General Terms And Conditions Of Dundalk Leisurecraft Europe
Article 1. General
1. These general terms and conditions (hereinafter “conditions”) apply to every offer, quotation and agreement, which also includes an agreement concluded via the online shop, between Dundalk Leisurecraft Europe and a purchaser, insofar as these conditions are not deviated from explicitly by the parties in writing.
2. The current conditions also apply to agreements with Dundalk Leisurecraft Europe, where Dundalk Leisurecraft Europe has hired in third parties for the execution.
3. The applicability of any purchase or other (general) conditions by the purchaser are explicitly rejected.
4. If, at any time, one or more provisions in these conditions are wholly or partially invalid or were allowed to become void, then the other provisions in the conditions continue to be fully applicable. Dundalk Leisurecraft Europe and the purchaser shall then consult with each other for the purpose of agreeing on new provisions to replace the invalid or voided provisions, where the objective and the essence of the original provisions shall be retained.
Article 2. Quotations, offers and price increases
1. All quotations and offers by Dundalk Leisurecraft Europe are non-binding unless a period for acceptance is set in the quotation or offer. A quotation or offer expires if, in the meantime, the item to which the quotation or offer is related has become no longer available.
2. Dundalk Leisurecraft Europe cannot be held to its quotations or offers if the purchaser can reasonably understand that the quotations or offers or a part thereof contain an apparent mistake or error.
3. The prices listed in a quotation or offer include VAT and other governmental levies as well as any costs and administrative costs incurred in the framework of the agreement unless otherwise agreed upon in writing.
4. If the acceptance (whether or not on minor items) deviates from the offer included in the quotation or the offer, Dundalk Leisurecraft Europe is not bound by it. Then the agreement does not come about in agreement with this non-standard acceptance unless otherwise agreed upon in writing.
5. If a compound price quote is offered and only a part of that quotation shall be executed, Dundalk Leisurecraft Europe is entitled to use a new price quote.
6. Offers or quotations do not automatically apply to future orders.
7. If, when concluding the agreement, Dundalk Leisurecraft Europe agrees on a specific price, Dundalk Leisurecraft Europe is entitled to increase the price under the following circumstances, even if the price was not originally specified with a reservation:
– If the price increase is the result of a change in the agreement;
– If the price increase ensues from an obligation on Dundalk Leisurecraft Europe pursuant to the law;
– In other cases, provided that the purchaser who is not acting in the practice of a profession or business is entitled to dissolve the agreement by means of a written statement if the price increase exceeds 10% and takes place within three months after the closing of the agreement, unless Dundalk Leisurecraft Europe is then still prepared to execute the agreement on the basis of the originally agreed amount, or if it is stipulated that the delivery will take place more than three months after the purchase.
Article 3. Terms of delivery, execution and amendment to agreement
1. If a period has been agreed or specified for the completion of certain work or for the delivery of certain items, this is never a strict deadline. If a period is exceeded, the purchaser must notify Dundalk Leisurecraft Europe of being in default in writing. Dundalk Leisurecraft Europe must be given a reasonable period in which to still execute the agreement.
2. Dundalk Leisurecraft Europe is entitled to have certain activities performed by third parties.
3. Dundalk Leisurecraft Europe is entitled to execute the agreement in different phases and to invoice the part already executed separately.
4. If Dundalk Leisurecraft Europe needs data from the purchaser in order to execute the agreement, the execution period shall not commence before the buyer has made it available to Dundalk Leisurecraft Europe correctly and completely.
5. When shipping and/or assembling ordered items, the purchaser must be present at the delivery address on the indicated day of delivery or leave clear instructions for the carrier. If the carrier must make a subsequent attempt at a later time to deliver the items, Dundalk Leisurecraft Europe is entitled to invoice the purchaser for costs incurred for this. The purchaser himself must ensure proper accessibility to the location where the item is delivered. The purchaser is also responsible for acquiring any required permits or exemptions.
6. If a machine and/or other tools must be hired for placing the items, these additional costs are for the purchaser, unless otherwise agreed in writing.
