GENERAL DELIVERY TERMS

ZEILMAKERIJ COVERWORKS LTD.
Located at Veerpolder 1D, 2361 KV Warmond, the Netherlands
Registered with the Chamber of Commerce under registration number 71857494

Article 1. Definitions
Article 2. Applicability
Article 3. Special offers and quotes
Article 4. Conclusion of the agreement
Article 5. Implementation of the agreement
Article 6. Implementation and delivery times
Article 7. Changes and additional work
Article 8. Delivery
Article 9. Return policy
Article 10. Technical specifications
Article 11. Conformity
Article 12. Warranty
Article 13. Retention of title
Article 14. Defects and complaint procedure
Article 15. Billing
Article 16. Payment
Article 17. Liability
Article 18. Force majeure
Article 19. Termination of the Contract
Article 20. Limitation period
Article 21. Applicable law, explanation of the terms and conditions and choice of forum

Article 1. Definitions

In these general terms and conditions, the following terms shall have the following meanings, unless explicitly stated otherwise:

  1. CoverWorks: the other party to the Agreement with the Client and the user of the present general terms and conditions under article 6:231 sub b BW.
  2. Client: any natural or legal person purchasing a Product from CoverWorks and the other party to the Agreement with CoverWorks under Article 6:231 sub c of the Dutch Civil Code.
  3. Product(s): the case or cases fabricated and/or delivered by CoverWorks at the request of the Client.
  4. Agreement: the arrangement between CoverWorks and the Client for the manufacture and/or delivery of Products.
  5. Parties: CoverWorks and Client collectively.
  6. In writing: in these terms and conditions “in writing” also includes communication by email, fax or digitally (e.g. via an online interface) provided that the identity of the sender and the integrity of the content are sufficiently established.

Article 2. Applicability

  1. These terms and conditions apply to all offers, quotations and Agreements to which CoverWorks has declared these terms and conditions applicable, unless this applicability has been explicitly excluded entirely or in parts in writing or has been explicitly agreed upon otherwise.
  2. Any terms and conditions of the Client are explicitly rejected. Deviations from and additions to these terms and conditions only apply if and insofar as these have been expressly accepted by CoverWorks in writing.
  3. When CoverWorks, for a short or longer period of time or not, tacitly or not, allows deviations from the present terms and conditions, this does not affect its right to demand direct and strict observance of these terms and conditions. The Customer can never assert (or have asserted) any right on the basis of the fact that CoverWorks applies the present conditions flexibly.
  4. In case several persons, legal entities or companies are the Client, each of these persons, legal entities or companies will be jointly and severally obliged to fulfil all obligations arising from the Agreement entered into with CoverWorks.
  5. These conditions are also applicable to all Agreements with CoverWorks for which third parties have to be involved for their implementation.
  6. In case one or more of the clauses of the present terms and conditions or any other agreement with CoverWorks should be in breach of a mandatory law or any applicable legislation, the clause in question will lapse and a new, legally admissible and comparable clause to be determined by CoverWorks will take its place.
  7. A Client with whom a contract has been concluded under the present terms and conditions, is deemed to implicitly agree with the applicability of these terms and conditions to an Agreement subsequently concluded with CoverWorks.
  8. In case of conflict between the contents of an Agreement concluded between the Client and CoverWorks and the general terms and conditions, the contents of the Agreement shall prevail.
  9. CoverWorks reserves the right to change these terms and conditions at any time. The amended terms and conditions will enter into force at the announced time of entry and will also apply to Agreements already concluded. CoverWorks will send the amended terms and conditions to the Client in a timely manner. If no time of entry into force has been announced, the amendments will enter into force with respect to the Client as soon as they have been notified of the amendment.

