TERMS AND CONDITIONS HOUTWERF B.V.
These terms and conditions have been deposited with the Chamber of Commerce on the 22th of February 2016 under number 28029118.
These terms and conditions apply to all offers and transactions of Houtwerf B.V. (‘Houtwerf’), excluding the terms and conditions of the buyer. This will only not apply if Houtwerf has expressly recognised the applicability of the terms and conditions of the buyer in writing and expressly has set aside its own conditions.
These terms and conditions apply to all tender offers of Houtwerf, whether it concerns offers for buying agreements or offers for other kind of contracts. These general condtions also apply to all offers and transactions taking place by electronic means, including internet (e-commerce) and related electronic systems.
By requesting (or making request for) a tender offer, and/or concluding an agreement with Houtwerf, the candidate-buyer respectively buyer recognises to know these terms and conditions and to agree with them.
ARTICLE 1. DEFINITIONS
In these terms and conditions, following terms have following meanings:
– Buyer: party purchasing products and/or services from Houtwerf or in this context, requests an offer at Houtwerf or in an other way is in contact with Houtwerf about a possible purchase of products and/or services from Houtwerf;
– Third: party purchasing products and/or services from the buyer;
– Offer: offer from Houtwerf to deliver services and/or products;
– Order: order to Houtwerf to deliver services and/or products;
– Treatment of wood: the planing, sanding, milling, drying and/or any other kind of treatment of wood or substitute materials.
ARTICLE 2. OFFERS AND CONFIRMATIONS
2.1. Every offer is without commitment, unless otherwise agreed expressly and in writing.
2.2. Agreements, concluded by mediation of representatives or intermediaries, will only come into force after written confirmation of Houtwerf or in its absence, taking in account the provisions of 2.3.
2.3. Unless the correctness of the content of a written confirmation of sale is denied within 5 workdays, parties are bound by this.
2.4. If, and in so far nothing written has been agreed about the quality requirements of the products delivered to the buyer, the buyer is entitled to products of a quality level in accordance with what is common practice in the trade of the goods concerned.
2.5. At presentation and delivery according to sample, the sample is only valid to determine the average quality, structure, appearance and color of the goods to deliver.
2.6. For orders for which by their nature and extent, no offer or order confirmation is sent, the invoice is considered as the order confirmation, which is also considered as a correct and complete presentation of the agreement.
2.7. Houtwerf is only bound by an offer if it expressly and unambiguous indicated that this offer is binding, respectively if and because of Houtwerf’s confirmation of an order at a specified price.
2.8. If an offer does not lead to an agreement, Houtwerf is nevertheless entitled to charge the buyer for all costs made in the context of the offer.
2.9. If, after the conclusion of the agreement, as a result of by the buyer announced modifications in building plans, drawings etc., Houtwerf needs to produce new working drawings, construction calculations etc., the resulting costs will be charged entirely to the buyer.
ARTICLE 3. INTELLECTUAL PROPERTY
3.1. Houtwerf is entitled to all intellectual property rights on all offers made by Houtwerf and of the drawings, calculations, descriptions, models, marks, product specifications, (graphic) designs, software etc. provided by Houtwerf. Houtwerf remains entitled, even if the costs of the above products/services have been charged. By concluding an agreement, the buyer declares to abstain from any infringement on the intellectual property rights of Houtwerf, also when no deposit of rights has taken place, and acting to prevent any infringement by any (third) party or to end it.
3.2. The buyer is not entitled to use the drawings, calculations, descriptions, models, marks, product specifications, (graphic) designs software etc. referred to in 3.1, the included data or data which have become known to him in another way, in a different way from that envisaged in the context of the execution of the agreement.
3.3. The costs for making extra copies or extra prints of technial specifications, drawings etc. as desired by the buyer, are charged to the buyer.
ARTICLE 4. PRICES
4.1. Every agreement is concluded under the express condition that the agreed price is based on the applicable cost factors at the time of the conclusion of the agreement, like: export duties in the region of origin, freight and insurance, unloading charges, import duties, contributions, taxes.