7. If, during the execution of the agreement, it becomes apparent that it is necessary to change of supplement it in order to execute it properly, the parties shall proceed to change the agreement in time and in mutual consultation. In that case, Dundalk Leisurecraft Europe will not execute the activities or commence with them until the purchaser has agreed in writing.
8. Without being in default, Dundalk Leisurecraft Europe may refuse to amend the agreement if this could be of consequence qualitatively and/or quantitatively for, for example, the works to be performed in that framework or items to be delivered, which include, but is not limited to, a technically impossible adjustment or additional delivery of discontinued items. If the purchaser is in default toward to Dundalk Leisurecraft Europe in the proper fulfilment of that which he is obliged to perform in the framework of the activities to be performed by Dundalk Leisurecraft Europe, then the buyer is liable for all damage (including costs), directly or indirectly, on the part of Dundalk Leisurecraft Europe as a result of this.
9. The risk of loss, damage or depreciation is transferred to the purchaser at the time when items are brought into the purchaser’s control, or if the purchaser uses a carrier that he has used at the moment that the items are in the possession of the relevant carrier.
10. After the item has been delivered, the purchaser is obligated to purchase it. If the purchaser refuses to purchase the item, Dundalk Leisurecraft Europe is entitled to store the item at the costs of the purchaser.
Article 4. Suspension, dissolution and premature termination of the agreement
1. Dundalk Leisurecraft Europe is authorised to suspend the obligations or terminate the agreement forthwith and with immediate effect without Dundalk Leisurecraft Europe being obligated to pay any compensation if:
– the purchaser does not fulfil obligations arising from the agreement, does not fulfil them completely or on time;
– after concluding the agreement with Dundalk Leisurecraft Europe, facts or circumstances emerged on the basis of which Dundalk Leisurecraft Europe has good reason to fear that the purchaser will not fulfil the obligations;
– at the conclusion of the agreement, the purchaser has been requested to provide security for the fulfilment of his obligations under the agreement and this security has not been provided or is insufficient;
– if, due to delay on the part of the purchaser, Dundalk Leisurecraft Europe can no longer be required to fulfil the agreement under the conditions originally agreed on;
– there are circumstances that are of such a nature that fulfilment of the agreement is impossible or unaltered maintenance thereof cannot, in reasonableness, be required of Dundalk Leisurecraft Europe.
2. If the dissolution is attributable to the purchaser, the purchaser shall be held to compensate for damage, including the costs that arise directly and indirectly.
3. If, on the grounds listed in this article, Dundalk Leisurecraft Europe moves to suspension or dissolution, it is in no way obliged to pay compensation for damage and costs in any way whatsoever.
4. Only if the agreement has been terminated by Dundalk Leisurecraft Europe due to circumstances on the part of Dundalk Leisurecraft Europe shall Dundalk Leisurecraft Europe, after consultation with the purchaser, ensure the transfer of the activities (yet to be performed) to a third party. In the following cases, Dundalk Leisurecraft Europe is authorised to terminate or dissolve the agreement forthwith and with immediate effect without Dundalk Leisurecraft Europe being obligated to payment of any compensation:
– in the case of liquidation;
– in the case of (application for) suspension of payment or bankruptcy;
– in the case of attachment levied against the purchaser;
– in the case of debt restructuring;
– in the case of another circumstance by which the purchaser is no longer able to dispose freely of his assets.
In that case, the claims by Dundalk Leisurecraft Europe on the purchaser are immediately due and payable.
5. If the purchaser cancels all or part of an order placed, the ordered or prepared items, plus any supply, removal and delivery costs thereof and the labour time reserved for the execution of the agreement, shall be charged in full to the purchaser. The cancellation costs shall be a minimum of 15% of the order amount and must be paid within 14 days after cancellation.
6. If the counterparty is not satisfied with the item, it is possible to return the item in good condition and original packaging within 7 days after delivery and after confirmation in writing by Dundalk Leisurecraft Europe, provided it is unused and undamaged. Any prepayment made for the returned items shall be reimbursed to the counterparty by Dundalk Leisurecraft Europe within 30 days at most. The purchaser himself must ensure prepaid return of the item. This cooling-off period does not apply in the following cases: – purchases that have been specially made to order; – purchases that must be built on location; – purchases that cannot reasonably be placed without machines, tools or other auxiliary materials.
