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GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT  POOLJOY B.V.  

ARTICLE 1: DEFINITIONS

The following terms shall have the following meanings in these general terms and conditions of delivery and payment:

Supplier: Pooljoy B.V., a private limited company whose registered office is located at [Nijverheidsstraat 16, 5531 AA Bladel, The Netherlands], registered in the Chamber of Commerce under number [63076861];

Purchaser: Pooljoy B.V.’s counterparty, acting in the exercise of a profession or business activity;

Contract: Any agreement concerning the sale and supply of goods and/or services formed between the Supplier and the Purchaser. 

ARTICLE 2: SCOPE

2.1.     These general terms and conditions of delivery and payment shall apply to all quotations, tenders, orders, contracts and agreements, however referred to, between the Supplier and the Purchaser. Deviations from these general terms and conditions shall only be valid if expressly agreed in writing. These general terms and conditions shall be stipulated in any agreements with the Purchaser and also in any agreements with any third parties engaged by the Supplier.  

 2.2.     In the event of the invalidity or invalidation of one or more of these general terms and conditions, the remaining provisions of these terms and conditions shall be unaffected and shall remain in full force and effect. The Supplier and the Purchaser shall then consult each other in order to agree new provisions to replace the invalid or invalidated provisions whereby the intent and purpose of the invalid or invalidated provision shall be taken into account as much as possible.

 2.3.     The Purchaser’s general terms and conditions are hereby expressly rejected, unless these have been accepted by the Supplier in writing.

 ARTICLE 3: TENDERS/QUOTATIONS AND THE FORMATION OF THE CONTRACT

3.1.     All the Supplier’s tenders and quotations are non-binding and shall be valid for three months, unless another time limit is indicated in the tender or quotation. The Supplier shall only be bound by the tender or quotation if the Purchaser confirms its acceptance thereof in writing.

3.2.     The Supplier may assume the accuracy of the information, drawings and suchlike provided to it by the Purchaser, and shall base its quotation and design thereon.

3.3.     The contract shall materialize once the Supplier’s offer has been accepted.

3.4.     If the acceptance contains reservations or modifications with respect to the tender or quotation, then – notwithstanding the previous paragraph - the contract shall only materialize if the Supplier has informed the Purchaser that it agrees to these deviations from the tender or quotation.  

3.5.     The prices indicated in the tender or quotation are based on “ex works” prices and are exclusive of shipping, transport and packaging costs and VAT, unless otherwise indicated.

3.6.     A combined price list (quotation) does not oblige the Supplier to supply a portion of the items included in the quotation for a corresponding portion of the indicated price. Tenders or quotations do not automatically apply to repeat orders.

3.7.     If the Purchaser does not accept the Supplier’s tender, the Supplier shall be authorized to charge all the costs it has incurred in preparing its tender to the Purchaser.

ARTICLE 4: PRICE AND PRICE MODIFICATION

4.1.     Unless otherwise agreed, all prices are in euros, exclusive of VAT and/or other taxes, levies and costs such as installation/assembly, placing foundations and transport.

4.2.     The Supplier is authorized to demand an advance payment.

4.3.     The agreed selling price is based on the prices applicable during the acceptance.

4.4.     If and to the extent that the period of time between the date of acceptance and the delivery or completion exceeds a period of three months and the prices and costs indicated in Article 4.2 change, the Supplier is authorized to modify the agreed price commensurately after this period.

4.5.     Article 4.4 expressly does not relate to modifications where the Supplier’s authorization to increase prices arises under the law.

ARTICLE 5: INTELLECTUAL PROPERTY RIGHTS 

5.1.     All industrial and intellectual property rights relating to the goods, tenders, delivered designs, images, drawings, prototypes, models, documents, etc. produced and supplied by the Supplier shall remain its property. The supply of goods cannot be deemed an explicit or implicit license for the use, duplication or disclosure to third parties of the intellectual and industrial property, unless otherwise agreed. 

5.2.     The rights to the data referred to in paragraph 5.1 shall remain the Supplier’s property irrespective of whether the costs of their production have been charged to the Purchaser. This data may not be copied, used or exhibited to third parties without the Supplier’s express consent. The Purchaser shall be liable to pay the Supplier an immediately payable penalty of €5,000 for each violation of this provision. This penalty can be demanded by operation of law in addition to compensation for loss suffered.

 5.3.     The Purchaser shall return the information provided to it as referred to in paragraph 1, upon first request and within the time limit stipulated by the Supplier. The Purchaser shall be liable to the Supplier for a penalty of €500 per day in the event of the violation of this provision. This penalty can be demanded by operation of law in addition to compensation for loss suffered.

