DYNAF GENERAL TERMS AND CONDITIONS OF SALE, SUPPLY, SERVICE AND PAYMENT
1 General
1.1 These general terms and conditions (“General Terms”) apply to all offers and agreements of purchase/sale of goods/service of machinery (“Agreement”) by Dynaf (as defined herein), unless provided otherwise in the offer or agreement. In case of a discrepancy between a stipulation in an Agreement and a stipulation of these General Terms, the relevant stipulation of the Agreement will prevail.
1.2 The rights and obligations arising between Dynaf and the Client under the Agreements may not be transferred, assigned or delegated by the Client to third parties without the prior written consent
of Dynaf, including by merger, consolidation, or otherwise. Any purported assignment or delegation without such consent shall be void. Dynaf may assign its rights under the Agreements to any entity that assumes obligations of Dynaf hereunder in connection with any sale or transfer of all or a substantial portion of assets of Dynaf to such entity, including by merger, consolidation, operation of law, or otherwise.
1.3 The definitions stated below in capital letters have the following meaning in the context of these general terms and conditions:
(a) Dynaf:
(i) If goods or services are delivered in or from Aruba, and/or the agreement is with the following entity, and/or the invoice has been provided by the following entity: Dynaf Aruba N.V., established in Aruba, 33179.0, trade name is DynafCaribbean;
(ii) If goods or services are delivered in or from Sint Maarten, and/or the Agreement is with the following entity, and/or the invoice has been provided by the following entity: Tailored Energy Solutions N.V., established in Sint Maarten, 13218, trade name is Dynaf;
(iii) If goods or services are delivered in or from Curacao or Bonaire, and/or the agreement is with the following entity, and/or the invoice has been provided by the following entity: Dynaf Caribbean B.V., a private limited liability company, established in Curacao, Trade Register number 75506, trade name is Dynaf Caribbean;
(v) If the agreement is with the following entity: [Power Lease Caribbean B.V., established in Curacao, Trade Register number 100256, trade name is Power Lease Caribbean B.V.;
It being expressly understood that: (a) at all times only one (1) of the abovementioned entities shall be the contracting party for one and the same service or good or one and the same order or Agreement, and (b) in the event of conflicting provisions on this subject, the entity that is in the same jurisdiction as where the service would be provided or the good would be delivered shall be
regarded as the contracting party.
(b) Order confirmation date: the date on, or by lack thereof the sending date of, a written order confirmation sent by Dynaf to a client.
1.4 These general terms of sale, supply, and payment, hereinafter the “General Terms”, apply to all proposals, offers issued by Dynaf, as well as to all oral and written agreements between Dynaf and parties or persons who receive its services and goods or products, hereinafter “clients”.
1.5 Dynaf rejects the applicability of terms and/or general terms which deviate from the contents of these General Terms unless such applicability has been explicitly accepted by Dynaf in writing.
1.6 If a client refers to its own terms and/or general terms when purchasing a product or service or otherwise, Dynaf will not be held to such terms; without prejudice to the client being bound to the General Terms.
1.7 In deviation of the preceding paragraph, if the client makes conditions or changes in its acceptance of the proposal, the agreement will then only take effect if Dynaf informed the client in writing that Dynaf agrees with such conditions or changes.
1.8 Dynaf may unilaterally change these general terms and conditions. In that case Dynaf will inform the client of the changes. There will be at least two weeks between this notification and the entry into force of the amended conditions. If client is a natural person, who is not acting in the exercise of a profession or business (a “consumer”), and the change results in the customer being provided with a performance that substantially deviates from the original performance, this consumer has the right to cancel the agreement as of the date on which the amended conditions come into effect.
1.8 If a client is a natural person, who is not acting in the exercise of a profession or business (a “consumer”), then in case of a discrepancy between a stipulation in an Agreement or a stipulation of these General Terms on the one side and a stipulation of mandatory law protecting consumers on the other hand, the relevant stipulation of mandatory law will prevail, without prejudice to Article 1.9.