Article 5. Force majeure
1. Dundalk Leisurecraft Europe is not required to fulfil any obligation toward the purchaser if Dundalk Leisurecraft Europe is impeded as the result of a circumstance that is not due to its fault, and cannot be held liable by virtue of the law, a legal act or generally prevailing beliefs.
2. Dundalk Leisurecraft Europe also has the right to invoke force majeure if the circumstance that prevents (further) fulfilment of the agreement occurs after Dundalk Leisurecraft Europe should have fulfilled its commitment.
3. Dundalk Leisurecraft Europe can suspend the obligations under the agreement during the period that the force majeure continues. If this period lasts longer than three months, each of the parties are entitled to dissolve the agreement without an obligation to pay compensation to the other party.
4. If, at the time of the force majeure commencing, Dundalk Leisurecraft Europe has partially fulfilled its obligations under the agreement or shall be able to fulfil them, and if the part fulfilled respectively to be fulfilled is of independent value, Dundalk Leisurecraft Europe is entitled to invoice separately the part already fulfilled or to be fulfilled. The purchaser shall be held to pay this invoice as if it were a separate agreement.
Article 6. Payment and collection charges
1. Payment should always take place in accordance with the agreement and, in any case, prior to the delivery of the items. If the invoice does not list a payment period, payment must always be made within 14 days after the invoice date and in a manner to be indicated by Dundalk Leisurecraft Europe in the currency in which is invoiced, unless otherwise indicated by Dundalk Leisurecraft Europe in writing.
2. In the absence of timely payment of an invoice, the purchaser is by law in default. The purchaser then owes a statutory (trade) interest rate.
3. Dundalk Leisurecraft Europe is entitled to have the payments made by the purchaser go first of all to reduce the costs, then to reduce the interest still due and finally to reduce the principal sum and the current interest.
4. Objections to the amount of an invoice do not suspend the obligation to pay.
5. If the purchaser is in default or is in default in the (timely) fulfilment of his obligations, then all reasonable costs incurred in obtaining payment out of court are for the expense of the purchaser. The extrajudicial costs shall be calculated in accordance with the Extrajudicial Collection Costs (Fees) Decree (Besluit vergoeding voor buitengerechtelijke incassokosten).
Article 7. Retention of title
1. All items delivered by Dundalk Leisurecraft Europe in the framework of the agreement remain the property of Dundalk Leisurecraft Europe until the purchaser has properly fulfilled all obligations arising from the agreement(s) concluded with Dundalk Leisurecraft Europe.
2. Items delivered by Dundalk Leisurecraft Europe that fall under the retention of title pursuant to paragraph 1. may not be resold and may never be used as an instrument of payment. The purchaser is not authorised to pledge the items subject to retention of title or to encumber them in any other manner.
3. The purchaser must do all that can be reasonably expected of him to secure Dundalk Leisurecraft Europe’s ownership right and shall always take care of items with due diligence.
4. If third parties seize the items delivered under retention of title or want to attach or exercise rights thereon, the purchaser is obliged to notify Dundalk Leisurecraft Europe immediately.
5. The purchaser commits to insuring and keeping insured the items delivered under retention of title with respect to fire, explosion and water damage and against theft. The purchaser is obliged to provide access to the policy of this insurance to Dundalk Leisurecraft Europe at first request. In case of any pay-out by the insurance, Dundalk Leisurecraft Europe is entitled to these payments. If and insofar as necessary, the purchaser commits toward Dundalk Leisurecraft Europe in advance to cooperate with all that may (appear to) be necessary or desirable in that context.
6. In the event that Dundalk Leisurecraft Europe wishes to exercise the ownership rights referred to in this article, the purchaser grants in advance unconditional and non-revocable consent to Dundalk Leisurecraft Europe and to third parties designated by Dundalk Leisurecraft Europe to enter all those places where Dundalk Leisurecraft Europe’s property is located and to take those items back.
