1. Definitions

(a) DutzWood Installation Instructions (or DII) means DutzWood’s document describing the installation, site preparation, storage, handling and tool instructions;

(b) DutzWood Care & Maintenance Instructions (or CMI) means DutzWood document describing the care, maintenance and cleaning instructions;

(c) DutzWood Delivery Information (or DDI) means DutzWood’s document describing the delivery information Client shall provide DutzWood and/or its agents and Client’s delivery obligations;

(d) DutzWood Technical Datasheet (DTD) means our document describing the functional and technical specifications of the relevant oak floor;

(e) DutzWood Flooring Blueprint (FB) means DutzWood document with a summary of all the important information you need to know;

(f) All DutzWood floors are custom-made (DC) and developed specifically for the Client.

2 . General

All transactions and all sales and delivery of products by DutzWood to its Client (“Client”) are governed by the terms and conditions and the documents defined in Article 1. In case of inconsistencies or contradictions between the documents defined in Article 1 and these general terms and conditions, these conditions shall apply. No other terms apply unless they are written and signed by both parties.

3. Protection of DutzWood designs and rights thereto

The designs, models, images, descriptions, drawings, calculations and/or budgets provided by DutzWood in connection with a Quotation or order, and all right, title and interest therein, including without limitation, all the related intellectual property rights, shall be and shall remain the sole and exclusive property of DutzWood and shall be returned immediately upon DutzWood’s request and the use thereof by the Client or by third parties engaged by the Client shall be discontinued immediately. The Client is prohibited from fully or partially copying the aforementioned designs, models, etc., disclosing them or making them available to third parties or for inspection.

4. Orders and Quote Acceptance

(a) Any quote issued by us (“Quotation”) will be valid for thirty (30) days unless another date is set forth in the Quotation. Quotations can be amended or revoked by us in writing. Client shall order products through a written Quotation and Dutzwood’s acceptance of such Quotation shall be reflected by DutzWood sending to Client DutzWood’s document titled, “Order Confirmation,” which will include descriptions of products, price, shipment and other specific terms between the parties. (when so accepted, an “Order”). The Order Confirmation will contain a date by which Dutzwood estimates the products will be ready for shipment from DutzWood Netherlands. Client acknowledges and agrees that the Ready for Shipment Date is merely an estimate and subject to change by DutzWood in its sole discretion based upon current circumstances and the Ready for Shipment Date does not represent any guarantee or agreement to ship on such date and is separate and apart from actual delivery of the products to Client. All the information set forth in the Order Confirmation shall be deemed to be final, correct and agreed to by the Client unless the Client submits a Written Objection to the information set forth in the Order Confirmation within three (3) business days of the receipt by Client of the Order Confirmation (“Written Objection”). The Written Objection shall state with particularity the error(s) that the Client believes is contained in the Order Confirmation. In the event Client timely provides Dutzwood its Written Objection, DutzWood and Client shall cooperate to address the Written Objection and, if proper, both shall execute an amended Order Confirmation. In the event DutzWood determines in its sole reasonable discretion that the Order Confirmation is correct and/or Client does not timely provide a Written Objection, the Order Confirmation (and, in turn, the “Order”) shall remain in full force and effect.

(b) Each Order is a separate and independent agreement between Client and DutzWood unless an Order expressly incorporates all or part of another Order. Client agrees and acknowledges that these Terms shall apply to, be made a part of, and are incorporated into each Order. DutzWood’s acceptance of any writing from Client is made conditional on Client’s assent to these Terms and these Terms shall govern over any Client’s conflicting terms and conditions set forth in any writing of Client.

(c) To request a change to any Order, including any change to the Ready for Shipment Date specified on the Order Confirmation, Client shall submit a written request to DutzWood. No change in the Order shall be effective unless and until accepted by Dutzwood by its execution of an amended Order. Client agrees and acknowledges that changes accepted by DutzWood may result in a change in schedule, change in Ready for Shipment Date, change in pricing, and Additional Delivery Costs (as defined in paragraph 9 of these Terms), or all of the foregoing.

