General sales and delivery conditions D2D Water Solutions B.V.
D2D: D2D Water Solutions B.V., located in (7772 BJ) Hardenberg at Bruchterweg 88.
Buyer: the contracting party of D2D.
Agreement: the agreement concluded between D2D and the buyer regarding the purchase of goods and the provision of services.
Goods: objects that are manually operated, including, but not limited to, water systems and all other products sold by D2D.
BW: the Dutch Civil Code.
Delivery: the legal delivery within the meaning of the Dutch Civil Code.
Delivery: the actual delivery to/for the benefit of the Customer.
Article 1 General
1. These general terms and conditions apply to all offers, quotations, agreements and other services provided by or in agreement with D2D insofar as the parties involved have not explicitly deviated from these terms and conditions in writing. The applicability of any general terms and conditions used by the buyer is hereby expressly rejected.
2. If one or more provisions of these terms and conditions are deemed void or voidable, the remaining provisions of these terms and conditions shall remain fully applicable. D2D and the buyer shall then confer in order to agree on new provisions to replace the void or voidable provisions, taking into account - if and as far as possible - the purpose and scope of the original provisions.
Article 2 Offers, quotations and prices
1. All offers and quotations from D2D are without obligation, even if a period for acceptance thereof is included therein.
2. Offers and quotations do not automatically apply to repeat orders.
3. The prices stated in the offers and quotations are exclusive of VAT and other government levies, as well as shipping costs, transport costs, packaging costs, administration costs, assembly and installation costs, unless explicitly stated otherwise.
4. All offers and quotations can be modified, unless explicitly agreed otherwise in writing between the parties. After submitting the offer or quotation to the buyer, D2D shall be entitled to deliver its goods and perform its services at the prices applied on the day of delivery. These prices may be influenced by fluctuations in, among other factors, wages, raw material prices, transport costs, exchange rates, insurance premiums and government levies to be paid by the buyer.
5. If the price increase referred to in paragraph 4 of this article is more than 10%, the buyer shall be entitled to dissolve the agreement, unless this price increase is the result of a change in the agreement or if it is enforced by law.
6. A composite quotation does not obligate D2D to deliver part of the items included herein at a similar part of the stated price.
Article 3 Realisation agreement and subsequent changes
1. The agreement between D2D and the buyer shall come into effect only after D2D has confirmed the buyer’s acceptance of the offer or quotation in writing or after D2D has actually implemented the offer or quotation. As long as D2D has not yet confirmed the acceptance to the buyer in writing or has not yet proceeded with the actual execution of the offer or quotation, D2D shall still be entitled to revoke or change the offer or quotation.
2. Any change as agreed upon by D2D and the buyer to an agreement that has already been concluded, shall become valid only once it has been put down in writing.
3. If an agreement that has already been concluded is changed or supplemented by the parties involved, the time of completion of the implementation may be affected. In this case, D2D shall immediately inform the buyer of this circumstance.
4. If the change or supplement has financial or qualitative consequences for the buyer, D2D shall immediately inform the buyer about this circumstance.
Article 4 Execution of the agreement
1. D2D guarantees the buyer that it shall deliver the goods and/or services in accordance with the description, quality and quantity as specified in the agreement concluded between the parties.
2. D2D shall at all times - without the prior consultation or approval from the buyer being required – be permitted to execute the concluded agreement wholly or partly with the help of third parties.
3. If it has mutually been established that the agreement shall be implemented in phases, D2D shall be entitled to suspend the delivery of goods that belongs to a subsequent phase until the buyer has approved the results of the preceding phase in writing.
4. If work is performed by D2D or third parties engaged by D2D at the location of the buyer or a location designated by the buyer, the buyer shall provide the facilities reasonably required by D2D to perform the necessary activities free of charge.
5. The risk of loss of or damage to the goods associated with the agreement shall be passed on to the buyer at the moment that these items are legally and/or actually delivered to the buyer and have thereby come in the possession of the buyer or of the third party or parties involved.
