General Terms and Conditions

of Dutch Water Concepts BV | Version 1.2 – Date 10-01-2023

General Terms and Conditions of Sale Dutch Water Concepts BV, established at (5215 MK) ‘sHertogenbosch at Sterrenbeeld 25 and registered with the Chamber of Commerce under number 64677389 there, VAT identification number: NL-8557.748.85.B.01

Article 1: Definitions

In these general terms and condition the following terms are used in the following meaning, unless explicitly determined otherwise in writing:

  1. Dutch Water Concepts (hereinafter: DWC: the private limited company Dutch Water Concepts BV, established at (5215 MK) ‘s-Hertogenbosch at Sterrenbeeld 25 and registered with the Chamber of Commerce under number 64677389 there.
  2. Customer: the natural person, partnership, commercial partnership, other type of partnerships and/or legal entities that has/have entered into an agreement with DWC with respect to the purchase and delivery and/or other service in the broadest sense of the word ‘Products’, to which these general terms and conditions apply.
  3. Agreement: the agreement between DWC and the Customer relating to the purchase and delivery and/or other service in the broadest sense of the word Products.
  4. Products: the water maintenance products to be supplied by DWC. 5. The Parties: DWC and the Customer.

Article 2: Applicability

  1. These general terms and conditions are applicable to every application, offer, quotation and Agreement between the Parties, insofar as these have not been explicitly deviated from in writing by DWC.
  2. The applicability of any general terms and conditions the Customer may have is explicitly rejected.
  3. Amendments to these general terms and conditions of sale are only valid if these have been agreed between the Parties in writing.

Article 3: Offers, quotes and Agreement

  1. All offers and/or quotes issued by DWC are without obligation and can only be regarded as an invitation for the Customer to make an offer. By accepting the offer and/or quote the Customer makes an offer and issues instructions to DWC to enter into an Agreement. DWC at all times reserves the right to refuse such an offer or such instructions without giving reasons.
  2. An Agreement between the Parties will only come about after DWC has presented the Customer with a quote at the Customer’s request, this quote has been accepted by the Customer in writing within the period of the quote’s validity (being an offer by the Customer to enter into an Agreement) and this offer by the Customer has subsequently explicitly been accepted by DWC and/or DWC has confirmed that DWC has started to execute or has executed this accepted quote.
  3. If no quote has been issued by DWC, an Agreement between the Parties will also come about as a result of the Customer placing an order and DWC executing this order. In that case the content of the Agreement will be deemed to have been stated on the invoice which DWC sent to the Customer in respect of the instructions carried out, or the order delivered, by it.

Article 4: Prices

  1. Unless explicitly stated otherwise, all prices quoted by DWC at the time the Agreement came about are in Euros and exclusive of VAT.
  2. The prices quoted by DWC are based on cost factors applicable on the date the Agreement comes about.
  3. If one of the factors that determines the cost of a product changes in the period between the date the Agreement comes about and the date of delivery, DWC reserves the right to adjust the price agreed accordingly, irrespective of whether or not the cost increase was foreseeable at the time the order was placed/confirmed, with due regard for the statutory regulations applicable in this regard. If the new price deviates from the agreed price by more than 10%, the Customer reserves the right to dissolve the Agreement free of charge. In that case DWC will not be liable to pay damages.

Article 5: Payment

  1. DWC is authorised to claim payment of (part of) the agreed price before delivery takes place.
  2. Payment must be made when ordering in a manner to be indicated by DWC. Deviations can only be made after written consultation and approval.
  3. DWC is entitled to invoice at regular intervals.
  4. The possibility to offset amounts DWC owes to the Customer against amounts the Customer owes to DWC is explicitly excluded. The above is also applicable in the event of a suspension of payments and/or bankruptcy.
  5. The Customer is also never authorised to suspend its obligations towards DWC at any time, including in the event that DWC fails to perform.
  6. If the Customer fails to pay an invoice from DWC on time, the Customer will be in default by operation of law without any notice of default or demand being required.
  7. If the Customer fails to fulfil one or more obligations vis-à-vis DWC, all reasonable costs incurred to obtain an out-of-court settlement will be payable by the Customer including, in any event, the costs of drafting and sending reminders, proposing an out-of-court settlement, and obtaining information. The out-of-court costs will be calculated on the basis of what is common practice at the time in Dutch debt collecting practice. If, however, DWC incurred higher costs to collect the debt which were reasonably essential, the actual costs incurred will qualify for reimbursement. The Customer will furthermore have to pay interest on the debt collection charges.
  8. From the above-mentioned moment of default, the Customer will owe default interest on the outstanding invoice amount amounting to 1% per month, unless the statutory (commercial) interest rate amounts to more than 12% per year, in which case the statutory (commercial) interest rate will be payable.
  9. Any payments made by the Customer will first of all serve to settle any interest and costs owed and subsequently the invoices due that have been outstanding the longest, even if the Customer states that the settlement relates to a later invoice.

