GENERAL CONDITIONS of Top Protections BV
Article 1: Relevance
These conditions apply to all offers and all agreements for carrying out work or concerning buying and selling and entered into by Top Protections BV. In these conditions the party making the offer/seller will be mentioned TOP PROTECTIONS BV while the other party is known as the principal. Standard conditions used by the principal do not apply unless those conditions have been accepted in writing by TOP PROTECTIONS BV.
Article 2: Offers
All offers are non-committal unless otherwise has been explicitly stated in writing. Offers are based on the information, drawings etc. which may be supplied by the principal and which TOP PROTECTIONS BV may assume are correct. Prices quoted apply to delivery ex workshop, factory, etc. and do not include sales tax. TOP PROTECTIONS BV is not bound by information contained in folders, publications etc., unless explicit reference is made to those folders and publications in the agreement.
Article 3: Industrial and intellectual proprietary rights
TOP PROTECTIONS BV retains, unless otherwise has been agreed, the copyright as well as all other rights to intellectual or industrial ownership concerning the designs, sketches, illustrations, drawings, models, software and offers supplied by him. Those documents and items continue to be his property and may not, unless TOP PROTECTIONS BV accepting the order has given explicit permission to do so, be copied, shown to third parties or used in any other way, whether or not the principal has paid for the items and documents in question. The principal is required to return those items and documents to TOP PROTECTIONS BV the first time he is requested to do so, and failure to do so means that he shall be required to pay a fine amounting to €500.– per day.
Article 4: Packaging
Any packaging which may be necessary is charged for a cost price and cannot be returned. TOP PROTECTIONS BV can decide whether or not packaging is necessary.
Article 5: Recommendations, designs and materials
Information and recommendations supplied by TOP PROTECTIONS BV is only of a general nature and is non-committal. TOP PROTECTIONS BV does not accept responsibility for a design prepared by or on behalf of the principal, nor does he accept responsibility for any recommendations which may be associated with that design. The principal is responsible for a functional suitability of the materials prescribed by the principal. The term “functional suitability” means the suitability of the material or the component for the purpose for which it is intended to be used according to the design of the principal. TOP PROTECTIONS BV, if an order is placed, only accepts responsibility for designs which have not been made by him or on his behalf if the designs have been made according to the order given and for the suitability of the materials used for in so far as those materials have been prescribed by the principal. The principal is authorized to have materials which have not been prescribed by him examined by third parties before the materials in question are used. Costs incurred for this will be paid by the principal. The principal cannot, after the materials or components have been used, appeal to the fact that the materials used was not suitable from functional point of view, nor to the fact that the material is definitive in other ways and which he could within reason have found if the materials had been examined. If the principal wishes to transfer, when the order is placed, the responsibility for the designs made by or on his behalf to TOP PROTECTIONS BV then the latter is not required to accept that responsibility. TOP PROTECTIONS BV must be given sufficient time to take a decision about that transfer of responsibility. TOP PROTECTIONS BV must be given an opportunity to study the entire design and check the calculations and the principal must in that case provide him with all information and documents which are necessary or which may be of use to him. TOP PROTECTIONS BV may not be required to carry out the examination. Free of charge unless it was apparent form the request for an offer that the principal wishes to transfer responsibility to TOP PROTECTIONS BV. TOP PROTECTIONS BV never accepts any responsibility of any kind whatsoever for components and/or materials which the principal has made available or has prescribed.
Article 6: Agreements
Agreements of any kind whatsoever only become effective after written confirmation of TOP PROTECTIONS BV, or from the fact that he is carrying out the agreement. Agreements entered into with subordinate employees of TOP PROTECTIONS BV are not binding on the latter for in so far as they have not been explicitly confirmed by him in writing. The term “subordinate employees” must be taken to mean, in this connection, all employees who are unauthorized to sign on behalf of TOP PROTECTIONS BV.
Article 7: Date and place of delivery
Delivery times are fixed on approach. The delivery time commences when agreement has been reached about all technical details and after all information, drawings etc. which are necessary for the work in question to be carried out is in possession of TOP PROTECTIONS BV and the latter has received the agreed (part-)payment. The delivery time is based on the assumption that TOP PROTECTIONS BV can continue working in the way expected at the time when the offer was made, and that any materials necessary will be supplied in good time. Late delivery can only give rise to a claim for compensation if that has been agreed in writing. If the goods have not, after the period of time allowed for delivery has passed, been purchased by the principal or cannot be used for the work in question, then the goods will be made available to the principal and will be stored at his expense and risk.
