1.1 These general terms and conditions, used by Howitec Netting B.V. ("Howitec"), apply to all offers from, orders to, agreements with and deliveries by Howitec.
1.2 In these terms and conditions, the "Other Party" means: any natural or legal person who has concluded or wishes to conclude an agreement with Howitec as well as that person's representative(s), authorised agent(s), legal successor(s), heirs and beneficiaries.
1.3 Any general or other terms and conditions used by the Other Party do not apply unless the parties have explicitly agreed in writing that they do apply.
1.4 If any agreement differs in one or more respects from these terms and conditions, the remainder of these terms and conditions will remain in full force and effect.
2.1 All offers made remain valid for a period to be specified by Howitec. Offers are non-binding if no such period is specified.
2.2 All price lists, brochures, images and other data provided with an offer are only binding on Howitec if that is explicitly confirmed in writing. Howitec is not obliged to provide detailed data unless otherwise agreed in writing.
2.3 Howitec is not obliged to make delivery or accept an order if it sends offers and/or any other documentation.
2.4 Howitec reserves the right to refuse orders without giving reasons or to deliver subject to payment on delivery or in advance.
3.1 Subject to any provision below, an agreement with Howitec is only concluded once the Other Party has returned a quotation to Howitec signed for approval, or, if no quotation (approved in writing) has been used, once Howitec has accepted or confirmed the order in writing. The quotation or order confirmation must set out the terms of the agreement accurately and completely.
3.2 Any additional later arrangements or changes or verbal arrangements and/or promises made by Howitec's staff or by Howitec's sellers, agents, representatives or other intermediaries on Howitec's behalf are only binding upon Howitec if and as far as they have been confirmed in writing by a person authorised by Howitec in that regard. The Other Party bears the risk and expense of any costs incurred by Howitec in performing the original order.
3.3 As regards work for which, due to its nature and extent, no offers (quotations) or any order confirmation has been sent, an agreement is deemed concluded when Howitec starts carrying out that work. The invoice must set out the terms of the agreement accurately and completely.
3.4 Howitec enters into every agreement under the condition precedent that the Other Party - solely at Howitec's discretion - proves to be sufficiently creditworthy in order to perform the financial obligations under the agreement.
3.5 Upon or after entering into the agreement, Howitec may, before carrying out the order (or further carrying it out), demand security from the Other Party that both the payment and other obligations will be fulfilled.
3.6 Howitec is authorised - if it considers this necessary or advisable - to engage third parties in order to ensure that the agreement is performed correctly. The costs incurred in this regard will be charged to the Other Party in accordance with the quotations issued. If possible and/or if necessary, Howitec will discuss this with the Other Party.
4.1 Howitec's prices are based on the prices of raw and other materials, salaries, taxes, duties, charges and freights as well as all other cost-determining factors, both domestically and abroad, that apply when the agreement is concluded. If there are any changes to these cost-determining factors, even if they are the result of circumstances that were foreseeable when the agreement was concluded, Howitec will be entitled to change the agreed prices accordingly.
4.2 Unless otherwise stated, Howitec's prices:
- are based on the purchase prices, salaries, labour costs, social security costs, government levies, freight, insurance premiums and other costs that applied when the offer was issued or on the order date;
- are based on delivery from Howitec's premises, warehouse or other place of storage (Incoterm: EXW);
- include packaging;
- do not include VAT;
- do not include import duties or other taxes, levies and duties;
- do not include the costs of packaging, loading and unloading, transport and insurance;
- are stated in euro, EUR (€); the costs of any exchange rate changes will be passed on.
4.3 If there is an increase in any of the cost price factors, Howitec will be entitled to increase the order price accordingly, taking into account any applicable legal regulations. However, any future price increases that are known at the time of the order must be included in the order confirmation. If such an increase occurs within three months after the agreement is concluded, the Other Party will be entitled to terminate the agreement within a reasonable period of time, against payment of reasonable compensation of the direct costs incurred by Howitec in relation to that agreement. If Howitec has already produced the goods before timely termination of the agreement, the Other Party will still be obliged, at Howitec's discretion, to take delivery of the goods at the prices that applied before the increase.
5.1 Packaging not included in the price is provided on loan by Howitec and remains Howitec's property. Unless explicitly agreed otherwise, the Other Party will return this packaging, carriage paid, to Howitec as soon as possible in undamaged condition at an address to be specified by Howitec. Failing this, the Other Party must compensate Howitec for the cost price of new replacement packaging.