Article 8. Conformity, investigation and advertising
1. Dundalk Leisurecraft Europe guarantees that the items that it shall deliver meet the customary requirements and standards that can reasonably be expected at the time of delivery with a normal and intended use. Furthermore, wood is a natural product and, accordingly, always settles. This settling is influenced by outside factors (such as, among other things, yet not limited to temperatures, moisture and sunlight). For this reason, Dundalk Leisurecraft Europe does not provide any guarantee with regard to possible consequences of the settling of wood, such as, among other things, yet not limited to distortion, cracks and seams between boards.
2. The purchaser guarantees to Dundalk Leisurecraft Europe that the item and its properties comply with the regulations of the country concerned or the relevant place where the item is delivered.
3. The guarantee referred to in paragraph 1 of this article only applies under normal use and only concerns material faults. The guarantee referred to in paragraph 1 of this article applies for a period of at most 1 year after delivery unless the nature of the delivery dictates otherwise or the parties have agreed otherwise in writing. If the guarantee provided by Dundalk Leisurecraft Europe concerns an item that has been produced by a third party, and the guarantee is limited to the guarantee and period provided by the producer unless stated otherwise in writing. After the guarantee period has expired, all costs for repair or replacement, including administration, shipping and call-out costs, shall be charged to the purchaser.
4. Any form of guarantee shall lapse if:
– a defect has occurred as the result of or arising from improper or spurious use of the item;
– incorrect storage or maintenance of the item by the purchaser and/or by third parties;
– without directions from Dundalk Leisurecraft Europe, the purchaser or third parties have introduced or have attempted to introduce changes to the item or have attached other items that should not be attached;
– the item or supplied items were processed or adapted in a manner other than prescribed;
– the item was not installed and/or used by the purchaser according to the supplied assembly and user’s guide;
– the item was not installed by the purchaser according to the local building regulations;
– if a wood fire is properly stoked with products other than clean and dry hardwood. Here, products with abnormal fire properties such as, but not limited to, glued wood, plywood and painted wood may result in excessively higher temperatures that could damage the item;
– there is a normal wear and tear;
– there are cracks/splits due to overheating;
– ovens have not been hardened properly; heating should always increase slowly according to the schedule;
– there are normal hairline cracks as a result of expansion and shrinkage.
Nor may the purchaser make a claim on the guarantee if the defect has arisen by or due to circumstances on which Dundalk Leisurecraft Europe has no influence, including but not limited to weather conditions (such as, for example, extreme rainfall or temperatures), etc.
5. The purchaser is obliged to inspect the delivered items (or to have them inspected) immediately at the time the item is made available to him respectively the relevant work has been executed. In addition, the purchaser must inspect whether the quality and/or quantity of the delivered items corresponds with what has been agreed and meets the requirements that the parties have agreed on in this respect. Any defects must be submitted in writing to Dundalk Leisurecraft Europe within 7 days of discovery, or at least within 7 days after the purchaser could have discovered the defect. The report must contain as detailed a description of the defect as possible, including photographs, so that Dundalk Leisurecraft Europe is able to respond adequately. The purchaser must provide Dundalk Leisurecraft Europe with the opportunity to investigate (or have investigated) a complaint. Furthermore, in the event of directly visible transport damage, the purchaser shall inform Dundalk Leisurecraft Europe in writing of this damage within 24 hours. The report must contain as detailed a description of the defect as possible, including photographs.
6. If the purchaser complains on time and in accordance with Article 8.4, this does not suspend the obligation to pay. In that case as well, the purchaser remains obliged to purchase and pay for the other items ordered, unless they have no independent value.
7. If a defect is reported later or if no claim has been made in accordance with Article 8.4, the purchaser will no longer be entitled to repair, replacement or compensation, unless a longer period arises from the nature of the item or other circumstances of the item.
8. If it has been established that an item is defective and, in that respect, has been filed on time, Dundalk Leisurecraft Europe shall replace or ensure the repair of the defective item within a reasonable period after return receipt thereof or, if return is not reasonably possible, after written notification of the defect by the purchaser, at Dundalk Leisurecraft Europe’s discretion, arrange to pay the purchaser a replacement fee. In case of replacement, the purchaser is obliged to return the original item and the ownership to Dundalk Leisurecraft Europe immediately unless Dundalk Leisurecraft Europe indicates otherwise in writing.
