General delivery terms

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
OF ZEILMAKERIJ COVERWORKS B.V.

ARTICLE 1. DEFINITIONS

The terms listed below have the following meaning:

CoverWorks: the user of these General Conditions within the meaning of Article 6:231(b) of the Dutch Civil Code.
Customer: every natural person or legal entity that purchases a Product from CoverWorks, as well as the other party to the Agreement with CoverWorks within the meaning of Article 6:231(c) of the Dutch Civil Code.
Product(s): the good(s) designed, manufactured and/or delivered by CoverWorks on behalf of the Customer.
Agreement: the agreement between CoverWorks and the Customer to design, manufacture and/or deliver Products.
Parties: CoverWorks and the Customer collectively.
General Conditions: these general terms and conditions of sale and delivery.

ARTICLE 2. APPLICABILITY

These General Conditions apply to all offers, quotations, order confirmations and invoices of CoverWorks, to all deliveries by CoverWorks, to all orders and assignments of the Customer, and to all Agreements and any amendments to those Agreements. Any general or other terms and conditions of the Customer do not apply.
These General Conditions also apply to all future offers, quotations, order confirmations and invoices of CoverWorks, to all orders and assignments of the Customer, and to all Agreements and any amendments to those Agreements.
Any deviations from and additions to these General Conditions are binding only if and insofar as they have been expressly accepted in writing by CoverWorks, and only apply to the Agreement in respect of which CoverWorks has agreed to the deviation from or addition to these General Conditions. Such deviations or additions will not affect the applicability of the remaining provisions of these General Conditions.
If the term ‘Customer’ refers to more than one natural person/legal entity or company, each of these natural persons/legal entities or companies is jointly and severally liable for the performance of all the obligations under the Agreement.
If any provision of these General Conditions is wholly or partly void or voidable, or invalid or unenforceable, the other provisions of these General Conditions and the Agreement will remain in force. In that case CoverWorks will, in consultation with the Customer, replace that provision with a provision that is as close as possible to the provision to be replaced in terms of its content and scope.
In the event of conflict between the provisions of the Agreement and these General Conditions, the provisions of the Agreement will prevail.
CoverWorks may amend these General Conditions from time to time. CoverWorks will notify the Customer of any amendment and will provide the Customer with a copy of the amended General Conditions. The amended General Conditions will take effect five working days after they are made available to the Customer.
All written communications (including communications by e-mail) from CoverWorks as referred to in these General Conditions (such as offers, order confirmations, etc.) are deemed to have been received by the Customer at the time they were sent by CoverWorks.

ARTICLE 3. OFFERS AND QUOTATIONS; PRICES

All offers and quotations of CoverWorks are revocable, are subject to contract and are not binding on it, unless otherwise stated in writing by CoverWorks.
The Customer warrants the accuracy and completeness of the requirements, specifications and other data provided to CoverWorks by or on behalf of the Customer on which CoverWorks bases its offer.
Obvious errors or slips of the pen in CoverWorks’ offer do not bind CoverWorks.
A composite quotation does not obligate CoverWorks to deliver part of the Products or to perform part of the order at a corresponding part of the quoted price.
Offers do not apply to repeat orders or future orders, unless otherwise stated in writing.
The documents that form part of the offer and have been drawn up by CoverWorks, such as drawings, technical descriptions, designs, calculations, etc., remain CoverWorks’ property and may not be sold, reproduced or otherwise made available to third parties without its consent. The documents referred to in the preceding sentence must be returned or destroyed within 14 (fourteen) days after a request to that effect from CoverWorks, at CoverWorks’ discretion. The provisions of this paragraph also apply to documents provided by CoverWorks during the term of the Agreement.
All prices communicated by CoverWorks are (i) denominated in euros; (ii) based on execution during normal working hours, unless otherwise stated; and (iii) exclusive of transport, packaging, delivery and installation costs, VAT and other government levies.
Also after the Agreement has been formed, CoverWorks may adjust the price if legitimate reasons so necessitate, for instance in the event of an increase in the prices of raw materials, other materials and other items required for the performance of the Agreement, government levies, freight costs, currency, labour costs, wages and social security charges, or in the event of unforeseen circumstances as a result of which the costs of performance of the Agreement have increased. The Customer must at all times pay the prices adjusted in accordance with this provision, unless the price increase exceeds 15% (fifteen percent) in relation to the original price, in which case the Customer may dissolve (ontbinden) the Agreement.