5. Prices and Trade Terms

(a) Prices for the products as set forth in the Order or any invoice/pro-forma invoice are in ZAR and includes all shipment and transportation costs and Taxes (defined below) (collectively, “Purchase Price”). Prices are on a DDP basis or such other delivery terms set forth in the Order Confirmation. Client is responsible for and shall pay the Purchase Price, including all transportation costs unless otherwise specified in the Order Confirmation.

(b) Additionally, Client is responsible for and shall pay all taxes and fees associated with the purchase and sale of the products and materials provided hereunder or otherwise arising from these Terms or any applicable Order, including without limitation, sales, use, personal property, excise and value added taxes including all fines, interest or penalties assessed by federal, state, and/or local authorities (“Taxes”). Such Taxes will be added to each invoice/pro-forma invoice provided to the Client and Client agrees to promptly pay any and all Taxes whether included in the original invoice/pro-forma invoice or invoiced at a later time. In addition, Client authorizes DutzWood to pay any Taxes when and as they become due, after confirmation through reasonable diligence by DutzWood that such Taxes are legitimate and properly calculated, and Client agrees to reimburse DutzWood promptly and on demand for the full payment for such Taxes.

6. Payment

At least fifty percent (50%) of the purchase price upon placement of the order (“Deposit”), and the remainder of the purchase price shall be paid in full in advance and prior to the ready for shipment date or within five (5) business days of Dutzwood’s notice to Client of the occurrence of a Client delay (as defined in paragraph 9 of these terms), whichever occurs first, in accordance with the order confirmation or any invoice/pro-forma invoice, unless other payment terms are set forth in the order confirmation or invoice/pro-forma invoice.

Since each floor is custom-made, the 50% Deposit upon order placement is non-refundable, even in case of cancellation by the Client more than 3 working days after order confirmation.

7. Non payment

(a) Client shall be in default if it fails to pay the purchase price by its due date or in full or fails to perform any other obligation under the order and these Terms. Upon default by Client, DutzWood may, without notice to Client and without waiving any other rights or remedies available to DutzWood hereunder or at law or in equity:

(i) suspend or cease deliveries of products on the order or any other order by client; and/or
(ii) cancel any accepted orders; and
(iii) collect and recover the purchase price, all additional delivery costs, all other sums due under the order and these terms, and all attorneys’ fees and costs as provided in paragraph 17 of these Terms.

(b) Additionally, if Client fails to make any payment of the purchase price and all other sums due under the order and these terms in full, including additional delivery costs, by its due date, Client shall pay interest on the part of the payment that is late in the amount of 1.5% per month or any part of a month, or the maximum interest rate allowed by law, whichever is less, from the due date to the date paid (“Late Fee”). The Late Fee is without waiver of any of DutzWood’s rights and remedies due to a default as set forth in these terms or of DutzWood’s right to suspend or cease delivery of products or cancel accepted orders if Client fails to pay the purchase price or any invoice/pro-forma invoice.

8. Cancellation

Al our floors are custom work. Order for custom work that has already been confirmed and accepted by us can be cancelled only if  the written cancellation notice from Client has been received by DutzWood within 3 business days after the date of the order confirmation; and Client agrees in the cancellation notice to pay DutzWood a cancellation fee of 50% of the purchase price set forth in the Order (excluding transportation costs and taxes, except for any applicable sales Tax).

9. Shipment and Delivery

(a) Except as qualified by paragraph 4 of these terms, DutzWood will use commercially reasonable efforts to have the products ready for shipment on a date within a reasonable time after the ready for shipment date, provided Client has performed its payment obligations and timely provided to DutzWood all required shipping and delivery information, including as set forth in the DDI.

