General terms and conditions
Below are the general terms and conditions of E-WERF
Applicability
1.1. These Conditions apply to all offers Amsterdam Jachtbouw makes, to all agreements it concludes and to all agreements that may result therefrom and other legal relations, especially those relating to the purchase and sale, construction, conversion, repair or maintenance of ships (and their related parts), as well as to all further agreements that may result therefrom.
1.2. The provider/supplier using these terms and conditions. It is referred to as contractor or seller. The other party is referred to as client or buyer.
1.3. The consumer is a natural person not acting in the exercise of a profession or business.
1.4. In the event of a conflict between the contents of the agreement concluded between the customer and the contractor and these general terms and conditions, the provisions of the agreement shall prevail.
Article 2: Offers
2.1. All offers are without obligation.
2.2. If the customer provides the contractor with data, drawings, etc., the contractor may assume their accuracy and shall base his offer on them.
2.3. The prices stated in the offer are based on delivery after commissioning and trial run - if agreed - ex yard contractor, 'ex works', in accordance with Incoterms 2000. Prices are, unless stated otherwise, exclusive of turnover tax and packaging.
2.4. If his offer is not accepted, the contractor shall be entitled to charge the customer for all costs he had to incur in order to make his offer.
2.5. Unless expressly agreed otherwise, the Contractor shall be entitled to charge the Principal, in addition to the price, for the costs related to the environmentally technical treatment, collection, sampling, removal, storage, transport and destruction of materials, residues and the like.
Article 3: Industrial and intellectual property rights
3.1. Unless otherwise agreed in writing, the contractor shall retain the copyrights and all industrial property rights to the offers made by him, designs, specifications, illustrations, drawings, sketches, (test) models, software, etc. provided by him.
3.2. The rights to the data referred to in paragraph 1 shall remain the property of the contractor regardless of whether the customer has been charged for their production. This data may not be copied, used or shown to third parties without the prior express written consent of the Contractor. If this provision is violated, the client shall owe the contractor a penalty of 10% of the value of the purchase price of the vessel with a minimum of €25,000. This penalty may be claimed in addition to damages under the law.
3.3. The client must return the data provided to him as referred to in paragraph 1 at the first request within the period set by the contractor. If this provision is violated, the client shall owe the contractor a penalty of Euro 1,000 per day. This penalty may be claimed in addition to damages under the law.
Article 4: Advice, designs and materials
4.1. The client cannot derive any rights from advice and information received from the contractor if they are not directly related to the order.
4.2. Client is responsible for the drawings and calculations made by or on behalf of him and for the functional suitability of materials prescribed by or on behalf of him.
4.3. The Client shall indemnify the Contractor against any claims by third parties relating to the use of drawings, calculations, samples, models and the like provided by or on behalf of the Client.
4.4. The client guarantees that the materials and parts supplied on his behalf or by him comply with the requirements mentioned in the Pleasure Craft Act, as well as other laws and regulations, or resulting from them.
4.5. If the principal performs work himself, the principal shall be obliged to comply with the requirements stated in or arising from the Pleasure Craft Act or other laws and guidelines. The principal shall follow the instructions of the contractor in this respect.
Article 5: Delivery time
5.1. The delivery time shall be approximated by the Contractor.
5.2. The delivery time is fixed in the expectation that the contractor can continue to work as foreseen at the time of the offer and the necessary materials will be delivered to him in time.
5.3. The delivery period starts when agreement has been reached on all technical details, all necessary data, final approved drawings etc. are in the possession of the contractor, the agreed (instalment) payment has been received and the necessary conditions for the execution of the order have been fulfilled.
5.4. a. If circumstances occur other than those known to the contractor when he fixed the delivery time, or if the contractor notices hidden defects, the contractor may extend the delivery time by the time required to complete the order under these circumstances. If the work cannot be fitted into the Supplier's work schedule, it shall be completed as soon as the Supplier's schedule permits. b. If there is extra work, the delivery period shall be extended by the time required to supply (or arrange for the supply of) the materials and parts for this purpose and to carry out the extra work. If the extra work cannot be fitted into the Supplier's work schedule, it shall be completed as soon as the Supplier's schedule permits. c. If there is a suspension of obligations by the Supplier, the delivery period shall be extended for the duration of the suspension. If continuation of the work cannot be fitted into the Supplier's work schedule, the work shall be completed as soon as the Supplier's schedule permits. d. In the event of weather conditions that prevent work being carried out, the delivery period shall be extended by the resulting stagnation time.
