Disclaimer
General terms and conditions of delivery and payment of:
D.G.T. Projects B.V.
Hengelosestraat 66
7514 AJ ENSCHEDE
The Netherlands
ARTICLE 1: APPLICABILITY
1.
These terms and conditions shall apply to all offers and to all agreements of purchase and sale of and/or the provision of services by D.G.T. Projects B.V. established in Enschede, hereinafter referred to as “the user ".
2.
The client and/or purchaser shall be referred to below as “the other party”.
3.
Other terms and conditions shall only form part of the agreement concluded between the parties if and insofar as both parties have explicitly agreed this in writing.
4.
Should the other party accept and retain, without comment, an offer or order confirmation which refers to these terms and conditions, he shall be deemed to have accepted the applicability thereof.
5.
Should a (part of a) provision of these general terms and conditions not be applicable, this shall not affect the applicability of the other provisions.
ARTICLE 2: AGREEMENTS
1.
The user manufactures / produces and supplies chess equipment, including the “Digital Game Timer”, and related products. The user concludes agreements with other parties in respect of the supply of the aforementioned equipment.
2.
Agreements to purchase or sale shall only be binding upon receipt of written confirmation from the user.
3.
Supplements or amendments to the general terms and conditions or supplements or amendments otherwise applied to the agreement shall only be binding receipt of written confirmation from the user.
ARTICLE 3: OFFERS
1.
All offers, quotations, price lists, delivery dates etc. of the user shall be without obligation, unless they contain a deadline for acceptance. Should a quotation and/or offer contain an offer without obligation and such offer is accepted by the other party, the user shall be entitled to withdraw the offer within 2 working days of receipt of the acceptance.
2.
Brochures, drawings, models, specifications in respect of capacity and other descriptions shown and/or provided are as accurate as possible, but are however intended as an indication only. No rights may be derived therefrom, unless the parties have explicitly agreed otherwise in writing.
3.
A. Should wages, employment conditions or social security provisions be amended by the government and/or collective industrial associations between the date on which the agreement is concluded and the execution of the agreement, the user shall be entitled to pass on these increases to the other party. Should a new price list be issued by the user and/or suppliers and come into force between the aforesaid dates, the user shall be entitled to charge the other party the prices given therein.
B. In cases where the other party is a private individual not exercising a profession or pursuing a business, price increases may be passed on and/or charged 3 months after the conclusion of the agreement as referred to above. Should prices be increased within this 3 month period, then the other party shall be entitled to dissolve the agreement.
ARTICLE 4: CONSULTING THIRD PARTIES
The user is authorised to engage others to perform the matters agreed on.
ARTICLE 5: DELIVERY AND DELIVERY PERIODS
1.
Delivery shall be carriage forward, unless the parties have explicitly agreed otherwise in writing.
2.
Delivery dates and periods within which work must be carried out and/or goods must be delivered may never be regarded as firm dates, unless explicitly agreed otherwise in writing. In the event of late delivery and/or termination of the work, the user must therefore be given written notice of default.
3.
Where delivery is made in consignments and/or work is carried out in sections, each phase shall be regarded as a separate transaction.
4.
The risk in respect of goods which are under the control of the user because of work to be carried out, shall continue to be borne by the other party. The other party shall be obliged to adequately insure the goods and keep them insured during the period that the goods are under the control of the user.
5.
Should it prove to be impossible to deliver the goods to the other party or to carry out the work for reasons that fall under the sphere of the other party, the user reserves the right to store the ordered goods and/or the materials that have been acquired to carry out the work for the account and risk of the other party. The user shall notify the other party in writing of the storage and/or the impediment to the execution of the work to be carried out, giving a reasonable period within which the other party must make it possible for the user to resume work and/or deliver the goods.
6.
Should the other party still fail to fulfil his obligations even after the expiry of the reasonable period set by the user, as referred to in the previous paragraph of this article, the other party shall be in default by the mere expiry of a period of 1 (one) month, calculated from the date of storage and/or the impediment to the execution of the work to be carried out, and the user shall be entitled to wholly or partially dissolve the agreement in writing and with immediate effect, without prior or further notice of default, without judicial intervention and without being obliged to pay compensation for loss or damage, costs and interest.
7.
The preceding provisions shall not affect the obligation of the other party to pay the agreed and/or stipulated and/or payable price, as well as any storage costs and/or other costs.
8.
The user shall be entitled – with regard to the fulfilment of the financial obligations of the other party - to require the other party to pay in advance or furnish security before making delivery and/or starting the work.