ARTICLE 4. FORMATION OF THE AGREEMENT

Subject to the provisions of Article 4.2 and Article 4.3, an Agreement is formed if and as soon as CoverWorks sends an order confirmation. The order confirmation is deemed to accurately and completely reflect the Agreement, unless the Customer protests against it in writing immediately on receipt.
If the Customer orally agrees to an offer/quotation from CoverWorks, (i) the offer/quotation is deemed to have been accepted; (ii) the Agreement comes into effect the moment CoverWorks commences the performance of its work; and (iii) the offer/quotation is deemed to accurately and completely reflect the Agreement.
If the Customer requests CoverWorks to carry out certain activities without the Customer having received an offer, quotation and/or order confirmation, the Agreement (also) comes into effect the moment CoverWorks starts to perform its activities. The same applies to activities for which no offer, quotation or order confirmation is sent in light of their nature and/or scope. In these cases the invoice is deemed to reflect the Agreement accurately and completely, subject to written objection by the Customer within 7 (seven) days after the invoice date.
Any subsequent additional agreements or amendments made will bind CoverWorks only if they have been confirmed in writing by CoverWorks.

ARTICLE 5. PERFORMANCE OF THE AGREEMENT

CoverWorks will perform the Agreement to the best of its knowledge and ability.
CoverWorks determines the manner in which and the person(s) by whom the Agreement will be performed. CoverWorks may have all or part of the work performed by third parties.
The Customer must provide CoverWorks in a timely manner with all information and/or data of which CoverWorks declares that they are necessary or of which the Customer should reasonably understand that they are necessary for the performance of the Agreement. If the Customer fails to do so, CoverWorks may suspend the performance of the Agreement, and all damages and costs resulting from the resulting delay will be payable by the Customer.
If CoverWorks performs its work on the basis of information and/or data provided by the Customer, such as designs, drawings, calculations, specifications, measurements and dimensions, etc., or performs its work at the Customer’s request using certain devices or materials, the Customer warrants the accuracy, completeness and reliability of the information and/or data provided, and the soundness and suitability of the devices and materials. All defects of the Product and all damage resulting from the use of the information, data, materials or auxiliary materials referred to in the preceding sentence are payable by the Customer.
If CoverWorks is required in the context of the Agreement to perform work on or to an item and that item is destroyed before CoverWorks is able to deliver the Product, a reasonable price is payable by the Customer for the work already performed and the costs incurred by CoverWorks in this regard, irrespective of whether the item was under CoverWorks’ control at the time of its destruction. The same applies if the Customer or the person for whose benefit the Customer has entered into the Agreement with CoverWorks dies during the performance of the work by CoverWorks.

ARTICLE 6. CHANGES AND ADDITIONAL WORK

If it becomes apparent during the performance of the Agreement that its proper performance requires an amendment and/or addition to the Agreement, CoverWorks will inform the Customer accordingly as soon as possible. The parties will then enter into consultation regarding the amendment / addition to the Agreement.
If the Parties agree on an amendment or addition to the Agreement, the time of completion of the performance of the Agreement may be affected. CoverWorks will then inform the Customer accordingly as soon as possible.
If the amendment or addition to the Agreement has financial, quantitative and/or qualitative consequences, CoverWorks will inform the Customer accordingly. If a fixed rate or fixed price has been agreed, CoverWorks will indicate to what extent the amendment/addition to the Agreement will affect the rate or the agreed price. CoverWorks will endeavour in this regard to provide a quotation in advance, insofar as possible. The provisions of this paragraph do not alter the fact that the Customer is aware that amendments or additions to the Agreement may involve price increases and that the Customer is obligated to verify on its own initiative with CoverWorks whether or not a price increase is involved.
CoverWorks will not charge additional costs if the amendment / addition to the Agreement is the result of circumstances attributable to CoverWorks.
Amendments or additions to the Agreement are binding from the moment the amendments or additions are confirmed in writing by CoverWorks.
If the Parties fail to reach agreement on the manner in which the Agreement should be amended or supplemented, or on the consequences involved, each of the Parties may terminate the Agreement without being liable for damages to the terminated Party, in which case CoverWorks may at any time charge a reasonable price for the work already performed and the reasonable costs incurred by it in this regard.