4.2. Possible differences in these above cost factors at the time of the departure, arrival or delivery which, in the opinion of Houtwerf, justify a higher price, will be charged to the buyer.
ARTICLE 5. CURRENCY
In case of sale, respectively delivery on supply, a revision of the rates in one or more currencies in which the transaction has been concluded and/or executed, will establish the right for Houtwerf to change the price proportionally. If the price increases due to this provision, the buyer has the right to cancel the order. The cancellation needs to be in writing within 5 days from the information from Houtwerf to the buyer concerning the price increase.
ARTICLE 6. DELIVERY AND RISK
6.1. For orders agreed on free delivery, the goods travel at the expense and risk of Houtwerf.
6.2. For orders without agreed free delivery, the goods travel at the expense and risk of the buyer.
6.3. Damage to the goods by intentional violence is always at the expense of the buyer, regardless by whom or where this violence has taken place.
6.4. When agreed that the goods will be delivered on direct supply from abroad, the risk of a no good arrival (whether in quantity or in quality), late arrival and not taking place arrival as well as the risk during supply is entirely at the expense of the buyer. If the person from who and/or the person with whose mediation the abroad purchased goods are involved and/or the unloader, entirely or partially, after proper summation, fails to fulfill his obligations, regardless the reason or the cause, Houtwerf has the right to dissolute the contract with the buyer without creating any right for the buyer of reimbursement of prepaid expenses and/or any right of compensation of damages.
6.5. For free deliveries, Houtwerf is obliged to transport the goods to a delivery point reachable by a vehicle over a correctly (made) passable terrain, respectively a ship on a correctly navigable water. Unless otherwise provided, the buyer needs to take care in time of any permission, dispensation of authorisation necessary for the transport region. The buyer is obliged to take the delivery of the goods on the delivery point and to unload immediately. If the buyer fails to do so, the resulting costs will be at his expenses.
6.6. Houtwerf is entitled to make the choice of the means of transport – irrespective if it concerns a free delivery or not – unless otherwise agreed in writing.
6.7. The buyer is obliged to take care of a good reachability of the point where the goods have to be unloaded. If the buyer fails to do so, the resulting costs will be at his expenses.
6.8. Unless parties agreed otherwise in writing, the common packaging will not be be taken back by Houtwerf. Reusable packaging (europallets) will be taken back as provided in article 10 of these terms and conditions.
ARTICLE 7. DELIVERY TIME AND ON DEMAND
7.1. The possible agreed moment of delivery will be estimated by Houtwerf in the best possible way but can only be considered as a target date/period and not as a deadline.
7.2. The buyer is not entitled to any compensation of damage in case of a possible exceedance of the estimated delivery time. The buyer can not cancel the order for exceedance of the delivery time. The buyer can not refuse the reception and/or payment of the goods for exceedance of the delivery time.
7.3. If in case of delivery on demand no time limits have been agreed, Houtwerf is entitled to payment within three months after order.
7.4. When delivery on demand has been agreed and within three months not or not everything has been called, Houtwerf is entitled to sum the buyer in writing to indicate the time limit within which the total quantity will be called. The buyer is obliged to satisfy this summation within five days. The time limit to be indicated by the buyer can not exceed three months.
7.5. If the buyer does not satisfy the summation mentioned above in 7.4, Houtwerf is entitled, after expiration of three months after the summation, to store the goods, for the expense and the risk – if the risk would still be Houtwerf’s responsability – of the buyer, or to dissolute the agreement without judicial intervention and if required, claim compensation for damage. Houtwerf has the same competences when the buyer does not call up fort he goods in the agreed time limit or the time limit indicated by the buyer.
ARTICLE 8. ACCEPTATION AND COMPLAINTS
8.1. The control of the number of packages of the delivered goods lies with the buyer. When there are no immediate complaints about the delivered number of packages after reception, the quantities – on the consignment sheets, delivery vouchers and similar documents – are considered as recognised correct. Complaints about possible visible shortages or damages have to be notified by the buyer on the receipt to be on time.