9. If it has been determined that a complaint is unfounded, the costs that Dundalk Leisurecraft Europe has incurred because of this, including the costs of the investigation, are for the expense of the purchaser.
Article 9. Liability
1. Should Dundalk Leisurecraft Europe be liable, this liability is restricted to that which has been regulated in these conditions.
2. Dundalk Leisurecraft Europe is not liable for damage, of any nature whatsoever, that has arisen because Dundalk Leisurecraft Europe has proceeded on the basis of incorrect and/or incomplete data provided by or on behalf of the purchaser.
3. Dundalk Leisurecraft Europe is exclusively liable for direct damage.
4. Direct damage exclusively means:
– the reasonable costs to establish the cause and scope of the damage, insofar as this establishment is related to damage as meant in these conditions;
– any reasonable costs incurred to have the defective performance of Dundalk Leisurecraft Europe comply with the agreement, insofar as this can be attributed to Dundalk Leisurecraft Europe;
– reasonable costs incurred to prevent or restrict damage, insofar as the purchaser demonstrates that these costs have led to the restriction of direct damage as meant in these conditions.
5. Dundalk Leisurecraft Europe is never liable for indirect damage, including consequential loss, loss of profits, lost savings and damage due to stagnation of business or other types of stagnation. In the case of customer purchases, this restriction does not extend beyond that permitted under Article 7:24 paragraph 2 of the Dutch Civil Code.
6. If Dundalk Leisurecraft Europe should be liable for any damage, then Dundalk Leisurecraft Europe’s liability is limited to the maximum of the invoice value for the order, at least to that part of the order concerning the liability.
7. The liability of Dundalk Leisurecraft Europe is limited in any case to the amount of the pay-out by its insurer in such a case.
8. If, due to the use of tools, there is damage to, for example, the garden or the pavement, this is the purchaser’s own responsibility.
9. The limitations of the liability stated in this article do not apply if the damage is attributable to intent or gross negligence of Dundalk Leisurecraft Europe.
Article 10. Indemnification
1. The purchaser shall indemnify Dundalk Leisurecraft Europe against possible claims by third parties who may suffer damage upon execution of the agreement, the cause of which may be attributable to a party other than Dundalk Leisurecraft Europe.
Article 11. Intellectual property
1. Dundalk Leisurecraft Europe retains the rights and authorities that are granted to Dundalk Leisurecraft Europe pursuant to the Copyright Act, the Patents Act 1995 and other intellectual property laws and regulations. Dundalk Leisurecraft Europe has the right to use the knowledge acquired during the execution of an agreement for other purposes insofar as no strictly confidential information of the purchaser is given to third parties.
Article 12. Applicable law and disputes
1. All quotations, offers and agreements are governed exclusively by Dutch law.
2. The applicability of the 1980 Vienna Sales Convention is explicitly excluded.
All disputes connected to or arising from offers by Dundalk Leisurecraft Europe or agreements that have been entered into with it will be submitted to the competent court in the Midden-Nederland [Central Netherlands] unless the law explicitly indicates another court as competent.
Article 13. Location and change of conditions
1. These conditions have been filed with the Chamber of Commerce for Gooi-, Eem- en Flevoland, the Netherlands, under file number 70489874.
2. The last-filed version or the version that applied at the time of the creation of the legal relationship with Dundalk Leisurecraft Europe always applies.
3. The Dutch text of the conditions is decisive for their interpretation.
Article 14. Personal data
Dundalk Leisurecraft Europe must have personal data available for the delivery of its items and the execution of its activities. All personal data provided by the purchaser shall be processed by Dundalk Leisurecraft Europe exclusively for the purpose of entering into and executing agreements. Possible limitations of the Internet with respect to the protection of personal data are beyond the sphere of influence of Dundalk Leisurecraft Europe and cannot be attributed to Dundalk Leisurecraft Europe.