ARTICLE 7. DELIVERY

Unless otherwise agreed in writing, delivery will be Ex Works, from CoverWorks’ business premises in Warmond, the Netherlands, in accordance with the Incoterms 2020. The risk in the Products will therefore pass to the Customer at the moment of delivery, in accordance with the applicable Incoterm.
The delivery periods and dates stated by CoverWorks are estimates only and are in no event strict deadlines or dates. Late delivery period will therefore not constitute a breach.
If CoverWorks requires information (including dimensions), data, materials and/or instructions from the Customer that are necessary for the performance of the Agreement, or if it can commence its work only after the Customer or a third party engaged by it has completed certain work related to the Agreement to be performed by CoverWorks, a delivery period stated does not commence until the Customer provides CoverWorks with the necessary information, data, materials and/or instructions, or the Customer or the third party engaged by it completes the aforesaid work.
The Customer must take delivery of the Products the moment they are made available to it.
If the Customer fails to take delivery of the Products on the agreed day, or fails to provide information or instructions that are necessary for the delivery of the Products, the Products are deemed to have been delivered to the Customer on time and free of defects, and the Customer is deemed to have accepted the Products. In such a case CoverWorks may store the Products (or have them stored) at the Customer’s expense and risk, without prejudice to CoverWorks’ other rights and remedies under the law, the Agreement and/or these General Conditions. All damage and costs resulting from the failure or delay in taking delivery of the Products are payable by the Customer.
CoverWorks may deliver the Products in parts, unless a partial delivery has no independent value. If the Products are delivered in parts, CoverWorks may invoice each part to be delivered separately and in advance, contrary to Article 12(2) of these General Conditions.

ARTICLE 8. TECHNICAL REQUIREMENTS

All technical requirements imposed on the Products by the Customer must be specified in writing by the Customer to CoverWorks before entry into the Agreement and must be recorded in the Agreement.
CoverWorks is not responsible for ensuring that the Products comply with the laws and regulations of any country other than the Netherlands. The provisions of the preceding sentence do not apply if the Customer informs CoverWorks before the entry into the Agreement of the intended use of the Products in a country other than the Netherlands, while submitting the laws and regulations that apply in the country in question and that the Products must meet, and all other information, data and specifications required by CoverWorks, and CoverWorks confirms in writing that the Products will comply with the laws and regulations that apply in the country in question.

ARTICLE 9. PERMITTED DEVIATIONS

If CoverWorks has shown or provided a model, sample or example, it is deemed to have been shown or provided for information purposes only: the qualities of Products to be delivered may deviate from the sample, model or example, unless it was expressly stated that delivery would be in accordance with the sample, model or example shown or provided. Deviations in the Product delivered that fall within a reasonable margin, in any event including any differences in colour, must be accepted by the Customer and do not entitle the Customer to dissolution (ontbinding), compensation, damages, replacement, repair or any other remedy.
Unless otherwise expressly stated in the offer or order confirmation, the dimensions of the Products delivered by CoverWorks may differ by up to 2% (two percent) in relation to the dimensions stated in the offer, order confirmation or dimensional drawings supplied and approved by CoverWorks. A deviation of the delivered Products within the deviation tolerance stated in the preceding sentence does not give the Customer the right not to accept the Products, nor any right to dissolution (ontbinding), damages, compensation, replacement or any other remedy.