Article 3. Special offers and quotes

  1. All offers and quotes made by CoverWorks are revocable and are made without obligation, unless otherwise indicated in writing.
  2. The Client guarantees the correctness and completeness of the requirements, specifications and other data on which CoverWorks bases its offer.
  3. CoverWorks is not liable for any apparent errors or clerical errors.
  4. A composite quote does not oblige CoverWorks to deliver a part of the Products or to carry out a part of the agreement for a corresponding part of the quoted price.
  5. The prices in the offers and quotes made by CoverWorks are, unless stated otherwise, based on execution during normal working hours and excluding transport, packaging, delivery and installation costs, VAT and other government levies.
  6. Offers do not automatically apply to repeat orders or future orders.
  7. Should CoverWorks agree on a certain price with the Client, CoverWorks is nevertheless entitled to increase the price if CoverWorks can demonstrate that between the time of the offer and the delivery, significant price changes have taken place with regard to raw materials, currencies and/or wages, or otherwise unforeseen circumstances. If the price increase amounts to more than 10%, the Client has the right to terminate the Agreement.

Article 4. Conclusion of the agreement

  1. Subject to the following provisions, an Agreement with CoverWorks is only established after CoverWorks has accepted or confirmed an assignment in writing. The order confirmation is considered to represent the Agreement correctly and completely unless the Client immediately and in writing protests against it.
  2. If the Client verbally agrees with the quote and agrees, or gives the impression that CoverWorks is carrying out activities that fall within the description of the assignment, then the quote is considered as accepted and the Agreement is concluded at the moment that CoverWorks starts carrying out its activities. This also applies when the Client requests CoverWorks to carry out certain work without waiting for a formal quote.
  3. Any additional agreements or changes made at a later stage are only binding for CoverWorks if they have been confirmed by CoverWorks in writing.
  4. For work for which, according to its nature and scope, no written quote or order confirmation is sent, the invoice will be deemed to accurately and completely reflect the Agreement, unless a written objection is made within 7 working days of the invoice date.

Article 5. Implementation of the agreement

  1. The Agreement will be implemented by CoverWorks to the best of its knowledge and ability, in accordance with the requirements of proper professionalism.
  2. CoverWorks shall determine the way in which and by which person(s) the Assignment will be carried out. CoverWorks is entitled to have certain activities carried out by third parties. The application of Articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is expressly excluded.

Article 6. Implementation and delivery times

  1. If a term has been agreed on or specified for the implementation or delivery of (part of) the Agreement, this term is only indicative and can never be regarded as a deadline, unless explicitly agreed in writing.
  2. CoverWorks is not liable in case of consequences which are detrimental to the Client due to exceeding implementation or delivery deadlines, unless it is a matter of intent or gross negligence on the part of CoverWorks.
  3. In case CoverWorks needs data, materials or instructions from the Client which are necessary for the implementation or delivery, the period of implementation or delivery shall commence after the Client has provided these to CoverWorks.
  4. For the agreed implementation or delivery terms, it shall not be the case that CoverWorks is legally in default after the expiry thereof. For this, a further written notice of default is always required, whereby CoverWorks will be granted a period of at least 14 days to comply with its obligations.
  5. A notice of default is not required if the implementation has become permanently impossible to execute or it has otherwise become apparent that CoverWorks will not fulfil its obligations under the Agreement. If CoverWorks does not carry out the Agreement within this period of time, the Customer has the right to terminate the Agreement in accordance with Article 265 Book 6 of the Civil Code.

Article 7. Changes and additional work

  1. If during the implementation of the Agreement, it becomes apparent that for proper implementation it is necessary to change or supplement the Agreement, CoverWorks will inform the Client of this as soon as possible. Parties will then proceed to make changes to the Agreement in good time and in mutual consultation.
  2. If the parties agree that the Agreement will be changed/supplemented, this may affect the time of completion of the implementation. CoverWorks will inform the Client of this as soon as possible.
  3. Should the changes or supplements to the Agreement have financial, quantitative and/or qualitative consequences, CoverWorks will inform the Client in advance.
  4. If a fixed rate or fixed price has been agreed, CoverWorks will indicate the extent to which the change/addition to the Agreement affects the rate/price. In doing so, CoverWorks shall try – as far as possible – to make an estimate in advance.
  5. CoverWorks will not be able to charge additional costs if the change/addition is the result of circumstances that can be attributed to CoverWorks.
  6. Changes to the originally concluded Agreement between the parties shall only be valid from the moment that these changes have been accepted by both parties by means of an additional or amended Agreement.