6. The buyer shall ensure that all data, which D2D has indicated to be necessary and which the buyer should reasonably recognise as being necessary for the execution of the agreement, is provided to D2D in a timely manner. If the data required for the implementation of the agreement has not been provided to D2D in time, D2D shall have the right to suspend the execution of the agreement and/or to charge the buyer with the additional costs resulting from the delay according to the usual rates. When providing D2D with information carriers, electronic files or software etc., the buyer shall make sure that these devices are free of viruses or defects. If this is not the case, D2D shall not be liable for any damage resulting from the malfunctioning of the means provided by the buyer.
7. The buyer cannot derive any rights from announcements made by D2D about (technical) product specifications, or from the information as published on the website, in brochures, in catalogues or in other information-providing documents, unless the same information has been included in the agreement concluded between the parties.
8. D2D shall not in any way be held responsible or liable for the (product) specifications (in the broadest sense of the word), plans, materials or parts explicitly prescribed by or on behalf of D2D. In case of claims from third parties, including those based on intellectual property rights, the buyer shall not hesitate to indemnify D2D at the latter’s first request.
9. Seeking advice from D2D, whether or not about the application possibilities of the goods delivered or yet to be delivered, or about the intended use of these goods by the buyer, shall not in any way relieve the buyer of his/her own ultimate responsibility or liability for these items.
10. The buyer shall at all times be responsible for the choice regarding the purpose of use of the delivered goods associated with the agreement. D2D shall not accept any responsibility or liability for damages resulting from this choice.
11. The buyer shall at all times be responsible for the proper maintenance of the delivered goods associated with the agreement. D2D shall not accept any responsibility or liability for damages resulting from the improper or non-maintenance of the delivered goods.
12. The buyer shall at all times be responsible for the (quality control of the) water quality within his/her building or site where the delivered goods associated with the agreement are stored. D2D shall not accept any responsibility or liability for damages resulting from an inadequate water quality within the building or site of the buyer.
13. Unless explicitly stated differently in the agreement concluded between the parties, D2D shall not be responsible or liable for the products delivered, or provide any guarantees regarding the purchase choice or regarding the intended purpose of use of these goods by the buyer.
14. Minor deviations in the quality, colour, execution, weight, format or other aspects of the goods delivered by D2D do not constitute grounds for the buyer to dissolve the agreement (partially or fully). Neither shall this circumstance justify a reduction of the product’s purchase price or the product’s replacement or repair.
Article 5 Delivery
1. The buyer shall be obligated to accept the delivery of the goods at the moment that they are being supplied by D2D or by a third party on behalf of 2D2, or in any other way, as stipulated in the agreement.
2. The delivery times stated in the offers from D2D are indicative and not binding. D2D shall not be considered to be in default by exceeding these delivery times, while the buyer shall in this case not be entitled to compensation or dissolution of the agreement.
3. If the buyer refuses to accept the delivery or fails to provide information or instructions that are necessary for the delivery, D2D shall be entitled to store the goods at the expense and risk of the buyer.
4. When the goods have been delivered, D2D shall be entitled to charge delivery costs. These shall be invoiced separately.
5. If D2D requires information from the buyer in the context of the execution of the agreement, the delivery period shall start only after the buyer has made this information available to D2D.
6. D2D shall be entitled to deliver the goods in parts, unless stated otherwise in the agreement. D2D shall be entitled to invoice the delivered items separately.
Article 6 Samples and models
A sample or model shown or provided to the buyer shall be considered as a mere indication of the actual product to be supplied. Compliance of the sample or model with the actual product is not obligated, unless compliance in this regard is explicitly stipulated in the agreement.
Article 7 Complaints
1. The buyer shall be obligated to inspect the goods at the moment of delivery, or in any case within the shortest time possible. In addition, the buyer shall investigate whether the quality and quantity of the delivered products correspond to what has been agreed upon, or at least to the requirements that apply in normal (trade) traffic.
2. Any visible defects shall be reported to D2D in writing within five (5) days after delivery. Non-visible defects shall be reported to D2D within ten (10) days after discovery.
3. Complaints submitted to D2D on time (and in the correct manner) shall not, in so far as possible, grant the buyer the right to suspension of payment, to a reimbursement, or to dissolution of the agreement, either in whole or in part.