ARTICLE 10. RETENTION OF TITLE

All Products delivered by CoverWorks (both paid and unpaid) remain its exclusive property until the Customer properly performs all its obligations under the Agreement entered into with CoverWorks. The latter expressly includes, without limitation, full payment of the purchase price, including any interest and costs due.
If and for as long as the Products are subject to retention of title, the Customer may not dispose of these Products, except in the ordinary course of business, and may not create any restricted right on the Products.
The Customer’s right to dispose of the Products in the ordinary course of business automatically lapses if (i) attachment is levied against the Customer; (ii) the Customer or a creditor of the Customer files for a suspension of payment or bankruptcy in respect of the Customer; or (iii) the Customer enters into a payment arrangement with one or more creditors.
The Customer may not pledge or otherwise encumber the Products that are subject to retention of title.
The Customer must store all the Products delivered to it by CoverWorks in its company in a traceable and clearly identifiable manner. The Customer has a duty of care with regard to the Products that fall under the retention of title and must insure them and keep them insured against all risks that are customarily insured in the industry, including but not limited to fire, theft and water damage. The Customer must make the insurance documentation relating to these insurance policies available for inspection at CoverWorks’ first request.
If the Customer fails to perform any obligation under the Agreement, or if CoverWorks has good reason to fear that the Customer will fail to perform its obligations under the Agreement, CoverWorks may remove the Products delivered to the Customer (paid or unpaid), take them back and store them elsewhere. If CoverWorks wishes to exercise its ownership rights referred to in this article, the Customer must cooperate by giving CoverWorks or a third party to be appointed by CoverWorks permission to enter the place where the Products owned by CoverWorks are located and to remove or retrieve those Products. This is without prejudice to any other rights and/or resources that CoverWorks may have under the Agreement and/or under applicable laws and regulations.
All costs related to the exercise of the retention of title, including transport and storage costs, are payable by the Customer.

ARTICLE 11. QUALITY AND COMPLAINTS

A Product is compliant if, on delivery, it meets the specifications set out in the Agreement or a reasonable deviation from those specifications, in accordance with the provisions of Articles 9.1 and 9.2, and complies with the provisions of Article 8.
The Customer must check the Products for any shortages and/or visible defects immediately after delivery. Complaints regarding shortages and/or visible defects must always (also if delivery has taken place in accordance with an Incoterm other than that referred to in Article 7.1) be reported in writing and substantiated within 48 hours after delivery of the Products, under penalty of forfeiture of all possible claims of the Customer in this respect.
Any complaints relating to non-visible defects of the Products delivered must be reported to CoverWorks in writing and must be substantiated within 48 hours of the time at which they were discovered or could reasonably have been discovered.
Under no circumstances does a complaint entitle the Customer to suspend the performance of any obligation arising from any Agreement.
If CoverWorks finds a complaint to be justified, it may (at its option) (i) replace the Products; (ii) repair the delivered Products; or (iii) give credit for the price of the defective Products. The remedies provided for in this Article 11.5 are the only remedies or rights that the Customer has in the event of a defective Product.
In no event will CoverWorks consider a complaint relating to a defect to be valid if the defect is the result of incorrect handling of a Product (which in any case includes exposure to high temperatures and/or high humidity) and/or failure to follow instructions provided by or on behalf of CoverWorks.
Products may be returned only with CoverWorks’ prior written consent.

ARTICLE 12. INVOICING

For orders with an invoice amount of up to €10,000 (ten thousand euros), excluding VAT, the Customer must make a down payment of 50% (fifty percent) of the total invoice amount at the time the Agreement is formed. CoverWorks will charge the remaining 50% (fifty percent) after delivery of the Products.
For orders with an invoice amount of €10,000 (ten thousand euros) or more, excluding VAT, CoverWorks will charge the invoice amount as follows:
· 20% (twenty percent) on the formation of the Agreement;
· 35% (thirty-five percent) at the start of the performance of the Agreement;
· 5% (thirty-five percent) halfway through the specified delivery period; and
· 10% (ten percent) on delivery of the Products.