Article 6: Delivery

  1. Unless agreed otherwise in writing, delivery will take place ex works as referred to in the most recent version of the Incoterms at the time the Agreement was concluded. In all cases, the moment of delivery refers to the moment the Products are made available for transport for the benefit of the Customer, unless arranged otherwise in writing. In all cases the Products will be transported and carried exclusively at the Customer’s account and risk.
  2. The delivery time will be agreed between the Parties when the Agreement is concluded and will not commence until after DWC has received all the information necessary for delivery.
  3. DWC is allowed to deliver the agreed Products in parts. If DWC wishes to exercise this option, DWC will be authorised to invoice each part separately.
  4. The delivery times stated by DWC are always by approximation only and are never strict deadlines. In the event that DWC fails to deliver on time, DWC must be given written notice of default by the Customer and must be given a period of at least 14 days to as yet deliver, unless agreed otherwise between the Parties and/or unless criteria of reasonableness and fairness justify a longer period in the given circumstances.
  5. Failure to meet the above-mentioned deadlines does not give the Customer the right to dissolvethe agreement.

Article 7: Purchase obligation

The Customer is obliged to purchase the agreed Products the moment these are delivered by DWC. If the Customer refuses to purchase the Products or fails to provide information or instructions that are essential for the delivery, the Products will be stored for the Customer’s account and risk. In that case, the Customer will owe all additional costs including, in any event, storage costs to DWC.

Article 8: Complaints and guarantee

  1. The Customer needs to inspect or have others inspect the agreed Products upon delivery [- or as soon as possible after that]. The Customer will, in particular, need to check whether the Products delivered are in line with the Agreement, namely:
    – whether the correct Products have been delivered;
    – whether the Products delivered correspond with the agreed Products in terms of quantity;
    – whether the Products delivered meet the quality requirements or, in the absence of these, the requirements that may be imposed for normal use and/or commercial purposes.
  2. The Customer must report any defects to DWC within a reasonably period but, in any event, within 14 days after they were discovered, at the risk of forfeiting all rights.
  3. When DWC has delivered the Products to the Customer and the Products delivered are in line with the Agreement, the Customer is not authorised to return the Products delivered to DWC.

Article 9: Risk and storage

  1. Unless DWC has explicitly stated otherwise, the Products are at the Customer’s risk from the moment of transport/delivery.
  2. If the delivery cannot take place at the time agreed with the Customer due to a circumstance within the Customer’s control, the Products will be stored at the Customer’s account and risk.
  3. If the Customer is in arrears with payment of any amount due to DWC, DWC reserves the right to store the Products at the Customer’s account and risk and to postpone delivery until all overdue instalments have been paid.

Article 10: Retention of title

  1. All of the Products delivered to the Customer by DWC will remain the inalienable property of DWC until such time as all amounts the Customer owes DWC on any account whatsoever have been paid including, though not exclusively, amounts due on account of Products delivered, including interest, costs as well as any amounts due on account of the Customer failing to fulfil its undertaking to DWC.
  2. The Customer is obliged to store the Products that have been delivered under retention of title with due care and clearly recognisable as being the property of DWC. If the Customer fails to store and mark the Products delivered by DWC separately in the above-mentioned manner, it will be assumed that any Products of the same kind that are present at the Customer belong to DWC.
  3. In the event of processing, conversion, confusion of property or accession by or on behalf of or at the Customer of the Products delivered to the Customer by DWC, DWC will acquire (joint) ownership rights to the newly created Products and/or the composite Products. Insofar as a further delivery is required for this joint ownership, that delivery will take place at the time the Agreement is concluded for that eventuality.
  4. The Customer is not authorised to pledge the Products or to establish any other rights on them.
  5. The Customer hereby grants DWC the right to enter all those places in which Products owned by DWC are stored in order to exercise its ownership rights.
  6. If the Customer fails to fulfil its obligations or if there is reasonable fear that it will fail to do so, DWC reserves the right to remove, or have others remove, the Products delivered in which DWC has retained title referred to in paragraph 1 from the Customer or from third parties that are keeping the Products for the Customer. The Customer is obliged to cooperate fully with this subject to a penalty of € 2,500 per violation.
  7. After delivery, the risk for the Products in which DWC has retained title by virtue of paragraph 1 of this article, rests with the Customer. The Customer is obliged to adequately insure the Products referred to, in any event against the risk of theft, damage and loss. The Customer is not allowed to use any insurance claims on its insurer as referred to in this paragraph for third parties. Payments in respect of the damage or loss of the Products referred to in this Article will take the place of the Products concerned.
  8. The Customer is obliged to inform, with immediate effect in writing, anyone wishing to seize the Products delivered by DWC, in which DWC has retained title, or its curator or administrator in the event of the Customer being put into administration or being declared bankrupt, with a copy being sent to DWC, of the fact that DWC still owns the Products delivered, subject to an immediately payable penalty of € 2,500 or, if higher, the original invoice amount of the Products. The penalty applies in addition to a possible obligation to pay damages.