1.9 if any stipulation in these General Terms would result invalid in any given case, the other stipulations shall nevertheless remain in full force and effect. In such case the invalid stipulation should be considered to have been converted in a valid stipulation to similar effect.
2 General
2.1 The authorization of (trade)agents, staff and employees and other personnel, no matter how named, of Dynaf, hereinafter “personnel”, is under all circumstances and therefore limited to solely the intermediating in entering into agreements, without having any authorization to legally bind Dynaf. Dynaf acknowledges and accepts no obligation whatsoever that has not been assumed by a managing director or a person holding a written power of attorney thereto.
2.2 Notifications destined for Dynaf shall solely be deemed to have been received by it, if received in writing at the correspondence- or business address of Dynaf.
3 Proposals
3.1 Proposals and offers of Dynaf are non-binding.
3.2 Unless stipulated otherwise in the proposal, it will be valid for 30 days and will lapse automatically if not accepted unconditionally within such time.
3.3 Information on size, weight or capacity provided by Dynaf in images, catalogues, drawings or otherwise shall be considered as estimates and are therefore non-binding to Dynaf.
3.4 Dynaf is never obliged to provide detail drawings.
3.5 Dynaf has the right to reject orders and/or assignments without providing a reason.
4 Formation of agreements
4.1 An agreement between Dynaf and a client comes into effect by:
(a) a written order confirmation having been sent in writing by Dynaf, as of the date [on, or by lack thereof or in the case of manifest error, as of the sending date] of, the order confirmation (the “Order Confirmation Date”); or
(b) if there is no written order confirmation, by the performance of the services or the delivery of the product(s)[; the date of the start of the services or the first date of delivery of the product(s) will then be considered an Order Confirmation Date for the purposes of these General Terms].
4.2 Arrangements or changes regarding agreements that have previously been entered into are only valid if Dynaf has confirmed these in writing. Article 1 hereof remains applicable.
5 Prices
5.1 Unless otherwise indicated in the order confirmation, the prices as listed in the latest price publications of Dynaf apply. Dynaf reserves the right to, in the event of exchange rate fluctuations, or an increase in or newly introduced taxes/levies/charges/premiums etc. in relation to the delivery, include these in its prices at any time, even after an order confirmation.
5.2 Price increases can only be applied as of three months after the order confirmation date (as defined in Article 4.1 hereof), unless it regards:
(a) Price increases as result of exchange rate fluctuations as referred to in Article 5.1;
(b) Price increases as allowed or obliged as result of a legal regulation; and/or
(c) Price increases in cost price determining factors such as fuel or materials (including but not limited to raw materials and auxiliary materials) et cetera.
5.3 Unless indicated otherwise, all prices are excluding:
(a) packaging costs;
(b) sales tax (in Curacao, OB (“omzetbelasting”)) turnover tax (in Sint Maarten, BBO (“belasting over bedrijfsomzetten”)), turnover tax (in Aruba, BBO (“belasting over bedrijfsomzetten”), BAZV (“bestemmingsheffing AZV”), and BAVP (“belasting addidionele voorzieningen PPS-projecten”)), general expenditure tax (in the Caribbean Netherlands, ABB (“algemene bestedingsbelasting”)); and any amended or replaced taxes, and any levies and taxes related to the sale and/or delivery of goods and the performance of services;
(c) the costs for any changes and/or additions resulting from any desired measurements as well as from calculations and/or measurements of critical rev, torque, resonance, and/or other vibrations; and
(d) costs related to measures to be taken regarding noise pollution, public nuisance legislation, environmental legislation, construction permits and any other additional permits or inspections of whatever name or nature.
6 Force Majeure
6.1 The delivery period referred to in Article 7 will be extended with such period as during which Dynaf is prevented from performing its obligations as result of force majeure.
