General Terms and Conditions of Howitec Netting B.V., registered with the Chamber of Commerce in Leeuwarden under Number 01076642
Article 1: General
1.1 These General Terms and Conditions used by Howitec Netting B.V. (hereinafter referred to as "Howitec") apply to all offers from, orders to, agreements with, and deliveries by Howitec.
1.2 In these Terms and Conditions, the "Other Party" is understood to mean: any legal entity or person that has concluded or wishes to conclude an agreement with Howitec, as well as their representative(s), attorney(s), assignee(s) and heirs.
1.3 The applicability of any (general) terms and conditions used by the Other Party is precluded, unless applicability thereof has been agreed between parties expressly in writing.
1.4 In the event of derogation from one or more points of these Terms and Conditions, the remainder thereof shall remain in full force.
Article 2: Offers (tenders)
2.1 All offers made remain valid for a period to be defined by Howitec. Where no such period has been defined, our offers are without obligation.
2.2 Any price lists, brochures, images and other data presented with an offer shall be binding on Howitec only if such has been confirmed expressly in writing. Howitec shall not be obliged to present detailed specifications, unless otherwise has been agreed in writing.
2.3 Sending offers and/or (other) documentation does not oblige Howitec to deliver or accept the order.
2.4 Howitec reserves the right to reject orders without stating its reasons, or to deliver cash on delivery.
Article 3: Agreement
3.1 With the exception of the provisions defined hereafter, an agreement with Howitec is not enforced until it has received an offer signed as approved by the Other Party or, if no offer - approved in writing - has been used, Howitec has accepted or confirmed the order in writing. The offer or order confirmation is deemed to reflect the agreement correctly and in full.
3.2 Any additional arrangements or amendments agreed at a later stage, as well as any (oral) arrangements and/or promises by Howitec, its staff or on behalf of Howitec by our sales staff, agents, representatives or other intermediaries, shall be binding on Howitec only if and insofar as they have been confirmed in writing by Howitec, by a person authorised to that effect. The costs incurred by Howitec in implementation of the original order are at the Other Party's expense and risk.
3.3 With regard to any work for which no offers (tenders) or order confirmations are sent due to their nature and extent, the agreement shall be deemed to enter into force the moment when Howitec has commenced the actual implementation thereof. The invoice is deemed to reflect the agreement correctly and in full.
3.4 Each agreement is concluded on our part under the suspensive provision that the Other Party - and such exclusively in our opinion - proves to be sufficiently creditworthy in terms of the financial fulfilment of the agreement.
3.5 Howitec is entitled, on or after conclusion of the agreement, to demand a guarantee from the Other Party that both payment and other obligations shall be met, prior to the (further) fulfilment of the agreement.
3.6 Howitec is entitled - if it deems such necessary or desirable - to engage other parties for the correct implementation of the agreement, the costs of which shall be charged on to the Other Party in accordance with the issued quotation. Howitec shall consult with the Other Party in that respect where possible and/or necessary.
Article 4: Prices
4.1 Howitec's prices are based on the prices for components, materials, wages, taxes, duties, charges and carriage, as well as any other cost-determining factors in the Netherlands and abroad prevailing at the time when the agreement is concluded. If any changes occur to the price-determining factors mentioned in the previous clause, Howitec shall be entitled to change the agreed prices accordingly, even if such is done according to circumstances that could be foreseen when the agreement was concluded.
4.2 Unless otherwise specified, Howitec's prices:
- are based on the level of purchase prices, wages, labour costs, social and government charges, carriage, insurance premiums and other costs prevailing on the date of the offer or order;
- are based on delivery ex Howitec's company, warehouse or other storage place (Incoterm: EXW);
- include packaging made available by Howitec;
- exclude VAT;
- exclude import duties and other taxes, charges and duties;
- exclude the costs of any packaging not made available by Howitec, loading and unloading, transport and insurance;
- are stated in euros, EUR (€); any currency fluctuations are charged on to the Other Party.
4.3 In the event of a rise in one or more of the cost price factors, Howitec shall be entitled to raise the order price accordingly, such with due regard for any existing legal regulations in that respect, on the understanding that any known future price increases must be stated in the order confirmation. If such a rise takes place within 3 months of conclusion of the agreement, the Other Party shall be entitled to dissolve the agreement within a reasonable term, against payment of a reasonable reimbursement of the direct costs incurred by Howitec in connection with the agreement. If Howitec has manufactured the goods prior to such timely dissolution, the Other Party must accept the goods against the increased prices if such is required by Howitec.