Article 11: Dissolution

  1. In the following cases DWC reserves the right to dissolve all Agreements concluded with the Customer with immediate effect either in full or in part, by a mere written notice and without notice of default being required, without prejudice to its rights, in particular the right to claim full damages, including the legal and out-of-court expenses incurred:
    – if the Customer fails to fulfil one or more of its obligations by virtue of an Agreement concluded with DWC or fails to do so correctly or on time;
    – if a suspension of payments is applied for or granted in respect of the Customer;
    – if bankruptcy proceedings are instituted against the Customers and/or the Customer is declared bankrupt;
    – if the Customer transfers, winds up or closes down (parts of) its company;
    – if one or more of the Customer’s assets are seized before judgement or seized under a warrant of execution.
  2. If DWC has called for the termination of the Agreement, the amount owed to DWC, increased with interest, damages and costs, will become immediately payable in full.

Article 12: Intellectual Property

  1. All intellectual property rights, in any event including though not exclusively copyrights and trademarks, vested in Products delivered by DWC, are and will exclusively remain the property of DWC.
  2. The Customer acknowledges and respects these rights and will not infringe these. If the Customer, despite the above, nevertheless infringes DWC’s intellectual property rights, the Customer will forfeit to DWC an immediately payable penalty of € 2,500 per violation, as well as for every day the violation continues. DWC furthermore reserves the right to recover any damage its suffers or will suffer as a result of an infringement of intellectual property rights vested in it from the Customer.
  3. The Customer is obliged to investigate whether the use or the onward supply of the Products infringes any third party intellectual or industrial property rights. DWC does not accept any liability for this.

Article 13: Force majeure

  1. If a situation of force majeure occurs as referred to in paragraph 2 of this provision, DWC will be authorized to:
    – suspend its obligations by virtue of the Agreement concluded for a period equal to the duration of the situation of force majeure, and/or;
    – dissolve the Agreement, and/or;
    – invoice the Products delivered up until that point.
  2. Force majeure is taken to mean: any situation, which may or may not have been foreseeable, beyond DWC’s control, as a result of which DWC is unable to properly fulfil its obligations arising from the Agreement with the Customer, either temporarily or permanently, including though not exclusively, war (risk), (natural) disasters, riots, uprisings, transport problems, strikes at DWC and/or parties whose goods or services are essential for DWC’s proper fulfilment of the agreement by DWC, a shortage of raw materials and other Products or services required for the proper fulfilment of the Agreement.
  3. If a situation of force majeure as referred to in the previous paragraph arises, DWC will inform the Customer to this effect as soon as possible.
  4. Force majeure is not a reason for the Customer to dissolve the Agreement, to claim damages and/or to suspend its obligations.

Article 14: Liability

  1. DWC is not liable for any damage of any nature whatsoever which the Customer claims to have suffered as a result of, or in connection with, the Agreement.
  2. If DWC as a result of non-performance, non-timely performance, incomplete or improper performance, nevertheless becomes liable towards the Customer, despite the provision laid down in paragraph 1, the amount for which DWC can be held liable will be limited to no more than the amount that DWC’s liability insurance will pay out in that case. If the liability insurance does not provide cover, the liability will be limited to the invoice amount that has been agreed between DWC and the Customer, such insofar as this invoice amount has been paid.
  3. DWC is only liable for direct damage suffered by the Customer or third parties that is a direct result of gross negligence and/or intent on the part of DWC. Direct damage is taken to mean:
    – reasonable costs to establish the cause and extent of the direct damage;
    – any reasonable costs incurred to bring the defective performance by DWC in line with the Agreement;
    – reasonable costs incurred to prevent or to limit damage, insofar as the Customer is able to demonstrate that these costs have actually resulted in a limitation of the direct damage.
  4. DWC’s liability for indirect damage, including consequential damage, loss of income, loss of sales or loss of profits and loss of enjoyment, is at all times excluded.
  5. DWC will never be liable towards third parties for damage arising during execution of the Agreement to which these terms and conditions apply, beyond its liability towards the Customers. The Customer indemnifies DWC against further liability and, where possible, will stipulate an exoneration for the benefit of DWC in this respect.

Article 15: Applicable law and disputes

  1. All legal relationships between the Parties to which these general terms and conditions of sale are applicable will be governed by Dutch law.
  2. Any disputes related to Agreements between the Parties will exclusively be presented to the Court of Oost-Brabant, located in ‘s-Hertogenbosch, the Netherlands, unless the Parties agree to arbitration or a binding opinion.