General terms of business for the sales of used boats
These general terms and conditions for the sale of used pleasure crafts of (franchise organisation) European Yachting Network b.v. (EYN) were concluded in February 2011. These terms and conditions may only be used by, and are only applicable to, independently operating EYN brokers.
Article 1 - Definitions
In these terms and conditions the terms below have the following meaning:
a- the vendor: The EYN broker, or, on behalf of, the owner of the vessel.
b- the purchaser: the person (natural person) not exercising a profession or business (consumer);
c- pleasure craft: vessel built and/or used for recreational use;
Article 2 - Applicability
1. These terms and conditions apply to all agreements concluded between purchaser and vendor with regard to purchase and sale of used pleasure crafts.
2. The provisions of Book 7 of the Netherlands Civil Code apply to the purchase and sale of used pleasure crafts.
Article 3 - Offer
The offer is binding for the term of acceptance stated in the offer without prejudice to lack of creditworthiness of the purchaser. If the purchaser does not accept the offer within the term in the offer it will lapse.
Article 4 – The (purchase) agreement
1. Purchase agreements in which the purchase sum exceeds an amount of more than 25,000 Euros including turnover will be laid down in writing by the vendor.
2. Any agreements made as well as commitments by staff or subordinates of the vendor are binding under the condition that they are confirmed in writing.
3. If a written confirmation of an agreement is lacking, both parties are bound by the agreement if one of them can prove that the agreement was concluded other than by the above-mentioned written documents.
Article 5 - Guarantee
1. The pleasure craft will only be guaranteed by the vendor if the latter guarantee was given in writing.
2. The guarantee given cannot impede the rights which accrue to the purchaser pursuant to the Law.
Article 6 - Force majeure
Force majeure will mean any unforeseen circumstance as result of which the performance of the agreement is delayed or hindered, insofar as this circumstance cannot be avoided by one of the parties and is not for account of the party invoking force majeure pursuant to the Law, the agreement or societal views.
Article 7 - Transfer
The transfer takes place at the mooring unless otherwise agreed. However, if a transfer trial run is going to take place, the transfer will take place at the location agreed on for the transfer trial run.
Article 8 - Complaints
Complaints on the performance of the agreement and/or related invoices must be made to the vendor, (in writing and) thoroughly specified, within the appropriate time period after the purchaser has established or was able to establish the defects.
The consequences of non-timely complaints are for the purchaser’s account.
Article 9 - Purchase price
1. All purchase prices are net cash at the place of delivery.
2. Unless otherwise stated, the purchase price always includes the turnover tax, import levies and any other levies owed which apply at the time that the agreement was concluded. Amendments to these levies will be charged on in the sale price. If the debt of a levy can be prevented by observing certain provisions, parties are required to do so.
Article 10 – Payment terms and conditions
1. Payment takes place on delivery unless explicitly agreed otherwise. All payments take place by transfer to a bank account designated by EYN.
2. If the purchaser has not paid the amount owed on the agreed due date, or if no due date was agreed on then within ten working days after being notified of default by vendor, he/she will be considered to be in default. In that case the vendor is entitled to charge interest of 2% on a monthly basis over the amount owed by the purchaser. This interest will be calculated from the due date whereby part of a month will count as a whole month.
3. If one of the parties is required to invoke legal aid in relation to a dispute which relates to the agreement concluded between them which these terms and conditions apply to, the party in default or the party found to be in the wrong will owe the costs related to the legal aid. These extrajudicial collection costs are 10% of the amount owed with a minimum of €200 plus the actually incurred expenses, unless the other party proves that a lesser minimum was sufficient, all this without prejudice to the provisions in article 14 section 10 of these terms and conditions.
4. If the performance of this agreement is delayed at the purchaser’s request or because the purchaser does not meet his/her obligations on time, the vendor is entitled to claim payment of the purchase price at the time or the times when these payments would have been owed in the event of normal performance of the agreement.
5. Complaints on invoices must be filed (in writing), thoroughly specified, within ten working days of receipt of the invoice concerned.
