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Conditions of sales MarQuip B.V.
Article I General
1. When these General Conditions of sale are part of tenders and agreements concerning
the performance of deliveries and/or services by MarQuip B.V., all clauses of these
conditions shall be operative between the parties, insofar there has been no explicit
amendment in writing by both parties. A reference by the purchaser to his own
conditions of purchase, invitations to tender or other conditions will not be accepted by
the contractor.
2. In these conditions of sale
– product means: goods as well as services, such as maintenance, advice and
inspection.
In these conditions of delivery
– MarQuip B.V. also means: the contractor
– the purchaser also means: he, to whom said tender is made,
– service also means: contracting work.
– in writing also means: per fax, e-mail, EDI, internet or other electronic mediums.
Article II Quotation
1. Every quotation made by the contractor is without engagement.
2. Every quotation is based on the performance by the contractor under the agreement
under normal circumstances and during normal working hours.
3. Every quotation is valid for 90 days only (unless otherwise agreed in writing)
Article III Agreement
1. If an agreement has been entered into writing, it is entered into on the day the contract
is signed by the contractor, or the day the written confirmation of order has been mailed
by the contractor respectively.
2. By additional work is meant everything the contractor, in consultation with the
purchaser, whether in writing or not, delivers and/or installs during the performance
under the agreement exceeding the quantities explicitly laid down in the contract or in
the confirmation of order, or if the contractor performs more activities than explicitly laid
down in the contract or the confirmation of order.
Verbal promises by and arrangements with subordinate employees of the contractor shall
only bind the contractor after having been confirmed as such by the latter in writing.
Article IV Price
1. In the prices given by the contractor VAT and other government levies and taxes on
sales and deliveries are excluded. These prices are based on delivery ex works
according to Incoterms prevailing on the date of tender, except for stipulations in the
present conditions to the contrary. Works refers to the premises of the contractor.
2. If one or more elements of cost price are subject to an increase three months or more
after the date of entering into the agreement – even if this occurs due to foreseeable
circumstances – the contractor is entitled to increase the price agreed upon accordingly.
3. In the agreement the authority of the contractor is included to charge extra work done
by him separately, as soon as the amount to be charged is known to him. The rules in
paragraph 1 and paragraph 2 of this article apply accordingly to the calculation of extra
work.
4. Cost estimates and plans are not charged separately, unless otherwise agreed upon. If
the contractor should make new drawings, calculations, descriptions, models or tools,
etc. for possible repeat orders, costs will be charged.
5. Packaging will not be included in the price and is charged separately. Packaging is not
taken back.
6. Costs of loading and unloading and of transportation of raw materials, semi
manufactures, models, tools, and other goods made available by the purchaser are not
included in the price and are charged separately. Costs paid for by the contractor in
this respect are regarded as an advance payment at the expense of the purchaser.
7. If the contractor has agreed to install a product, the price includes installation and readyfor-
use delivery of the product at the address mentioned in the tender, as well as all
costs, except for those costs which are not included in the price according to the
preceding clauses or which are mentioned in article VII. Costs made due to weather
conditions in which it is impossible to work will be charged.
8. Where products are sold for export from the Netherlands, the customer shall be
responsible for complying with any legislation or regulations governing the importation
of products into the country of destination and for the payment of any duties.
Article. V Drawings, calculations, descriptions, models, tools, etc.
1. Information provided in catalogues, illustrations, drawings, data on size and weight, etc.
are only binding if and insofar they are explicitly laid down in a contract signed by the
parties or a confirmation of the order signed by the contractor.
2. Tenders issued by the contractor, as well as drawings, calculations, software,
descriptions, models, tools, etc. produced or provided by the contractor remain his
property, irrespective whether costs have been charged. The information contained
within same or based upon methods of production and construction, products etc.
remains exclusively reserved to the contractor, even if costs have been charged. The
purchaser shall see to it that, except for performance under agreement, information
given is only copied, shown, made known to or used by third parties with written
permission by the contractor.
Article VI Time of delivery
1. When MarQuip and the purchaser agree on a delivery term, this term starts running the
moment the obligations of the purchaser to MarQuip are totally fulfilled.
2. The term of delivery is based on the working conditions at the time the agreement is
entered into and on timely delivery of the materials necessary for performing the work
ordered by the contractor. If any delay might occur due to change in the said working
conditions, for which change the contractor is not to blame, or because materials timely
ordered for the performance of the work are not delivered on time, the term of delivery
will be prolonged for as long as necessary.