ARTICLE 6: RECOMMENDATIONS, DESIGNS AND MATERIALS   

6.1.     The Purchaser cannot derive any rights from the recommendations and information it receives from the Supplier if these are not directly related to the order.

6.2.     The Purchaser is responsible for the drawings and calculations it makes or which are made on its behalf and for the functional suitability of the materials it prescribes or which are prescribed on its behalf. 

6.3.     The Purchaser shall hold the Supplier harmless against any third-party claim relating to the use of drawings, calculations, samples, preliminary designs and suchlike provided by the Purchaser or on its behalf. 

6.4.     The Supplier undertakes with respect to the Purchaser to supply the goods, services and so forth in the description, quality and quantity as described in detail in the (modified) quotation. 

6.5.     The Purchaser may inspect or cause to be inspected at its own expense the materials that the Supplier wishes to use before they are processed. Any loss suffered by the Supplier thereby shall be borne by the Purchaser. 

ARTICLE 7: DELIVERY TIMES

7.1.     Delivery times shall only be approximate only, and shall not constitute deadlines. Partial deliveries may be made. 

7.2.     When establishing the delivery times and/or execution deadline, the Supplier shall assume that it can fulfil the order under the circumstances of which it is aware at that time. 

7.3.     The delivery time and/or execution deadline shall take effect when agreement has been reached concerning all technical details, all necessary information, definitive drawings and so forth are in the Supplier’s possession, the agreed (instalment) payment has been received and the necessary terms and conditions for the order’s fulfilment have been met. 

7.4.     If the delivery time is exceeded, under no circumstances shall this entitle the Purchaser or third parties to compensation, unless this exceeding of the delivery time is due to wilful intent or gross negligence on the part of the Supplier’s managers or supervisory staff. 

7.5.              
a.  If there are circumstances subsisting other than those the Supplier knew about when it established the delivery time and/or execution deadline, it may extend the delivery time and/or execution deadline by the period of time it requires to fulfil the order under these circumstances. If the activities cannot be fitted into the Supplier’s schedule, then they shall be carried out once its schedule so permits. 

b.   In the event of additional work, the delivery time and/or execution deadline shall be extended by the period of time the Supplier requires to supply or arrange for the supply of the materials and components for this work and to carry out the additional work. If the additional work cannot be fitted into the Supplier’s schedule, the activities shall be carried out once its schedule so permits. 

c.   In the event of a suspension of obligations by the Supplier, the delivery time and/or execution deadline shall be extended by the duration of the suspension. If the continuation of the activities cannot be fitted into the Supplier’s schedule, the activities shall be carried out once its schedule so permits. 

d.   In the event of inclement weather, the delivery time and/or execution deadline shall be extended by the delay’s duration. 

7.6.     The Purchaser shall be obliged to reimburse the Supplier for all costs it incurs following a delay in the delivery time and/or execution deadlines as stipulated in paragraph 5 of this Article. 

7.7.     If the delivery time and/or execution deadlines are exceeded, this shall not constitute grounds for compensation or cancellation under any circumstances. 

ARTICLE 8: TRANSFER OF RISK      

8.1.     Unless otherwise agreed, all deliveries shall be “ex works”. The risk in the goods shall pass when the Supplier makes them available to the Purchaser. 

8.2.     The goods shall be transported wholly at the Purchaser’s expense and risk. 

8.3.     Notwithstanding the provisions of the previous paragraph, the Purchaser and the Supplier can agree that the Supplier shall provide the transport. In that event, the Purchaser shall also bear the risk of storage, loading, transport and unloading. The Purchaser may insure itself against these risks.  

ARTICLE 9 - PAYMENT        

9.1.     Payment shall be made at the Supplier’s business office or into a bank account it indicates. 

9.2.     Unless otherwise agreed, payment shall be made as follows: 

a.       Cash;
b.      In instalments:
·         50% of the total price when the order is placed;
·         40% of the total price after the delivery of the materials or after the commencement of the  activities, if the delivery of materials is not included in the contract;
·         10% of the total price on delivery.
c.       Within thirty days of invoice date in all other cases.

9.3.     Notwithstanding the agreed payment conditions, the Purchaser shall be obliged to furnish sufficient security for payment in the Supplier’s opinion and at its request. If the Purchaser does not satisfy this condition within the stipulated timeframe, it shall be deemed to be immediately in default. In that event, the Supplier shall be authorized to rescind the contract and to claim compensation from the Purchaser.