5.5. If an overrun of the delivery time is to be expected, the Contractor shall notify the Principal thereof, stating the reasons, and - if possible - indicate how great the overrun is likely to be.
5.6. Exceeding the agreed delivery time shall in no case entitle to compensation unless agreed in writing.
Article 6: Transfer of risk and trade-in
6.1. Delivery shall take place after commissioning - when agreed - ex yard contractor, "ex works", in accordance with Incoterms 2000; the risk of the item shall pass at the time the contractor makes it available to the customer.
6.2. The client is responsible for providing SCM or ART approved locks for attachment to the quay as well as properly functioning bilge pumps.
6.3. If the purchase or new construction of a vessel or hull involves the trade-in of a used vessel or other item and the principal continues to use the item to be traded-in pending delivery of the new item, the risk of the item to be traded-in shall remain with the principal until he has placed it in the possession of the contractor.
Article 7: Price change
7.1. An increase in cost-determining factors arising after the conclusion of the agreement may be passed on by the contractor to the customer if the performance of the agreement has not been completed at the time of the increase.
7.2. In case the client is a consumer then he is entitled to dissolve the agreement if within three months after the conclusion of the agreement the price is increased with the exception of price changes arising from the law such as those concerning VAT.
7.3. Payment of the price increase as referred to in paragraph 1 shall take place at the same time as payment of the principal sum or next agreed payment period.
7.4. If goods are supplied by the client and the contractor is prepared to use them, the contractor may charge up to 20% of the market price of the goods supplied.
Article 8: Impracticability of the assignment
8.1. If, after an agreement has been concluded, it cannot be fulfilled by the contractor as a result of circumstances unknown to the contractor when the agreement was concluded, the contractor shall be entitled to: a. demand that the content of the agreement be amended in such a way that performance remains possible. If the obligation is thereby substantially altered, the customer will be entitled to dissolve the agreement, subject to the provisions of Article 8.4; b. to suspend the fulfilment of his obligations, if he is temporarily prevented from fulfilling his obligations as a result of circumstances that could not be foreseen when the agreement was concluded and which are beyond his control.
8.2. Circumstances that could not be anticipated by the Contractor and which are beyond its control shall include the circumstance that the Contractor's suppliers and/or subcontractors fail to meet their obligations or fail to do so on time, weather, earthquakes, fire, pandemic, epidemic, loss or theft of tools, loss of materials to be processed, road blocks, strikes or work stoppages and import or trade restrictions.
8.3. The contractor is no longer entitled to suspend if performance is permanently impossible or if a temporary impossibility has lasted for more than six months. The contract may only be dissolved after this period has expired for that part of the obligations that have not yet been fulfilled. In such a case, the parties shall not be entitled to compensation for damage suffered or to be suffered as a result of the dissolution.
8.4. If the contractor has partially fulfilled his obligation, he is entitled to a proportional part of the agreed price based on the work already done and the costs incurred.
Article 9: Changes to the work
9.1. Changes to the work shall in any case result in more or less work if: a. there is a change in the design or specifications;
b. the information provided by the principal does not correspond to reality; c. set items deviate by more than 10%.
9.2. Additional work is calculated on the basis of the value of the price determinants applicable at the time the additional work is carried out. Less work shall be settled on the basis of the value of the price determining factors applicable at the time of concluding the agreement.
9.3. If the balance of the minor work exceeds that of the additional work, the contractor may charge 10% of the difference of the balances to the customer in the final invoice. This provision does not apply to underwork resulting from a request by the contractor.
9.4. Where additional agreements have important consequences with regard to price, delivery time, weight, engine power or speed, the contractor shall notify the customer.
9.5. Only the work that the contractor could reasonably have foreseen forms part of a remodelling or repair agreement. If the scope of the work turns out to be greater than foreseen, the contractor shall stop the work and consult with the customer on whether or not to continue it and in what manner. The Client shall inform the Contractor of its decision within 14 days of said consultation. The contractor shall at least be entitled to payment for work already carried out and costs incurred.
