General Terms and Conditions

1. Definitions

1.1. In these general terms and conditions, the following terms shall have the following meanings:

TOPwindows: the private limited company Dutch Global Sourcing B.V. trading under the name TOPwindowsshop.

Consumer: every natural person acting for purposes outside the scope of their business or professional activities. Unless stated otherwise, all provisions of these general terms and conditions also apply to consumers. Articles 6, 10.2, 10.3, 10.4, 12.3, 12.4 and 17.5 do not apply if the Client acts as a consumer.

Client: the other party of TOPwindows.

Agreement: the agreement between TOPwindows and the Client.

Product(s): maritime windows and associated products, or products described in the Agreement with the Client.

Work: measuring, disassembling, production and/or installation of Products.

 

Identity

Statutory name: Dutch Global Sourcing B.V.,

trading under Trade names: TOPwindows and TOPwindowsshop

Office & visiting address: Westerhavenweg 15, 4382 NM Vlissingen, the Netherlands

Email address: info@topwindows.nl

Telephone number(s): +31 (0) 118 - 436 911, +31 (0)6 - 53 850 520

2. General
2.1. The provisions of these general terms and conditions apply to every offer and every agreement between TOPwindows and a Client to which TOPwindows has declared these terms and conditions applicable, insofar as these terms and conditions are not expressly derogated from by the parties in writing.

2.2. These terms and conditions also apply to all agreements with TOPwindows for the performance of which third parties need to be engaged.

2.3. If one or more provisions of these general terms and conditions are void or are nullified, the other provisions of these general terms and conditions will continue to apply in full. In that case, TOPwindows and the Client will enter into consultations in order to agree new provisions to replace the void or nullified provisions, while taking the purpose and purport of the original provision into account if and insofar as possible.

2.4. If one or more provisions conflict with mandatory (consumer) law, the relevant provision(s) between the parties will be rendered inoperative with application of the mandatory (consumer) law.

2.5. TOPwindows is entitled to amend these general terms and conditions and declare supplementary and deviating provisions applicable. This also applies to agreements already concluded with the Client, and such amendments and additions shall always apply to those agreements with due observance of the following. Amendments enter into force on a date to be determined by TOPwindows. TOPwindows will observe a minimum period of thirty (30) days between the date of notification and the date of entry into force. If TOPwindows has not set a date of entry into force, the day after a period of thirty (30) days of the day of notification will be regardedas the date of entry into force.

2.6. In the event of amendments to the general terms and conditions that:

(i) give TOPwindows the right to increase the agreed price within three months after conclusion of an Agreement or;

(ii) Give TOPwindows the power to deliver any Work or Product that essentially deviates from the performance undertaken;
the Client that does not accept the amended and/or supplemented terms and conditions will be entitled to terminate the relevant Agreement, provided that the Client informs TOPwindows of this in writing within a period of thirty (30) days of notification. This article does not apply to amendments or additions to the general terms and conditions as a result of amendments to relevant legislation and regulations.

3. Agreement and offer

3.1. An Agreement will only be formed if TOPwindows and the Client have (digitally) signed the offer, or if the offer has been confirmed by TOPwindows in writing, or if TOPwindows has started performing the Agreement in question.

3.2. If an Agreement is formed orally or over the telephone, TOPwindows will confirm the Agreement to the Client in writing. The confirmation of the Agreement is deemed to be a correct and complete representation of what has been agreed, unless the Client objects within seven (7) days in writing.

3.3. An offer made by TOPwindows is without obligation. Any amendments to the Agreement come about through offer and acceptance.

3.4. Delivery periods are indicative and do not give the Client any right to termination or compensation if they are exceeded, unless expressly agreed otherwise.

3.5. If the acceptance deviates from the offer, on minor points or otherwise, TOPwindows will not be bound by such deviation.

3.6. A combined offer does not oblige TOPwindows to perform any part of the assignment for a corresponding proportion of the quoted price. Offers or quotations do not automatically apply to future orders.

4. Specific provisions regarding the Client

4.1. If Work is performed by TOPwindows, or by third parties engaged by TOPwindows in the context of the assignment, at the location of the Client or a location designated by the Client, the Client will provide the facilities reasonably required by those employees free of charge.