6.2 Force majeure is present with Dynaf, if after the entering into the agreement, Dynaf is prevented from performing its obligations out of the agreement or the preparations thereof as result of any or more of the following, whether occurring at Dynaf or third parties, and whether occurring during storage or transport or otherwise:
(a) war (whether declared or not), the danger of war, hostilities, invasion, act of foreign enemies, extensive military mobilization, state of siege;
(b) civil war, civil unrest, riot, rebellion and revolution, military or usurped power, molest, insurrection, terrorism, sabotage, piracy, industrial action;
(c) currency and trade restriction, embargo, sanction, financial crisis;
(d) act of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalization;
(e) plague, epidemic, health crisis, natural disaster, or extreme natural event including but not limited to hurricane and earthquake;
(f) accident, explosion, fire, flood, water damage, destruction of equipment, prolonged (or if not prolonged, relevant to the performance of the agreement) break-down/impediment of import, export, transport, telecommunication, information system or energy;
(g) lack of personnel, labor disturbances affecting only Dynaf, and general labor disturbances including boycott, strike, lock-out, go-slow, and occupation of factories and premises; and
(h) any other causes or circumstances arisen through no fault of, or beyond the control of, Dynaf. In the presence of one or more of the aforementioned events, the conditions of force majeure shall be considered to have been fulfilled; and Dynaf will in such event not be required to prove that the event was out of its control and/or unforeseeable.
6.3 If the performance of the agreement by Dynaf is prevented by force majeure, whether completely or partially, and whether temporarily or permanently, Dynaf shall have the right to by means of a written notice to the client, at the sole discretion of Dynaf:
(a) dissolve the agreement partially or entirely, without being bound to any damages compensation; and/or
(b) temporarily suspend such part of the obligations that are impeded to be performed.
6.4 Dynaf remains authorized to in case of a suspension of performance still completely or partially dissolve the agreement for reason of such force majeure.
6.5 If the duration of the force majeure continues for more than six months, each of the parties shall have the right to dissolve the agreement by means of a written notice, without having any right to compensation of damages.
6.6 The client commits itself to, in the event of dissolution of the agreement by any party, and if Dynaf so requests, to at a reasonably attributed value purchase materials, raw materials and parts that Dynaf had already stocked for the performance of the agreement, or to compensate the reasonably attributed value depreciation or value loss of these items.
6.7 If Dynaf successfully invokes this Article 6 it shall be relieved from its further duties to perform its obligations under the Agreement and from any liability in damages or from any other contractual remedy for breach of contract, from the time at which the impediment causes inability to perform. 6.8 The other party may suspend the performance of its obligations other than those of this Article 6, from the date of the notice of force majeure by Dynaf.
Article 7 Delivery
7.1 Unless explicitly agreed otherwise, goods shall be delivered “ex warehouse Dynaf” or “ex location indicated by Dynaf”.
7.2 If Dynaf arranges for the transport, it shall also arrange for a packaging that is, to standards of reasonableness and fairness, suitable.
7.3 Appropriateness and suitability of the packaging, and the risk of transport, shall remain for the risk and account of the client.
7.4 Periods indicated by Dynaf, such as delivery periods, will not count as deadlines. Dynaf is not liable for any damages resulting from any delay. If delivery periods are exceeded, such shall not constitute grounds for dissolution of an agreement nor for damages claims. If delivery is delayed and/or delivery periods are exceeded through no fault of Dynaf or for reasons that are outside of the influence of Dynaf or that are not for the risk and account of Dynaf, the costs thereof will be charged to the Client.
7.5 If delivery of the goods is delayed by non-acceptance of the client or for any reason that should
come for the risk or account of the client, Dynaf may charge the client the actual storage costs with a minimum of 5% per month of the invoice value of the goods.
