Nacra Sailing International / Performance Sails / Watersport Scheveningen Nautical Sports Holding B.V.
GENERAL CONDITIONS OF CONTRACTS, SALES AND DELIVERIES
The General Conditions of Contracts, Sales and Deliveries of Nacra Sailing International / Performance Sails / Watersport Scheveningen legally represented by Nautical Sports Holding BV were drawn up in 2011 and based upon HISWA Association (Netherlands Association of Enterprises in Water Recreation [1998/2006 release]
ARTICLE 1 – DEFINITIONS The following definitions are used:
- NSH: the seller/contractor, being Nacra Sailing International/Performance Sails/Watersport Scheveningen /Nautical Sports Holding BV; hereafter referred to as NSH.
- 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 NSH related to buying and selling (excluding second hand purchases and sales), all agreements concerning contract work, all offers by NSH, 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 questionable. If the client fails to accept an offer within the stated period, the offer will be withdrawn.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 NSH. 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 NSH 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 NSH 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 NSH was not responsible.
- An agreement for refurbishment or repairs only extends to work NSH could have reasonably anticipated. If the extent of the work is greater than could have been foreseen, NSH must halt the work immediately and discuss with the client whether work should be continued and in which manner. NSH 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, NSH 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 NSH at his request of the names of such persons.
ARTICLE 5 – GUARANTEE
- NSH guarantees that he will supply a pleasure craft or hull, including fixtures and fittings as agreed, to the agreed specifications. NSH shall also ensure that whatever he supplies is suitable, under all circumstances, for normal use or any special use as agreed.
- NSH 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, NSH guarantees that for a period of 24 months after delivery no defects shall become apparent or develop. For components supplied by third parties and fitted by NSH, 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 NSH. The client may charge NSH for any necessary repairs he has done by a third party, provided the costs are reasonable. To determine what would be reasonable costs, NSH’s price level will be taken into consideration. NSH appoints the contractor who shall carry out the necessary repairs. Repairs can only be carried out on the premises of the third party if: – NSH is unable to do the repair in his own yard or cannot do so in time; – the costs of transporting the craft to NSH’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.
- – deleted
- Unless otherwise agreed because of specific criteria, the following margins of error are acceptable under the contract: ± 1% in all dimensions; ± 5% weight, excluded materials used which nature creates more tolerances [e.g. Nylon spinnakers]
- NSH 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/sails.
- NSH 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 NSH responsible for any damage resulting from the above defects.
- Emergency repairs are not covered by the guarantee.
- For more details we refer to the warranty manual.
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.
- NSH 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 NSH 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.
- NSH is not in default until the delivery date has been exceeded through circumstances for which NSH 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 NSH and cannot lawfully, or on the grounds of the agreement or social convention be ascribed to NSH.
- Force majeure also covers delays caused by materials not being supplied on time, if the delay is not caused by circumstances NSH should or could have foreseen or prevented.
- If force majeure causes NSH 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, NSH 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.
- NSH 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.
- Prior to delivery NSH 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, NSH shall give the client the opportunity to inspect (order the inspection of) the work.
- Within ten working days of receiving notification from NSH that the inspection 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.
- 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 NSH, 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 NSH 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 NSH, 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, NSH 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 NSH, 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 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 NSH, or by crediting the bank account specified by NSH.
- 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 NSH, he shall be deemed automatically to be in default. In such a case, NSH 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 NSH from carrying out his work on time, NSH 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 NSH, 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 NSH 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 NSH.
ARTICLE 14 – deleted
ARTICLE 15 – LIABILITY
- NSH is liable for damage affecting the client, resulting from negligence on the part of NSH, his staff or persons employed by him for the work assigned by the client.
- The client is liable for damage affecting NSH, 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 NSH 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 NSH 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, NSH 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, NSH may bring procedures in an ordinary court of law, providing NSH has allowed the client one month after receiving the demand to refer the dispute to the Board of Arbitration.
- If NSH 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 NSH 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.
- The Arbitration Board’s decision is regarded as binding advice. The Board of Arbitration does not deal with disputes about amounts exceeding € 14.000,00 including value added tax.
- 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.