4.2. The Client ensures that TOPwindows will be provided in good time with:
(i) All information the Client has at its disposal, insofar as this is necessary for performing and/or realising the Work;
(ii) Access to the location, harbour and/or marina where the Work has to be realised;
(iii) The required permits, exemptions, orders or permissions;
(iv) All data and/or goods and/or Work to be performed for delivery, of which TOPwindows indicates that they are necessary or of which the Client should reasonably understand that they are necessary for the performance of the Agreement;

4.3. The Client shall also ensure that the instructions issued by TOPwindows have properly been implemented.

4.4. If the provisions of Articles 4.1 up to and including 4.3 have not been met or not been met in a timely fashion, TOPwindows will be entitled to suspend performance of the Agreement and/or charge the additional costs arising from the delay to the Client in accordance with the usual rates. Additional costs in the event of waiting time will be calculated per half-hour at a rate of €32,50 per half-hour per person, excluding VAT. In any case, the period for performing the Work will be extended by the duration of the delay.

4.5. The Client indemnifies TOPwindows against any claims by third parties that suffer damage in connection with the performance of the Agreement, if such damage can be attributed to the Client.

5. Specific provisions regarding TOPwindows

5.1. TOPwindows will perform the Agreement to the best of its insight and abilities and in accordance with high standards. All this based on the state of the art known at the time.

5.2. TOPwindows is entitled to engage third parties for the performance of the assignment. The applicability of Book 7, articles 404, 407 paragraph 2 and 409 of the Dutch Civil Code is excluded.

5.3. TOPwindows is not obliged to contract with an auxiliary person designated by the Client if TOPwindows does not want to accept the contract terms of that auxiliary person.

5.4. TOPwindows is not liable for damage of whatever nature as a result of TOPwindows having started with inaccurate and/or incomplete data provided by the Client, unless this inaccuracy or incompleteness should have been apparent to TOPwindows.

5.5. TOPwindows is entitled to present stages or elements to the Client for review or approval.

5.6. If the Agreement is performed in stages, TOPwindows may suspend performance of those elements that are part of a next stage until the Client has approved the results of the preceding stage in writing.

6. Model or sketch

6.1. If the Client has been shown or provided with a model, sketch or indicative representation of the Product, this will be deemed to have been provided as an indication only, without the Products being required to conform thereto, unless it is expressly agreed that the Product will be in conformity therewith.

7. Delivery of goods

7.1. If the goods are not installed by TOPwindows, the Products will be delivered at the address stated by the Client. The offering of the Products at the agreed location will be regarded as delivery of the Products. As soon as the goods have been delivered, they are at the risk and expense of the Client.

8. Price and price increase

8.1. The agreed price is exclusive of VAT and any other government levies, unless expressly agreed otherwise in writing. If the Client acts as a consumer, a total price including VAT will be stated.

8.2. The agreed price is based on prices, wages and levies at the time that the offer is issued.

8.3. In the following cases, TOPwindows will be entitled to increase the agreed price, even if the price was originally quoted without reservation:

a. if the price increase is the result of an amendment to the Agreement;

b. if the price increase results from a power or obligation pursuant to any law or regulation, wages, etc. or on any other grounds that were not reasonably foreseeable at the time of entering into the Agreement.

8.4. If the Client is a consumer, the provisions of Article 8.3 will only apply after three (3) months after conclusion of the Agreement.

9. Amendments to the Agreement

9.1. The Client is entitled to order TOPwindows to make amendments. If this is the case, TOPwindows will indicate as far as possible whether such amendment entails additional work or less work.

9.2. TOPwindows is not obliged to implement an amendment ordered by the Client if:

a. the amendment has not been ordered in writing; or

b. implementation of the amendment would result in an unacceptable disruption of the Work according to the standards of reasonableness and fairness; or

c. implementation of the amendment would result in the obligation for TOPwindows to perform Work that would exceed its technical know-how and/or capability; or

d. implementation of the amendment would, considering the mutual interests, be unacceptable to TOPwindows according to the standards of reasonableness and fairness.

9.3. If TOPwindows refuses to implement an amendment ordered, TOPwindows will inform the Client of this as soon as possible.

9.4. TOPwindows is entitled to amend documents and/or Work provided that the result of such amendments meets the provisions of the Agreement.

