General terms and conditions

General terms and conditions DWTN

General terms and conditions of delivery and payment for the sale of goods and the provision of services by DWTN (trade name of Diederen Afwateringstechniek BV) , hereinafter referred to as “supplier”, established in (5591 RA) Heeze, at De Boelakkers 6, filed with the Chamber of Commerce in Eindhoven on 26-10-2006 and known there under number 17157059.

Article 1. General

These general terms and conditions of delivery and payment for the sale of goods and the provision of services form part of and apply to all offers and quotations from and all agreements for the delivery of goods and the provision of services by the supplier, unless the supplier has confirmed in writing that its general terms and conditions do not apply to the offers and quotations from and/or agreements with it.
In these general terms and conditions, the “other party” means any (legal) person who has entered into or wishes to enter into an agreement with the supplier, as well as its representative(s), authorised representative(s) and legal successor(s) under general or specific title.
The applicability of the general terms and conditions used by the other party or potential customers of the other party or third parties is expressly excluded.
By simply placing an order and/or receiving the delivered goods, the other party accepts these terms and conditions and is deemed to have tacitly agreed to the exclusive applicability of these terms and conditions, also for any subsequent orders placed by him orally, by telephone, by fax or by e-mail or in any other way, regardless of written confirmation from the supplier.
Oral agreements and/or commitments made by the supplier's employees, insofar as these deviate from these terms and conditions, shall only be binding on the supplier if these commitments have been confirmed in writing by the supplier.
If any article or part of an article is or is declared null and void, the provision in question will be replaced by an article the scope of which largely corresponds to the null and void article within the margins of reasonableness and fairness.
The Dutch text of these terms and conditions is binding. If one or more articles or parts thereof are void or annulled, this will not affect the validity of the remaining articles and parts thereof.

Article 2. Offers

All offers made by the supplier remain valid for the period explicitly specified by the supplier. Unless a term for acceptance is specified, any offer, quotation, advice, and/or price quote issued by the supplier is non-binding.
All information in price lists, procedures, and similar materials provided by the supplier is provided as accurately as possible. This information is only binding for the supplier if expressly confirmed in writing.
If no agreement is reached with the supplier for the delivery of goods or the performance of services, the other party must return the relevant designs, images and drawings from the supplier to the supplier within fourteen days of the date of the decision, at the other party's expense.
If the order for the delivery of goods or the provision of services is not awarded to the Supplier, the Supplier reserves the right to charge the other party for all costs associated with providing the offer, including all costs incurred by third parties on behalf of the Supplier.
Sending offers and/or (other) documentation does not oblige the supplier to deliver goods or perform services unless the offer is accepted by the other party within the specified period.
The Supplier reserves the right to refuse orders without giving reasons, unless the order was placed on the basis of an offer that was accepted by the other party within the specified period.

Article 3. Agreement

In principle, an agreement with the supplier is concluded after the supplier has recorded the agreement in writing or after the supplier has expressly accepted or confirmed the agreement in writing or, at the supplier's discretion, otherwise. The order confirmation is deemed to accurately and completely reflect the agreement, unless the other party objects within eight days of the date. The aforementioned method of concluding agreements also applies to any supplementary agreements and/or amendments to the agreement.
For work for which a quotation or order confirmation is unusual due to its nature and scope, the invoice will also be considered the order confirmation, which is also deemed to accurately and completely reflect the agreement. Regarding the provisions of Articles 3.1 and 3.2, the supplier's records are final, unless written proof to the contrary is provided.
Each agreement with the supplier is entered into under the condition that the other party – at the sole discretion of the supplier – is sufficiently creditworthy for the financial fulfillment of the agreement.
The Supplier is entitled, if there is reason to do so, to request (additional) security both at and after the conclusion of the agreement, failing which the Supplier is entitled to suspend the fulfillment of its obligations until sufficient security has been provided.
For the performance of the agreement, the supplier is entitled to engage third parties in appropriate cases, if the supplier deems this desirable.