Article 8: Unfeasibility of carrying out the order
If, after an agreement has been entered into, the agreement cannot be carried out by TOP PROTECTIONS BV because of circumstances which he was not aware of at the time when the agreement was entered into, then TOP PROTECTIONS BV is entitled to claim that the agreement be altered in such a way that it is possible for him to carry out the order. TOP PROTECTIONS BV is also entitled to suspend compliance with the obligations incurred by him and he is not considered to be in default if he is temporarily unable, because of a change in circumstances, and that change could not have been reasonably expected when the agreement was entered into, and is beyond his control, to meet the obligations incurred by him. The terms “circumstances” which could not have been reasonably expected” and “circumstances beyond his control” must also be taken to mean the failure by suppliers and/or subcontractors to meet their commitments to TOP PROTECTIONS BV or to meet these commitments to TOP PROTECTIONS BV to meet these commitments in good time, fire, strikes or interruptions to work or the loss of the materials to be used, or import or trade embargos. TOP PROTECTIONS BV is not entitled to suspend the agreement if it continues to be impossible to carry out the order or it is temporarily impossible for more than six months to carry out the order, and the agreement entered into between parties shall, in that case , to be terminated and neither party can claim compensation from the other party for the damage suffered or which will be suffered because the agreement was terminated. If TOP PROTECTIONS BV has partly met the obligations incurred by him, then he is entitled to a proportionate part of the price agreed, based on the work carried out and the costs incurred.
Article 9: Extent of the work accepted
The principal ensures that the licenses, exemptions and such which are necessary for the work to be carried out are obtained in good time. The price agreed for work accepted does not include (unless otherwise has been explicitly confirmed): a. building and construction work of any kind whatsoever, nor the costs of connections made to the water supplies or to the electricity supply. b. extra help for moving those components which are to be dealt with by the party accepting the offer as well as any hoisting- or lifting equipment and tackles. c. taking measures to prevent damage to the items present at or near the place of work. d. the extra costs of removal associated with the nature of the material to be removed such as in the case of dangerous substances and/or chemical refuse.
Article 10: Changes to the work accepted
All changes to the work accepted, either made by means of a special instruction given by the principal or made because of changes in the design or due to the fact that the information supplied does not agree with the actual construction work being carried out, or because estimated quantities are deviated from must, if extra costs are incurred because of this, be considered to be extra work; and if less costs are incurred then the changes will be considered to be less work. Extra work will be charged for according to the price-fixing factors prevailing at the moment when the extra work is carried out. Less work will be set-off according to the price-fixing factors prevailing at the time when the agreement was entered into.
Article 11: Completion
Work is considered to have been completed: a) if TOP PROTECTIONS BV has notified the principal either orally or in writing that the work has been completed and the principal has approved of the work; b) if, eight days after TOP PROTECTIONS BV has notified the principal in writing that the work has been completed, the principal neglects to inspect the work within that period of time; c) if the principal uses the work carried out and provided that part of the work being used by the principal is considered to have been completed. Minor defects which can be repaired within 30 days after completion will not hinder completion. The principal is obliged, if approval is withheld from work which prevents completion, to notify TOP PROTECTIONS BV in writing of that fact and must give reasons for withholding his approval. If any component, for reasons not attributable to TOP PROTECTIONS BV, cannot be delivered at the same time as the work is completed, then the work can still be completed. Account must in that case be taken of the conditions concerning payment an the guarantee.
Article 12: Liability
TOP PROTECTIONS BV is only liable for damage caused to the principal which is solely and directly due to a failure attributable to TOP PROTECTIONS BV and provided that compensation will only be paid for the damage for which TOP PROTECTIONS BV is covered by insurance or should have been, within reason, insured according to the usual practices in the branch of industry concerned. The following conditions must also be bore in mind a) Consequential company damage caused in any way whatsoever. The principal must, if required, take out insurance cover against damage of that kind. b) TOP PROTECTIONS BV is not liable for damage of any kind whatsoever which is caused by or while work is in progress or the assembly of goods delivered or installations to goods which are being processed or goods which are near the place where work is being carried out unless and for in so far as TOP PROTECTIONS BV is insured against that damage. c) TOP PROTECTIONS BV is not liable for damage caused intentionally or which is due to gross negligence by auxiliary personnel. d) The compensation to be paid by TOP PROTECTIONS BV for damage caused will be mitigated if the price to be paid by the principal is small compared to the size of the damage suffered by the principal. The principal will indemnify TOP PROTECTIONS BV against every claim made by third parties for compensation for damage against TOP PROTECTIONS BV with regard to use of drawings, samples, models or model-boards or other items or other information respectively sent by the principal, and the principal is responsible for payment of all costs incurred in that respect. The principal is liable for all damage as a result of loss, theft, fire or damage to the items, tools and materials of TOP PROTECTIONS BV as soon as these are present at the place of work, all this for in so far as not due to a failure attributable to TOP PROTECTIONS BV.