6.1 Any catalogues and/or drawings etc. with respect to the offer and/or made available by Howitec, as well any right to any annexes and/or attachments that could be the subject of any right of intellectual and/or industrial property or a right that could be equated to that, are and remain Howitec's property. Such documents may not be copied, made available for inspection to third parties or used in any way other than as agreed, unless Howitec gives its written consent. They must be returned to Howitec immediately upon request.
6.2 If any items are produced on the basis of drawings, designs, samples or other instructions in the broadest sense of the word received from the Other Party, the Other Party gives its full warranty that the production and/or delivery of such items does not infringe any trademark, patent, utility or trade model or any other right of third parties, and it indemnifies Howitec against any and all claims of any third party in this regard.
7.1 The latest version of the Incoterms rules applies insofar as it does not deviate from these general terms and conditions. The quotation and/or order confirmation will include our preferred Incoterm. If no Incoterm is included in the quotation and/or order confirmation, delivery will be ex works (Incoterm EXW). The time of delivery is the moment the goods are made available to the Other Party on our premises for transport to or for the Other Party.
7.2 The Other Party is obliged to check the delivered goods and the packaging immediately upon delivery for any shortfalls or damage, or to carry out this check after Howitec has notified it that the goods are at its disposal.
7.3 Howitec reserves its right to deliver in instalments. If it exercises this right, each delivery will be considered a separate transaction. Separate invoices may be sent in the case of such phased deliveries. Article 14 of these general terms and conditions will remain in full force and effect.
7.4 Delivery on demand must be requested and accepted within the agreed period. If delivery is not taken within this agreed period, the Other Party will be in default and it will be at Howitec's discretion whether or not to terminate the agreement, or to ship the goods anyway.
7.5 Delivery times are always indicated approximately unless explicitly agreed otherwise in writing. Howitec is not obliged to pay any compensation if it makes delivery later than indicated. The Other Party is not entitled to any additional or substitute compensation for the non-fulfilment or suspension of any of Howitec's obligations under these terms and conditions or any other agreement applicable between Howitec and the Other Party. Nor will the Other Party be entitled to terminate the agreement in such a case.
7.6 If Howitec exceeds the delivery period for reasons other than those given in para. 5 of this article, the Other Party will be entitled to stipulate a new delivery period in writing to Howitec. If Howitec also fails to observe this period, the Other Party will be authorised to terminate any part of the agreement that has not been performed by issuing a written statement to that effect. The Other Party will not be entitled to compensation for any loss suffered by it in that case either.
7.7 The delivery period will in any case be extended by the duration of the delay in delivery that was caused by force majeure or by the Other Party's actions, whether culpable or not. If the delay in delivery time was the Other Party's fault, Howitec will be authorised to terminate the agreement.
7.8 The Other Party is obliged to accept the goods as soon as Howitec offers them. If the Other Party refuses to accept some or all of the goods, it will bear the expense and risk, including any storage costs, of all costs and damages incurred by Howitec in that regard.
8.1 If and to the extent arranged by Howitec, Howitec will arrange the mode of transport and shipping and method of packaging with due care and diligence without bearing any liability if the Other Party has not issued any specific instructions to Howitec in this regard. Any specific wishes of the Other Party regarding transport and/or shipment will only be carried out if the Other Party has declared that it will bear all the costs incurred in that regard.
8.2 If Howitec arranges transportation, the Other Party must ensure that the agreed delivery address is reasonably accessible for the agreed means of transport, failing which the Other Party will be obliged to reimburse any associated or resulting costs and damage.
8.3 Items are always shipped at the Other Party's expense and risk, even if carriage-paid delivery has been agreed as well as if the carrier demands that consignment notes, transport addresses et cetera include the clause that all transport damage is at the expense and risk of the sender.
9.1 Howitec is subject to a situation of force majeure if it is unable, temporarily or otherwise, to perform the agreement, either wholly or in part, due to circumstances beyond its control, as a result of which it can no longer be reasonably required to perform the agreement. Force majeure includes: strikes, excessive absenteeism of Howitec's personnel, transport difficulties, fire, government measures (including in any event import and export bans), quota restrictions and company breakdowns at Howitec or at our suppliers, involuntary disruptions or impediments which increase the cost and/or difficulty of performing the agreement, such as storm damage and/or other natural disasters, as well as breach of contract by our suppliers as a result of which Howitec cannot (or can no longer) fulfil its obligations to the Other Party.