8 Assembly
8.1 Unless parties have agreed otherwise in writing, assembly [and/or installation] is for the cost of client.
8.2 If assembly or installation shall be done by Dynaf, this shall be done under the following conditions:
(a) Client shall provide all assistance that can reasonably be required from it; in particular, client shall provide the technician(s) of Dynaf free of cost and in a sufficient manner, at the discretion of Dynaf: assistant laborers, scaffolds, [assembly stands/cranes/blocks/derricks], lift- and transport equipment, ladders and other needed material;
(b) Client shall – except if it regards a product that by its nature is intended to be set up outside – procure that assembly and/or installation can take place inside an area that is sufficiently resistant to weather influences and that has sufficient light. The area should also be lockable. Client shall furthermore procure that all requirements relating to safety, fire prevention and such are available and are complied with;
(c) Unless parties agree otherwise, all labor, equipment and material costs are for the cost of client, including, without limitation:
(i) the transport of goods from the place of delivery to on the foundation at the place of installation; (ii) all foundation-, break-, dig-, carpentry-, masonry-, chop-, paint- and other construction type work;
(iii) floorplates for pipe/tube canals and protections;
(iv) wedges, filler, braces and brackets, supports (load-bearing); and all crude forgings, gears and belts;
(v) fuel, lubricants and polishes; and
(vi) services from workmen, third parties, and equipment and material needed thereby, if these have not already been included in the proposal or in the order confirmation;
(d) All extra costs are also for the account of client, including, without limitation:
(i) travel and accommodation costs for the technician(s), whereby client will procure good and suitable lodging;
(ii) costs arising if the assembly and/or installation cannot take place in regular business hours.
(e) If for circumstances independent from the will of Dynaf, the technician(s) of Dynaf cannot begin with and/or cannot regularly continue the assembly and/or installation, the concerning and resulting costs shall be for the account of client.
8.3 Client will sign the timesheets or work orders (as the case may be) filled out by the technician. The timesheets or work orders may also be in electronical form. If the assembly was for the account of the client, the technician will have to provide client with a copy of the timesheets or work order (as the case may be). Without prior approval of Dynaf, client may not require a technician to work longer than is allowed by law or by collective labor agreement. The assembly will be deemed to have been finalized, whether or not the client has signed a timesheet or work order, when: the technician is ready with the work and the delivered products, and the technician has left, and if the technician had traveled to the island of the work location: when the technician has either arrived at his next work site or returned to the island on which he is stationed (whichever occurs first). Timesheets or work orders (as the case may be) may include travel time. If after the assembly the client still wishes to retain the technician or later on wishes to engage the services of a technician for what has been delivered, Dynaf will charge the labor cost, call-out fee (in Dutch: voorrijkosten), travel- and accommodation, and material- and equipment costs to the client.
8.4 If Dynaf is not responsible for the installation and Dynaf informs the client that it wishes to check on the installation of the delivered product prior to the startup, the client will grant Dynaf such
opportunity.
8.5 If after receipt or installation, the delivered product does not work properly, and it results that this is not caused by the product, the costs of eventual changes and such are for the account of client.
8.6 Client is fully responsible for tools and properties of Dynaf, during assembly as well as the during reparation services, so that in case of misappropriation or being lost, the replacement cost have to be reimbursed by the client to Dynaf.
8.7 The stipulations of this Article 8 also apply to disassembly, to malfunctions (except if deviated upon in Article 9) and to non-contractual services.
9 Malfunctions
9.1 For services at the client in connection with malfunctions, a minimum of one hour will be charged at the rate shown in the most recent price publications of Dynaf.
9.2 Any travel-, accommodation-, material- and equipment costs will be charged to client.
10 Inspection
10.1 If it has been agreed that the client will inspect or have inspected the purchased goods in the factory or in the warehouse of Dynaf and that right has not been exercised within 8 days after the client has been informed of the opportunity, the goods will be deemed to be definitively accepted by the client, subject to the provisions of Article 14 regarding hidden defects (defect of material and/or construction).
10.2 The costs of the inspection are for the account of the client.
11 Testing
11.1 If the client wishes to conduct a client acceptance test after the assembly has been completed, this will take place no later than 2 weeks after completion of the assembly. Normal factory
tolerances apply to this test.
11.2 All costs associated with the test are for the account of the client.
11.3 Before undertaking a sinful test, Dynaf has the right to carry out a preliminary test to check the delivered goods and to make any required changes.