Article 8. Delivery

  1. Unless otherwise agreed, delivery shall take place from the factory or company in Warmond. The risk with respect to the Products shall be transferred at the moment that the items are made available to the Client. If one of the ‘Incoterms’ has been agreed as the delivery condition, the Incoterms in force at the time of the conclusion of the Agreement shall apply. In that case, the Incoterms declared applicable shall prevail over the provisions of these Terms and Conditions regarding delivery and transfer of risk.
  2. The Client is obliged to accept the delivery of the purchased Products at the moment they are delivered to them or at the moment they are made available to them in accordance with the Agreement.
  3. If the Client refuses to accept the delivery or fails to provide information or instructions necessary for delivery, the Products will be stored at the Client’s risk. The Client shall in that case owe all additional costs, in any case including storage costs.
  4. CoverWorks is allowed to deliver the ordered Products as a partial delivery. This does not apply if a partial delivery has no independent value. If the Products are delivered in instalments, CoverWorks is authorised to invoice each part separately.

Article 9. Return policy

All Products made by CoverWorks are produced according to the specifications of the Client. For example, products are supplied at the request of the Client in a certain (non-standard) size or in a certain colour. The Products and the Agreement are therefore excluded from the right of withdrawal.

Article 10. Technical specifications

  1. If the delivered Products are used outside the Netherlands, CoverWorks is not responsible for the Products meeting the technical requirements, standards and/or regulations that are set by the law of the country where the Products are to be used. This does not apply if, when concluding the Agreement, use abroad has been reported together with all necessary information, data and specifications regarding the applicable laws and regulations with which the Products must comply.
  2. All other technical requirements that are set by the Client for the Products to be delivered and which deviate from the normally applicable requirements must be explicitly reported by the Client when the Agreement is concluded.

Article 11. Conformity

  1. If a model, sample or example has been shown or provided by CoverWorks, this is only presumed to have been shown or provided by way of indication: the qualities of the Products to be supplied may deviate from the sample, model or example, unless it was expressly stated that they would be supplied in accordance with the sample, model or example shown or provided. Deviations in the delivered Product that fall within a reasonable margin, including any colour differences, must be accepted by the Client and do not give the Client the right to termination, compensation or replacement.
  2. The Products delivered by CoverWorks may, unless explicitly stated otherwise in the order confirmation, deviate in the dimensions of maximum plus or minus two percent of the dimensions stated on the quote or order confirmation. A deviation of the Products delivered, within the aforementioned deviation margins, do not give the Client the right not to accept the purchased Products, nor to termination, compensation or replacement.

Article 12. Warranty

  1. CoverWorks guarantees that the Products delivered by it are free of design, material and manufacturing errors during a period as stated on the quote, order confirmation, delivery documents, or the invoice relating to the delivered Product(s).
  2. If a Product has a design, material or manufacturing defect, the Client is entitled to repair of the Product. CoverWorks can choose to replace the Product if repair is not feasible. The Client is only entitled to replacement if repair of the Product is not possible.
  3. The warranty does not apply if damage is the result of improper handling or any provided instructions being followed incorrectly. Improper handling means in any case:
    1. assembly of the Products delivered, other than in accordance with the directions supplied by CoverWorks or assembly instructions;
    2. insufficient or non-timely maintenance of the Products;
    3. maintenance with products not prescribed by CoverWorks as well as maintenance and cleaning with aggressive substances or equipment that are too aggresive;
    4. exposure to high temperatures;
    5. modifying the Products, including adjusting the shape, dimensions or making other modifications.
  4. If the warranty relates to a Product that has been produced by a third party, the warranty is limited to the warranty given by the manufacturer of that Product.
  5. The buyer cannot derive any right to the aforementioned warranty provisions, as mentioned in this article, before full payment has been made, in accordance with the CoverWorks invoice for the delivered Products.