ARTICLE 13. PAYMENT

Payment must be made within 15 (fifteen) days after the invoice date, to a bank account designated by CoverWorks and in the currency invoiced. Invoice amounts must be paid in full without any deduction, discount or setoff. CoverWorks may send invoices by e-mail.
On expiry of the credit period, the Customer is in default by operation of law, without any further notice of default being required.
Interest at a rate of 1% (one percent) per month is payable by the Customer on the amount due from the moment the Customer is in default, unless the statutory commercial interest rate is higher, in which case the statutory commercial interest rate applies. Part of a month is regarded as a full month. All costs incurred by CoverWorks in obtaining payment of its claim – both in and out of court – are payable by the Customer. In the event of default by the Customer, the Customer is also liable for a penalty of 15% (fifteen percent) of the outstanding amount, subject to a minimum of €150 (one hundred and fifty euros). If the actual damage and/or costs incurred by CoverWorks exceed this amount, the excess is also eligible for compensation.
If the Customer is in default, CoverWorks may furthermore terminate (ontbinden) the Agreement or the part of the Agreement that has not yet been performed, without any notice of default or judicial intervention being required, suspend the performance of its obligations, or terminate the Agreement with immediate effect, without the Customer being entitled to demand compensation for any damage or costs consequently incurred by it. If CoverWorks terminates the agreement, the Customer must pay the reasonable price to be determined by CoverWorks for the part of the agreement already performed.
If the Customer believes that an invoice is incorrect, it must notify CoverWorks of its objections in writing within 5 (five) working days after the invoice date. Complaints or objections regarding invoices do not affect the Customer’s obligation to pay the invoice. Payment may therefore not be suspended under any circumstances. Any overpayment will, only after it has become apparent, be settled by means of a credit note.
If, in light of facts and circumstances, there may be reasonable doubt as to whether the Customer will be able to meet its payment obligations, the Customer must provide security for the timely and complete performance of its payment obligations, at CoverWorks’ first request and in a manner to be determined by CoverWorks.
In the event of liquidation, bankruptcy or suspension of payment of the Customer, CoverWorks’ claims in relation to the Customer and the Customer’s obligations in relation to CoverWorks will become immediately due and payable.

ARTICLE 14. LIABILITY

CoverWorks is not liable for any damage, of any nature, caused by the fact that it has relied on incorrect and/or incomplete data and/or information provided by or on behalf of the Customer, or has made use of tools or materials prescribed by the Customer.
Under no circumstances may CoverWorks be held liable for trading loss, consequential damage and/or indirect damage, in any event including lost profits and turnover of the Customer, missed savings, reputational damage, loss of goodwill, loss of business or other opportunities, damage due to business stagnation, and damage due to third-party claims.
CoverWorks’ liability is at all times limited to the amount paid out by its insurance company in the case in question.
If in any case, for any reason, the insurance does not provide cover or does not pay out, CoverWorks’ liability is limited to €10,000.
The Customer indemnifies CoverWorks against all third-party claims, including the costs of legal assistance, that are in any way related to the Products supplied by CoverWorks to Customer or to the Agreement.
The limitations of liability included in these General Conditions do not apply in the event of intent or deliberate recklessness on the part of CoverWorks’ management.

ARTICLE 15. FORCE MAJEURE

CoverWorks is not obligated to perform any obligation under the Agreement if it is prevented from doing so by force majeure. For the purposes of these General Conditions, ‘force majeure’ means any circumstance beyond CoverWorks’ control, foreseen or unforeseen, that prevents performance of the agreement in whole or in part, permanently or temporarily. This in any event includes, without limitation, work strikes or illness of persons working at or for CoverWorks, breaches by suppliers or sub-suppliers of CoverWorks, agents, other persons or goods used by CoverWorks, shortages of raw materials or other materials, failures in water and energy supplies, abnormal weather conditions, failures in CoverWorks’ systems, epidemics and pandemics and related government measures, fire, floods, natural disasters, riots, war and restrictive government measures or sanctions.
In the event of force majeure, CoverWorks may suspend the performance of its obligations without any judicial intervention being required. If the force majeure situation lasts longer than 3 (three) months, CoverWorks may dissolve (ontbinden) or terminate the agreement without being liable for any damages and/or costs.
In the event of termination of the Agreement in accordance with the provisions in Article 15.2, CoverWorks may invoice the Customer the part of the Agreement already performed and the Customer must pay that invoice.