6. Payments and transfers must be made to the account designated by EYN’s accountant.
Article 11- Suspension and dissolution
1. If one of the parties does not observe its obligations the other party is authorised to suspend its own obligations. In the event of partial or improper observation, suspension is only allowed insofar as the shortcoming justifies it.
2. If one of the parties does not observe its obligations from the agreement, the other party is authorised to dissolve the agreement, unless considering the special nature or minor significance of the shortcoming, dissolution is not justified.
Article 12 – Security rights
1. The property of the sold item does not transfer until the purchase price and any other monies owed with regard to the transaction have been paid in full to the vendor.
2. If the purchaser, after delivery of the item, remains in default of payment of the sale price and any other monies owed, the vendor is entitled to claim the item back by way of a written statement.
3. The vendor is also entitled to claim the item back if the purchaser has only partially paid the amount owed to the vendor. In that case the vendor is required to refund the part of the sales price already paid to the purchaser without 10% conform salescontract for costs broker and seller.
Article 13 - Liability
1. The vendor is liable for damages on the side of the purchaser which are the result of a shortcoming which can be attributed to the vendor.
2. The purchaser is liable towards the vendor for damages which are caused by his/her attributable failing.
Article 14 – Disputes: The disputes committee and the normal court
1. Dutch law applies to all disputes with regard to the agreement. Only a Dutch court of justice or the Disputes Committee referred to hereafter is authorised to hear these disputes.
2. Disputes between the purchaser and vendor on the conclusion or performance of the agreement which these terms and conditions apply to can be presented either by the purchaser or the vendor or an expert appointed by either party at EYN’s head office.
3. A dispute will only be dealt with by EYN’s head office if the purchaser has first presented his/her complaint in writing to the vendor in due time.
4. No later than three months after presenting the complaint to the vendor in writing, the purchaser must file the dispute at EYN’s head office by stating names and addresses of the purchaser and vendor and a clear description of the dispute and the claim. If the purchaser has presented the dispute to EYN’s head office, the vendor is bound to this choice and cannot appeal to the normal court.
5. EYN’s head office is not authorised to deal with a dispute which only refers to non-payment of an invoice and which is not based on a material complaint. If the purchaser does not pay the invoice on time, the vendor is authorised to initiate proceedings at the normal court provided that prior to the commencement of the proceedings the vendor has given the purchaser a term of one month after receipt of the reminder to present the dispute to EYN’s head office or to an expert to be appointed by both parties.
6. If the vendor presents a dispute to EYN’s head office, EYN’s head office will only deal with this dispute once the purchaser has stated in writing within one month that he/she will submit to the decision of EYN’s head office and has deposited any remaining owed amount with the accountant. Parties are free to appoint another expert. Also here applies that a prior written statement to submit to the decision must be given.
7. If the purchaser presents a dispute to EYN’s head office, EYN’s head office will only deal with this dispute once the purchaser has deposited the owed (remaining) amount with the same accountant as referred to in the purchase agreement. The purchaser must deposit this amount within a month in an account to be indicated by EYN’s head office. In the event that the purchaser has not deposited said amount on time, it will be assumed that he/she will not submit to the ruling of EYN’s head office.
8. EYN’s head office rules by way of binding advice. In the event of bankruptcy, moratorium of payments or business discontinuation of the vendor, the security only applies if the purchaser filed the dispute at EYN’s head office before such a situation arose. Aforementioned security does not apply in the event that the vendor presents the binding advice within two months of receiving it for review by the court, and the decision of the court declaring the binding advice non- binding has acquired the authority of a final decision.
9. A fee must be paid for the handling of a dispute.
10. If the dispute is presented to EYN’s head office, article 10 section 3 does not apply.
11. An independent expert may act in the handling of a dispute.
Article 15 – Deviations from the terms and conditions
Individual deviations, including additions or extensions to these general terms and conditions must be laid down in writing and placed in the custody of EYN’s head office. However the responsibility will not lie with EYN’s head office.