Article 10: Completion of the work
10.1. The work shall be deemed delivered when: a. the principal has approved the work/vessel; b. the work/vessel has been taken into use by the principal or has sailed away without explicit permission. If the principal puts part of the work /vessel into use that part will be deemed completed; c. the principal is given the opportunity by the contractor to inspect the work or the vessel (or have it inspected) and does not make use of the inspection opportunity within 14 days after notification thereof; d. the principal does not approve the work on the grounds of minor defects or missing parts which can be repaired or supplied within 30 days and which do not prevent the work from being put into use.
10.2. If the customer does not approve the work, he shall be obliged to inform the contractor of this immediately in writing, giving reasons.
10.3. If the principal does not approve the work/vessel he shall give the contractor the opportunity to deliver the work again. The provisions of this article shall again apply.
Article 11: Trade-in
If the purchase or new construction of a vessel or hull involves the exchange of a used vessel or other item, while the principal continues to use the item exchanged or to be exchanged in anticipation of the delivery of the new vessel or hull, the latter shall not become the property of the contractor until it has actually been made available to him. During this use, all costs and in particular those of maintenance, depreciation and any damage, from whatever cause (including as a result of loss), shall be for the account and risk of the customer.
Article 12: Liability
12.1. The contractor is liable for damage suffered by the customer that is the direct and exclusive result of a shortcoming attributable to the contractor. However, only those losses for which the Supplier is insured, or should reasonably have been insured, qualify for compensation.
12.2. The following shall not be eligible for compensation: a. trading loss/consequential loss including, for example, business interruption, demurrage, replacement vessel, loss of income and other expenses, whatever the cause. Client should take out his own insurance against such damages, if desired; b. supervision damages. Supervision damage is understood to mean, among other things, damage caused by or during the performance of the work to objects on which work is being carried out or to objects situated in the vicinity of the work site. The Client should take out insurance to cover such damages, if such is deemed desirable; c. damages caused by intent or gross negligence on the part of helpers or non-management employees of the Supplier.
12.3. The Contractor is not liable for damage to material supplied by or on behalf of the Client as a result of processing not being carried out properly. At the Client's request, the Supplier will perform the processing again, using new material supplied by the Client at the Client's expense.
12.4. The Client shall indemnify the Contractor against all third party claims for product liability arising from a defect in a product supplied by the Client to a third party that consisted or partly consisted of products and/or materials supplied by the Contractor.
12.5. In case the Client is a consumer, the Contractor shall be liable for damage resulting from a shortcoming attributable to him all this subject to the provisions of the Civil Code.
Article 13: Guarantee and conformity
13.1. For a new vessel or hull, the guarantee period shall be 12 months after delivery. For maintenance and/or repair work, the guarantee period shall be 3 months after delivery of the work. Emergency repairs fall outside any form of guarantee.
The provisions below also apply after the warranty period has expired (conformity).
13.2. Contractor warrants that he delivers a vessel or hull that complies with the agreement concluded. This also applies to the associated equipment and inventory. The contractor also guarantees that the vessel or hull has the characteristics reasonably required for normal use, unless another use has been expressly agreed. Items supplied or prescribed by the principal are excluded from the guarantee.
13.3. The Contractor guarantees that the work relating to conservation will be carried out according to the requirements of good workmanship. No warranty is provided in the following cases:
a. further preliminary and/or follow-up treatment was necessary in good professional practice and was made known, but no order was given for it;
b. the pretreatment was not performed or approved by the contractor;
c. the material to be preserved is in such a condition that it is not possible to remedy the defects present, including corrosion, blemishes, colour differences, gloss, etc., within the framework of the agreement concluded in this regard;
d. the preservation has been damaged by the client or third parties.
13.4. With regard to goods supplied and work performed by third parties, the guarantee obligations - in scope and duration - of those suppliers shall apply if the customer and the contractor have expressly agreed this in writing. If the customer has had the opportunity to take cognisance of the content of the manufacturer's warranty, this will replace the warranty under this article. The contractor shall be discharged in respect of his warranty obligation by transferring his possible claim against the supplier(s).