3. With regard to the term of delivery the product is deemed to be delivered when it is
ready for testing, if testing in the premises of the contractor has been agreed upon, and
in other cases when it is ready for shipment, all this after the purchaser has been given
notice in writing and without prejudice to the obligation of the contractor to fulfil possible
installation obligations.
4. Without prejudice to other clauses in these conditions regarding prolongation of the term
of delivery, the term of delivery is prolonged for the duration of the delay which arises on
the side of the contractor when the purchaser has not met some obligation resulting
from the agreement or has not co-operated as could be demanded from him with
respect to the performance under the agreement.
5. Save for gross negligence on the part of the contractor, exceeding the term of delivery
does not entitle the purchaser to terminate the agreement completely or partly.
Exceeding the term of delivery – for whatever reason – does not entitle the purchaser to
perform or to have work performed under the agreement without the Court’s leave.
6. The supplier shall on arrival of the Products examine whether the products’ time of
arrival, condition and quantity conform to the dispatch note. The purchaser shall
immediately inform the supplier of any discrepancies or possible claims against the
transporter.
Article VII Installation
1. The purchaser is responsible towards the contractor for performing correctly and on
time all installations, provisions and/or conditions necessary for the erection of the
product to be installed and/or for the correct operation of the product in installed state
on time, save if and insofar this performance is done by or on behalf of the contractor
according to data presented and/or drawings made by or on behalf of the latter.
2. Without prejudice to the provisions sub 1, the purchaser shall in any case see to it at his
own expense and risk that:
a. employees of the contractor can commence and continue their work during normal
working hours from the moment they arrive at the place of installation and, moreover,
if the contractor deems it necessary, outside of normal working hours provided that
the purchaser has been notified in time,
b. suitable accommodation and/or all provisions under Government ordinances, the
agreement and common use will be available to the employees of the contractor,
c. the access routes to the place of installation are fit for the required transportation,
d. the assigned place of erection is fit for storage and installation,
e. the necessary lockable depositories for materials, tools and other goods are
available,
f. the necessary and usual workmen, auxiliary tools, auxiliary and industrial materials
(fuels, oils and greases, cleaning and other small materials, gas, water, electricity,
steam, compressed air, heating, lighting, etc. included), and the usual measuring and
testing instruments of the company of the purchaser are in the right place at the
disposal of the contractor on time and free of charge,
g. all necessary safety and precautionary measures have been taken and shall be
maintained, and that all measures have been taken and shall be maintained in order
to satisfy the appropriate Government regulations with respect to installation,
h. the mailed products are at the right place at the beginning of and during the
installation.
3. Damages and costs which arise because the conditions stated in this article have not
been fulfilled or have not been fulfilled on time are for the purchaser’s account.
4. With regard to time for assembly and installation, article VI applies accordingly.
Article VIII Inspection and acceptance test
1. The purchaser shall inspect the product at the latest within 14 days after delivery as
stated in article VI sub 3 or – if installation has been agreed upon – at the latest within 14
days after installation. If this term passes without written and specified notification of
well-founded complaints, the product is assumed to have been accepted.
2. If an acceptance test has been agreed upon, the purchaser shall give the contractor the
opportunity to perform the necessary tests and to apply those improvements and
modifications which the contractor finds necessary after receipt or, if installation has
been agreed upon, after installation. The acceptance test shall be performed
immediately upon request of the contractor in the presence of the purchaser. If the
acceptance test has been performed without specified and well-founded complaints,
and if the purchaser does not meet said obligations, the product is assumed to have
been accepted.
3. The purchaser shall put the necessary facilities, including those referred to in article VII
sub 2 f, as well as representative samples of materials to be processed in sufficient
quantities, on time, free of charge and in the right place at the disposal of the contractor
for the acceptance test and for possible other tests, in order to simulate the
circumstances of use of the product anticipated by the parties to the greatest extent
possible. If the purchaser does not fulfil this, paragraph 2, the last sentence, applies.
4. In case of minor shortcomings, especially those which hardly or do not at all influence
the anticipated use of the product, the product will be assumed to have been accepted
despite these shortcomings. The contractor shall remedy such shortcomings as yet as
soon as possible.
5. Without prejudice to the obligation of the contractor to meet his obligations of guarantee
the acceptance according to the preceding paragraphs will exclude any claim of the
purchaser for shortcomings in the performance of the contractor.
Article IX Transition of risk and ownership
1. As soon as the product has been delivered in the definition of art. VI sub 3, the
purchaser bears the risk for all direct and indirect damage that may occur on or on
account of this product, except insofar the damage is the result of the contractor’s gross
negligence. If the purchaser remains in default for taking up the product after having
received a notice of default, the contractor will be entitled to charge all costs of storage
of the product to the purchaser.