ARTICLE 6: PROGRESS DELIVERY
1.
If the deliveries or work cannot take place in the regular manner or without interruptions due to circumstances beyond the user’s control, the user shall be entitled to pass on the resulting costs, including call-out charges, to the other party.
2.
All expenses incurred by the user at the other party’s request shall be entirely for the latter’s account, unless agreed otherwise in writing.
ARTICLE 7: TRANSPORT
1.
The goods ordered shall be shipped in a manner to be determined by the user, though at the other party’s expense and risk, unless both parties have explicitly agreed otherwise in writing.
2.
The user is not responsible for damages, of any nature or form whatsoever, caused to the goods or other matters as a result of the goods being transported.
3.
The other party should properly insure himself against the above-mentioned risks.
4.
The other party must ensure that the place to which the goods are to be delivered and the place in which the goods are to be unloaded are easily accessible and is responsible for the unloading.
5.
Non accepted orders and/or deliveries shall be stored by the user, at the other party’s expense and risk, in accordance with the provisions laid down in Article 5.
ARTICLE 8: COMPLAINTS/RETURNS
1.
The other party shall be obliged to check the goods and/or work immediately after taking delivery of the goods and/or immediately after the completion of the work. Should visible defects, faults and/or deficiencies and suchlike be discovered, this must be noted on the consignment note and/or accompanying form and immediately brought to the attention of the user, or the other party must notify the user of this within 24 hours of receipt of the goods, followed by an immediate written confirmation thereof sent to the user.
2.
Other complaints must be submitted to the user by registered letter within 8 days of receipt of the goods.
3.
Without prejudice to the provisions of paragraphs 1 and 2 of this article, the provisions of paragraph 8 of Article 9 shall also be taken into account with regard to private individuals not exercising a profession or pursuing a business.
4.
Should the user not be notified of the aforementioned complaint within the period referred to above, the goods shall be deemed to have been received in a good condition and/or the work shall be deemed to have been carried out properly.
5.
The other party shall not be entitled to suspend his payment obligations on the basis of complaints.
6.
The user must be given the opportunity to investigate the complaint.
7.
Should it prove to be necessary to return the goods so that the complaint can be investigated, this shall only be for the account and risk of the user if the latter has given his express prior written consent for this.
8.
In all cases, the goods shall be returned in a manner to be specified by the user. The return of goods shall be for the account and risk of the other party, unless the user declares that the complaint is justified.
9.
Should, after delivery, the nature and/or composition of the goods have been altered, or the goods have been wholly or partially processed or treated, damaged or repackaged, any right to complain shall lapse.
10.
Where complaints are found to be justified, the claim shall be settled pursuant to the provisions of Article 9.
ARTICLE 9: LIABILITY AND GUARANTEE
1.
The user shall discharge his task as may be expected from an enterprise in his line of business, but shall not accept any liability whatsoever for loss or damage, including consequential loss or damage, resulting from his acts or omissions in the broadest sense of the word, except insofar as these are attributable to gross negligence and/or intention on his part, or if statutory provisions with obligatory force provide otherwise. The same restriction shall apply in respect of members of staff and/or other third parties which the user involves in the execution of his work.
2.
Without prejudice to the provisions of the other paragraphs of this article, the liability of the user – on whatever grounds – shall be limited to the amount of the net price of the goods supplied and/or the work carried out. Payment under this guarantee shall be regarded as sole and full compensation.
3.
Without prejudice to the provisions of the previous paragraph of this article, the user shall never be obliged to pay compensation which exceeds the insured amount, insofar as the loss or damage is covered by insurance taken out by the user.
4.
Should visible defects, deficiencies and/or faults appear in the materials used for the execution of the work or in the goods supplied, which must have already been present at the time of delivery, the user undertakes to repair or replace these goods – at his choice – free of charge.
5.
The user guarantees that the goods supplied will be of the customary normal quality and reliability; the actual product life of these can never be guaranteed.
6.
The goods produced by the user will have a 12 month guarantee, issued by the user, effective as from the date of delivery.
7.
If goods delivered by the user - acquired from third parties - are subject to a manufacturer's guarantee, this guarantee shall apply between the parties in the same way.
8.
In cases where the other party is a private individual not exercising a profession or pursuing a business, the user shall comply with the guarantee periods laid down by law.
9.
A. In all cases, the period within which compensation for established loss or damage may be claimed from the user shall be limited to 6 months, as from the time at which it is established that the compensation is due and payable.