Article 4. Intellectual property rights

Supplier retains the intellectual property rights (such as, but not limited to, copyrights, patent rights, registered or unregistered design rights, database rights and trademark rights) on all quotations provided by it or designs, sketches, images, drawings, molds and models produced by it.
Without the prior written consent of the supplier, the products produced for this purpose may not be reproduced, copied or shown to third parties by the other party, regardless of whether the supplier has charged the other party costs for the realization of these products.

Article 5. Prices

Unless otherwise stated, all price quotes are subject to change.
Unless otherwise stated, prices are from supplier

based on the purchase prices of goods and raw materials, wages, levies imposed by government or similar authorities and costs of third parties applicable at the time of the quotation or order date respectively;
as regards the delivery of goods based on delivery ex works/warehouse of supplier or other storage location or ex factory in the country of production and as regards the delivery of services ex the agreed place where the services are performed;
exclusive of VAT;
excluding the costs of packaging, loading and unloading, transport, insurance and/or the surcharge for small orders;

stated in the agreed currency;

In the event of an increase in the costs and/or levies as stated under 5.2., including a change in the currency in which these costs are determined compared to the currency in which the quotation was made, the supplier is entitled to increase the order price accordingly, taking into account any existing statutory regulations in this regard.

Article 6. Delivery and delivery time of goods and services

The delivery times stated are approximate and not binding. The supplier is not liable for any delivery time exceeding the stated delivery time.
Unless otherwise agreed in writing, delivery of goods will take place ex works/warehouse of the supplier or another storage facility, or ex works in the country of production, if the supplier orders the products in another country. The risk for the goods passes to the other party at the moment the goods leave the supplier's premises or warehouse, or another storage facility or factory in the country of production, without prejudice to the provisions of Article 8.2. Delivery carriage paid will only take place if and insofar as this is indicated by the supplier on the order confirmation or otherwise.
The delivery time is based on working conditions applicable at the time the agreement is concluded and on the timely delivery of the goods to be supplied by third parties for the fulfillment of the agreement. Without prejudice to the provisions elsewhere in these terms and conditions regarding delivery, the supplier's delivery time will be extended by the duration of the delays incurred by the other party as a result of the other party's failure to comply with obligations under this or previously concluded agreements.
The counterparty is obliged to check the delivered goods and/or the packaging immediately upon delivery for any shortages or visible damage, or to carry out this check after notification from the supplier that the goods are at the disposal of the counterparty.
Any shortages or damage to the delivered goods and/or packaging present upon delivery must be noted by the other party on the delivery note, invoice, and/or shipping documents. Failure to do so will result in complaints being disregarded. The supplier's records are final in this regard.
The supplier is entitled to deliver the goods in parts. The other party is obligated to pay for partial deliveries, which the supplier may invoice separately, in accordance with the provisions of Article 14 "Payment" below.
Exceeding the delivery time does not obligate the supplier to any compensation. After repeated delivery time failures, the other party may notify the supplier in writing of the default, stating a final (reasonable) delivery date. After this, the other party has the right to cancel the agreement in writing, unless the supplier is in a state of force majeure.
If the goods have not been collected by the other party after the delivery period has expired, they will be stored at their disposal, at their expense and risk. After a period of four weeks, the supplier is entitled to sell these goods (privately). Any shortfall in proceeds and costs will be borne by the other party, without prejudice to the supplier's other rights.
With regard to the provision of services, whether or not in combination with the delivery of goods, the time of delivery is considered to be the moment:

on which the supplier has informed the other party that the services (work performed) have been performed, or
on which the other party has accepted the services/activities of the supplier after the agreed inspection/test, or fails to carry out the inspection/test within eight days after the notification from the supplier as stated under 6.9.a.

In any event, the delivery time shall be deemed to be the moment at which the project or the goods for which the services/work were performed are (partially) put into use by the other party.

Minor, non-essential defects will be repaired by the supplier as soon as possible and cannot be a reason for the other party to refuse delivery.
Unless the supplier receives an express order from the other party to do so, the other party shall ensure that the necessary applications are made in a timely manner and/or that the amounts owed are paid in respect of power lines, connections, precarious rights, the Nuisance Act, etc.
If a test as referred to in Article 6.9.b. is agreed, this must take place within the applicable period of eight days in the presence of (an employee of) the supplier or a third party designated by the supplier.