Article 13. Retention of title

  1. All Products supplied by CoverWorks remain the property of CoverWorks until the Client has fulfilled all of the following obligations under all Agreements concluded with CoverWorks, including claims relating to the (costs of) collections on unpaid invoices.
  2. Products supplied by CoverWorks, which are subject to retention of title pursuant to paragraph 1, may only be resold in the context of normal business operations and may never be used as a means of payment.
  3. The Client shall not be authorised to pawn or in any other way encumber the Products falling under the retention of title.
  4. The buyer already unconditionally and irrevocably authorises CoverWorks or a third party to be designated by it, in all cases where CoverWorks wishes to exercise its rights of ownership, to enter all those places where the property of CoverWorks will then be located and to take the Products there.
  5. If a third party seizes goods delivered subject to retention of title or wishes to establish or assert a right to them, the Client shall be obliged to inform CoverWorks as soon as can reasonably be expected.
  6. The Client shall be obliged to insure the goods delivered subject to retention of title and to keep them insured against damage caused by fire, explosions and water as well as against theft, and to make this insurance policy available for inspection at first request.

Article 14. Defects and complaint procedure

  1. The Client must inspect the purchased Products upon delivery or as soon as possible thereafter. The Client shall check whether the products delivered comply with the agreement in respect of:
    • whether the right Products have been delivered;
    • whether the Products were delivered in the right quantity (for example the amount and the number) in accordance with the agreement;
    • whether the delivered goods meet all quality requirements or – should there be none – the requirements that may be imposed with regards to normal use and/or commercial purposes.
  2. If the Client finds visible defects or shortcomings after receipt, the Client must report this to CoverWorks in writing within 2 days after delivery.
  3. Non-visible defects must be reported to CoverWorks in writing within 1 working day after discovery, but no later than 1 week after delivery.
  4. Even if the Client complains in time, their obligation to pay and purchase the ordered Products remains intact.
  5. Products can only be returned to CoverWorks with prior written permission from CoverWorks.

Article 15. Billing

  1. For orders up to an amount of €10,000 excl. the VAT, CoverWorks requires the Client to pay a deposit of 50% of the total invoice amount when the order is issued. After delivery of the Products, the remaining 50% will be charged.
  2. Orders with a total amount higher than €10,000 excl. VAT will be charged by CoverWorks to the Client as follows:
    • 20% when the order is placed
    • 35% at the start of the work related to the order
    • 35% halfway through delivery
    • 10% upon completion of the work

Article 16. Payment

  1. Invoices must be paid within 14 days after the invoice date, in a manner to be specified by CoverWorks in the currency specified. Payment must be made without discount or settlement. CoverWorks is entitled to send the invoices digitally.
  2. After the payment term has expired, the Client will legally be in default, without further notice of default being required. From that moment forward, CoverWorks is entitled to suspend its work or to postpone delivery.
  3. From the moment the Client is in default, the Client owes interest amounting to 1% per month on the payable amount, unless the statutory commercial interest rate is higher, in which case the statutory commercial interest rate applies. Parts of a month are considered a full month. All judicial and extrajudicial costs which CoverWorks incurs in order to obtain full payment from that moment on – both in and out of court – are to be paid by the Client. In that case, the Client will owe a fee of at least 15% of the outstanding amount, with a minimum of €150.00. If the actual costs incurred and to be incurred by CoverWorks exceed this amount, they will also qualify for reimbursement.
  4. In the above cases, CoverWorks also has the right to terminate or suspend the Agreement or the part thereof that has not yet been executed without notice of default or judicial intervention, without the Client having the right to claim compensation for any damage that may arise as a result.
  5. If the Client believes that an invoice is incorrect, the Client must inform CoverWorks of their objections in writing within 5 working days after the invoice date. The obligation to pay remains intact. Payment may therefore not be suspended. Any excess payments will only be settled by means of a credit note after this has been proven.
  6. If there are reasonable doubts as to facts and circumstances about whether the Client can meet their payment obligations, CoverWorks has the right to demand financial security from the Client in the form of a security deposit for the invoice amount.
  7. In the event of liquidation, bankruptcy or suspension of payment on the Client’s part, the claims of CoverWorks and the obligations of the Client towards CoverWorks will become immediately due and payable.