8.2. Even if the buyer informs Houtwerf on time that less is delivered than indicated on the documents above, this does not give him the right to suspend payment.
8.3. Complaints about the quality of the goods, deviations from the specifications and the not visible damages have to be submitten as soon as possible in writing to Houtwerf, but no later than within five days after reception of the goods by the buyer; after expiration of this limit, the right to invoke non-confirmity expires. The right of the buyer to possible reparation and/or replacement of non-conform goods, cancellation and/or compensation for damage expires when the purchased goods are sawn or treated (including drying) by or for the buyer while the goods did not lead to complaints before the sawing of treatment.
8.4. When a parcel of goods is opened and/or treated entirely or partially, the possible right of the buyer to reparation and/or replacement, cancellation and/or compensation for damage of the non-conform goods expires.
8.5. Submitting a complaint does not give the right to the buyer to suspend the fulfillment of his obligations (including, but not limited to: payment).
8.6. When a complaint is declared well-founded by Houtwerf, Houtwerf will replace the goods after return of the originally delivered goods. If replacement of the goods is no longer possible, the commitment to replacement is converted into a commitment to payment of compensation; the maximum of the due compensation being the invoice value of the goods justifying the complaint. Houtwerf is not obliged to pay any further compensation. Houtwerf is not obliged to pay compensations for indirect damage, including (but not limited to): damage due to (temporary) shut down of the business of the buyer and damage due to the fact that the buyer (temporarily) fails to meet his commitments towards third parties.
8.7. When, judicially or extrajudicially, is established that a complaint has been submitted unjustified or not on time, the buyer is obliged to compensate all costs made by Houtwerf in the context of the concerned complaint.
ARTICLE 9. RETURN OF GOODS
9.1. Houtwerf is not obliged to accept return of goods without it’s prior permission.
9.2. Entirely or partially processed and/or treated goods, damages goods and/or packed goods of which the package is missing or is damaged can never be returned.
9.3. Return of delivered goods finds place for expense and risk of the buyer and is only authorised after written permission of Houtwerf under the conditions set by Houtwerf.
ARTICLE 10. PACKAGING
10.1. When reusable packaging (europallets) is used to deliver the order, this packaging will be charged by Houtwerf to the buyer.
10.2. If the buyer returns the packaging, Houtwerf will send soon after the reception of the packaging a credit note to the buyer.
10.3. Notwithstanding the above provisions, no compensation of Houtwerf to the buyer is due for damaged packaging delivered by the buyer to Houtwerf.
10.4. If the amount of the credit note exceeds the amount due by the buyer at reception of that invoice, the surplus will be payed by Houtwerf to the buyer within a monthe after the invoice date. If the amount of the credit note is less than the amount due by the buyer at reception of that invoice, the buyer can deduct these two debts provided that Houtwerf has given prior written permission to do so.
ARTICLE 11. LIABILITY
11.1. Houtwerf is not liable for damage other than direct damage due to gross negligence or malign intent, such at the discretion of Houtwerf and under the conditions as defined below.
11.2. Houtwerf is not liable for damage or defects on specific materials, parts, and constructions which – possibly in derogation of the applicable prescriptions – are expressly prescribed by of on behalf of the buyer or provided by the buyer. Houtwerf is not liable for the consequences of possible incorrect application and processiong of goods by the buyer and/or by third parties.
11.3. The buyer is liable for the measures and quantities indicated by him. In the context of the measures and quantities indicated by the buyer, the deviation tolerances customary tot he market are applicable, unless these kind of tolerances have been excludes in written beforehand.
11.4. Houtwerf is not liable for loss of profit, indirect damage, consequential damage, (extrajudicial) collection costs and/or interest, created as a direct or indirect result of defects for the buyer or for third parties.