9.2 If a situation of force majeure continues for more than 30 days, either party will have the right to suspend the performance of any aspect of the agreement affected by that situation, wholly or in part, or to terminate the agreement, wholly or in part, by issuing a written statement without thereby incurring any liability for compensation for any reason whatsoever. Howitec will discuss this situation with the Other Party.
9.3 Howitec may seek payment for the performance delivered in carrying out the agreement in question before the circumstance leading to the force majeure situation became apparent.
9.4 Howitec is also entitled to invoke force majeure if the circumstance causing it occurs after it was supposed to have performed.
10.1 Howitec's liability in any event, either contractual or on the basis of the law and/or regulations, is limited to the amount paid out under its liability insurance plus the amount of any deductible that is not chargeable to the insurers under the policy terms.
10.2 If, in any instance, the insurer does not pay out and/or the damage is not covered by Howitec's insurance, Howitec will only be liable for any direct damage attributable to it. "Direct damage" means solely:
a. a. reasonable costs incurred to determine the cause and scope of the damage, insofar as such determination pertains to damage within the meaning of these general terms and conditions;
b. b. any reasonable costs necessarily incurred to have Howitec's deficient performance conform to the agreement;
c. c. any reasonable costs incurred to avoid or mitigate damage, insofar as the Other Party demonstrates that such costs did in fact mitigate any direct damage within the meaning of these general terms and conditions.
10.3 Howitec is not liable for any other damage, such as indirect damage, including but not limited to consequential damage, business losses, damage due to loss of turnover and/or of profit, lost goodwill, damage to assets, crops and harvests, and damage due to growth inhibition due to business stagnation including work stoppage.
10.4 Except in the event of intent or deliberate recklessness on the part of Howitec or its management, Howitec's liability for any direct damage referred to in Article 10.2 is limited to 50% of the amount of the invoice for the defective goods that caused the damage. In the event of phased deliveries, Howitec is obliged to compensate damage up to a maximum of 50% of the relevant part of the invoice amount.
10.5 If the insurer does not pay out and/or the damage is not covered by insurance, Howitec's total liability for damage due to death or bodily injury is limited to EUR 500,000 per event, with a series of related events being regarded as a single event.
10.6 Howitec is not liable for any damage caused to any item on which it is working, has worked or will work, or for anything included in or that is part of that item, irrespective of whether such damage has been caused by individuals employed by Howitec or individuals it deploys in any other way. It is irrelevant in this regard whether such item is in Howitec's possession or not.
10.7 Howitec is entitled to hold against the Other Party any provisions that limit, exclude or establish liability which third parties may hold against Howitec.
10.8 In addition, any claim against Howitec lapses by the mere passage of one year after that claim arises unless legal action has already been taken against Howitec in that regard within that period.
10.9 Any and all defences that Howitec may base on the agreement concluded with the Other Party to avoid its liability, may be invoked by Howitec's personnel and third parties engaged by Howitec to perform the agreement against the Other Party, as if that personnel and those third parties themselves were parties to the agreement.
10.10 The Other Party indemnifies Howitec, Howitec's personnel and persons deployed by or on behalf of Howitec against all third-party claims for compensation of any damage sustained by such third parties as a result of or in relation to goods originating from Howitec.
11.1 Complaints are all grievances of the Other Party regarding the soundness of the deliveries.
11.2 Complaints about externally visible defects, (shortages or damage) of the goods delivered and/or the packaging must be made in writing no later than eight days after the goods are delivered, as referred to in Article 7. Any complaint about defects that are not externally visible must be made in writing to Howitec as soon as possible after it is discovered, but in any case within six months after delivery as referred to in Article 7, and must include an accurate description of the complaint and the basis for it.
Any complaint about an invoice must likewise be submitted in writing within eight days after the date when that invoice was sent. If a complaint is not made within the above periods, any claim against Howitec regarding the defect(s) will lapse.
11.3 After these periods end, the Other Party will be deemed to have approved the delivered goods or the invoice, respectively. Howitec will then no longer deal with any complaints. Goods about which complaints are made must be left in the state in which they were delivered and unsorted until Howitec has investigated the relevant complaints.