Article 17. Liability

  1. CoverWorks’ liability for attributable shortcomings in the fulfilment of the Agreement or defects in Products supplied by CoverWorks is limited to compliance with the warranty conditions as described in Article 11 of these conditions. Once CoverWorks has fulfilled its warranty obligations to the Client, CoverWorks cannot be held accountable for any (further) liability or compensation.
  2. Liability for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business interruption, is excluded.
  3. CoverWorks is not liable for damage of whatever nature caused by CoverWorks based on incorrect and/or incomplete data and information provided by or on behalf of the Client.
  4. CoverWorks’s liability shall always be limited to the amount of the payment to be provided by CoverWorks’ insurance in the present case.
  5. If in any case the insurance does not provide coverage or does not pay out, and CoverWorks is liable, CoverWorks’ liability is limited to twice the invoice value of the transaction, at least that part of the transaction to which the liability relates.
  6. CoverWorks’ liability for attributable failure to fulfil the Agreement arises only if the Client gives CoverWorks immediate and proper written notice of default, thereby stipulating a reasonable period for the purpose of resolving the shortcomings, and CoverWorks also falls short of the fulfilment of its obligations beyond that period.
  7. The limitations of liability included in these terms and conditions do not apply in case of intent or gross negligence on the part of CoverWorks.

Article 18. Force Majeure

  1. Force majeure is understood in these terms and conditions, in addition to what is understood in law and jurisprudence, to include all external causes, foreseen or unforeseen, over which the Client cannot exercise any influence but due to which CoverWorks is not able to fulfil their obligations.
  2. During situations of force majeure, CoverWorks’ delivery and other are suspended. Should the period within which force majeure prevents CoverWorks from meeting its commitments exceed two months, either party shall be entitled to terminate the agreement; no obligation of compensation shall arise in such a case.
  3. In case CoverWorks has already partially fulfilled its obligations when the force majeure occurs, or can only partially fulfil its obligations, it is entitled to separately invoice for the portion that has already been delivered and/or the deliverable portion, and the Client is obliged to pay this invoice as if it were a separate contract. However, this does not apply if the portion that has already been delivered or is deliverable has no independent value.

Article 19. Termination of the contract

  1. An Agreement between CoverWorks and a Client can be terminated immediately in the following cases:
    • if, after concluding the Agreement, CoverWorks becomes aware of circumstances that give CoverWorks good reason to fear that the Client will not fulfil their obligations;
    • if CoverWorks has asked the Client at the conclusion of the Agreement to provide an assurance for compliance and this assurance has not been provided or is insufficient, despite further warnings.

In the aforementioned cases, CoverWorks is authorised to suspend further execution of the Agreement, or to terminate the Agreement, without prejudice to CoverWorks’ right to claim damages.

  1. If circumstances arise with regard to persons and/or materials which CoverWorks uses or tends to use in the execution of the Agreement, which are of such a nature that the execution of the Agreement becomes impossible or so objectionable and/or disproportionately expensive that compliance with the Agreement can no longer reasonably be expected, CoverWorks is entitled to terminate the Agreement.

Article 20. Limitation period

The period within which the Client can claim against CoverWorks for compensation for damages is in all cases limited to 1 year after the damage occurred, or the moment at which the damage could reasonably have been discovered. CoverWorks’ liability shall lapse in any case 12 months after delivery of the Products from which the damage arises.

Article 21. Applicable law, explanation of the terms and conditions and choice of forum

  1. All agreements concluded and to be concluded by CoverWorks are governed by Dutch law.
  2. In the event of an explanation of the content and scope of these terms and conditions and in the event of a conflict between the content or interpretation of any translations of these terms and conditions and the Dutch version, the Dutch text shall always prevail.
  3. All disputes – including those which are only considered as such by one of the parties – which arise as a result of an Agreement to which the present terms and conditions apply in whole or in part, or as a result of other Agreements which are a consequence of such an Agreement, will be settled by the competent court in the district of CoverWorks’ place of business, unless there is a compelling legal provision in opposition to this. This does not affect CoverWorks’ right to agree with the Client to have the dispute settled by means of independent arbitration.

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