11.5. In case of liability of Houtwerf, this liability is, notwithstanding the other provisions of this article, limited to a reasonable compensation of the suffered damage, with a maximum of the price payed by the buyer fort he order leading to the damage or – when a connection between the order and the damage is missing – the total amount for which the customer in the month before the incurrence of the liability has purchased products and/or services of Houtwerf. In addition, the liability of Houtwerf in case of liability is always limited to the amount which Houtwerf can recover of its suppliers on the grounds of the warranties provided by these suppliers.
11.6. Damage should be notified in writing and by registered mail to Houtwerf within five days after a (possible) cause of damage came to light, failing which any right to compensation expires. If the claim to pay a compensation is not referred to court within twelve months after the notification as mentioned in the above sentence, the right to claim expires.
11.7. All opinions, data and instructions for use are provided by Houtwerf with due care, though are completely without commitment, without any consequential liability of Houtwerf.
11.8. Houtwerf is not obliged to pay compensation to third parties on whatever basis. The buyer indemnifies Houtwerf for all (successful) claims of third parties against Houtwerf of payment of compensations in the context of the goods delivered by Houtwerf, indifferently the cause or the time of the suffered damage.
ARTICLE 12. GUARANTEES
12.1. The buyer is obliged to provide to Houtwerf, before as well as during the execution of the agreement, all relevant information, documents and materials, reasonably necessary for a proper execution of the agreement.
12.2. The buyer ensures that the design provided by the buyer to Houtwerf, or the composition and the quality of the material or the goods that need to be delivered on the ground of an order, meet all relevant applicable requirements provided by law and/or other governmental presciptions applicable at the time of the conclusion of the agreement.
12.3. The buyer ensures Houtwerf that no infringement is made of copyrights or intellectual property rights of any third party and the buyer indemnifies Houtwerf entirely for all consequences, financial and others, arising from duplication or reproduction.
ARTICLE 13. QUALITY
13.1. Houtwerf undertakes towards the buyer to deliver him the goods in the description, quality and quantity as specified in the (possibly later modified) offer , but under the conditions set in article 14 and 11.3 of these terms and conditions.
13.2. The appropriate harmonized European product standards (hEN) or European Technical Approval Guidelines (ETAG) are applicable on products provided with CE marking.
13.3. Houtwerf does not guarantee that the goods are suitable for the purpose for which the buyer wishes to use them, even if this purpose has been communicated to Houtwerf, unless agreed in writing.
13.4. Unless expressly agreed in writing, quality is delivered in line with what is customary in the trade of the concerned goods. Regarding measures, numbers etc. per trade unit, standard trade practices are considered as agreed – unless expressly agreed otherwise.
13.5. Delivery on inspection of the management only takes place if this form of delivery is stipulated by the buyer in writing and has been accepted in writing by Houtwerf. The inspection needs to take place within two days after reception of the delivered goods.
13.6. Houtwerf can demand inspection before sending or treating, including drying, of the goods. The inspection needs to take place within two days after communication of this demand by Houtwerf.
ARTICLE 14. UNFORSEEABLE CIRCUMSTANCES AND FORCE MAJEURE
14.1. In addition to the possibilities provided by law, Houtwerf is entitled to cancel the order, to adapt the delivery time or to modify the price in all cases of unforseeable circumstances, without opening any right to compensation for the buyer.
14.2. If a by Houtwerf accepted order can not be executed because a supplier of Houtwerf can not deliver (any more) – for any reason – Houtwerf can offer an alternative to the buyer. If the buyer does not agree with the offered alternative, Houtwerf is entitled to extrajudicially dissolute the part of the agreement that can no longer be executed. Houtwerf is not liable for the entire or partial non-execution of the agreement.
14.3. Houtwerf can rely on force majeure in case of circumstances beyond Houtwerf’s control such that compliance or further compliance of the agreement can not reasonably be required, like ice run, special weather conditions, strike, governemental measures, delay in supply, export ban, war, mobilisation, transport barriers, shortage or withdrawal of transport possibilities, export barriers, import barriers and all other circumstances seriously obstructing compliance of the agreement.