9.5. If, during the performance of the Agreement, it turns out that the Work to be performed has to be amended and/or supplemented for proper performance, the parties will adjust the Agreement accordingly in a timely fashion and in joint consultation.

9.6. If the parties agree that the Agreement will be amended and/supplemented, this may affect the time limit of completion of the performance. TOPwindows will notify the Client thereof as soon as possible. In that case, the Client will be deemed to consent to the extension of the time limit.

9.7. If the amendment and/or addition to the Agreement has any financial and/or qualitative consequences, TOPwindows will inform the Client of this as soon as possible.

10. Payment

10.1. Unless agreed otherwise, payment must always be made in two (2) instalments. The first instalment is owed on formation of the Agreement and amounts to 50% of the agreed price. The remainder must be paid before delivery or installation. The expiry date of this period shall be regarded as a strict deadline.

10.2. If the Client fails to pay an invoice on time, the Client will be in default by operation of law. In that case, the Client will owe an interest of 1.5% per month.

10.3. The Client is never entitled to set off any amount it owes to TOPwindows. Objections to the amount of an invoice do not suspend the payment obligation.

10.4. If the Client fails or omits to fulfil its obligations, or to fulfil them in a timely fashion, all reasonable costs incurred to obtain an out-of-court settlement will be borne by the Client. The extrajudicial costs amount to 15% of the outstanding invoices, with a minimum of €250,00.

10.5. In the event of liquidation, bankruptcy, attachment or suspension of payments of the Client, the claims of TOPwindows against the Client will be immediately due and payable.

10.6. TOPwindows is entitled to have the payments made by the Client in the first instance serve to settle the costs, then to settle the interest that has fallen due, and finally to settle the principal sum and the accrued interest. TOPwindows may refuse an offer for payment without being in default as a result if the Client designates a different order of attribution for the payment. TOPwindows is entitled to refuse full payment of the principal sum if the interest that has fallen due, the accrued interest and the costs are not paid as well.

11. Retention of title

11.1. All items delivered by TOPwindows remain the property of TOPwindows until the Client has fulfilled all obligations under all Agreements concluded with TOPwindows.

11.2. The Client is not authorised to pledge items falling under the retention of title or to encumber them in any other way.

11.3. If third parties attach the items delivered under retention of title or want to establish of exercise any rights thereon, the Client will be obliged to inform
TOPwindows of this as soon as possible.

11.4. In case TOPwindows wants to exercise its ownership rights referred to in this article, the Client hereby already gives unconditional and irrevocable permission to TOPwindows or any third parties to be designated by TOPwindows to access all sites where the property of TOPwindows is located and take back such property.

12. Suspension and termination

12.1. TOPwindows is entitled to suspend fulfilment of the obligations or terminate the Agreement with immediate effect, without being required to pay back anything that has already been paid or to pay any compensation, if:

a. the Client fails to fulfil the obligations under the Agreement, or fails to fulfil such obligations in full or in time;

b. the Client has not or not fully paid the first instalment.

c. After conclusion of the Agreement, TOPwindows has become aware of circumstances that give good grounds for fearing that the Client will not fulfil its obligations.

d. Circumstances arise that are of such nature that performance of the Agreement is impossible or if circumstances otherwise arise that are of such nature that unaltered maintenance of the Agreement cannot reasonably be required from TOPwindows.

e. After measurements being taken at the Client's location, it turns out that the Product cannot be delivered or from a technical point of view is not suitable to the purpose for which the Client wants to use the Product, or if it turns out that the quality of material in which the Product has to be placed is too poor. All this at the sole discretion of TOPwindows.

f. The Client is granted a provisional or definitive suspension of payments, a petition for bankruptcy is filed against the Client or the filing of such a petition
is imminent, and third parties levy an attachment against the Client.

12.2. If the Agreement is terminated, the claims of TOPwindows against the Client will be immediately due and payable. In that case, TOPwindows will not be obliged to pay back any and all amounts already paid by the Client. An exception to the above is if
the Agreement is terminated pursuant to Article 12.1e and e. If the Agreement is terminated pursuant to Article 12.1e and e, TOPwindows will be obliged to pay back any and all amounts already paid by the Client, after deduction of the costs already incurred at that time.

