of the notice via registerd mail give notice of remittance.


Article 5. Delivery and shipment terms

  1. The delivery times provided by us apply on the day on which the agreement is valid, provided that all necessary information necessary for execution are in our possession. The delivery times provided by us are never to be interpreted as final terms unless explicitly stated differently in an individual agreement. For late delivery we are, therefore, to be given notice in writing. In case – deviating from the abovementioned – in the individual agreement explicitly a penalty for exceeding the delivery time has been agreed, this penalty is not valid if the exceeding of the delivery time is caused by circumstances beyond our control as stated in Article 10 of these terms and conditions.
  2. Unless the order confirmation states differently, the delivery of goods is delivered home when the invoice amount is more than € 500,--, say: five hundred. We deliver to foreign buyers, unless agreed differently, ex works. Clearance of the goods is arranged by us, but is on buyers expense.
  3. Unless the buyers arrange a forwarding agent themselves, applicable matters are sent by us to forwarding agents which in our opinion have favourable conditions for the expenses and risks of the buyer.
  4. Should a buyer require a delivery differently than the aformentioned way, we can invoice the costs to the buyer.
  5. If the delivery takes place in parts, we retain the right to handle each delivery as a separate transaction.
  6. The buyer is bound to accept the purchased goods within the agreed term. In default of this we are entitled to – should we choose to – on the grounds of Article 6:60 Burgerlijk Wetboek demand that a competent court will terminate our obligation to delivery of the agreed goods, or without the aforementioned failure to pay the purchase price of the not accepted goods demand payment of the purchase price.


Article 6. Retention by the buyer

  1. The buyer is responsible for the correctness and completeness of the information he has provided to us. The buyer must be aware for the content of our proposal, or for which Article 2 sub 2 is part of, the information provided by us, sizes, colours et cetera, that usual deviations and small alterations are possible. This also applies to the agreed quantity; in this area the buyer should also be aware of the possibility of usual deviations. We are, therefore, allowed to deviate from the goods described in the order if this concerns small alterations in sizes, colours et cetera and quantity.
  2. Complaints from the buyer concerning visible matters must be informed to us by the buyer within 8 days after delivery of the goods (or within 8 days after the date of the invoice), if the goods (could) were not delivered. Giving notice must occur via registered mail and must include an accurate description of the complaint and stating the invoice number for the goods concerned.
  3. Defaults which were not visible at the time of delivery, nor could be visible through thorough and timely inspection, must be informed to us by the buyer within 8 days after noticing the default in the way as described in sub 2.
  4. Every right in personam of the buyer towards us concerning defaults in goods supplied by us shall laps if: a. we are not informed about the defaults within the terms described in subsection 2 and subsection 3 and/or the described way; b. the buyer has not, or in an insufficient manner, cooperated in an investigation of the validity of the complaints; c. the buyer has not taken care of the goods in the applicable manner, or has used or treated the goods for purposes other than foreseen by us; d. the buyer continues to use the goods for which the buyer has issued a complaint; e. the warranty term listed in the individual agreement has elapsed or, if such a term is not listed, the complaints are given notice for the first time after a period of more than 12 months after the elaps of the delivery time.
  5. In disputes regarding the quality of the goods supplied by us, an independent organisation with a good reputation will be assigned to give a binding judgment.


Article 7. Liability

  1. Solely if the warranty obligations of the goods delivered by us are not with third parties (such as manufacturers), the buyer can hold us liable for warranty claims. Our liability is in this case limited to defaults caused by faults in manufacturing and material.
  2. In case of retention we are held, if the grounds for retention concerning the quality are recognised by us and we are liable as mentioned in subsection 1 solely held to our choice from listed below: a. (without cost) fixing the default(s); b. replacement of goods, or parts of goods, after receipt of the goods with default(s); c. repayment of the purchase price to the buyer / credit invoice for the buyer with the dissolvement of the agreement without legal interference, all concerning the purchase amount, the invoice and the agreement regarding the default goods; d. indemnity to be agreed with the buyer.
  3. If the buyer has, without our prior, explicit written consent has had reparations and/or alterations carried out to the default goods, all warranty obligations elaps.
  4. Except for any possible obligations from the subsections above, we are never obliged to pay any damage claims to the buyer and others, unless there is wilfully or blaim on our side (to be demonstrated by law by the party which holds us liable). Explicitly we are never liable for consequence damage, corporate damage, direct- or indirect damage, including loss of earnings – stagnation damage for the contracting party, its subordinates and at or with the employees or third parties caused by complete or partial (re)deliveries of goods, delayed or faulty delivery, or no delivery of the actual goods.
  5. The buyer is not entitled to return the goods for which no motivated retention exists. Should this occur without valid reasons, all costs for resending the goods are for the expense of the buyer. In that case we are free to store the goods for the risk and expenses of the buyer.
  6. The buyer is liable to savequard us from all claims that third parties may have in relation to the execution of the agreement, as far as the law does not prohibit that the damages and costs resulting from these claims to be at the expense of the buyer.