Article 5: Packaging not included in the price
5.1 Any packaging which is not included in the price is provided on loan by Howitec and remains its property. Unless otherwise has been agreed expressly in writing, the Other Party shall return that packaging as soon as possible, in undamaged condition, carriage paid to Howitec, to an address to be specified by Howitec. If the Other Party fails to do so, it shall be held to pay the cost price of new, replacement packaging to Howitec.
General Terms and Conditions of Howitec Netting B.V., registered with the Chamber of Commerce in Leeuwarden under Number 01076642
Article 6: Protection of rights
6.1 With regard to the offers and/or any catalogues and/or drawings, etc made available by Howitec, as well as any attachments that can be subject to any intellectual and/or industrial property right or any equivalent right, such items shall remain the property of Howitec. Such items may not be copied, presented to third parties for inspection, or used in any way other than agreed without our written permission. They must be returned forthwith when requested to do so by Howitec.
6.2 In the event of the manufacture of goods according to drawings, models, samples or other directions in the broadest sense, received from the Other Party, that party shall be responsible for the full guarantee that the manufacture and/or delivery of these articles shall not affect any trade mark, patent, utility or trade model or any other right of third parties, and shall indemnify Howitec against any claims from any third party in that respect.
Article 7: Delivery and delivery time
7.1 The most recent Incoterm provisions apply, insofar as they do not derogate from these General Terms and Conditions. We shall include the Incoterm preferred by us in the offer and/or order confirmation. If no Incoterm is stated in the offer and/or order confirmation, delivery shall be ex works (Incoterm EXW). The time of delivery is the moment when the goods are made available to the Other Party on our premises for transport to or on behalf of the Other Party.
7.2 The Other Party must inspect the delivered goods and the packaging for any nonconformities or damage forthwith on delivery, or undertake such inspection after notification on our part that the goods are at the Other Party's disposal.
7.3 Howitec reserves the right to deliver in parts. In such a case, each delivery shall be regarded as a separate transaction. Part deliveries may be invoiced separately. Article 14 of these General Terms and Conditions shall apply in full.
7.4 Deliveries on a call-off basis must be communicated and accepted within the agreed period. The Other Party shall be in default when a call-off deadline expires, in which case Howitec shall be entitled to dissolve the agreement or dispatch the goods.
7.5 The delivery time stated is always approximate, unless otherwise has been agreed expressly in writing. Exceeding a delivery time does not oblige Howitec to pay any compensation. The Other Party shall not be entitled to any additional or substitute compensation for non-compliance or suspension of any of its obligations arising from this or any other agreement valid between Howitec and the Other Party. In that case, the Other Party shall not be entitled to cancel or dissolve the agreement either.
7.6 If the delivery time is exceeded by Howitec for a reason other than that mentioned in Clause 5 of this article, the Other Party shall, however, be entitled to set a new delivery time, and if that time is not observed, the Other Party shall be entitled to dissolve the agreement, insofar as it has not yet been fulfilled, by means of a written statement. In that case the Other Party shall not be entitled to compensation for any damage it has suffered either.
7.7 The delivery time shall be extended at least with the duration of the period of a delay in the delivery caused by force majeure or any imputable or non-imputable act on the part of the Other Party. If the delay in the delivery time is caused by the action of the Other Party, Howitec shall be entitled to dissolve the agreement.
7.8 The Other Party is obliged to accept the goods as soon as they are offered by Howitec. Any costs and damage on the part of Howitec arising from non-acceptance by the Other Party of (part of) the goods it has ordered, including any storage costs, shall be at the Other Party's expense and risk.
Article 8. Transport/Risk
8.1 Transport, if and insofar as it has been provided by Howitec, dispatch, packaging, etc are carried out by Howitec - if no further instruction is issued by the Other Party to Howitec - with due care and diligence, without Howitec having any liability in that respect. Any specific requirements of the Other Party regarding transport and/or dispatch shall be fulfilled only if the Other Party has declared that it will bear the (additional) costs thereof.
8.2 If Howitec is responsible for transport, the Other Party shall commit itself to ensure that the agreed delivery address can be reasonably accessed by the agreed means of transport, failing which the Other Party must pay any resulting or relevant costs and damage.
8.3 Goods are always dispatched at the Other Party's expense and risk, also if carriage-paid delivery has been agreed, and even if the carrier demands that consignment notes, transport addresses, etc include the clause that any damage during transport is at the sender's expense and risk.