2. Without prejudice to the last paragraph and the provisions of article VI sub 3, the
ownership of the product passes to the purchaser only when all debts of the purchaser
to the contractor for deliveries or work, including interest and costs, have been paid for
in full.
3. The case occurring the contractor shall have the right of unhindered access to the
product. The purchaser shall give all co-operation to the contractor in order to provide
the contractor the opportunity to execute the retention of ownership as stated in
paragraph 2 by taking back the product, dismantling included if necessary.
Article X Payment
1. If not otherwise agreed upon, payment of the price agreed upon will take place in two
terms:
30 % (thirty per cent) at the latest within 7 days after the day the agreement came into
being,
65 % (sixty five per cent) before shipment of the products, at the latest within 14 days
after declaring products ready for shipment by the supplier.
5 % (five per cent) at the latest within 14 days after delivery under art. VI sub 3.
2. Payment of additional work shall take place as soon as the purchaser has been charged
for this.
3. All payments shall be made without any deduction or setting-off at the office of the
contractor or into an account designated by him.
If the purchaser does not pay within the period agreed upon, he is considered in default by
right and the contractor may without any notice of default charge interest at a rate of 3
points above the legal interest in force in The Netherlands counting from the expiry date
as well as all judicial and extrajudicial costs in connection with the claim.
In case the purchaser does not fulfil his obligations based upon the contract to the seller and
the seller is consequently forced to make use of legal assistance, the seller is entitled to
charge the buyer for all the legal costs.
Article XI Guarantee
1. Without prejudice to the following restrictions, the contractor guarantees the quality of
the product he delivered as well as the quality of the materials used and/or delivered for
the product, insofar deficiencies to the delivered product are concerned which cannot be
detected at inspection or acceptance test respectively, of which the purchaser proves
that these have arisen within 12 months after delivery of the yacht to the owner solely or
mainly as a direct consequence of a defect in the construction applied by the contractor
or due to inadequate workmanship or use of bad materials. The term of guarantee ends
in any case when 36 months after delivery under article VI sub 3 have passed.
2. The deficiencies falling under the guarantee sub 1 and 2 will be removed by the
contractor by repair or replacement of the defective part, whether or not in the premises
of the contractor or by mailing a part for replacement, this always at the contractor’s
discretion. All costs that go beyond the sole obligation as described in the preceding
sentence, such as, but not restricted to, costs of transportation, costs of travelling and
accommodation and costs of disassembly and assembly are at the expense of the
purchaser.
3. In any case not included in the guarantee are deficiencies which arise from or are
completely or partly caused by:
a. not taking into account the operating and maintenance instructions or other than
anticipated normal use,
b. normal wear and tear,
c. installation or repair by third parties, including the purchaser,
d. the application of any Government regulation regarding the nature or the quality of
the applied materials,
e. used materials or goods respectively used in consultation with the purchaser,
f. materials or goods which the purchaser has given to the contractor to be processed,
g. materials, goods, methods and constructions insofar applied at explicit instruction of
the purchaser, together with materials and goods delivered by or on account of the
purchaser,
h. parts the contractor has received from third parties, insofar as the third party has not
given any guarantee to the contractor.
4. If the purchaser does not, does not adequately or does not timely meet with an
obligation resulting from the agreement with the contractor or an agreement related to it,
the contractor is not held to any guarantee for any of these agreements. If the purchaser
proceeds to or has someone proceed to any dismantling, repair or other work
concerning the product without prior written approval by the contractor, every claim
resulting from the guarantee ceases to exist.
5. Complaints for deficiencies should be made in writing as soon as possible after
discovery of the deficiencies, yet at the latest within 14 days after the term of guarantee
has expired. Exceeding these terms results in expiration of every claim against the
contractor relating to these deficiencies. Legal action should be instigated within 1 year
after timely complaint under penalty of expiration.
6. If the contractor replaces parts/products to fulfil his obligations under the guarantee, the
replaced parts/products become property of the contractor.
7. With respect to repair work or revision or other services performed by the contractor,
guarantee is only given on the quality of the performance of the activities ordered unless
otherwise agreed, this for a period of 6 months. This guarantee holds that the contractor
has the sole obligation in case of defects to perform work again, insofar this proves to
be defective. In that case the second full sentence of paragraph 3 applies accordingly.
8. No guarantee is given with respect to inspections, advice and similar activities by the
contractor.
9. Alleged neglect on the part of the contractor to fulfil his obligations of guarantee does
not relieve the purchaser from his obligations which arise from any agreement entered
into with the contractor.