4. Return shipments of defective items are not permitted. Any replacement, repair, or credit by 2D2 shall not take place without 2D2’s prior written consent.
5. Any legal claims and defences based on complaints shall - under penalty of forfeiture of this right- be filed by the buyer within one (1) year after their submission to D2D.
Article 8 Payment and required securities
1. Unless otherwise agreed upon in writing, the buyer shall, once the agreement between the parties has been concluded, transfer thirty (30)% of the invoice amount to a bank account designated by D2D. The remaining seventy (70)% shall be credited to a bank account designated by D2D within 14 days of delivery, unless stated otherwise in writing.
2. The buyer shall not be authorised to deduct any amount from the payments due to a counterclaim on his/her part.
3. If the buyer does not pay the amounts due within the agreed period, the buyer shall be considered to be in default. In this case, the following applies:
a) if the buyer is a legal person, the company shall, without further notice or notice of default being required, pay 1% interest per month on the outstanding amount (including part of a month) in addition to the outstanding amount until D2D has received the full payment. Next, without further notice or notice of default being required, the buyer shall owe D2D extrajudicial collection costs amounting to 15% of the principal amount with a minimum of € 25000.
b) if the buyer is a natural person, he/she shall - without any reminder or notice of default being required - pay 1% interest per month on the outstanding amount (including part of a month) in addition to the outstanding amount until D2D has received the full payment. In this case, after one reminder or notice of default in which the buyer is given a renewed payment period of 14 days, the buyer shall also owe extrajudicial collection costs, the amount of which is determined in accordance with the Decree on compensation for extrajudicial costs (Bulletin of Acts and Decrees 2012 141).
4. In case of liquidation, bankruptcy, seizure or suspension of payment on the part of the buyer, any claims made by D2D on the buyer shall immediately be collected.
5. D2D shall be entitled to spend the payments made by the buyer first of all on the extrajudicial collection costs, then to reduce the interest owed by the buyer and finally to reduce the principal sum. D2D can refuse full repayment of the principal sum if the amount does not cover the extrajudicial collection costs and the interest due.
6. D2D reserves the right not to deliver/execute new orders until the buyer has fulfilled all payment obligations to D2D.
7. If at any time there is doubt on the part of D2D regarding the buyer’s payment capacity or solvency, D2D shall be authorised to suspend the delivery of the goods and/or the execution of the work (still to be done) until the buyer has gained sufficient security and is able to fulfil his/her (payment) obligations towards 2D2. Whether the collateral offered by the buyer is sufficient shall be solely at the discretion of D2D. The buyer shall be held liable for the damage suffered by D2D as a result of the delayed delivery or execution of the work.
Article 9 Retention of title
1. All goods delivered or yet to be delivered by D2D, including designs, sketches, drawings, films, software, (electronic) files, etc., shall remain the property of D2D until the buyer has fulfilled all obligations formulated in the agreement concluded with D2D, claims based on deficiency included.
2. As long as the ownership of the delivered goods has not yet been transferred to the buyer, he/she shall - outside the scope of his/her normal business operations - not be authorised to sell, deliver, or dispose (fully or partly) of the goods delivered, or use them as a pledge to third parties or otherwise with the rights of third parties.
3. If the buyer has not yet received ownership of the delivered goods, but has already acquired the actual power of attorney, the buyer shall be obliged during that period to ensure that these items remain in the
same condition and quality as they were at the moment of delivery. Next, in the context of D2D’s propery right, the buyer must ensure that these items remain individualisable.
4. If third parties take possession of the goods delivered under retention of title or wish to establish or enforce rights thereupon, the buyer shall be obliged to inform D2D of this as soon as can reasonably be expected.
5. The buyer shall insure the goods delivered under retention of title against fire, explosion, water damage, and theft, and shall make the policy of this insurance available for inspection upon first request. In case of payment of the insurance, D2D shall be entitled to the complete amount to be remunerated. Insofar as necessary, the buyer shall lend D2D its full cooperation with respect to all measures that might (prove to) be necessary or desirable in the context of the payment.
6. In the event that D2D wishes to exercise its ownership rights, the buyer shall grant 2D2 and the third parties designated by 2D2 the unconditional and irrevocable permission to enter all locations where the buyer has stored D2D's property, and take back the goods. The costs of this operation shall be entirely for the account of the buyer.