12 Transfer of ownership and risk
12.1 Subject to the provisions in paragraphs 2 and 4 of this article:
a. the risk for the goods will pass to the client upon delivery or partial delivery having taken place; and
b. the ownership of a
ll goods delivered by Dynaf remain the property of Dynaf until the moment that the client has fully complied with all his payment obligations towards Dynaf under any agreement concluded with Dynaf for the supply of goods or the performance of work or services, including for claims for failure to perform such an agreement.
12.2 As long as the client has not paid the full amount of the purchase price with any additional costs or has provided security for this, Dynaf reserves the ownership of the goods. In that case ownership will transfer to the client as soon as the client has fulfilled all his obligations towards Dynaf.
12.3 If Dynaf has reasonable doubts about the payment capacity of the client, Dynaf is entitled to postpone the delivery or delivery of goods under Article 7 until the client has provided security for the payment. The client is liable for the damage suffered by Dynaf as a result of this delayed delivery or delivery.
12.4 If Dynaf postpones delivery at the request of or for reasons that should come for the risk or account of the client, the goods will remain its property, but at the risk of the client. Delivery, also partial delivery, is deemed to have taken place when, regardless of the approval of the client:
a. goods are deemed to have been delivered ex Article 7.1; or
b. assembly is deemed to have been finalized ex Article 8.3.
12.5 Paragraph 1 of this article also applies to products that have in any way been reworked and/or processed by the client, as well as to over- and/or repackaged products.
12.6 As long as the client has not complied with all obligations under any agreement with Dynaf, the client is prohibited from providing any security rights, including a nonpossessory right of pledge, to third parties on the products.
12.7 In the event of non-fulfillment by the client, as referred to in paragraph 2 of this article, Dynaf is irrevocably authorized, without notice of default being required, to remove the products that have remained the property of Dynaf, from the place where they are located.
13 Payment
13.1 Unless agreed otherwise in writing, payment must be made in cash upon delivery of the products, respectively immediately after the services have been performed or within 14 days after the invoice date by payment into a bank account to be designated by Dynaf, free of charge and in the currency of the invoice, unless otherwise agreed in writing. “Free of charge” also means that bank costs, transfer costs and foreign exchange costs should be taken into account by the client so that Dynaf receives the invoice amount in full.
13.2 The client is never entitled to set-off, settlement and/or suspension for whatever reason. 13.3 The Dynaf office is the place of payment.
13.4 If an invoice is not paid within the payment term, an interest of 1.5% per month or the statutory interest, whichever is higher, will be due on the amount outstanding and Dynaf will also be entitled to suspend or terminate its services.
13.5 Payments will first be deducted from any interest owed and administration and collection costs as regulated in Article 16.
14 No Warranty / Liability
14.1 Unless otherwise offered or agreed in writing, Dynaf does not provide a warranty on delivered goods, repairs or after-delivered parts.
14.2 With the exception of damage caused by intent or as a result of gross negligence on the part of Dynaf or its staff and with due observance of Article 14, paragraph 1, Dynaf is never liable for any direct or indirect damage, including business and stagnation damage, regardless of how it occurred or is called. Nor is Dynaf liable for direct or indirect damage as a result of exceeding (delivery) terms. 14.3 Liability of Dynaf and of staff of Dynaf is, for both direct and indirect damage, including consequential damage, if attributable to it, in all cases limited to the amount of the invoice sent in this respect.
14.4 Liability of Dynaf and of staff of Dynaf can never exceed what a supplier has warranted (in Dutch: fabrieksgarantie) (if any) and has actually compensated (if any).
14.4 Article 1.7 (non-assignability) applies to any warranties from Dynaf and/or its suppliers to Client.
15 Complaints
15.1 The client must notify Dynaf in writing of any claims for compensation for goods and/or services provided by Dynaf as soon as possible, but no later than 1 week after delivery of the goods or the provision of services.