Article 7. Additional and reduced work

The scope of the work to be carried out/services to be provided by the supplier is precisely set out in the agreement/order confirmation, which is binding on the parties (see Article 3.1.).
Any necessary additional work, supplies, and/or (auxiliary) materials of any kind not specified in advance in the order confirmation are not part of the supplier's obligations. The other party is obligated to provide these at the supplier's first request, so that the work is not unnecessarily delayed.
If the other party fails to fulfill its obligations as stated in Article 7.2 upon first request, the supplier is entitled to take care of this itself, excluding any liability. The costs thereof shall be borne by the other party. If the other party fails to promptly fulfill its payment obligations to the supplier, the supplier is entitled to immediately suspend or discontinue all deliveries/work, without prejudice to all other rights of the supplier in this regard under these terms and conditions (for example, under Article 14).
Any change to the order, originating from the other party or caused by changes in circumstances, as a result of which the original agreement can no longer be (fully) maintained, will be considered additional or reduced work carried out and charged for, all within the limits of reasonableness and fairness.
If the additional or reduced work deviates by more than 10% from the original price, the parties will consult on the measures to be taken. In the event of cancellation by the other party, the supplier is entitled to invoice for the costs incurred up to that point, or for goods and/or services delivered.

Article 8. Transport and risk

If the other party does not provide specific instructions, the transport, shipping, and/or packaging will be arranged by the supplier to the best of its knowledge and ability, without the supplier bearing or accepting any liability for this. Specific requests from the other party regarding (express, courier, air, etc.) will only be fulfilled if and after the other party agrees to bear the additional costs involved.
In principle, the transport of the goods is always at the expense and risk of the other party, even if the carrier requires that a clause be included on waybills, shipping addresses, and the like stating that all transport damage is and remains at the expense and risk of the sender. This applies insofar as any transport damage is not covered under any applicable transport and insurance conditions that the supplier may conclude upon request.
For deliveries free of charge, transport costs are not charged separately. If the supplier delivers on a free of charge, freight on account basis, the freight costs are indicated separately on the invoice.

Article 9. Force Majeure

Force majeure means: any circumstance beyond the control of the parties, or any unforeseeable circumstance, as a result of which performance of the agreement is no longer reasonably possible or can no longer reasonably be expected of the supplier by the other party.
Force majeure is understood to mean, but not limited to: strikes, excessive absenteeism due to illness of the supplier's personnel, transport obstacles, fire, government measures including but not limited to import and export bans, quotas and business disruptions at the supplier or at its suppliers, as well as shortcomings towards the supplier by its suppliers as a result of which the supplier can no longer fulfil its obligations towards its counterparties, shortage of raw materials, disruptions in the energy supply and water damage.
In the event of force majeure, the supplier is entitled to suspend performance of the agreement or to terminate it permanently. However, prior consultation will be held with the other party.
The Supplier is entitled to demand payment for (partial) deliveries of goods or services that had already been performed up to the moment the force majeure situation occurred.
Supplier has the right to invoke force majeure if the circumstance that constitutes force majeure occurs during the period of overdue delivery time as described in Article 6.7.

Article 10. Liability

Supplier accepts statutory obligations to pay damages to the extent apparent from this article.
If the supplier is in breach of one or more obligations under the agreement, the other party will give the supplier proper and reasoned notice of default, whereby the supplier will be granted a reasonable period in which to still fulfil its obligation(s).
If the supplier, even after notice of default pursuant to the previous paragraph, culpably fails to fulfill its obligations, it will be liable to the other party for damages that are a direct and exclusive consequence of the relevant failure(s), with the understanding that the amount the supplier will compensate for such damages is limited per event or series of related events to a maximum of the amount the other party paid for the goods or services in respect of which the supplier failed. The supplier's total liability under the agreement is further limited to an amount of EUR 10,000.00, unless and insofar as the damages are covered by the supplier's liability insurance and that insurance provides entitlement to a higher amount.
The supplier's liability for pure financial loss, such as lost profits, loss due to business stagnation and loss due to liability towards third parties, is excluded.