13.5. If it appears that the delivery, repair or maintenance work has not been sound, the contractor has the option of:
- replacement of the defective part(s);
- repair of the defective item;
- credit the client for a proportionate part of the invoice.
In doing so, the Contractor shall be free to choose the place where the repair work will take place and, if necessary, to engage an expert third party within a reasonable time. Travel, accommodation and transport costs shall be borne by the customer.
Client may have necessary repairs carried out by a third party only with the written consent of the contractor. In that case, the contractor shall reimburse the customer for the costs, up to a maximum of the amount that would have been involved for the contractor if repairs had been carried out in his own yard.
13.6. Unless expressly agreed otherwise, the following tolerances shall apply to new construction:
2% length over the stem;
2% width over the main frame;
10% draft;
2% headroom;
2% maximum clearance height of fixed parts;
10% weight;
10% speed calculated at standard equipment + draught according to standard construction waterline.
The above definitions are in accordance with harmonised ISO standard '8666 - Small Craft - Principal Data', as adopted in November 2002.
13.7. a. No warranty is given for defects resulting from:
- Normal wear and tear;
- injudicious use;
- maintenance not carried out or carried out incorrectly;
- of physical properties and natural functioning of materials/natural products;
- installation, assembly, modification or repair by the client or by third parties.
b. No warranty is given for delivered items that were not new at the time of delivery or that were provided by the client.
13.8. The Client shall at all times give the Contractor the opportunity and a reasonable time to remedy any defect.
13.9. The guarantee shall apply only if the customer has fulfilled all his obligations to the contractor - both financial and otherwise - or has provided adequate security for this.
13.10. Travel and accommodation expenses and work carried out, including investigative work, shall be charged to the customer after the customer has wrongly invoked the guarantee, at the standard rates applied by the contractor at the time of performance, and shall be carried out subject to the applicability of these terms and conditions.
Article 14: Claims or complaints
14.1. The Principal may no longer invoke a defect in the performance if, during the guarantee period, he has not submitted a written claim to the Contractor in this regard within 14 days of discovering or reasonably ought to have discovered the defect, indicating to the Contractor in writing what the defect is and when and how he discovered it.
14.2. Complaints about invoices should be made in writing within 14 days of receipt of the invoice.
14.3. The Client shall lose all rights and powers available to him on the grounds that the performance complies with the agreement, if he has not complained within the aforementioned periods and/or he has not given the Contractor the opportunity to remedy the defects.
Article 15: Uncollected items
If goods have not been collected after expiry of the delivery time, they shall remain at the disposal of the principal. Uncollected goods shall be stored, stowed or secured at the expense and risk of the Client. The contracted party will be entitled, 3 months after the goods have been made available and after written notice of default, to sell the goods, or have them sold, for and on behalf of the client, with the obligation to pay the proceeds to the client, after deduction of the claims to which the contracted party is entitled, including storage costs (Article 6:90 of the Dutch Civil Code).
Article 16: Insurance in case of new construction
16.1. Until the date of delivery of the newly built vessel or hull, the Contractor shall, as the policyholder but also for the benefit of the Principal as the insured, insure this vessel or hull and the materials and installations required for it for the value that these items represent and up to the full amount of the agreed purchase or contract price. The insurance payments shall be made to the contractor who shall be the beneficiary under the insurance contract. The insurance premium and insurance tax shall - unless otherwise agreed - be borne by the customer.
16.2. The Client hereby undertakes, both vis-à-vis the Contractor and vis-à-vis the insurer with whom the aforementioned insurance will be taken out, not to enforce a claim for payment with the insurer, if and insofar as the Contractor makes such a claim vis-à-vis that insurer in respect of the same incident.
16.3. The contractor shall use the insurance payments in the first place to repair the damage for which the payment was made. The contractor shall be entitled to set off any surplus against all that it is still owed by the customer under this agreement and shall pay the remainder to the customer.
16.4. In the event that the vessel or hull is declared 'total loss' by the insurer, the contract shall thereupon be dissolved by operation of law. The Contractor shall then be entitled, as mentioned in the second sentence of Article 16.3.