(b) For purposes of these terms, “Client Delay” shall mean any (i) delay of the shipment of products caused by Client, including without limitation, Client’s failure to pay the purchase price in full prior to the ready for shipment date, Client’s failure to submit all shipping and delivery information prior to the ready for shipment date (including as required by the DutzWood DII), and all other occurrences or circumstances not attributable to DutzWood and/or all other conduct of Client that delays the shipment of the products; and/or (ii) delay of the delivery of products after shipment caused by Client, including without limitation, Client’s failure to comply with DutzWood’s DII and all other occurrences or circumstances not attributable to DutzWood and/or other conduct of Client that delays the delivery of the products after shipment.

(c) In the event of any Client Delay, DutzWood shall have the right to store the products at Client’s expense and risk, and Client hereby authorizes and consents to such storage at its risk and expense.

(d) In the event of Client Delay pursuant to paragraph 9(b)(i) of these terms, Client shall be obligated to pay DutzWood the balance of the Purchase Price and all other sums due under the order and these terms within five (5) business days of DutzWood’s notice to the Client of the Client delay, and pay DutzWood all storage costs at €0.50 per square foot per month and all other costs resulting from such Delay.

(e) In the event of Client Delay pursuant to paragraph 9(b)(ii) of these terms, Client shall be obligated to pay DutzWood all storage costs, including without limitation, third-party storage costs, additional delivery costs and all other costs resulting from such Client Delay (all of the costs described in paragraphs 9(d) and (e) of these Terms shall be deemed as “Additional Delivery Costs”).

(f) At DutzWood’s option, Additional Delivery Costs shall be added to Client’s invoice/pro-forma invoice as part of the purchase price, or due within five (5) business days following DutzWood’s written demand for the payment of additional delivery costs. If storage is provided, this document shall constitute a warehouse receipt and DutzWood shall have a warehouse lien on all products and property presently stored or hereafter stored for all storage and all other additional delivery costs.

10. Client Obligations

Client shall install and maintain the products in accordance with the ‘’Flooring Blueprint’’, DII and CMI, and any failure to do so is “Misuse.” Client shall use the products only for the purpose for which they were intended. 11.

11. (Extended) Retention of Title

Without prejudice to the passing of the risks in accordance with the applicable trade terms, if Client has not paid the full purchase price and all other sums due under the order and these terms for products by the ready for shipment date or before delivery, title shall not pass to Client until the purchase price and all other sums due under the order and these terms has been paid in full.

12. Complaints and Returns

(a) Client shall inspect the products immediately upon delivery and shall not refuse to accept products based on minor imperfections. Client shall comply with all its obligations set forth in the DDI.

(b) If the products are damaged upon delivery and/or there is an error on the pallet count upon delivery, Client shall describe in writing on the delivery receipt the description of damage to the products and/or the discrepancy of the pallet count, and Client shall provide written notice to DutzWood within one (1) business day of delivery of the products and such written notice shall specify the reason(s) for the requested return including a description of any damage and/or discrepancy of the pallet count with the products in the order. (“Damage Notice”). In the event Client fails to provide DutzWood the Damage Notice within one (1) business day after delivery of the products, Client shall be deemed to have accepted the products, and Client has waived and released any objections to the damage of the products and/or to the pallet count.

(c) If there was an error in the quantity of the products (e.g. square footage) upon delivery, Client shall provide written notice to DutzWood within five (5) business days of delivery of the products and such written notice shall specify the discrepancy of quantity with the products in the order. (“Quantity Notice”). In the event Client fails to provide DutzWood the Quantity Notice within five (5) business days after delivery of the products, Client shall be deemed to have accepted the products, and Client has waived and released any objections with the quantity of the products in the order.

(d) If there was a non-compliance with the description of the products in the order upon delivery, Client shall provide written notice to DutzWood within five (5) business days of delivery of the products and such written notice shall specify the reason(s) for the requested return including a description of the non-compliance with the products in the order. (“Description Notice”). In the event Client fails to provide DutzWood the Description Notice within five (5) business days after delivery of the products, shall be deemed to have accepted the products, and Client has waived and released any noncompliance with the description of the products in the order.