15.2 Dynaf is not liable if this term is exceeded.
15.3 If requested, the Client must immediately provide Dynaf with all information it desires, which may reasonably be important for the determination of liability and the (extent of the) damage, and allow Dynaf to inspect the goods supplied by experts appointed by Dynaf, and remain at the disposal of Dynaf, under penalty of forfeiture of any claim for compensation.
15.4 Complaints do not suspend the payment obligations of the client.
15.5 Destruction or return of goods delivered by Dynaf, for whatever reason, may only take place after prior written permission by Dynaf. The goods remain at the expense and risk of the client.
16 Failure by the client
16.1 The Client is in default without the need for notice of default if, in accordance with the provisions of Article 13, he does not pay on time.
16.2 The client is also in default, without any summons or notice of default being required, if: – attachment is levied on buyers of real estate or movable property or on the goods of Dynaf (of which Dynaf owns ex Article 12); – the client is granted a (provisional) moratorium; – the client is declared bankrupt or otherwise loses control of his assets; – the client dies or leaves Curacao in person; – the client ceases his business activities or changes his business form, as well as in the event of his death, or; – the client is a company in the event of its dissolution. In that case, all claims of Dynaf on the client are immediately due and payable, and the provisions of the other paragraphs of this article apply
16.3 In the event of default, in addition to compensation for other damage, the client will also owe all costs of judicial and extrajudicial collection as well as other possible financial loss as referred to in Article 96 of Book 6 of the Civil Code. These costs are at least 15% of the outstanding balance.
16.4 In the event of default by the client, Dynaf is authorized to suspend the fulfillment of its obligations under the agreement until the client has fully complied with its obligations or has provided adequate security for this.
16.5 In the event of default by the client, Dynaf is also entitled to dissolve the agreement by means of a written statement to the client, even if Dynaf had initially suspended the fulfillment of its obligations. This does not affect the right of Dynaf to full compensation for all damage.
16.6 The provisions of Article 15 are without prejudice to the provisions of Article 12.
Article 17 Security
If Dynaf receives unfavorable financial or business reports about the client, Dynaf is entitled, even if the situation arises after the written order confirmation and/or advance payment, to demand cash payment or security of payment. If the client has not complied with these requirements within the terms set by Dynaf, Dynaf is entitled to dissolve the agreement without judicial intervention by means of a written statement to the client, without being obliged to pay compensation.
Article 18 Advice
Dynaf provides its advice to the best of its knowledge and ability. Any liability with regard to the content, correctness and completeness thereof is excluded.
Article 19 Copyright
19.1 All designs, drawings, sketches, quotation calculations, descriptions, images, models, data carriers provided by Dynaf etc. remain (intellectual) property of Dynaf and may not be copied, disclosed to third parties, used for public events, otherwise used or put into circulation without written permission.
19.2 If the order to execute a quotation is not issued to Dynaf, the quotation and related documents as described in the previous article must be returned to Dynaf carriage paid.
19.3 Dynaf also reserves the right, in the event that it does not receive an order, to charge all costs incurred in connection with the submission of an offer.
19.4 In the event of sale and/or assembly in which the client provides the drawings, models or other instructions in the broadest sense of the word, the client guarantees that through this sale and/or assembly of the relevant good, no trademark, patent or similar right of third parties is affected; the client will fully indemnify Dynaf in this respect against claims from third parties.
Article 20 Miscellaneous
These General Terms and Conditions have been filed at the Registries of the Court of First Instance of Aruba, Curaçao, Sint Maarten and of the Court of First Instance of Bonaire, Sint Eustatius and Saba, Bonaire venue, and, insofar as they have not already been made available, will be sent to the client free of charge on first request. These General Terms and Conditions are also made available on the Dynaf website (www.dynaf.com).
Article 21 Applicable law
The laws of Curaçao apply to these general terms and conditions, the interpretation and interpretation thereof and to all disputes that may arise here from. All disputes between Dynaf and the Client will be exclusively brought before the Court of First Instance of Curaçao, except insofar as mandatory competence rules would direct the matter to the Court of First Instance of Aruba or Sint Maarten or of Bonaire, Sint Eustatius and Saba.