Article 8. Reservation of title and security

  1. The goods delivered by us remain our property until the moment of the complete payment of all that the buyer is due in relation to or subsequent of the goods delivered by us. If we deem necessary, we have the right to demand from the buyer payment security in order to meet the obligations.
  2. The buyer does not have the right of pledge for the goods not paid, unpropertied right of pledge or lay any other business or personal right toward a third party.
  3. Unabated the aforementioned in this article, the buyer is allowed to sell the goods to third parties, yet solely in the scope of his regular day-to-day business. In that case the buyer is liable to transfer the acquired funds immediately to us, or to hand over acquired rights mediately.
  4. If due to processing or works the ownership of the goods delivered by us has transpired, the buyer is obliged to immediately give the unpropertied right of pledge for these goods to us.
  5. We are at all times entitled to obtain the goods which are at the buyer (or third parties) but which is our property, as soon as there is reason to believe that there is a real chance that the buyer is not able to meet his obligations. The aforementioned shall not affect the rights which we have from common law: explicitly we retain the right, also after obtaining the goods, to claim any damages.
  6. The buyer is obliged to insure the risk of fire and theft for all goods which have not been paid and must upon our request show the insurance documents.


Article 9. Payment

  1. Payments must be made in Euros, unless agreed differently, without any deduction or discount, in cash at the location of our company, or by bank transfer to a bank account number provided by us, in both cases immediately after delivery of the concerning goods, or ultimately within 30 days after the invoice date, all unless explicitly has been agreed differently in writing. For bank or giro payments the day of crediting our bank or giro account is considered the day of payment.
  2. If the buyer does not pay (in full), he is in neglect without us being liable to give render of information. In this case we have the right, to suspend all our obligations towards the buyer, unabated our rights stemming from common law.
  3. Also we are entitled to demand a guaranty for payment for all deliveries that are still due. Furthermore we are in this case entitled to dissolve the agreement without legal interference and this case the buyer has the obligation to return the delivered goods, unabated our rights to claim damages. If the buyer to meet the payments, without us being liable to give render of information, from the latest day of payment we will charge the legal interest rate, plus 4% per annum, calculated over the amount not paid, which is immediately obtainable without us being liable to give render of information. All extra costs regarding late payment (including non-judicial proceedings) are at the expense of the debtor. The non-judicial recovery costs amount to at least 15% of the main sum with a minimum of €50,-- all excluding VAT. Furthermore all negative consequences of exchange rate losses or otherwise caused by the late payment or non-payment are at the expense of the buyer, even if the buyer has paid according to the circumstances or measures applicable in his country, yet circumstances or measures are outside the control the transfer have occurred in a way, negative for us.
  4. Payments extend to Article 6:44 Burgerlijk Wetboek at first to be deducted from the costs listed in subsection 3, subsequently to be deducted from the back-interest, subsequently to be deducted from the main sum and the running interest.
  5. If the financial position of the buyer after the established agreement, yet before delivery of the goods, has severely worsened, we are entitled to completely or partially give up the execution of the agreement, or demand a change in the payment conditions.
  6. Seller can hand over his claims stemming from all transactions to a credit insurer of his choice.


Article 10. Circumstances beyond once’s control


Article 11. Applicable law


Article 12. Settlement of disputes


(Hood Yachting Gear VOF, Workum, The Netherlands)