14.4. When Houtwerf can rely on force majeure like provided in 14.3, it is entitled to extend the delivery time with the duration of the force majeure with a maxium of 6 months, or to dissolute extrajudicially the agreement affected by force majeure. When the buyer sums Houtwerf in writing to this end, Houtwerf is bound to communicate its choice within five days. In case of dissolution as mentioned above, Houtwerf is entitled to invoice the unpaid deliveries to the buyer. In case of dissolution of the agreement as mentioned above, the buyer is not entitled to a reimbursemet of advanced payments and/or any form of damage compensation.
ARTICLE 15. RESERVATION OF TITLE, RIGHT OF PUBLICITY
15.1. Houtwerf retains ownership of all goods delivered or to be delivered until all its current and future claims on the buyer have been paid, in so far as these claims result from the (non-) compliance of the current and future agreements between the buyer and Houtwerf.
15.2. If Houtwerf recovers goods supplied under retention of title, the costs associated with the retention of title are charged to the buyer.
15.3. As long as the ownership of the goods did not pass to the buyer, the buyer can not pledge these goods, transfer the ownership or, on behalf of any third party, establish any right thereto, except as provided in 15.4.
15.4. The buyer is permitted to sell and deliver the delivered goods to third parties under retention of title in the context of normal operation. The buyer is obliged to detent the goods delivered under retention of title with due care and as recognisable property of Houtwerf. In case of sale and/or delivery by the buyer to third parties in the context of normal operation as well as for infringements of above provisions, the purchase price will be immediately due and payable, regardless of other stipulation. In addition, in case of sale to third parties, the buyer is obliged to stipulate a retention of title that is at least as far-tending as the retention of title provided by these terms and conditions, but without granting any competence to dispose or further encumber to a third party. At the time of the delivery to a third party, Houtwerf obtains a possessory pledge on the claim(s) of the buyer on the third party, with the right to inform the third party and to claim and receive payment.
15.5. The buyer is obliged to provide Houtwerf at its first demand immediately all cooperation and information requested by Houtwerf to implement its pledge and to enable claiming entitlement, on pain of a penalty of € 1.000,00 per day, immediately due and without any prior notice of default from Houtwerf to the buyer. In line with his, if Houtwerf wishes to use its reservation of title, the buyer needs to grant acces to Houtwerf to the goods delivered by Houtwerf.
15.6. If the delivered goods are processed, treated of mixed, Houtwerf obtains the immediate co-ownership of the item(s) in which they are corporated, for an equal value.
15.7. The above provisions do not affect other rights of Houtwerf, including but not limited to Houtwerf’s legal right of publicity and right to damage compensation for breach of contract or wrongfull acts committed by the buyer.
ARTICLE 16. PAYMENT
16.1. Every party is invoiced, raised with a credit reduction surcharge of 2% of the invoice amount. This supplement is not due in case of payment within 30 days after invoice date.
16.2. If the payment is not made within 30 days after invoice date, the buyer is in default without any default notice being required. In this case, the buyer will be charged for the 2% supplement mentioned in 16.1 in addition to the invoice amount.
16.3. If payment is not received within 30 days after the invoice date, interest will be charged to the buyer. The interest rate is 1,5% per month. This interest is monthly calculated cumulatively over the period between thirty days after the invoice date and the date of receipt of either (i) the entire invoice amount and (ii) the total of possible due supplements and interests. The interest is due without prior notice of default by Houtwerf.
16.4. The buyer is not entitled to set off claims he has on Houtwerf with claims Houtwerf has on the buyer, except the conditional competence as stipulated in 10.4.
16.5. Houtwerf entitled to use the received payments primarily for the write-off of accrued interests and costs before proceeding to write off the payments on the principal amount. If the buyer does not pay (a part of) his debt(s) towards Houtwerf on time, the entire due is immediately payable: this also applies to the invoices not yet expired at that time.
16.6. If the buyer did not pay the amount due on time, he is obliged to compensate Houtwerf for all the costs for collection of the claim, including the extrajudicial costs, judicial costs and possible execution costs. The extrajudicial costs are set on 15% of the amount due, with a minimum of € 150,00 per invoice.