Article 9: Force majeure
9.1. A force majeure situation occurs on the part of Howitec if fulfilment of the agreement - whether or not on time - has been prevented in full or in part, by circumstances that are beyond our control and as a result of which compliance with the agreement can no longer be required from us in fairness. Force majeure includes the following: a work strike, excessive absence through illness among Howitec's staff, transport difficulties, fire, government measures (including at least import and export bans), impositions of quotas and business disruptions at Howitec or its suppliers, involuntary restrictions as a result of which fulfilment of the agreement becomes more costly and/or inconvenient, such as storm damage and/or other natural disasters, as well as any breach of contract by our suppliers, as a result of which Howitec is not (no longer) able to comply with its obligations towards the Other Party.
9.2 If the force majeure situation continues for more than 30 days, both parties shall be entitled to suspend the agreement in full or in part with regard to the part to which the force majeure relates, or to dissolve the agreement in full or in part by means of a written statement, without being held to pay any compensation on whatever grounds. The Other Party will be consulted.
9.3 Howitec is entitled to demand payment for its performance in connection with the fulfilment of the relevant agreement, before the circumstances causing the force majeure situation became evident.
9.4 Howitec shall also be entitled to appeal to force majeure if the circumstance leading to the force majeure situation occurs after our performance should have been completed.
Article 10: Liability
10.1 Howitec's liability shall be limited in all cases, both contractually and on the basis of the law and/or regulations, to the amount that is paid out under its liability insurance, increased by the own risk amount that is not payable by insurers according to the policy conditions.
10.2 If, in any circumstance, the insurer is not paying and/or the damage is not covered by the insurance policy, Howitec shall be liable only for any direct damage that can be attributed to Howitec. Direct damage refers to:
a. reasonable costs incurred to establish the cause and extent of the damage insofar as that relates to damage within the meaning of these Terms and Conditions;
General Terms and Conditions of Howitec Netting B.V., registered with the Chamber of Commerce in Leeuwarden under Number 01076642
b. any reasonable costs necessary in order to ensure that Howitec's inferior performance corresponds to the agreement;
c. any reasonable costs, incurred to prevent or limit damage, insofar as the Other Party can demonstrate that those costs have led to a limitation in the direct damage as described in these General Terms and Conditions.
Any liability on the part of Howitec for any other damage, such as indirect damage, including but not limited to consequential damage, trading losses, loss of turnover and/or profits, missed goodwill, loss of assets, damage to crop or harvest or damage due to restricted growth, and damage as a consequence of business interruption, including work interruption, is precluded.
10.3 With the exception of intent or wilful recklessness on the part of Howitec or its management, Howitec's liability for direct damage as described under 10.2 shall be limited to an amount that equals 50% of the value of the invoice concerning the faulty goods that have caused the damage. If delivery takes place in parts, Howitec shall not be held to pay more than 50% of the relevant part of the amount of the invoice relevant to the damage.
10.4 If the insurer does not pay out and/or the damage is not covered by the insurance policy, Howitec's overall liability for damage due to death or physical injury shall be limited to the sum of € 500,000 per incident, whereby a series of related incidents are regarded as one incident.
10.5 Howitec shall not be liable for any damage that might occur in any good it is working on, has worked on or shall work on, or anything that is attached to that good or is part thereof, irrespective of whether that damage is caused by persons employed by Howitec or persons engaged by Howitec in any other way. Whether or not the good is at Howitec's premises or elsewhere is not relevant.
10.6 Any liability-restricting, excluding or defining conditions which can be invoked by third parties against Howitec can also be invoked by Howitec against the Other Party.
10.7 Any claim against Howitec shall expire after a period of one year following the occurrence of that claim, unless a legal case has been brought against Howitec before expiry of that period.
10.8 Any defence Howitec can derive from the agreement concluded with the Other Party to contest its liability can be invoked by Howitec's staff and third parties that have been engaged by Howitec for the fulfilment of the agreement, in a manner as if the staff and third parties had been parties to the agreement.
10.9 The Other Party indemnifies Howitec, its staff and any other persons contracted by or on behalf of Howitec with regard to any claims by third parties for compensation for any damage suffered by those third parties, caused by or otherwise related to goods originating from Howitec.
Article 11: Complaints and returned goods
11.1 Complaints are understood to mean any grievances of the Other Party as regards the soundness of the deliveries.
11.2 Any complaints regarding external, visible nonconformities (shortcomings or damage) of the delivered goods and/or the packaging must be submitted in writing within 8 days of the delivery of the goods, as described in Article 7. Any complaints regarding any non-externally visible nonconformities must be lodged to Howitec in writing as soon as possible after their discovery, but within 6 months of delivery as stated in Article 6, with a detailed description of the nature and reason of the complaints.
Any complaints about invoices must be submitted in writing within 8 days of the dispatch date of the invoices. If the abovementioned periods are exceeded, any rights against Howitec in terms of the nonconformities shall expire.