9.4.     The Purchaser’s right to set off its claims against the Supplier or to suspend them is excluded, unless the Supplier is bankrupt or undergoing the statutory debt restructuring procedure.

9.5.     Regardless of whether the Supplier has fully provided the agreed performance, everything the Purchaser must pay the Supplier under the contract is or shall be immediately due and payable if:

a.       a payment deadline is exceeded;

b.      a petition for the Purchaser’s bankruptcy or suspension of payments is filed;

c.       the Purchaser’s assets or claims are attached;

d.      a Purchaser which is a company is wound up or liquidated;

e.      a Purchaser who is a natural person applies for admission to the statutory debt restructuring procedure, is placed under guardianship or dies.

9.6.     When payment has not been made within the agreed payment deadline, the Purchaser shall be immediately liable to pay the Supplier interest. This interest shall be 8% annually, but it shall be equivalent to the statutory interest if this is higher. When calculating interest, a part of a month shall be deemed to be a full month.

9.7.     If payment has not been made within the agreed payment deadline, the Purchaser shall be liable to the Supplier for all extrajudicial costs with a minimum of €75.

9.8.     If the Supplier wins its case in a legal procedure, all the costs it has incurred in connection with this procedure shall be borne by the Purchaser.  

ARTICLE 10: INABILITY TO FULFIL AN ORDER

10.1.  The Supplier is authorized to suspend the fulfilment of its obligations if it is temporarily prevented from so doing by circumstances which could not be foreseen during the contract’s conclusion and which are outside its control.

10.2.  The delivery period referred to in Article 7 shall be extended by the period of time during which the Supplier is prevented from fulfilling its obligations.

10.3.  Circumstances which could not be foreseen by the Supplier and which are outside its control include the non-fulfilment or late fulfilment of obligations by third parties and/or the Supplier’s subcontractors, the weather, earthquakes, fire, loss or theft of equipment, loss of materials awaiting processing, defects in machinery, interruptions in energy supply, roadblocks, strikes or work stoppages, import or export restrictions, government measures, both in the Supplier’s operations and in those of third parties from whom the Supplier has to wholly or partly obtain the required materials or raw materials, and also due to all other reasons not imputable to the Supplier or outside its control.  

10.4.  The Supplier is not authorized to suspend the fulfilment of its obligations if performance is permanently impossible or if a temporary impossibility has lasted more than six months. The contract can then be rescinded with respect to the portion of the obligations that have not yet been fulfilled.

10.5.  If the Supplier has already partly fulfilled its obligations when the force majeure event occurs, or can only partially fulfil its obligations, it shall be authorized to send a separate invoice for the already supplied or to be supplied portion, and the Purchaser shall be obliged to settle this invoice as if it related to a separate contract. 

10.6.  In this event, the Parties shall not be entitled to compensation for the loss suffered as a consequence of the rescission.

ARTICLE 11: ENGAGEMENT OF THIRD PARTIES

Unless otherwise expressly agreed, the Supplier is authorised to engage third parties in the contract’s execution – including maintenance and repair - or to have the contract wholly or partly executed by third parties.

ARTICLE 12: SCOPE OF THE TASK

12.1.  The Purchaser must ensure that all permits, exemptions and other permissions necessary to carry out the task are obtained in time.

12.2.  Unless otherwise agreed, the price of the work does not include the following:

-          The costs of groundwork, piling, cutting and breaking, laying foundations, brickwork, woodwork, plastering, painting, wallpapering, restoration or other architectural work;

-          The costs of connections for gas, water, electricity or other infrastructural facilities;

-          The costs of preventing or limiting damage to items present at the work location;

-          The costs of the transport of materials, building materials and waste;

-          Travel and accommodation costs.


ARTICLE 13: MODIFICATIONS TO THE TASK

13.1.  The term “additional work” shall be used to mean everything which is supplied and/or set up by the Supplier in consultation with the Purchaser, whether in writing or not, during the contract’s execution which exceeds the amounts explicitly stipulated in the contract or order confirmation, or every activity it carries out beyond the activities expressly stipulated in the contract or the order confirmation.

13.2.  Additional work shall be calculated on the basis of the value of the price-determining factors applicable at the time the additional work is performed.

ARTICLE 14: EXECUTION OF THE TASK

14.1.  The Purchaser shall ensure that the Supplier can perform its activities undisturbed and at the agreed time and that it shall have all the necessary facilities during the performance of its activities.