Article 13: Guarantee
Guarantee according to warranty clause.
Article 14: Transmission of risk and Transport
a. In the case of delivery ex works, in accordance with Incoterms 2000, the risk in relation to the good shall pass at the moment when the seller makes them available to the buyer.
b. Irrespective of the provisions of the previous paragraph, the customer and the contractor agree that the contractor shall arrange for the carriage. The risk of storage, loading, carriage and unloading shall be borne by the customer in this case too. The customer may insure himself against these risks.
c. Even if the seller installs and/or assembles the goods sold, the risk in relation to the goods shall pass at the moment when the seller makes them available to the buyer at the business premises of the seller or at another agreed place.
d. If a purchase involves a trade-in and the buyer continues to use the goods to be traded in pending delivery of the new goods, the risk in relation to the goods to be traded in shall continue to be borne by the buyer until the moment at which he transfers them to the possession of the seller.
Article 15: Goods which are not collected
If the principal fails to collect goods which TOP PROTECTIONS BV has in his possession and which belong to the principal, in spite of the fact that the goods were made available, and payment has been made, then TOP PROTECTIONS BV is entitled to sell (have sold) those goods one month after they have been made available to the principal; and after the principal has been notified in writing that he is in default and TOP PROTECTIONS BV must pay the amount received for the goods to the principal minus the claims which he still has against the principal and the storage costs incurred.
Article 16: Payment
Payment must be made at the office of TOP PROTECTIONS BV. The terms of payment are specified according to the nature and the importance of the delivery or the work to be carried out. The terms of payment are, unless otherwise agreed, as follows: – cash payment for commercial matters; – work to be carried out within 14 days after the date shown on the invoice; Expenses incurred by TOP PROTECTIONS BV and paid in advance by the principal shall be set-off against the payment, respectively against the payment of the final installment if payment in installments has been agreed. TOP PROTECTIONS BV is always entitled, before delivery or before commencing delivery or carrying out the order, to require the principal to give a guarantee which is satisfactory – in his opinion – that the principal shall meet the obligations to pay incurred by him. That condition also applies if credit is required to be given. Refusal by the principal to provide the guarantee required entitles TOP PROTECTIONS BV to dissolve the agreement by means of a written declaration to that effect, without prejudice to the rights of TOP PROTECTIONS BV to claim compensation for costs and loss of profits. TOP PROTECTIONS BV is also entitled, if the principal is default with regard to meeting the obligations to pay incurred by him, to suspend work even if a definite date of delivery has been agreed. Requirements specified by any authority whatsoever and which hinder use of goods delivered or goods to be delivered shall not mean that the obligations to pay incurred by the principal are changed. The right of the principal to set-off any claims which he may have against TOP PROTECTIONS BV is explicitly excluded. The purchase price or the price for which work was agreed to be carried out is, in any case, payable on demand if the installment agreed has not been paid in good time on the due date, or if the principal is declared bankrupt, applies for suspension of payments or is placed under legal control, or if any attachment is placed on the goods or claims of the principal or if the latter should become deceased, is liquidated, or is dissolved. If an invoice which has been sent has not been paid within one month after the date shown on the invoice, then TOP PROTECTIONS BV is entitled, after the period of time meant has passed, to require the principal to pay an amount for loss of interest, and that interest shall be equal to the interest allowed by law or be at least 10% per annum if the interest allowed by law is less than 10% and interest over part of the month shall be calculated as a complete month. TOP PROTECTIONS BV is entitled furthermore, in addition to the principal claim and the interest, to require the principal to pay all extra-judicial costs incurred because payment was not made (in good time). The principal owes extra-judicial costs in every case where TOP PROTECTIONS BV has been assisted by a third party with regard to collection of the amount owed. Extra-judicial costs shall be calculated according to the tariff applicable to debt collection advised by Dutch Order of Attorneys). The amount of extra-judicial costs to be paid and the obligation to pay those costs is apparent from the mere fact that TOP PROTECTIONS BV applies for the principal to be declared bankrupt, then the costs incurred for the application to declare the principal bankrupt are also owed as well as the principal sum owed, the interest and extra-judicial costs. If TOP PROTECTIONS BV is put in the right in a judicial procedure in whole or in part, all costs incurred an associated with this procedure shall be paid by the principal.
Unless otherwise specified invoices for dredging pumps will be in accordance with the following: 20% upon signing the contract; 40% after casting of parts; 35% after installation and testing at the factory of the supplier; 5% after installation on the vessel.
If payment is delayed beyond the agreed terms TOP PROTECTIONS BV is entitled to delay work and delivery accordingly without any consequences whatsoever.