16.7. If the buyer does not pay (a part of) his debt(s) towards Houtwerf on time, Houtwerf is entitled to suspend further execution of all agreements with the buyer untill that payment is made while Houtwerf is entitled to advanced payments for any further delivery.
16.8. If Houtwerf before or during the execution of the agreement recieves clear evidence of insufficient or reduced creditworthiness of the buyer, Houtwerf has the right not to deliver (further), unless the buyer provides a security on Houtwerf’s demand for timely and full payment of the price that is sufficient according to Houtwerf.
16.9. If an agreement is concluded with several buyers, eacht buyer is joint and several bounded to payment of the invoice amount and to fulfill all other obligations under the agreement.
ARTICLE 17. DISSOLUTION
17.1. If the buyer does not fulfill his obligations within three working days after notice of default by Houtwerf, Houtwerf is entitled to dissolute the agreement immediately and without judicial intervention, without entailing any right for the buyer to reimbursement of advance payments and/or any right to compensation.
17.2. Without prejudice to article 17.1, the agreement can be immediately dissoluted extrajudicially by Houtwerf when:
- The buyer is declared bancrupt;
- The buyer has requested (temporary) suspension of payment;
- Seize on (a part of) the assets of the buyer;
- The buyer is placed under forced administration or loses the power of disposal of his assets or parts thereof otherwise.
The dissolution as provided in this paragraph does not entail for the buyer (i) any right to reimbursement of advance payments and (ii) no right to compensation.
17.3. Entire or partial dissolution of the agreement by the buyer takes place by means of a written statement. Before submitting a written declaration of dissolution to Houtwerf, the buyer is obliged to send Houtwerf a notice of failure first and to allow Houtwerf a reasonable period of time to fulfill its obligations or to rectify shortcomings, needed to be communicated in detail and in writing by the buyer.
17.4. If Houtwerf agrees to dissolute without the existence of default on behalf of Houtwerf, all claims of Houtwerf on the buyer become immediately payable and Houtwerf has the right to compensation of all asset damage, like costs made, suffered loss, lost profit and reasonable costs to establish the damage and the liability. The buyer can not claim reversal of services already provided and Houtwerf has the full right to payment of the services already provided by Houtwerf.
ARTICLE 18. TREATMENT OF WOOD
18.1. The provisions of this article apply when the buyer instructs Houtwerf to treat wood, unless parties agree otherwise in writing.
18.2. The buyer has to deliver the goods to treat in closed parcels on an agreed delivery time on the terrain of Houtwerf. If the goods are not delivered on time, Houtwerf is entitled either to alter the agreed delivery time, or to cancel the agreement. In both cases, Houtwerf is entitled to compensation for the suffered damage, including but not limited to lost profit.
18.3. Houtwerf is not liable for damage or other value loss of the goods to treat, unless serious misconduct or gross negligence by Houtwerf or persons engaged by Houtwerf.
18.4. Houtwerf is not obliged to insure the goods against any risk.
18.5. The buyer is obliged to (make) pick up the goods from the terrains of Houtwerf within ten days after the ready signal, failing which Houtwerf is entitled to compensation of the suffered damag, including but not limited to lost profits.
ARTICLE 19. OTHER PROVISIONS
19.1. The buyer authorises Houtwerf irrevocably and unconditionally to perform all (legal) acts on behalf of the buyer necessary to an effective exercise of the rights of Houtwerf.
19.2. The shareholder(s) of Houtwerf, its management, its employees and other persons involved in the execution of any assignement, can appeal to these terms and conditions towards the buyer, including the limitations on liability.
ARTICLE 20. APPLICABLE LAW AND COMPETENT FORUM
20.1. All agreements with Houtwerf are governed by Dutch law.
20.2. The court of The Hague has exclusive jurisdiction to hear all legal actions or requests related to or arising from (the conclusion of or the negociation about) orders.