14.2.  When the Purchaser does not fulfil its obligations as described in the previous paragraph and this results in a delay in the performance of the activities, the activities shall be performed once the Supplier’s scheduling so permits. In addition, the Purchaser shall be liable for all losses incurred by the Supplier thereby such as additional man-hours, travel and accommodation costs, etc.

ARTICLE 15: DELIVERY OF THE WORK

15.1.  The work shall be deemed delivered when the Supplier has either informed the Purchaser that the work has been completed, tested and is ready to be put into operation and the latter has approved or accepted the work, or when eight days have elapsed from the time when the Supplier sent the Purchaser the above-mentioned notification and the latter has failed to put it into operation, it being understood that by putting part of the work into operation, that part shall be deemed delivered.  Minor defects which can be immediately fixed and which do not affect the work’s functioning shall not prevent the delivery.

15.2.  Delivery exempts the Supplier from all liability for defects that the Purchaser should have reasonably discovered at that time unless the Supplier has provided a separate written guarantee of the absence of defects.

ARTICLE 16: LIABILITY

16.1.  The Supplier shall be liable for any loss suffered by the Purchaser which is the direct and exclusive consequence of a shortcoming imputable to the Supplier. However, only the losses against which the Supplier is insured or against which it should reasonably have been insured shall be eligible for compensation.

16.2.  The following are not eligible for compensation:

-          Operating losses including, for example, losses due to interruptions and lost profits;

-          Damage to property in the insured person’s care, custody or control, but which they do not own. This term means, inter alia, damage caused by or during the execution of the accepted tasks to items which are being worked on or items which are found in the vicinity of the place where the work is being performed;

-          Damage caused by intention or deliberate recklessness on the part of support staff.  

16.3.  The Purchaser shall hold the Supplier harmless against all third-party claims on the grounds of product liability as a consequence of a defect in a product supplied by the Purchaser to a third party which (partly) comprises products and/or materials supplied by the Supplier.

16.4.  If the client assembles the play equipment itself, then under no circumstances whatsoever shall PoolJoy B.V. be liable for any damage or accidents caused by the unprofessional installation of the play equipment.

ARTICLE 17: WARRANTY

17.1.  Unless otherwise agreed in writing, the Supplier guarantees the supplied goods, design and/or of the agreed performance for a period of 24 months following delivery/completion.

17.2.  If the agreed performance or the supplied goods are defective, the Supplier shall choose among consequent proper execution, rectification or replacement or crediting the Purchaser for a proportional portion of the invoice. If the Supplier opts for the consequent proper execution of the performance, it shall decide the manner and the time of the execution itself. If the agreed performance (partly) consists of the processing of materials supplied by the Purchaser, then the Purchaser shall supply new materials at its own expense and risk.

17.3.  If the delivered design, the materials used or the goods supplied turn out to be defective, the Supplier shall rectify or replace them. Components, materials or other goods rectified or replaced by the Supplier shall be sent to it by the Purchaser. The Purchaser shall pay all transport and shipping costs, disassembly and assembly costs, and any travel and accommodation costs that may be incurred.

17.4.  In all cases, the Purchaser must give the Supplier the opportunity to rectify any defect or to perform the operation again.

17.5.  The Purchaser may only invoke the guarantee after it has fulfilled all its obligations with respect to the Supplier.

17.6.  No guarantee is given for defects which are the consequence of:

§  Normal wear and tear of any other gradual action,

§  Wear and tear of rotating or moving parts;  

§  Civil commotion;

§  Vermin;

§  Misuse;

§  Unperformed of incorrectly performed maintenance;

§  Frost damage;

§  Installation, assembly, modification or repair by the Purchaser or third parties;

§  Water quality with an excessive (> 7.2) or too low (<6.8) pH value which affects the polyester components;  

§  Water temperature higher than 32°C which affects the polyester components; 

§  Differing water quality

Minor discolouration through the actions of UV and/or chlorine cannot be prevented and therefore does not come under the guarantee.

17.7. No guarantee is given for supplied goods which were not new at the time of delivery.

ARTICLE 18: CLAIMS OR COMPLAINTS

18.1.  The Purchaser is obliged to verify the quality of supplied goods and/or services and to inspect them for any defects immediately after delivery, and this should be done as soon as possible, but should notify the Supplier in writing specifying the grounds for the complaint within a period of 8 days at the latest after the goods have been supplied or the services have been provided. Hidden defects should be notified to the Supplier in writing within 8 days of the day when the defects are discovered, at any rate within 8 days after the time when the defect should reasonably have been discovered.