Article 10 Warranty
1. D2D guarantees that the goods or services delivered shall, to the same extent and under the same conditions as those of the supplier/producer, be free from any defects or shortcomings, also during the guarantee period used by the supplier/producer after delivery. However, this guarantee shall not apply if the supplier/producer is declared bankrupt, if the supplier/producer is in a debt rescheduling arrangement, in case of liquidation of the supplier/producer's company, if the supplier/producer is disposing of his/her assets in another way, or if D2D cannot derive any rights from the guarantee issued by the supplier/producer due to other circumstances or because of other reasons.
2. In the event that the buyer can claim the guarantee as referred to in paragraph 1 of this article, it shall only include the right to free repair, replacement of the product(s) delivered or re-execution of the service performed. D2D shall also remain authorised to credit the invoice for return of the purchase price or for the reimbursement.
3. The buyer shall be entitled to a warranty as referred to in the preceding paragraphs of this article only on the condition that he/she fulfils his/her obligations towards D2D in a timely and proper manner.
4. When - after the expiry of the warranty period as referred to in paragraph 1 of this article - the buyer demonstrates that the goods delivered or services performed by D2D do not comply with the agreement, or that D2D has in any other way been in default, the buyer shall only be entitled to the free repair or replacement of these goods, or to the re-execution of the service(s).
5. The buyer shall have no claim to warranty as referred to in the preceding paragraphs of this article if D2D can demonstrate that the defects found were caused by an incorrect or improper use or application of the delivered goods by the buyer or by the third parties involved.
6. Unless otherwise agreed upon in writing, the warranty claim expires for the buyer if he/she resells the goods delivered by 2D2 to a third party or if he/she makes any changes or repairs to these goods, or commissions a third party to do so.
Article 11 Dissolution
1. If the buyer fails to meet one or more of the obligations arising from the general terms and conditions or from the agreement, D2D shall be entitled to dissolve the agreement, or the part thereof that still has to be completed, without notice of default and without judicial intervention being required, and to take back the goods delivered, insofar as they were not yet paid for. This, without prejudice to D2D's right to compensation for any loss in terms of profit or otherwise, or for other damage that has arisen or will arise as a result of this shortcoming.
2. The provisions of paragraph 1 of this article apply mutatis mutandis in the case of: suspension of or application for payments, declaration of bankruptcy, declaration of or application for a debt rescheduling arrangement, liquidation (of the company) of the buyer, his/her death, or if the buyer loses possession of his/her assets through seizure or otherwise.
3. In the cases referred to in paragraphs 1 and 2 of this article, any claim that D2D has on the buyer shall be immediately and fully paid.
Article 12 Return of items made available
1. All goods, including materials and parts that D2D or third parties engaged by D2D have made available to the buyer for the execution of the agreement, shall at all times remain the property of D2D or of these third parties, as well as any intellectual property rights. D2D reserves the right to take back these goods at any time, whereby the buyer is obligated to return them to D2D at his/her own expense and upon first request.
2. The buyer shall store the items referred to in paragraph 1 of this article separately and mark them as being the property of D2D or of the third party/parties involved.
3. In the event that items made available to the buyer as referred to in paragraph 1 of this article have to be replaced or repaired, the buyer shall be obliged to reimburse the costs involved to D2D.
4. In case of a violation of one of the obligations in the preceding paragraphs, the buyer shall owe an immediately due and payable penalty of € 500 per violation to D2D, plus an amount of € 250 for each day that the violation continues, all without prejudice to the right to compliance and additional compensation. In this context, the statutory (commercial) interest pursuant to articles 6: 119 and 6: 119a of the Dutch Civil Code on the fine shall also be immediately claimable.
Article 13 Liability
1. In the event that D2D should be liable to the buyer for any reason, this liability shall be limited in accordance with the provisions of this article.
2. D2D shall only be liable for damage suffered by the buyer or third parties, which is directly and exclusively the result of intent or gross negligence/willful recklessness on the part of D2D or of its management, with due observance of the provisions below. Insofar as D2D may be or can be held liable for damage, irrespective of its basis, without intent or gross negligence/willful recklessness, the limitations as described in the following paragraphs of this article apply.