Article XII Liability
1. The contractor’s liability is limited to fulfilment of the obligations of guarantee described
in article XI of these conditions.
2. Save for gross negligence on the part of the contractor and save for the provisions in
paragraph 1, all liability of the contractor, such as for commercial damage, other indirect
damage and damage as a result of liability towards a third party, is excluded.
3. Thus, the contractor is also not liable for:
– infringement of patents, licences or other rights of third parties as a result of the use
of information presented by or on behalf of the purchaser,
– damage or loss, from whatever cause, of raw materials, semi manufactures, models,
tools, and other goods made available by the purchaser.
4. If the contractor gives help and assistance of whatever kind at installation without
having installation assigned to him, this will be at the risk of the purchaser.
5. The purchaser is bound to hold the contractor harmless respectively to indemnify the
contractor for all claims for damages made by third parties for which the liability of the
contractor in relation to the purchaser is excluded in these conditions.
6. The contractor shall be under no liability under above warranty (or any other warranty,
condition or guarantee) if the total price for the goods has not been paid by the due date
for payment.
for payment.
Article XIII Force majeure
In these General conditions for delivery, force majeure means every circumstance
independent of the contractor’s intention – even if this could already be anticipated at the
time the agreement was entered into – which may permanently or temporarily prevent
performance of the agreement, and, insofar as not already included, acts of God, accident,
riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of
communication facilities, breakdown of web host, breakdown of internet service provider,
natural catastrophes, governmental acts or omissions, changes in laws or regulations,
national strikes, fire, explosion, generalized lack of availability of raw materials or energy.
For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the
inability of either party to make a profit or avoid a financial loss, (b) changes in market
prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder.
Article XIV Suspension and termination
1. In case the agreement cannot be performed as a result of force majeure the contractor
has the right either to suspend the performance of the agreement for at the most 6
months or to terminate the agreement in whole or partly, all this without taking the
matter to Court and without being held liable for damages. During the suspension the
contractor is free to and at the end of the suspension he must choose either for
performance or for complete or partial termination of the agreement.
2. In case of suspension as well as in case of termination sub 1, the contractor has the
right to demand immediate payment of the raw materials, materials, parts and other
goods he has reserved, processed and produced for the performance of the agreement,
this for the value that should be reasonably pertaining thereto. In case of termination
sub 1, after payment of the amount due according to the preceding full sentence, the
purchaser is bound to accept the goods included therein, whilst failing to do so will give
the contractor the right to store these goods at the expense of and for the risk of the
purchaser or to sell these goods at the expense of the purchaser.
3. If the purchaser does not, does not adequately or does not timely fulfil any obligation
which results from the agreement entered into with the contractor or from an agreement
related to same, or if there are justified reasons to fear that the purchaser is not able or
will not be able to fulfil his contractual obligations towards the contractor, and in case of
bankruptcy, suspension of payment, shutting down, liquidation or partial assignment –
whether or not as a security – of the company of the purchaser, including assignment of
an important part of his receivables, the contractor has the right to either suspend the
performance of each of these agreements for at the most 6 months or to completely or
partly terminate these without notice of default and without taking the matter to Court,
this without him being held liable for damages or to provide guarantee and without
prejudice to further rights he is entitled to. During suspension the contractor is
competent to and at the end of suspension he must choose between performance and
complete or partial termination of the suspended agreement(s).
4. In case of suspension sub 3, the price agreed upon can be claimed immediately, with
deduction of instalments already settled and of the costs saved by the contractor as a
result of suspension, and the contractor has the right to store the raw materials,
materials, parts and other goods reserved, processed and produced for the
performance of the agreement at the purchaser’s expense and risk. In case of
termination sub 3 the price agreed upon – if no preceding suspension has taken place –
can be claimed immediately, with deduction of instalments already settled and costs
saved by the contractor as a result of termination, and the purchaser is bound to pay the
amount specified herein before and to accept the goods included therein, whilst failing
to do so will give the contractor the right to either store these goods at the purchaser’s
risk and expense or sell these at the expense of the purchaser.
5. The purchaser has no right to claim termination of the agreement with retroactive effect.
Article XV Disputes
All disputes(including those which are only regarded as such by one of the parties) which
may arise between the parties with reference to this agreement or the agreements resulting
from it, shall be submitted to the competent court in the District of Dordrecht in the
Netherlands.
Article XVI Applicable law
All agreements to which these conditions fully or partly apply shall be governed by Dutch law,
prevailing for the Kingdom in Europe.
Article XVII Translation
These terms are translated from Dutch into the English language. In case of different
interpretations of the terms as a result of translation, the Dutch version will prevail.
MarQuip B.V
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