(e) Upon a timely Damage Notice, Quantity Notice, or Description Notice, Client shall permit DutzWood to inspect the products and the products may be returned to DutzWood only in the event of a well-founded Complaint regarding the products as determined in the sole discretion of DutzWood. If DutzWood agrees in writing that the Client may return such products, Client shall remove and/or ship the products in accordance with DutzWood’s instructions.

13. Limited Warranty Assigned From DutzWood

(a) DutzWood shall assign any limited warranty offered by the manufacturer (DutzWood) with respect to the products. DutzWood will assist the Client in processing any warranty claim with DutzWood pursuant to any warranty provided by DutzWood with respect to the products.

(b) Any misuse, abuse or any other negligence by Client and/or any of Client’s agents, including without limitation, improper installation, improper use, improper maintenance, improper repair, modification, improper storage, improper handling or unauthorized combination with third party products may void the warranty of DutzWood.

(c) DISCLAIMER OF ALL WARRANTIES. DUTZWOOD MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WITH RESPECT TO THE PRODUCTS AND HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WITH RESPECT TO THE PRODUCTS, ARISING BY APPLICABLE LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT ANY PRODUCTS WILL MEET CLIENT’S NEEDS OR REQUIREMENTS, AND/OR THE PRODUCTS WILL MATCH THE DESCRIPTION OF THE PRODUCTS OR SAMPLES DELIVERED BY US, INCLUDING WITHOUT LIMITATION, THOSE REGARDING DIMENSIONS, COLOR, PRINT, STRUCTURE, OR ANY OTHER INFORMATION, DESCRIPTION, IMAGE OR SPECIFICATIONS REGARDING PRODUCTS AND ANY DOCUMENTATION PROVIDED OR MADE AVAILABLE TO YOU OR ON THE DUTZWOOD WEBSITE, INCLUDING WITHOUT LIMITATION, IMAGES, CATALOGUES, BROCHURES, FLOORING BLUEPRINT, TECHINCAL DATA SHEETS (DTD) AND/OR THE DII and CMI.

14. Client’s sole remedy and limitation of Dutzwood’s Liability.

(a) Client’s Sole Remedy

DutzWood’s sole obligation shall be to repair or replace the damaged products or provide the correct quantity or description of the products within a reasonable time period after receipt of a timely Damage Notice, quantity notice, or Description Notice. (“Complaint Remedy”). In the event DutzWood fails to correct an alleged breach by providing a Complaint Remedy, Client’s sole remedy shall be to receive a refund of any amount actually paid for the non-conforming product or for any product which was not provided by DutzWood. Notwithstanding the foregoing, in the event of such a refund or credit, Client shall be responsible for and shall pay DutzWood for all other products previously provided by DutzWood pursuant to any order for which no Damage Notice or Complaint notice was provided.

(b) Limitation of DutzWood’s Liability

DUTZWOOD SHALL NOT BE LIABLE TO CLIENT FOR PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND/OR ANY OTHER DAMAGE ARISING FROM OR RELATING TO THE DESIGN, SPECIFICATIONS OR MANUFACTURING OF THE PRODUCTS AND/OR FROM CLIENT’S USE, INSTALLATION, OR MAINTENANCE OF THE PRODUCTS. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL DUTZWOOD’S TOTAL LIABILITY TO CLIENT FOR ANY CAUSE OR CLAIM WHATSOEVER EXCEED THE PURCHASE PRICE ACTUALLY PAID BY THE CLIENT FOR THE NON-CONFORMING OR UNDELIVERED PRODUCTS AS SET FORTH IN THE APPLICABLE INVOICE/PRO-FORMA INVOICE AND/OR ORDER. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR STATUTE INCLUDING WITHOUT LIMITATION, FOR PERSONAL INJURY AND DEATH, NEGLIGENCE, STRICT LIABILITY AND/OR PRODUCTS LIABILITY CLAIMS. CLIENT AGREES AND ACKNOWLEDGES THAT THIS IS AN ADEQUATE REMEDY. IN NO EVENT SHALL DUTZWOOD BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE IN ANY WAY ARISING OUT OF OR RELATING TO ANY ORDER OR THESE TERMS, INCLUDING WITHOUT LIMITATION, DELAY OR SUSPENSION IN PROVISION OF PRODUCTS OR CANCELLATION OF ORDERS, LOSS OF BUSINESS, LOSS OF PROFITS, SAVINGS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF GOODWILL, LOSS OF USE OF HOME, LOSS OF USE OF PRODUCTS, COST OF SUBSTITUTE PRODUCTS, EQUIPMENT OR GOODS, OTHER COSTS OR LOST OPPORTUNITY COSTS, OR ANY LOSS RELATED TO NON-PERFORMANCE, DELAY, OR CANCELLATION, OR ANY OTHER LOSS EVEN IF SUCH DAMAGES WERE FORESEEABLE AND THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT THE AMOUNTS PAID HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH HEREIN AND THAT DUTZWOOD WOULD NOT ENTER INTO ANY APPLICABLE ORDER WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