11.4 If Howitec considers a complaint to be valid, Howitec's sole obligation will be to replace or repair the faulty goods, as it sees fit, without the Other Party having any claim or right to any compensation whatsoever.
11.5 Filing a complaint never releases the Other Party from its payment obligations to Howitec and does not entitle the Other Party to any set-off.
11.6 Delivered goods may only be returned once Howitec has consented to that in writing and on conditions to be determined by Howitec.
11.7 Returned items must be packed in their original packaging. In addition to the original packaging and a waybill, the returned goods must be accompanied by a return slip issued by Howitec. Items not accompanied by a return slip issued by Howitec will be refused.
11.8 Minor deviations in quality, colour, length and thickness, which are technically unavoidable or generally permissible according to commercial transactions, cannot constitute grounds for complaint. If an offer or delivery is made in accordance with a sample, the sample will only be valid for determining the average quality. The quantity to be delivered by Howitec may exceed the quantity agreed with the Other Party by 5% and the Other Party is required to accept this. The Other Party is also required to accept any deviation of 5% from the agreed dimensions (length, width, height). Data and illustrations taken from price lists, brochures et cetera do not provide any entitlement to delivery according to such data, nor do they constitute any basis for a claim for compensation.
12.1 Howitec does not provide any warranty for items and materials (or parts of them) manufactured by it unless explicitly agreed otherwise.
12.2 Any warranty for items (or parts of them) not manufactured by Howitec itself, but delivered and installed by Howitec, is limited to the warranty Howitec receives from its supplier.
12.3 Such warranty in no event extends further than for the repair, free of charge, of any defects to the delivered goods, or of the delivery of new parts free of charge. In addition, Howitec is never liable for any resulting damage suffered by client and/or customer.
12.4 If the Other Party does not fulfil its obligations under the agreement concluded with Howitec or does not fulfil them in time, any right to a warranty lapses.
13.1 The ownership of items delivered by Howitec and any items passed on and resold by Howitec is vested in Howitec and is only transferred to the Other Party after it has fully settled any claim, on any basis, including interest and costs and any damages, that Howitec has against the Other Party.
13.2 If any delivery is subject to treatment, processing or mixing by or on behalf of or at the Other Party, Howitec will acquire the right of co-ownership of the item(s) thus created and/or any item(s) combined with the delivered items or the main item, in a ratio corresponding to the value of the item(s) originally delivered by Howitec.
13.3 If a claim that is due is not paid, or if payment is suspended, or in the event of an application for a suspension of payments, or bankruptcy, receivership, death, or liquidation of the Other Party's business, or if Howitec fears that the Other Party will fail to perform its obligations, Howitec will be entitled, without proof of default and without judicial intervention, to terminate the order or any part of it that has yet to be fulfilled, and to reclaim anything delivered but not yet paid for or paid for in full as its own property, setting off any payment already made in that regard and without prejudice to Howitec's rights to claim compensation for any loss and/or damage. In such instances, any claim Howitec has against the Other Party will be immediately due and payable.
13.4 The Other Party is not entitled to dispose of any items subject to retention of title or to establish any limited right to them for the benefit of third parties. The items may not be pledged or serve as security for any claim by a third party. However, the Other Party will be allowed to sell and transfer items issued under retention of title to third parties in the normal course of its business.
When selling on credit, the Other Party must stipulate retention of title with its buyers, with due regard to and in accordance with the provisions of this article. If the Other Party disposes of items or establishes any limited right in them for the benefit of (a) third party/parties, it will also establish an undisclosed pledge on all rights and claims it has or acquires against such third party/parties. This will serve as security for any claim that Howitec has against the Other Party at that time. If necessary, the Other Party will also, and as soon as possible, cooperate with the establishment and registration of this undisclosed pledge in a manner to be determined by Howitec.
13.5 The Other Party is obliged to keep any items delivered/supplied under retention of title with due care, and as recognisable property of Howitec. The Other Party is obliged to insure the items, for as long as the retention of title applies, against fire and water damage as well as against theft, and to allow Howitec to inspect the relevant insurance policies on demand.
14.1 Unless otherwise agreed in writing, payment will be made within 30 days of the invoice date without any deduction or set-off. Payment is made either in cash or into one of Howitec's bank accounts. The value date indicated on Howitec's bank statements is decisive and is therefore regarded as the payment date.
14.2 Every payment made by the Other Party primarily serves to pay any interest owed by it as well as any collection costs and/or administration costs incurred by Howitec, after which it is deducted from the earliest outstanding claim.