3. Compensation solely applies to damage for which D2D is insured and only insofar as the insurance company is willing to make a payment. In situations where there is in no case any intent or gross negligence/willful recklessness as referred to in paragraph 2 of this article, and where D2D’s liability is limited, regardless of
whether the damage is insured or whether the insurance company pays out or not, and irrespective of the basis of the liability, the following restrictions apply:
a) D2D shall not be liable for any defects of the goods delivered or damage caused by them, arising from their (whether or not improper) use or from any unsuitability of these items themselves. Neither shall 2D2 be liable for the use of specific items, materials, parts or constructions that - whether or not contrary to the applicable regulations – have explicitly been prescribed by or on behalf of the buyer or D2D, or which have been made available by D2D or third parties engaged by D2D;
b) D2D shall not be liable for any damage suffered by the buyer or by third parties, which has resulted, either directly or indirectly, from advice provided orally or in writing by or on behalf of D2D. Neither shall 2D2 be liable for any improper or untimely instructions, investigations, or assessments of the work by D2D or its managers, which can be ascribed to negligence, or for the failure to take precautionary measures to avoid this damage;
c) In case of oral information provided by or on behalf of D2D, D2D shall not be liable for any damage resulting from the incorrect transference of this information, or for the misinterpretation of this information by the buyer or by third parties;
d) D2D shall not be liable for any damage resulting from designs, drawings, etc., produced by or on behalf of D2D.
e) D2D shall not be liable for any damage that has arisen as a result of work performed by third parties, including - but not limited to: assembly and installation work, even though D2D advised the buyer to conclude an agreement with this third party to (partly) execute this work;
f) In case of liability on the basis of this article, D2D shall not be obligated to compensate a higher amount of the damage than the net invoice value of the relevant purchase, delivery or service, to a maximum of € 10,000;
g) Not eligible for compensation are so-called business damage, consequential damage, and immaterial damage. This is explicitly, but not exclusively, understood to mean: all financial loss, personal injury or other disadvantages that the services provided and/or goods delivered by D2D have caused to other goods or persons, claims of third parties, all damage suffered (at home or abroad) by the buyer or third parties as a result of: (danger of) war, civil war, riot, storm, lightning, fire, water damage, environmental damage, flood, earthquake, volcanic eruption, asbestos, nuclear reactions, (bio) chemical weapons, labour strike, company occupation, exclusion, import and export restrictions, government measures, business disruptions, disruptions in the supply of energy or raw materials, machine defects, delays during transport, non-workable circumstances, illness, or staff absence through disability (whether or not for an indefinite period of time), all having an impact on D2D’s provision of its services (either with or without a third party), and its delivery of (raw) materials and goods in whole or in part. Neither during storage nor during transport, whether or not under 2D2’s management, are these items eligible for compensation by 2D2. The buyer must insure him/herself against these damages;
h) If the amount to be paid by the buyer is small in relation to the extent of the damage suffered by the buyer, the amount to be compensated by 2D2 shall be moderated. In this context, there is an explicit deviation from the provisions stated in article 6: 109 paragraph 2 of the Dutch Civil Code.
4. The buyer shall be obligated to indemnify D2D, as well as the third party or parties engaged by 2D2, against any claims from other third parties aimed at the compensation of damage resulting from the use or application of the delivered goods or service(s).
5. If the buyer places one or more
Article 14 Force majeure
1. D2D shall not be obligated to fulfil any requirement if it is hindered by force majeure. Force majeure is understood to mean: any circumstance that D2D could not reasonably have foreseen, over which D2D has no control, and for which 2D2 can by no means held responsible.