15. Force majeure

In the event of the occurrence of force majeure, DutzWood shall be entitled to suspend delivery of the products for the duration of the prevention or delay caused by such force majeure, without any liability of DutzWood to Client. In that case, the Ready for Shipment Date shall be extended for the period of prevention or delay caused by such force majeure. If it reasonably appears that the suspension will last for five (5) consecutive months, DutzWood may terminate the order in whole or in part upon written notice to Client without any liability of DutzWood to Client. For purposes hereof, the term “Force Majeure” shall mean circumstances or events beyond DutzWood’s reasonable control, whether or not foreseeable at the time of the order, as a result of which DutzWood cannot reasonably be expected to perform its obligations pursuant to the order. Such circumstances or events include but are not limited to: acts of God, fire, lightning, explosion, war (whether declared or not), armed conflict or the serious threat of the same (including but not limited to hostile attack, blockade, military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilization; civil war, rebellion, revolution, military or usurped power, insurrection, embargo, civil commotion or disorder, mob violence, act of civil disobedience; terrorism, riot, sabotage, or piracy; plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions; flood, draught; weather of exceptional severity, natural disaster; humidity that exceeds the DII; acts of local or central government or other authorities or regulatory bodies, act of authority whether lawful or unlawful, compliance with any law or governmental order, rule, regulation or direction, curfew restriction, expropriation, seizure of works, requisition, nationalization; industrial disputes, transportation delays, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current; general labor disturbance or disputes such as but not limited to boycott, strike and lock-out, go-slow, occupation of factories and premises; shortage or inability to obtain critical materials or supplies to the extent not subject to the reasonable control of DutzWood; un-availability of any required permits, licenses and/or authorizations (including custom clearance or import permissions), and defaults or force majeure of suppliers or subcontractors.

16. Governing Law/Venue

These terms and each order shall be governed by and construed in accordance with the laws of the Netherlands without regard to conflict of law provisions. The parties hereby consent to the sole proper venue and jurisdiction for any dispute related hereto or to the products. Dutch law applies to the agreement. Disputes that cannot be settled amicably will be exclusively submitted to the court of Almaar.

17. Attorneys’ Fees

Client shall pay all costs and expenses, including attorneys’ fees, incurred by DutzWood in connection with:

(a) DutzWood’s enforcement of any order and these terms,
(b) any breach of any order and these terms by Client, including but not limited to Client’s failure to pay for products, any additional delivery costs or any other sums due under any order and these terms,
(c) DutzWood’s collection or attempts to collect Client’s account, and
(d) defense by DutzWood of any claim or action by Client against DutzWood in which DutzWood is the prevailing party.

18. Entire Agreement

The order and/or order confirmation, including these terms, sets forth all of the terms and conditions related to Client’s purchase of the products and evidences the entire agreement between the parties and supersedes all prior written or oral representations and agreements between the parties.