18.2.  It is incumbent upon the Purchaser to provide evidence of the timely submission and accuracy of the complaint, through photographs, for example. The Purchaser is obliged to fully cooperate with the Supplier in the investigation of the defects.

18.3.  Minor deviations and differences in quality, colour, quantity, etc. and/or those customary in the industry can never constitute a ground for complaints.  

18.4.  Under no circumstances whatsoever may the Purchaser consider the Supplier’s acceptance of a return shipment as an acknowledgement on the Supplier’s part of defects in the supplied goods or as an acknowledgment of liability.

18.5.  Complaints concerning invoices should be submitted in writing within eight days of the invoice’s receipt.

18.6.  If the Purchaser has not made a complaint and/or given the Supplier the opportunity to rectify the defects within the above-mentioned time limits, the right of complaint shall lapse.

ARTICLE 19: UNCOLLECTED GOODS

19.1.  The Purchaser is obliged to collect the item or items which constitute the object of the contract at the agreed location.

19.2.  The Purchaser shall cooperate as fully as could be reasonably required from it in order to enable the Supplier to effect delivery.

19.3.  Uncollected items shall be stored at the Purchase’ expense and risk. If the agreed delivery time is exceeded by more than 30 days, the Supplier shall charge the Purchaser interest and compensation for storage.  

ARTICLE 20: RETENTION OF TITLE AND LIEN

20.1.  The Supplier shall remain the owner of the supplied or yet-to-be supplied goods as long as the Purchaser fails or shall fails to fulfil its obligations under this contract or other similar contracts or has not satisfied claims arising out of the non-compliance with the above-mentioned contracts, such as claims for compensation, penalties, interest and costs.

20.2.  As long as supplied goods are subject to retention of title, the Purchaser may not encumber them outside the normal course of its business.

20.3.  After the Supplier has invoked its retention of title, it may recover the supplied goods. The Purchaser shall permit the Supplier to enter the location where these items are kept.

20.4.  If the Supplier cannot invoke its retention of title because the supplied goods have been mingled, transformed or inspected, the Purchaser shall be obliged to pledge the newly constituted items to the Supplier.

ARTICLE 21: CANCELLATION

21.1.  If the Purchaser wishes to cancel the contract in the absence of any shortcoming on the Supplier’s part, the contract shall be cancelled. In that event, the Supplier shall be entitled to the following compensation:

For standard products:

·         In the event of cancellation within 2 weeks of the order: 25% of the agreed order price;

·         In the event of cancellation more than 2 weeks after the order: 100% of the agreed order price (excl. transport costs);

Specials and customised products:

·         These cannot be cancelled, and if the Purchaser does so nevertheless, 100% of the project amount shall be charged.

21.2.  If the Purchaser wishes to rescind the contract without the Supplier’s agreement thereto, the Supplier shall be entitled to compensation of 30% of the agreed order price.

ARTICLE 22: APPLICABLE LAW AND CHOICE OF FORUM

These terms and conditions are governed by Dutch law.

The applicability of the Vienna Convention [United Nations Convention on Contracts for the International Sale of Goods (C.I.S.G.)] is excluded, just like that of any other international agreement whose exclusion is permitted. 

Only the civil courts with jurisdiction over the place where the Supplier’s registered office is located shall be competent to hear disputes, unless this is contrary to overriding mandatory rules. The Supplier may derogate from these rules of jurisdiction and use the statutory rules of jurisdiction.

The parties may agree on another form of dispute resolution such as arbitration or mediation. 

NB: It is possible that the purchaser and the supplier may both wish to declare their own general terms and conditions applicable to the contract. For example, if the supplier uses terms and conditions of delivery or terms and conditions of sale and the purchaser uses terms and conditions of purchase. The question arises as to which terms and conditions are applicable to the contract. This is called the "battle of the forms".

The law assumes that the party which refers to its general terms and conditions in the contract or quotation sent first wins. These general terms and conditions shall then be applicable to the contract unless the other party has expressly rejected their applicability.

Is this the case? Then a stalemate has occurred. Negotiate with the counterparty and see how this can be resolved.

These general terms and conditions of sale are not intended for the relationship between the supplier and a consumer. These terms and conditions are focused on the relationship between the supplier and the purchaser who are both acting in the course of business.

The terms and conditions can indeed be used in the relationship with a consumer, but then the user should be aware that the courts have previously disregarded this provision because it has been deemed unreasonably burdensome under Sections 6:236-237 of the Dutch Civil Code or unfair within the meaning of Council Directive 93/13/EC on unfair terms in consumer contracts (the so-called “black” and “grey” lists).