B. In cases where the other party is a private individual not exercising a profession or pursuing a business, a maximum period of 1 (one) year shall apply, as from the time at which it is established that the compensation is due and payable, within which compensation for established loss or damage can be claimed from the user.
10.
The other party shall lose his rights vis-à-vis the user, shall be liable for all loss or damage and shall indemnify the user against any claim of third parties in respect of compensation for loss or damage if and insofar as:
A. the aforementioned loss or damage has arisen as a result of injudicious use and/or use contrary to the instructions of the user and/or injudicious storage of the delivered goods by the other party;
B. the aforementioned loss or damage has arisen as a result of the other party having failed to act in accordance with the instructions and/or advice given by the seller;
C. the aforementioned loss or damage has arisen as a result of errors and/or inaccuracies in information, materials, information carriers and suchlike which has/have been provided to the user and/or the use of which has been prescribed by or on behalf of the other party;
D. the aforementioned loss or damage has arisen as a result of the other party himself or a third party acting on behalf of the other party having carried out work on and/or repairs to the delivered goods without the prior written consent of the user.
ARTICLE 10: PAYMENT
1.
Payment shall be made prior to delivery, cash on delivery, in instalments or after an invoice has been sent out, depending on the payment method that the user has given in the offer or when entering into the agreement. In cases where the other party is a private individual not exercising a profession or pursuing a business, any request for advance payment shall not exceed 50% of the purchase price.
2.
Payment must be made within 30 days of the date of invoice, even where it is not possible to deliver pursuant to Article 5, unless the parties have explicitly agreed otherwise in writing.
3.
Should an invoice not have been paid in full after the expiry of the period referred to in paragraph 2, or another period laid down by the user in connection with another method of payment:
A. the other party shall, from that time onwards, be charged a late payment surcharge of 2%, without further notice of default being required;
B. the other party shall owe the user default interest to the amount of 2% per month to be calculated cumulatively on the principal sum. Parts of a month shall be regarded as full months in this regard;
C. the other party shall ,after having received a warning from the user to this effect, owe a minimum of 15% of the principal sum and the default interest, with an absolute minimum of € 150.00, in respect of extrajudicial costs;
D. the user shall be entitled to charge the other party an amount of at least € 20.00 in administration costs for each payment reminder, warning letter and suchlike sent to the other party. The user shall refer to this in the agreement and/or on the invoice.
4.
In the circumstances referred to above or similar circumstances, the user may, at his choice, dissolve the agreement in whole or in part, with or without a claim for compensation, without further notice of default or judicial intervention.
5.
Should the other party not have fulfilled his payment obligations on time, the user shall be entitled to suspend the fulfilment of his obligation to deliver and/or to carry out work vis-à-vis the other party until payment has been made or proper security has been provided for this. The same shall apply even before the other party is in default, should the user have reasonable grounds to suspect that there are reasons to doubt the creditworthiness of the other party.
6.
Payments made by the other party shall always serve to settle all interest and costs owed and then the oldest outstanding invoices, unless the other party has stated in writing, when making the payment, that such payment relates to a later invoice.
7.
A. Should the other party, for whatever reason, have or acquire one or more counterclaims against the user, the other party shall waive the right to set off such counterclaim(s) against claims of the user. The said waiver of the right of setoff shall also apply should the other party apply for the suspension of payment or be declared bankrupt.
B. The provisions under A of this paragraph shall not apply in cases where the other party is a private individual not exercising a profession or pursuing a business.
ARTICLE 11: INTELLECTUAL PROPERTY
1.
The user shall hold the industrial and intellectual property rights in respect of the content and form of drawings, designs, constructions, products, software models, descriptions and/or advice and suchlike.
2.
It is expressly stipulated that only the user shall be entitled to exercise the rights referred to in the previous paragraph - including the disclosure or transfer of information - both during and after the execution of the order.
3.
The other party shall receive a right of use in respect of the above only after paying the amounts owed to the user pursuant to a concluded agreement.
4.
The other party shall be obliged to refer to a delivered “Digital Game Timer” as a “Digital Game Timer”, “DGT clock” or “Official FIDE Chess Clock” at all times and in all his statements about the clock. The prior written consent of the user shall be required for the use of other designations.
ARTICLE 12: RETENTION OF TITLE
1.
The goods supplied and the goods to be supplied shall continue to be the property of the user up until such time when the other party has fulfilled his payment obligations towards the user in relation to these goods. These payment obligations consist of paying the purchase price, increased by claims in respect of work carried out in relation to that delivery, as well as claims in respect of possible damages payable due to the other party not fully meeting his obligations.