Article 11. Advice/warranty

All oral and written advice is provided by the supplier to the best of its knowledge and ability, without guaranteeing a specific result intended by the other party, unless otherwise agreed in writing.
A warranty for goods purchased elsewhere by the supplier is only provided if and to the extent that the relevant manufacturer/supplier provides a warranty.
Failure by the other party to fulfill any of its obligations releases the supplier from all its warranty obligations.
The warranty never includes labor costs, travel and accommodation expenses, or other additional costs. Such costs are the responsibility of the other party.

Article 12. Complaints

Without prejudice to the provisions elsewhere in these terms and conditions, all complaints must be submitted in writing to the supplier within eight days of delivery, specifying the nature and grounds of the complaint. For invoices, the complaint period is eight days from the date of issue.
For complaints regarding hidden defects, the period is three months, while such complaints must be submitted within eight days of discovery.
After the deadlines stated in Articles 12.1 and 12.2 have expired, the other party is deemed to have approved the delivered goods or services, or the invoice, respectively. Complaints submitted after the deadlines stated in Articles 12.1 and 12.2 have expired will no longer be considered by the supplier.
Submitting a complaint never releases the other party from its payment obligations towards the supplier.
Return of delivered goods may only take place after prior written permission from the supplier under conditions to be determined by the supplier.

Article 13. (Extended) Retention of Title/Non-possessory Pledge

1. As long as the other party has not paid the full agreed price, the supplier retains ownership of the goods to be delivered. Insofar as an agreement consists of the delivery of goods on the one hand and the performance of services on the other, the supplier retains ownership of the goods until both the price for the delivered goods and the services performed have been paid. The supplier also retains ownership of goods to be delivered with respect to claims related to an agreement arising from the other party's failure to fulfill an obligation under the agreement, including but not limited to claims for damages and interest.
As long as ownership has not been transferred, the other party may not grant any security or other rights to third parties with respect to the items to which the retention of title applies.
As long as ownership of the goods sold by the supplier has not yet passed to the other party, the other party is obligated to store the goods with due care in a separate container. As long as ownership has not yet passed to the other party, the latter is obligated to insure the goods against damage. The other party is obligated to provide the policy for inspection to the supplier upon the supplier's first request.
If a third party seizes goods whose ownership has not yet passed to the other party, the other party will immediately notify the supplier of the seizure. The other party is liable for all costs incurred by the supplier to insure its property.
If the other party fails to meet or is unable to meet its payments or obligations to the supplier, the supplier is at all times entitled to retrieve any items still in the possession of the other party and/or its service providers. The other party must cooperate fully in this regard.
To the extent that ownership of delivered goods has passed to the counterparty and the counterparty owes a debt to the supplier for reasons other than those set out in Article 13.1, the counterparty is obliged, at the supplier's first written request, to cooperate in establishing a (silent) pledge on goods delivered by the supplier, the ownership of which has passed to the counterparty.
In the event of unauthorized resale by the other party of goods to which the supplier's retention of title is based in whole or in part, the other party hereby assigns, or at least is obligated to assign, any claims arising from this resale against the other party's purchaser to the supplier upon the supplier's first written request. The other party is obligated to provide the supplier with the relevant information upon first request, so that the supplier can collect the amount owed directly from a second buyer. The amount paid by the other party's purchaser to the supplier will be deducted from the total amount owed by the other party to the supplier. In the event of unauthorized resale, the other party is also obligated to grant a retention of title in its own favor, as applies in the relationship between the supplier and the other party.
In the event that the counterparty is required to cooperate as requested by the supplier within the framework of the provisions of the article, this will be subject to a non-mitigable fine of € 1,000 per day or part thereof that the counterparty is/remains in default and insofar as the supplier refers to this part of the article in its request for cooperation.