Article 17: Claims or complaints
The principal cannot appeal to faulty performance if he has failed to notify TOP PROTECTIONS BV in writing during the lifetime of the guarantee within eight days that he has found a defect or could have been expected to have found a defect, in which case he must notify TOP PROTECTIONS BV in writing what the defect is and when and how he has discovered it. Complaints about invoices must be submitted in writing 8 days after receipt of the invoice concerned. The principal loses all rights and authority which he had with regard to defects if he fails to claim and/or has not given the opportunity to repair the defects within the period of time referred to above.
TOP PROTECTIONS BV will respond to claims or complaints within 48 hours, provided these claims or complaints are made through the designated service channel, e.g. a designated e-mail address or phone number.
Article 18: Price changes
The prices agreed are based on the costs of material and wages prevailing on the date on which the offer was made. If and for in so far as the period between the date of the offer and the delivery or completion is longer than six months and the wages, the prices of the materials and such have changed in that period, then the price agreed or the price agreed for the work to be carried out shall be revised proportionately. Payment of any extra amount in accordance with that which is specified in this article shall be made at the same time as the principal sum owed is paid or the last installment of that sum is paid. If materials, raw materials or other articles are made available by the principal for the work to be carried out, then TOP PROTECTIONS BV is entitled to include, when calculating the price to be paid for the work to be carried out or the price to be paid respectively, a maximum of 10% of the cost price of the goods delivered.
Article 19: Retention of proprietary rights and the right of lien
The principal shall only become owner of the goods delivered or still to be delivered by the party accepting toe order subject to contingent conditions. TOP PROTECTIONS BV remains owner of the goods delivered or still to be delivered as long as the principal has not paid the claims of TOP PROTECTIONS BV concerning the agreement or a similar agreement. TOP PROTECTIONS BV continues to own the goods delivered or still to be delivered as long as the principal has not paid for the work carried out or which still has to be carried out under the terms of similar agreements, and as long as the principal has not paid claims made with regard to failure by him to comply with the terms of those agreements, including claims concerning penalties, interest and expenses. The principal is, for as long as he has not paid the claims specified the above, not entitled to establish a mortgage right, a right of lien or an propertied right of lien on the goods supplied by TOP PROTECTIONS BV and the principal agrees to declare, at the first time of asking by TOP PROTECTIONS BV, to third parties wishing to establish such a right of lien. If the principal should fail to meet any obligation incurred by him towards TOP PROTECTIONS BV under the terms of the agreement and concerning the goods sold or the work to be carried out, then TOP PROTECTIONS BV is entitled, without being required to give notice of default, to repossess the goods, both those originally supplied as well as the newly formed goods. The principal authorizes TOP PROTECTIONS BV to enter the place where those goods can be found. TOP PROTECTIONS BV transfers, at the time when the principal has met all the obligations to pay incurred by him under the terms of this agreement and similar agreements, ownership of the goods delivered, on condition of the right of lien of TOP PROTECTIONS BV, and on behalf of other agreements which TOP PROTECTIONS BV has with the principal. The principal shall, at the first time of asking by TOP PROTECTIONS BV, co-operate with regard to all actions which may be required in that respect.
Article 20: Dissolution
Dissolution in full or in part of the agreement takes place by means of a written declaration by the party authorized to make that declaration. The principal must, before approaching TOP PROTECTIONS BV with a written declaration that the agreement is to be dissolved, first notify TOP PROTECTIONS BV that he is in default and must grant the latter a reasonable period of time during which TOP PROTECTIONS BV can still meet the obligations incurred or make defaults good, and the principal must indicate the defaults accurately in writing. The principal is not entitled to dissolve the agreement in full or in part to suspend the obligations incurred by him if he was himself already in default with regard to meeting the obligations incurred by him. If TOP PROTECTIONS BV agrees to dissolve the agreement and there is no mention of default by TOP PROTECTIONS BV, then he shall always be entitled to claim compensation for all capital damage such as costs, loss of profits and reasonable costs for fixing the damage suffered and liability. If the agreement is dissolved in part, then the principal cannot claim that work carried out by TOP PROTECTIONS BV be undone and he party accepting the order is always entitled to receive payment for the work already carried out by him.
Article 21: Applicable legislation
All agreements are subject to the law of the Netherlands. The stipulations specified in the Viennese Purchase Treaty do not apply, nor does any future international regulation concerning the purchase of moveable property and of which parties can make use. All disputes arising from offers and agreements, however such disputes may be called, shall be submitted to the Civil Court in the place where TOP PROTECTIONS BV is established and which is competent to deal with the dispute, unless legal requirements stipulate otherwise.
However, before going to court parties will try to resolve their conflict through mediation by a mediator that is accepted by both parties.