2.
If the user claims a retention of title, the relevant agreement entered into shall be deemed to have been dissolved, without prejudice to the user’s right to claim damages, loss of profit and interest.
3.
The other party is obliged to immediately inform the other party in writing about the fact that third parties are laying claim to matters, which by virtue of this Article are subject to a retention of title.
ARTICLE 13: PLEDGE/WARRANTAGE
Until such time as the other party has settled its payment obligations in relation to the user in full, the other party is not entitled to pledge the goods supplied to third parties and/or to establish a non-possessory pledge on the goods supplied, and/or to have the goods supplied stored in effective control of one or several financiers (warrantage), as this shall be regarded as attributable non-fulfilment on his part. The user can in that event immediately suspend his obligations arising out of the agreement, without any notice of default being required, or dissolve the agreement, without prejudice to the user’s right to damages, loss of profit and interest.
ARTICLE 14: BANKRUPTCY, NO AUTHORITY TO DISPOSE OF PROPERTY, ETC.
Without prejudice to the provisions laid down in the other articles of these general terms and conditions the agreement entered into between the other party and the user shall be dissolved without any legal intervention or any notice of default being required when the other party is declared bankrupt, applies for a temporary suspension of payment, or loses the authority to dispose of property and/or the full legal capacity with respect to his assets or parts thereof as a result of an attachment, being placed under tutelage or in some other way, unless the official receiver or administrator recognises the obligations arising out of the agreement as a debt of the estate.
ARTICLE 15: FORCE MAJEUR
1.
If it is not possible for the user to fulfil his obligations arising out of the agreement entered into with the other party due to circumstances beyond his control, and/or circumstances beyond the control of third parties/suppliers engaged in respect of the fulfilment of the agreement, or in the event that this may be ascribed to some other serious reason on the part
of the user, the user shall be entitled to dissolve the agreement entered into between the parties, or to suspend his obligations towards the other party for a period of time he considers to be reasonable without being obliged to pay any damages. Should the above-mentioned situation arise when part of the agreement has already been fulfilled, the other party shall be obliged to fulfil his obligations towards the user up until that time.
2.
Circumstances beyond the user’s control and/or beyond the control of third parties/suppliers shall include: war, riots, mobilisation, internal or external commotion, government measures, strikes and lockouts by staff or threats thereof and similar circumstances; disruption of the exchange rates that existed at the time when the agreement was entered into; business interruptions as a result of fires, accidents or other incidents and natural phenomena, irrespective of whether or not the non or non-timely fulfilment takes place at the user, his supplier or third parties engaged by him in respect of the fulfilment of the agreement.
ARTICLE 16: CANCELLATION AND DISSOLUTION
1. A. The other party shall waive all rights to dissolve the agreement pursuant to article 6:265 ff of the Dutch Civil Code or other statutory provisions, unless cancellation has been agreed pursuant to this article.
B. The provisions under A of this paragraph shall not apply in cases where the other party is a private individual not exercising a profession or pursuing a business.
2.
The other party shall only be entitled to cancel if the user consents thereto. The other party shall then be obliged not only to pay the user at least 30% of the purchase price but also to take delivery of goods already ordered, in such a case untreated and unprocessed, against payment of the cost price.
3.
The other party shall be liable vis-à-vis third parties for the consequences of the cancellation and shall indemnify the user in this regard.
4.
Amounts already paid by the other party shall not be reimbursed.
ARTICLE 17: APPLICABLE LAW/COMPETENT JUDGE
1.
The law of the Netherlands applies exclusively to the agreement entered into between the user and the other party. Any disputes arising from this agreement shall also be settled according to Dutch law.
2.
The user can at all times re-open disputes, forthcoming from the agreement, with the authorized Dutch judge. The user also has authorization to re-open a case with the authorized judge in his place of residence, unless the magistrate is authorized.
3.
In cases where the other party is a private individual not exercising a profession or pursuing a business, the other party must give notice that he elects to submit the dispute to the court of competent jurisdiction within 1 (one) month after the user has notified the other party that the case has been submitted to the court.
4.
With regard to disputes that arise from an agreement concluded with a party based outside the Netherlands, the user is entitled to act in accordance with the provision set out in clause 2 of this article, or it can choose to bring the dispute before the court of competent jurisdiction in the country or state in which the other party is based at its own discretion.