2. In addition to what is understood by force majeure in the law and case law, there is force majeure on the part of D2D if D2D is prevented from fulfilling one or more obligations included in the agreement, as a result (either at home or abroad) of: (civil) war or danger thereof, riot, molest, storm, lightning, fire, water damage, flooding, strike, company occupation, exclusion, import and/or export restrictions, government measures, defects in machinery, malfunctions in the supply of energy or raw materials, delays during transport, non-workable circumstances, incapacity to work due to illness or loss of staff (whether or not for an indefinite period). These circumstances apply to D2D, the third parties appointed by D2D, and the buyer, and pertain to all required services, materials, goods and raw materials, either wholly or partly affected either during storage or during transport, whether or not under D2D’s own management. In sum, force majeure entails all conditions beyond D2D's fault or control in which D2D cannot reasonably be expected to fulfil its obligations.
3. If the period of force majeure lasts longer than two months, each of the parties shall be entitled to terminate the agreement, without any obligation to pay compensation to the other party.
4. If at the time of force majeure D2D has partly fulfilled or is still able to partly fulfil its obligations under the agreement, D2D shall be entitled to separately invoice the part already fulfilled or still to be fulfilled. The buyer shall then be obligated to pay this invoice as belonging to a separate agreement.
Article 15 Intellectual property and copyrights
1. Without prejudice to the other provisions of these general terms and conditions, D2D shall reserve the rights and powers as it is entitled to under the Copyright Act.
2. The buyer shall not be permitted to make any alterations to the delivered goods, unless this is required given the nature and composition of these goods or agreed upon in writing.
3. Any designs, sketches, drawings, films, software and other materials or (electronic) files created by D2D in the context of the agreement shall remain the property of D2D, regardless of whether these have been handed over to the buyer or to third parties, unless agreed otherwise.
4. All documents provided by D2D, such as designs, sketches, drawings, films, software, (electronic) files, etc., are exclusively intended for use by the buyer. Reproduction by the buyer of these documents is prohibited without the prior permission of D2D. Neither can these documents be made publicly available to third parties, unless their nature indicates otherwise.
5. D2D shall be entitled to display the goods delivered or manufactured or the services provided by name and brand in advertising messages or in other written expressions of the buyer in catalogues or other advertising
printed matter and publications, or to use them during fairs and exhibitions without the prior permission from the buyer or third parties. D2D shall also reserve the right to use any new knowledge in connection with these goods, resulting from the execution of similar work for other purposes, provided that no confidential information is disclosed to third parties. D2D shall not be obligated to pay any compensation to the buyer or to a third party for the use of this knowledge.
6. The buyer shall at all times indemnify D2D against any claims from third parties with regard to the intellectual property rights on the materials, data or images provided by the buyer that are used in the execution of the agreement.
Article 16 Confidentiality
Both parties shall be obligated to maintain the confidentiality of all sensitive information that they have received in the context of the agreement from each other or from any other source. Information is considered confidential by its very nature or when it is communicated by a party in confidence. Name, address, place of residence and project details may be used by D2D at all times as a reference and for acquisition purposes, unless the buyer has indicated in writing within 14 days after conclusion of the agreement that he/she does not approve of this.
Article 17 Non-takeover of staff
1. The buyer shall, during the term of the agreement and one (1) year after its termination, be forbidden to offer a position in his/her company to employees of D2D, employees of (subsidiary) companies affiliated with D2D, or any other persons who have been involved in the execution of the agreement, whether or not indefinitely, whether on a temporary or on a freelance basis, or whether or not paid directly or indirectly by the third parties.
2. If the buyer acts contrary to his/her obligations under the provisions of paragraph 1 of this article, he/she shall receive a fine from D2D, without any notice of default, of € 10,000 net and a fine of
€ 10,000 for each subsequent violation. Furthermore, for each day (including half-days) that the violation continues, the buyer shall have to pay another € 1,000. D2D shall be entitled to claim full compensation as well as compliance with the stipulation set forth in paragraph 1 of this article.
Article 18 Changes
D2D shall be at all times be authorised to make unilateral changes to these terms and conditions. The amended provisions shall then come into effect after a period of 14 days after notification to the buyer.
Article 19 Disputes
In case of a dispute between 2D2 and the buyer, this dispute shall be handled by the judge or the subdistrict court judge in the district of 2D2’s place of business, unless expressly and imperatively stated otherwise by the law or by international treaties.
Article 20 Applicable law
To every legal relationship between D2D and buyer, the Dutch law applies. The applicability of the Vienna Sales Convention is expressly excluded.