14.3 If the Other Party fails to meet an agreed or general payment deadline, any bulk and other discounts granted to the Other Party on the invoice will cease to have effect and the Other Party will be in default by operation of law without any prior notice of default being required. If the Other Party defaults on payment, all of Howitec's other claims against it will be due and payable with effect from the date of that default, and the Other Party will also immediately be in default with regard to those claims without any notice of default being required.
14.4 If the Other Party:
a. is declared insolvent/bankrupt, assigns its assets/estate or files a request for a suspension of payments, or an attachment is levied against its property in whole or in part;
b. dies or is placed under guardianship;
c. fails to comply with any statutory obligation or obligation under these terms and conditions;
d. fails to pay an invoice, wholly or in part, within the specified period;
e. ceases or transfers its business or a significant part of it, including transferring its business to a company yet to be incorporated or an already existing company, or changes the objects of its company,
then Howitec will be entitled, by the mere occurrence of any of the mentioned circumstances, to either consider the agreement terminated without any judicial intervention being required, or to claim any amount owed by the Other Party for the work done and/or deliveries made by Howitec, without any warning or notice of default being required, and without prejudice to Howitec's right to compensation for costs, damages and interest.
14.5 Howitec is at all times entitled to set off any claim it has against the Other Party against any amount that Howitec owes or will owe the Other Party. Disputes of any kind will not entitle the Other Party to defer, suspend or set off payment.
15.1 If the Other Party is in default, it will owe Howitec, from the date of that default, interest at the rate of 1.5% per month or part of a month on all amounts due for as long as it continues to be in default.
15.2 Any legal and other costs to be incurred will be borne by the Other Party and will be based on the Dutch Extrajudicial Collection Costs (Fees) Decree (Besluit vergoeding voor buitengerechtelijke incassokosten). The compensation due for costs referred to in Article 6:96(2)(c) of the Dutch Civil Code is:
- 15% of the first EUR 2,500 of the principal amount of the claim;
- 10% of the next EUR 2,500 of the principal amount of the claim;
- 5% of the next EUR 5,000 of the principal amount of the claim;
- 1% of the next EUR 190,000 of the principal amount of the claim;
- 0.5% on the excess of the principal, up to a maximum of EUR 6,775.
15.3 The fee referred to in the first paragraph will be at least EUR 40.
15.4 That fee will be increased by a percentage corresponding to the percentage referred to in Section 9(1) of the Dutch Turnover Tax Act 1968 (Wet op de omzetbelasting 1968), if, for the purpose of obtaining payment out of court, Howitec avails itself of a service as referred to in the Dutch Turnover Tax Act 1968 in respect of which turnover tax is due under that Act and Howitec cannot set off the turnover tax charged to it under it and explicitly declares this, and states that the fees have been increased because of that.
16.1 All of Howitec's offers, agreements and their performance are governed solely by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (Vienna, 11 April 1980) does not apply.
17.1 All disputes, including those regarded as such by one party only, arising from or relating to the agreement to which these terms and conditions apply or the terms and conditions in question themselves and their interpretation or performance, in points of both fact and law, will be settled by the competent court in the district of the Northern Netherlands (Noord Nederland), sitting in Leeuwarden, to the extent permitted by law.
17.2 The provisions of paragraph 1 of this article are without prejudice to Howitec 's right to submit any dispute to the court that is competent according to the normal competency rules, or to have it settled by arbitration or binding advice.
18.1 If out of courtesy or for any reason whatsoever Howitec does not initially rely on any applicable provision of these general terms and conditions or any condition agreed between Howitec and the Other Party, Howitec will not thereby forfeit the right to rely on it and on any other provisions at a later point in time.
19.1 If for any reason whatsoever any provision of these general terms and conditions is invalid, wholly or in part, then, with the exception of that provision, any agreements in place and these general terms and conditions will remain in full force and effect. As regards the invalid provision(s) in question, the agreement deemed to have been made will be what is legally closest to the purport of the invalid provision(s).
19.2 These general terms and Conditions are drawn up in Dutch and under Dutch law. If these general terms and Conditions have been translated into a language other than Dutch and the Dutch text differs from it and/or conflicts with it, or if there are differences in interpretation, the Dutch text of Howitec's general terms and conditions will be decisive as regards the legal relationship between Howitec and the Other Party.