Article 14. Payment

Payment must be made, without any deduction, discount, suspension or settlement, net cash upon delivery by means of deposit or transfer to a bank or postal bank account to be designated by the supplier.
If no payment term is specified, the payment term is 30 days after the invoice date. The value date stated on the bank or postal bank statement determines the payment date. The supplier is at all times entitled to request advance payment for delivery. Furthermore, the supplier is entitled to suspend delivery and shipment of sold goods until the other party has provided sufficient security for payment to the supplier.
The Supplier is entitled, but not obliged, to record a payment schedule in the order confirmation/agreement for the goods to be delivered and/or the services to be provided by it.
Any payment made by the other party will initially be used to settle any interest owed by the other party as well as any collection costs and/or administrative costs incurred by the supplier, and will subsequently be deducted from the oldest outstanding invoice or claim.
To the extent that the other party:

has been granted a suspension of payments or is declared bankrupt, or has filed a request to that effect, or has filed a request under the Debt Restructuring Act (WSNP), or has assigned an estate, or if (part of) his property or claims are seized, or;
dies or is placed under guardianship, or his or her business is closed or;
fails to fulfil any obligation towards the supplier arising from the law or from these conditions or;
fails to pay an invoice amount or part thereof within the specified period or;
ceases or transfers his business or a significant part thereof, including the contribution of his business to a company to be established or an existing company, or changes the objectives of his business.

in the event that one or more of the aforementioned circumstances occur, all amounts owed by the other party to the supplier on any grounds whatsoever shall become immediately and fully due and payable, without prior notice of default or warning being required, at which point the supplier shall also be released from its then existing delivery obligations towards the other party, all without prejudice to the supplier's other rights or compensation for costs, damages and interest.

From the moment that the amount owed to the supplier becomes due and payable, the supplier is entitled to terminate the agreement without prior notice of default or judicial intervention. All ownership rights of the supplier remain fully preserved or are fully revived, so that the supplier is entitled to retrieve the relevant items in accordance with the provisions of Article 13 "Retention of Title."

Article 15. Interest and costs

If payment has not been made within the period stated in Article 14, the other party will be in default by operation of law after the payment term has expired and will owe the supplier interest of 1% per (part of) month (or the statutory interest, if higher) on the outstanding amount including VAT.

In the case of export transactions, an interest rate is charged which is at least equal to the highest commercial (credit) interest rate charged by the commercial banks in the country in which the counterparty is established.

All judicial and extrajudicial costs incurred will be borne by the other party. The extrajudicial collection costs amount to at least 15% of the total amount owed by the other party, including the interest stated in 15.1., with a minimum of €300.

Article 16. Applicable law

All offers from and agreements with the supplier and their execution are governed by Dutch law, to the exclusion of the laws of other states, with the exclusion of the uniform law on the international sale of movable tangible property (law of 15 December 1971, S780 S781).
With regard to the interpretation of international trade terms insofar as they appear in these conditions, the “incoterms” as compiled by the International Chamber of Commerce in Paris (ICC) apply.

Article 17. Disputes

All disputes between the parties will be settled by the District Court of 's-Hertogenbosch, unless the dispute falls within the jurisdiction of the Subdistrict Court. Insofar as a dispute falls within the jurisdiction of the Subdistrict Court, the Subdistrict Court has jurisdiction in accordance with the rules of the Dutch Code of Civil Procedure.
The Supplier also has the right to submit a dispute to a court other than the one competent under the normal rules of jurisdiction to have the dispute settled by arbitration or binding advice.

Article 18. Right of withdrawal

Upon delivery of products:

When purchasing products, consumers have the right to cancel the agreement without giving reasons within 14 days. This cooling-off period begins on the day after the consumer, or a representative designated in advance by the consumer and notified to the supplier, receives the product.
During the cooling-off period, the consumer will handle the product and its packaging with care. They will only unpack or use the product to the extent necessary to assess whether they wish to keep it. If they exercise their right of withdrawal, they will return the product with all accessories supplied and – if reasonably possible – in its original condition and packaging to the supplier, in accordance with the reasonable and clear instructions provided by the supplier.
If the consumer wishes to exercise their right of withdrawal, they are required to notify the supplier within 14 days of receiving the product. The consumer must submit this notification using the standard form. After the consumer has indicated their intention to exercise their right of withdrawal, they must return the product within 14 days. The consumer must prove that the delivered goods were returned on time, for example, by providing proof of shipment.
If the customer has not indicated that he wishes to exercise his right of withdrawal after the expiry of the periods mentioned in paragraphs 2 and 3, or has not returned the product to the supplier, the purchase is a fact.