11.3 After the expiry of the abovementioned period, the Other Party shall be deemed to have approved the delivered goods or the invoice. Howitec will then no longer deal with any complaints. Any goods that have been complained about must be left in the condition in which they have been delivered and unsorted, until Howitec has investigated the complaints.
11.4 If Howitec concludes that the complaint is well founded, it shall be obliged only to replace or repair the faulty goods - whichever it considers more appropriate - without the Other Party being able to invoke any other right to any other compensation.
11.5 Submission of a complaint shall never release the Other Party from its payment obligations towards Howitec, and it shall not entitle the Other Party to any settlement.
11.6 Goods that have been delivered may be returned only after our prior written permission, under conditions to be determined by Howitec.
11.7 Any returned goods sent to Howitec must be packed in the original packaging. The returned goods must have the original packaging and a consignment note, as well as a return slip issued by Howitec. Any goods without a return slip issued by Howitec shall be rejected.
11.8 Any minor nonconformities in terms of quality, colour, length and thickness which are technically unavoidable or are generally permitted under the trading transactions cannot provide any ground for complaint. When the offer or delivery is based on a sample, the sample shall apply only for establishing the average properties. The quantity to be delivered by Howitec may exceed the quantity agreed with the Other Party by 5%, and shall have to be accepted by the Other Party. A tolerance of 5% more or less in the dimensions (length, width and height) must be accepted. Any data and images from official lists, brochures, etc do not entail the right to delivery in accordance with that data, and it is not possible to claim any compensation on that account.
Article 12: Guarantee
12.1 No guarantee shall be issued for any (parts of) goods and materials manufactured by Howitec, unless otherwise has been expressly agreed.
12.2 The guarantee for (parts of) goods not manufactured by Howitec, but which are delivered and fitted by Howitec, shall be limited to the guarantee Howitec obtains from its supply company.
12.3 The guarantee shall never extend beyond the free repair of the nonconformities that have occurred in the delivered goods, or the free delivery of new parts, on the understanding that Howitec shall never be liable for any damage suffered by the client and/or buyer as a consequence thereof.
12.4 If the Other Party fails to comply with its obligations from the agreement concluded with Howitec, any right to a guarantee shall be cancelled.
Article 13: (Extended) reservation of title
13.1 The ownership of the goods supplied (and possibly resold) by Howitec lies with Howitec and shall not be transferred to the Other Party until the latter has paid all that is due to Howitec, in whatever capacity, including any interest and costs of any damage.
13.2 In the event of the tooling, processing or mixing of the delivered goods by, on behalf of or on the premises of the Other Party, Howitec shall obtain part ownership of the newly developed good(s) and/or the delivered composite good(s), or the principal good in terms of the part that corresponds to the value of the (original) goods supplied by Howitec.
13.3 In the event of the non-payment of an amount due, a suspension of payment, an application for a moratorium, bankruptcy, a guardianship order, decease or the liquidation of the business of the Other Party, or if Howitec has grounds to fear that the Other Party is going to fail to meet its obligations, Howitec shall be entitled, without a default notice or court intervention, to dissolve the order or the part of the order with regard to which delivery is still due, and to demand the return of any delivered goods which have not yet been paid (in full) as its property, offset against any goods that have already been paid. Such without prejudice to Howitec's rights to demand compensation for any loss and/or damage. In those cases any claim Howitec has against the Other Party shall also become immediately due in full.
13.4 The Other Party is not entitled to alienate any goods that come under the reservation of title, or to establish any limited right thereon for the benefit of third parties. The goods may not be given as security or serve as a surety for a claim by a third party. The Other Party may, however, sell and transfer the goods issued under reservation of title to third parties within the context of the normal operation of its business.
When goods are sold on credit, the Other Party must demand a reservation of title from its buyers, with due regard for and in accordance with the provisions in this article. If the Other Party alienates the goods or establishes any limited right on it for the benefit of a third party or third parties, the Other Party shall also establish a silent lien on all the rights and claims it has or obtains regarding those third parties. It shall do so in order to provide assurance as regards all that is due to Howitec by the Other Party at that moment. The Other Party shall also cooperate (where necessary and as soon as such is possible) in the establishment and registration of this silent lien in a manner to be determined by Howitec.
13.5 The Other Party must store and maintain the goods delivered under reservation of title with the necessary care, and as recognisable property of Howitec. The Other Party must insure the goods for the duration of the reservation of title against fire and water damage, and also against theft, and present the policy (policies) of such insurance to Howitec for inspection on first demand.
Article 14: Payment
14.1 Unless otherwise has been agreed in writing, payment must take place within 30 days of the invoice date, without deduction or setoff. Payment must be made cash or onto one of Howitec's bank accounts. The value date stated on Howitec's bank statements is decisive and is therefore regarded as the payment date.