ARTICLE 16. INTELLECTUAL PROPERTY RIGHTS

All intellectual property rights and/or similar rights relating to the Products made, sold and delivered by CoverWorks are vested exclusively in CoverWorks. These rights in any event include copyrights, trademark rights, patent rights, trade name rights, design rights, know how and trade secrets, database rights and licensing rights. The delivery of a Product cannot be regarded as an explicit or tacit licence to use, publish, reproduce, exploit or release the intellectual property rights or similar rights to third parties, without CoverWorks’ express prior written consent.

ARTICLE 17. DISSOLUTION OF THE AGREEMENT

Without prejudice to the provisions elsewhere in these General Conditions, CoverWorks may immediately dissolve (ontbinden) the Agreement, without being liable for damages, if:
· after the entry into the Agreement circumstances come to CoverWorks’ knowledge that give CoverWorks reason to fear that the Customer will fail to perform its obligations;
· CoverWorks has asked the Customer to provide security for the performance of its obligations in accordance with Article 13(6) and the Customer fails to comply or to fully comply with that request; and/or
· circumstances arise, including but not limited to cost price increases and increases in labour costs, of such a nature that the performance of the Agreement becomes so onerous and/or disproportionately costly that compliance with the Agreement can no longer reasonably be required, at CoverWorks’ discretion.
In the cases referred to in bullet points 1 and 2 of the preceding paragraph, CoverWorks has the right, in addition to the right to dissolve (ontbinden) the Agreement, to suspend the further performance of the Agreement.
The Customer is liable to CoverWorks for all damage incurred by CoverWorks as a result of the situations referred to in bullet points 1 and 2 in Article 17.1

ARTICLE 18. OTHER PROVISIONS

If CoverWorks uses any translation of these General Conditions, the Dutch text is at all times decisive when interpreting the content and scope of these General Conditions and in the event of conflict between the content or interpretation of any translation of these General Conditions and the Dutch version of these General Conditions.
The Customer may not transfer its rights and/or obligations under the Agreement to a third party without CoverWorks’ prior written consent. This provision excludes transferability within the meaning of Article 3:83(2) of the Dutch Civil Code.
All legal claims and defences of the Customer lapse on the mere expiry of a period of 12 (twelve) months after the claim arose, or after the moment it could reasonably have been discovered.
The Customer’s right to dissolve (ontbinden) the Agreement in whole or in part under Articles 6:265 and 7:756 of the Dutch Civil Code is expressly excluded. Articles 6:89, 7:10, 7:12, 7:15, 7:16, 7:17, 7:20, 7:21, 7:23, 7:26, 7:27, 7:29, 7:30 and 7:32, 7:404, 7:407 (2), 7:409, 7:753 and 7:763 of the Dutch Civil Code furthermore do not apply.
Articles 1, 2.1 – 2.4, 3.6, 5.5, 7.5, 10, 13.3, 14, 16, 18 and 19 are not affected if the Agreement is terminated or otherwise comes to an end, and will remain in full force and effect.

ARTICLE 19. APPLICABLE LAW AND DISPUTES

All Agreements, these General Conditions and all contractual and non-contractual obligations arising from or related to them are governed by Dutch law, to the exclusion of Dutch private international law (conflicts of law). The applicability of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
All disputes regarding, arising from or related to an Agreement, these General Conditions or any contractual or non-contractual obligations will be settled exclusively by the competent court of The Hague, the Netherlands.