General Terms and Conditions
Version 1.0 (21-02-2007)
1. Applicable conditions.
Dutch Diving Supplies, hereinafter referred to as DDS, issues quotations and enters into agreements for the supply of goods and the performance of additional services, exclusively on the basis of the General Terms of Delivery set out below (hereinafter also referred to as “General Provisions”). Any deviations or addenda thereto require DDS’ express written consent. Should any provision in the agreement lack legal effect, the other provisions remain in force without prejudice, unless the agreement then becomes obviously unreasonable to uphold.
2. Quotation; conclusion of agreement.
Unless the quotation expressly specifies a period of validity, quotations issued by DDS are without prejudice and subject to confirmation, and an agreement binding on DDS shall only come into effect after DDS issues written confirmation of an order or order confirmation from the customer. The illustrations, drawings, dimensions, weight specifications, etc. pertaining to a quotation shall be regarded as an estimate unless DDS has expressly stated that they are to be regarded as an accurate specification.
3. Representations.
The Company's catalogues, prices, brochures, leaflets, correspondence as well as publications on the website are not binding, as reasonable variations may be made without notice and such Goods as varied shall be accepted as complying with the Contract. No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication, or made verbally by DDS or any of the agents, shall be construed to enlarge vary or override in any way of these conditions
4. Prices.
All prices specified by DDS are quoted in EUR (€) ex-works and exclusive of the VAT payable in the context of the agreement. This is charged separately. If the cost prices of goods ordered, including the cost of wages and materials, have escalated between the time the agreement was concluded and the date of delivery, DDS shall be entitled to increase the prices accordingly.
5. Payments.
Payments are due no more than 30 calendar days after the invoice date. If DDS has reason to believe that the customer may not comply with its payment obligations, such as in the event of a suspension of payments, bankruptcy or an application for bankruptcy on the part of the customer, seizure, shut-down or liquidation of the company, previous payments not paid on time, etc., DDS may require complete payment in cash before or on delivery. In the event of late payment, the customer shall be liable to pay interest on the outstanding amount at the statutory rate without notice. Interest shall also be charged on any interest due but not paid after one year. Any collection costs incurred by DDS shall also be borne by the customer. In the event of late payment, including the failure to comply with the abovementioned request for cash payment in advance or on delivery, DDS shall be entitled to suspend performance under the agreement until such time as full payment is received and, if the customer fails to pay in full after a written notice has been sent, to terminate all or part of the agreement. The above does not affect DDS’ right to compensation. Amounts may not be offset against claims against DDS. In the case of bankruptcy, suspension of payments or seizure on the part of the customer, all amounts owed by the customer to DDS shall be due and payable immediately and in full, and DDS may offset any claims immediately.
6. Delivery; acceptance.
If DDS uses Incoterms, the version in force on the date the quotation is issued applies. The delivery period starts on the day on which the agreement comes into force (i.e. date of order confirmation) or on the day on which an agreed advance payment is paid in full and all information to be provided by the customer which is relevant to the execution of the agreement is received, whichever is the later.
DDS shall only be deemed to be in default for failing to meet a deadline if it fails to comply with all or part of its obligation towards its customer as a result of circumstances that are attributable to it and after the expiry of a reasonable additional period of time the customer has granted in writing. In that case, the customer shall only be entitled to terminate the agreement if it cannot reasonably be expected to uphold it. When the Goods are sold F.O.B. the responsibility of DDS shall cease immediately by the time the goods are handed over to the concerning shipping-agent.
DDS is authorized to make partial deliveries and to invoice accordingly. The customer is obliged to accept the goods or services, A defect such as non-availability or partial availability of the appropriate documentation that does not seriously impede the use of the goods delivered or services rendered shall neither constitute grounds to claim failure to meet a deadline nor to refuse to accept or pay for the goods or services. This shall not affect the customer’s right to have the shortcoming rectified as soon as possible. The agreement can be terminated by customer within 7 days after the agreement comes into force (i.e. date of order confirmation). In case customer wishes to terminate the agreement after the 7 days period, DDS is entitled to charge customer 10% of the initial invoice amount. However in case of special ordered and tailor-made goods the agreement stays in force unconditionally, hence after the 7 days period the goods need to be accepted and paid in full by customer.
7. Consequential Loss.
DDS shall not be liable for any consequential loss, any costs claims, damages or expenses arising from a delayed delivery, non-delivery, partial loss or damage.
8. Transfer of risk and ownership.
The risk for goods is being supplied always passes permanently to the customer at the time of arrival at the agreed place of delivery. Title to the goods supplied only passes to the customer once the customer has paid all amounts owing to DDS in connection with the goods supplied or other goods supplied or to be supplied by DDS and the related services, including interest and costs. In the event of late payment, DDS shall be entitled to repossess or arrange for the return of any goods delivered without further notice of default and without legal intervention and the customer authorizes DDS in advance to access all sites in and around the customer’s business to this end. The customer is entitled to use any goods subject to retention of title as part of its normal business activities. However its does not include encumbering such goods with rights or security interests.
9. Non-attributable failure; force majeure.
Failure to comply with an obligation shall not be regarded as attributable if it is the result of or is related to a circumstance which is beyond the control of the party concerned, whether it could have been foreseen or not. Such circumstances include but are not restricted to: war or a similar circumstance, mobilization, riots, sabotage, terrorism, fire, lightening strike, implosion, explosion of escape of dangerous gases or substances, natural disasters, extreme weather conditions, strikes, sit-ins, boycotts or blockades and measures taken by a domestic or foreign Government such as the imposition of import, export, delivery or production bans. If a party fails to comply with the agreement, without this being attributable to the party concerned, and if it remains impossible to comply with the agreement on a permanent basis, the agreement may be terminated with immediate effect. If non-compliance is not permanently impossible, the agreement may only be terminated after a period of seventy-five consecutive days has elapsed during which compliance remains impossible.
If DDS incurs extra costs in complying with the agreement as a result of circumstances not attributable to DDS, DDS shall be entitles to charge these costs to the customer in all reasonableness.
10. Defects in goods and services rendered.
If goods supplied or services rendered display defects, the customer shall only be entitled to require DDS to replace the items or services free of charge, either by means of repair, replacement or re-execution, at DDS’ discretion, provided that the following conditions are met:
- The cause of the defect is attributable to DDS;
- The defect comes to light within 12 months of the handover of the item concerned or the notification that the service was performed;
- DDS is notified of the defect in writing within 14 days of the time when it could reasonably have been discovered;
- Compliance is not impossible on a permanent basis;
- Any additions or alternations to the goods supplied or the services performed, repairing of faults or maintenance activities have been carried out by DDS or with DDS’ prior written consent;
- Any consumables used comply with DDS’ specifications;
- DDS can, in the specific case on hand, avail itself of the right to free repairs from its own supplier in turn;
DDS may request that an item needing repair be returned to its address or to an address, specified by it free of charge. DDS is entitled to repair defects on its own initiative. Any components that become available as a result of a replacement shall remain/become DDS’ property. The abovementioned obligation to repair also applies to defects in repairs for a period of three months after the repair is carried out, but up to the end of the original period of 12 months as a very minimum. An agreement may only be completely or partially terminated as a result of a defect insofar as the customer cannot reasonably be expected to uphold it.
11. Export.
The goods supplied or services rendered by DDS may be subject to export regulations, including those of the EU or the United States. The customer shall familiarize itself with the regulations applicable to it and shall indemnify DDS against all claims from third parties in relation to infringement of these export regulations.