Article 17: Payment
17.1. Payment shall be made at the Contractor's place of business or to an account designated by the Contractor.
17.2. Unless otherwise agreed, payment shall be made as follows:
a.
10% of the agreed price on assignment
30% of agreed price on acceptance of offer
30% of agreed price after 50% of work or otherwise agreed point in the project
40% der agreed price on delivery before sailing.
b. in all other cases within 14 days of the invoice date, but in any case before sailing/transportation.
17.3. Regardless of the agreed payment conditions, the customer shall be obliged, at the contractor's request, to provide such security for payment as the contractor deems sufficient. If the customer fails to do so within the specified period, he shall immediately be in default. The contractor shall in that case be entitled to dissolve the agreement and to recover its loss from the customer.
17.4 The customer's right to set off its claims against the contractor is excluded, unless the contractor is bankrupt.
17.5. The full claim for payment is due immediately if:
a. a payment deadline has been exceeded;
b. client has gone bankrupt or applies for suspension of payments;
c. goods or claims of the client are seized;
d. the principal (company) is dissolved or liquidated;
e. the client (natural person) is placed under guardianship or dies.
17.6. If payment has not taken place within the agreed payment period, the Client shall immediately owe interest to the Contractor. The interest rate shall be 10% per year, but shall be equal to the statutory interest rate if this is higher. When calculating interest, part of a month is considered a full month.
17.7. If payment has not been made within the agreed payment period, the customer shall be liable to pay the contractor
owe all extrajudicial costs with a minimum of €75. The costs are calculated on the basis of the following table:
over the first €3,000 = 15%
on the excess up to €6,000 = 10%
on the excess up to €15,000 = 8%
on the excess up to €60,000 = 5%
over the excess from €60,000 = 3%
If the actual out-of-court costs incurred are higher than follows from the above calculation, the actual costs incurred are due.
17.8. If the contractor is found in the right in legal proceedings, all costs incurred by him in connection with these proceedings shall be
made for the client's account.
Article 18: Retention of title
18.1. After delivery, the contractor remains the owner of delivered goods so long as the client: a. fails or will fail in the fulfilment of his obligations under this agreement other similar agreements. b. fails or will fail to pay for work performed or to be performed under such agreements; c. has not paid claims arising from the non-fulfilment of the aforementioned agreements, such as damages, penalties, interest and costs.
18.2 As long as delivered goods are subject to retention of title, the customer may not encumber them.
18.3. After the contractor has invoked his reservation of title, he may recover the delivered goods. The customer shall allow the contractor to enter the place where these items are located.
18.4 The contractor shall be entitled to retain the entire vessel or hull, including equipment, inventory and other appurtenances, until payment of all costs incurred in the execution of the order, unless the principal has provided adequate security for those costs. The contractor shall also have this right of retention on the basis of previous contracts from which payments are still due from the principal.
18.5. As an exception to the provisions of the preceding paragraphs of this article, the contractor shall endeavour to cooperate in the registration of a vessel, if the principal expressly requests this in writing, inter alia on, but not limited to, the condition that adequate substitute security is provided for payment of the amount owed by the principal, at the contractor's discretion.
18.6. If the principal fails to comply with his obligations and the vessel or hull has already been registered, he shall be obliged to cooperate fully in the cancellation of this registration. Any associated costs shall be for the principal's account. The provisions of article 15 shall apply accordingly.
Article 19: Termination
If the client wishes to rescind the agreement without a default on the part of the contractor and the contractor
agrees to this, the agreement shall be dissolved by mutual consent. The Contractor shall in such case be entitled to compensation for all pecuniary damage such as loss suffered, loss of profit and costs incurred.
Article 20: Applicable law and disputes
20.1. All agreements shall be governed by Dutch law.
20.2. The Vienna Sales Convention (C.I.S.G.) shall not apply, nor any other international regulation the exclusion of which is permitted.
20.3. Only the Dutch civil court having jurisdiction in the place of establishment of the contractor shall take cognisance of disputes, unless this is contrary to mandatory law. The contractor may deviate from this rule of jurisdiction and apply the statutory rules of jurisdiction.
20.4. The parties may agree on another form of dispute resolution such as arbitration or mediation.