12.3. If TOPwindows suspends the Agreement, TOPwindows will not be obliged in any way whatsoever to compensate damage and costs that have arisen as a result in any way.

12.4. If the Client dissolves or terminates the Agreement, TOPwindows will be entitled to:
a. payment of the price set out in the Agreement, calculated in accordance with the state of the Work at the time of dissolution or termination;

b. payment of 5% of the remaining part of the price set out in the Agreement that the Client would have owed for full performance of the Work;

c. payment of all costs incurred and to be incurred, arising from obligations already undertaken by TOPwindows at the time of dissolution or termination, in view of performance of the Agreement.

13.5. The provisions of this article are without prejudice to all legal rights of TOPwindows.

13. Warranty

13.1. TOPwindows warrants that the Products are in conformity with the Agreement and are suitable for the intended use of the Product, or any other use if agreed, for a period of five (5) calendar years after delivery of the Products or delivery of the Work (“the Warranty”). Intended use is taken to mean: the use of the Products as maritime windows or similar, or any use described in the Agreement.

13.2. TOPwindows bears the costs of repair, replacement, installation and disassembly, including freight and call-out charges within Europe, in the case of a defect to the Product within the Warranty. If the Client has moved to a country outside Europe or
the object of which the Product is part is outside Europe, freight and call-out charges will be paid on the basis of the original delivery address.

13.3. If the defect can be remedied, TOPwindows will not have to replace the Product. If performing the agreed Work or delivery of the Products is no longer possible or useful, TOPwindows will only be liable within the limits of Article 14.

13.4. The Client is obliged to take loss-mitigating measures as soon as the defect is discovered or could reasonably have been discovered.

13.5. The Warranty does not apply if:
(i) the Client has brought its own materials, parts or accessories or has prescribed materials to be used by TOPwindows;

(ii) the defect to the Product is the result of normal wear and tear that could reasonably be expected in the case of the intended use;

(iii) the Client utilises the Product for any use other than the intended or agreed use;

(iv) the defect is caused by old coating systems or the peeling off of paint layers or an outdated gel coat (in the case of a polyester boat).

13.6. The Client shall report the defect to TOPwindows, in writing and adequately substantiated, within seven (7) days of discovery, but no later than within fourteen (14) of the relevant invoice date. If the Client acts as a consumer, defects shall be reported within a reasonable period of discovery, with a period of two (2) months after discovery being regarded as timely.

13.7. The report must contain a description of the defect that is as detailed as possible to enable TOPwindows to respond adequately. The Client must provide TOPwindows with the opportunity to investigate a complaint or to have such complaint investigated.

13.8. If it is established that the report of a defect is unfounded, the costs that have arisen as a result, including the costs of the investigation on the part of TOPwindows, will be fully borne by the Client.

13.9. If the Client fails to report the defect in time, the Client will no longer be able to rely on the Warranty as a result. In that case, the right to repair, replacement and compensation will lapse.

13.10. The provisions of Article 17 (force majeure) also apply to the Warranty.

14. Liability

14.1. The total liability of TOPwindows to the Client for an attributable shortcoming in the performance of the Agreement or on any legal ground whatsoever, expressly including any shortcoming in the fulfilment of a warranty obligation agreed with the Client, will be limited to compensation of direct damage up to no more than the amount of the price agreed for that Agreement (excluding VAT).

14.2. The total liability of TOPwindows for damage caused by death, bodily injury or because of material damage to goods will be no more than € 5.000.000,00 (in words: [fivemillioneuros] per year in which the damage was caused.

14.3. The liability of TOPwindows for indirect damage, consequential damage, lost profit, missed savings, damage due to business interruption, damage resulting from claims by third parties such as purchasers/customers of the Client, damage related to the use by the Client of items prescribed by TOPwindows, materials of third parties, and damage related to the engagement of suppliers prescribed by the Client to TOPwindows is excluded. In addition, the liability of TOPwindows for damage related to the mutilation, destruction or loss of data or documents is excluded.

14.4. The exclusions and limitations referred to in Article 14.1 up to and including Article

14.3 will lapse if and insofar as the damage is the result of intent or wilful recklessness on the part of TOPwindows or its managing employees.