When providing services:

When services are provided, the consumer has the right to cancel the agreement without giving reasons for at least 14 days, starting on the day the agreement is concluded. If the agreement has already been performed, the consumer is obligated to make payment.
In order to exercise his right of withdrawal, the consumer will follow the reasonable and clear instructions provided by the supplier with the offer and/or at the latest upon delivery.

Article 19 - Costs in case of revocation

If the consumer exercises his right of withdrawal, the costs of return will be at his expense.
If the consumer has paid an amount, the supplier will refund this amount as soon as possible, but no later than 14 days after cancellation. This is subject to the condition that the product has already been received by the supplier or conclusive proof of complete return can be provided. Refunds will be made via the same payment method used by the consumer, unless the consumer explicitly consents to a different payment method.
In the event of damage to the product due to careless handling by the consumer, the consumer is liable for any decrease in value of the product.
The consumer cannot be held liable for any diminished value of the product if the supplier has not provided all legally required information about the right of withdrawal, which must be provided before concluding the purchase agreement.

Article 20 - Exclusion of the right of withdrawal

The supplier may exclude the consumer's right of withdrawal for products as described in paragraphs 2 and 3. The exclusion of the right of withdrawal only applies if the supplier has clearly stated this in the offer, at least in good time before the conclusion of the agreement.
Exclusion of the right of withdrawal is only possible for products:
which have been created by the supplier in accordance with the consumer's specifications;
that are clearly personal in nature;
which by their nature cannot be returned;
that can spoil or become outdated quickly;
the price of which is subject to fluctuations in the financial market over which the entrepreneur has no influence;
for individual newspapers and magazines;
for audio and video recordings and computer software of which the consumer has broken the seal.
for hygiene products where the consumer has broken the seal.
Exclusion of the right of withdrawal is only possible for services:
concerning accommodation, transport, restaurant business or leisure activities to be performed on a specific date or during a specific period;
the supply of which has begun with the express consent of the consumer before the cooling-off period has expired;
regarding betting and lotteries

Article 21 - Complaints procedure

The supplier has a sufficiently publicised complaints procedure and handles the complaint in accordance with this complaints procedure.
Complaints about the performance of the agreement must be submitted to the supplier fully and clearly described within 7 days after the consumer has discovered the defects.
Complaints submitted to the supplier will be answered within 14 days from the date of receipt. If a complaint requires a foreseeably longer processing time, the supplier will respond within 14 days with an acknowledgement of receipt and an indication of when the consumer can expect a more detailed response.
If the complaint cannot be resolved by mutual agreement, a dispute arises that is subject to the dispute resolution procedure.
In the event of a complaint, a consumer should first contact the supplier. If the online store is affiliated with the WebwinkelKeur Foundation and complaints cannot be resolved amicably, the consumer should contact the WebwinkelKeur Foundation ( webwinkelkeur.nl ), which will mediate free of charge. Check whether this online store has a current membership via https://www.webwinkelkeur.nl/leden/ . If a solution is still not reached, the consumer has the option of submitting their complaint to the independent dispute committee appointed by the WebwinkelKeur Foundation. The decision is binding, and both the supplier and the consumer agree to this binding decision. Submitting a dispute to this dispute committee involves costs that the consumer must pay to the relevant committee. It is also possible to submit complaints via the European ODR platform ( http://ec.europa.eu/odr ).
A complaint does not suspend the supplier's obligations unless the supplier indicates otherwise in writing.
If a complaint is found to be justified by the supplier, the supplier will, at its discretion, either replace or repair the delivered products free of charge.

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