14.2 Each payment by the Other Party serves primarily as payment of the interest that is due and of any collection and/or administration costs incurred by Howitec, after which it is deducted from the oldest outstanding invoice.
14.3 If an agreed payment term or the general payment term has been exceeded by the Other Party, any (quantity) discounts awarded to the Other Party on the invoice shall be cancelled, and it shall be lawfully in default, without any prior notice of default being required. With effect from the date when the Other Party is in default in terms of payment, all the other claims of Howitec against the Other Party shall also become due, and the default shall apply with regard to those claims as well with immediate effect, without any default notice being required.
14.4 In the event that the Other Party:
a. is declared bankrupt, resorts to a cession of property, submits a request for a suspension of payments, or its property is seized in full or in part;
b. dies or is placed under guardianship;
c. fails to comply with any obligation by virtue of the Law or these Terms and Conditions;
d. fails to pay an invoice amount or part thereof within the relevant set deadline;
e. resorts to a stoppage or transfer of its company or moves an important part of its company to a partnership which is still
to be established or already exists, or changes the company's objective,
Howitec, as a consequence of the mere occurrence of one of the abovementioned circumstances, shall be entitled either to regard the agreement as dissolved without any court intervention being required, or to demand forthwith and in full any amount due by the Other Party on the basis of work and/or deliveries undertaken by Howitec, without any warning or default notice being required, without prejudice to Howitec's right to compensation of costs, damage(s) and interests.
14.5 Howitec shall be entitled at all times to set off its claim against the Other Party against any amount that is and/or shall be due by Howitec to the Other Party. Any disputes of whatever nature shall not give the Other Party the right to postponement, suspension or set-off of payment.
Article 15: Interest and costs
15.1 With effect from the day when the Other Party is in default, it shall owe a default interest to Howitec on all the amounts due of
1.5% per month or part thereof, for as long as the failure to pay continues.
15.2 All legal and non-legal expenses to be incurred shall be payable by the Other Party and are based on the Extrajudicial Collection Costs (Fees) Decree. The amount due for the costs as defined in Article 96 Paragraph 2, under c) of Book 6 of the Dutch Civil Code is:
- 15% of the amount of the principal sum of the claim for the first € 2,500 of the claim;
- 10% of the amount of the principal sum of the claim for the next € 2,500 of the claim;
- 5% of the amount of the principal sum of the claim for the next € 5,000 of the claim;
- 1% of the amount of the principal sum of the claim for the next € 190,000 of the claim;
- 0.5% of the amount above the principal sum, with a maximum of € 6,775.
15.3 The payment referred to in the first paragraph is at least € 40.
15.4 The payment shall be increased by a percentage that corresponds to the percentage as defined in Article 9, Paragraph 1 of the Turnover Tax Act 1968 if Howitec, in order to obtain satisfaction without the intervention of the law, makes use of a service as defined in the aforementioned Act, with regard to which turnover tax is due under that Act, and Howitec cannot set off the turnover tax charged to it on the basis of that Act, and declares such explicitly, and declares that the costs in that respect have been increased.
Article 16: Governing law
16.1 All our offers, agreements and the fulfilment thereof are governed exclusively by Dutch Law. The applicability of the UN Convention on Contracts for the International Sale of Goods, Vienna 11 April 1980, is expressly precluded.
Article 17: Disputes
17.1 Any disputes, including those which are considered as such by one party only, arising from or relating to the agreement to which these Terms and Conditions apply or the relevant Terms and Conditions as such and their interpretation or implementation, of a factual or a judicial nature, shall be settled by the competent Court in the Judicial District of Leeuwarden, such insofar as the legal provisions permit.
17.2 The provision of Paragraph 1 of this article does not impede the right of Howitec to bring the dispute before the competent Court under the normal competence rules, or to have the dispute settled by means of arbitration or binding advice.
Article 18: Forfeiture of rights
18.1 If Howitec, as a goodwill gesture or for whatever other reason, does not appeal to any applicable provision from these General Terms and Conditions or any other condition as agreed between Howitec and the Other Party, Howitec shall thereby not reject its right to appeal to the relevant provision(s) and any other applicable provisions at a later stage.
Article 19: Partial invalidity/transposition
19.1 If any provision from these General Terms and Conditions, is invalid in full or in part for whatever reason, the agreements and these General Terms and Conditions shall remain in full force, with the exception of that provision. As regards the relevant invalid provision(s), parties shall have deemed to have agreed that which lawfully is closest to the purport of the invalid provision(s).