14.5. Unless performance by TOPwindows has become permanently impossible, the liability of TOPwindows for an attributable shortcoming in the performance of any Agreement will only arise if the Client has promptly given TOPwindows notice of default in writing, with statement of a reasonable period for remedying the shortcoming, and if TOPwindows continues to fail attributably in the fulfilment of its obligations after that reasonable period. The notice of default must contain a description of the shortcoming that is as complete and as detailed as possible to actually enable TOPwindows to respond and/or act adequately.

14.6. Conditional to any right to compensation arising is always that the Client notifies TOPwindows of the damage in writing as soon as possible after it has arisen. Any claim for compensation against TOPwindows will lapse by the mere expiry of a period of one (1) year after the claim arose, unless the Client has instituted legal proceedings for compensation of the damage before the expiry of that period.

14.7. The provisions of this article of these general terms and conditions as well as all other limitations and exclusions of liability referred to in these general terms and conditions also apply for the benefit of all legal or natural persons deployed by TOPwindows in the performance of the Agreement.

15. Inspection and delivery

15.1. If the Agreement concerns the performance of Work, the inspection of the Work will take place immediately after completion of the Work or as much later as agreed by the parties.

15.2. After the Work has been inspected, the Client immediately communicates whether or not the Work has been approved, with a statement of the remaining defects, if any.

15.3. Minor defects that that can be remedied properly within thirty (30) days will not constitute a reason for withholding approval, provided that they do not impede any putting into use.

15.4. The day on which the Work has been competed is regarded as the day on which the Work is deemed to have been delivered.

15.5. If the Client is not present at the time of delivery, the Work will be regarded as having been inspected and delivered. In that case, the Work will be deemed to have been delivered.

16. Indemnification; time limit

16.1. If the Client provides TOPwindows with information carriers, electronic files or software, etc., the Client warrants that such information carriers, electronic files or software are free from viruses, defects and suchlike.

16.2. In derogation from the statutory time limits, the time limit for all claims and defences against TOPwindows and the third parties engaged by TOPwindows in the performance of the Agreement shall be one (1) year. The expiry period of Article.

14.6 is an exception to this rule.

17. Force majeure

17.1. The parties are not obliged to fulfil any obligation, if they are prevented from doing so as a result of a circumstance which is not their fault and for which they are not accountable by law, pursuant to a legal act or according to generally accepted standards.

17.2. In these general terms and conditions, force majeure is taken to mean, in addition to what it is taken to mean in law and case law, all external causes, foreseen or unforeseen, which TOPwindows cannot influence, but due to which TOPwindows is unable to fulfil its obligations, including epidemics and pandemics. Labour strikes and non-workable days in the business of TOPwindows and non-delivery or late delivery by suppliers are also included.

17.3. TOPwindows is also entitled to rely on force majeure if the circumstance preventing (further) performance arises after TOPwindows should have fulfilled its obligation.

17.4. The parties may suspend their obligations under the Agreement for the period during which the force majeure continues.

17.5. Only if the period of force majeure lasts for more than thirty (30) days will each of the parties be entitled to terminate the Agreement without being obliged to compensate the other party for any damage suffered.

17.6. Insofar as TOPwindows has already fulfilled or will be able to fulfil a portion of its obligations under the Agreement at the time of the occurrence of force majeure, Articles 12.4a and 12.4c apply by analogy.

18. Intellectual property and copyrights

18.1. Any and all documents provided by TOPwindows, such as designs, sketches, drawings, electronic or other files, etc., are exclusively intended for use by the Client and may not be reproduced, disclosed or provided to third parties by the Client without prior permission from TOPwindows, unless the nature of the documents provided requires otherwise.

18.2. The Client warrants that the Work and Products do not infringe any copyright or model right of third parties and indemnifies TOPwindows against claims by third parties in this respect.

19. Final provisions

19.1. If the general terms and conditions have been made available in multiple languages, the Dutch version shall always be agreed between the parties, and any version of the general terms and conditions in a different language shall only be a translation of what was agreed between the parties. No rights can therefore be derived from the version of the general terms and conditions in any language other than the Dutch language.

19.2. Dutch law applies to all agreements between TOPwindows and the Client. The Agreement shall be performed in Utrecht.

19.3. The Court of the Northern Netherlands has exclusive jurisdiction to hear disputes. Nevertheless, TOPwindows shall be entitled to submit the dispute to the court which has jurisdiction according to the law.