Article 1 – GENERAL
In these general terms and conditions, hereinafter referred to as: “Terms and Conditions”, the following terms are used in the following sense, unless explicitly stated otherwise:
- Hydrobag© is the user of these Terms and Conditions mentioned in the introduction.
- Counterparty is any natural person or legal entity that has entered into an agreement with Hydrobag©, or wishes to enter into an agreement concerning the sale and/or delivery of goods to the Counterparty and/or the provision of services for the Counterparty, and also his representative(s), agent(s) and legal successor(s) under general title.
- Hydrobag© and the Other Party are sometimes jointly referred to in these Conditions as: “Parties”.
- These Conditions are applicable to all offers made by Hydrobag© to the Other Party and all agreements concluded between the Parties, of whatever nature, and to all agreements that may result therefrom, as well as the execution thereof. These Conditions are also applicable between Hydrobag© and the Customer – as far as applicable – to any service and repair work, guarantees given and the subsequent delivery of goods.
- Hydrobag© explicitly rejects any general conditions used by the Other Party in the sense of Section 2 of Title 5 of Book 6 of the Dutch Civil Code, however named. General terms and conditions of the customer only apply to any agreement between parties if it has been explicitly agreed in writing between parties that these will apply to the exclusion of these terms and conditions to the relevant agreement between parties. If it has been agreed one or more times between parties that the general conditions of the customer apply to any agreement between parties, the customer can in no way derive any rights from this with regard to subsequent offers made by Hydrobag© and/or subsequent agreements made between parties.
- Deviation from the stipulations in these conditions is only possible if and as far as Hydrobag© has explicitly agreed to this in writing, or if this has been agreed in writing by the customer with Hydrobag©. Possible deviations from these conditions only apply to the specific offer of Hydrobag© or agreement between parties, of which this deviation has been agreed, unless explicitly agreed otherwise in writing. If tacitly or explicitly between Hydrobag© and the customer one or more times has deviated from these conditions, the customer can in no way derive any rights from this with regard to subsequent offers made by Hydrobag© and/or subsequent agreements made between parties.
- It is established between Hydrobag© and the Customer that, once an agreement has been made under the applicability of these Conditions, these Conditions shall automatically and fully apply to subsequent offers made by Hydrobag© and to subsequent agreements made between the Parties, unless expressly agreed otherwise in writing with regard to the offers and agreements concerned.
- In the event that any provision of these Terms and Conditions is null and void or is annulled in or out of court, the provision that is null and void or annulled must be as closely as possible linked to the provision that is null and void or annulled. Nullity or nullification in or out of court of one or more provisions of these Conditions does not affect the validity of the other provisions of these Conditions. If any provision of these Conditions deviates from, conflicts with or is in any way inconsistent with the provisions of any offer made by Hydrobag© or any agreement entered into between the Parties, the provisions of the relevant offer or agreement shall prevail.
- In so far as applicable, in these Terms and Conditions the term “goods” shall include: delivered materials, parts, accessories, information, services, as well as related goods, all in the broadest sense of the word.
- These Conditions also apply for the benefit of the personnel of Hydrobag© and of third parties involved by Hydrobag© in the execution of the agreement.
- Commercial terms used in offers, agreements or other documents originating from Hydrobag© shall be interpreted in accordance with the “ICC Incoterms 2010” or a later version thereof replacing them, as in force at the time of the relevant Hydrobag© offer or the conclusion of the relevant agreement between the Parties.
- Where reference is made in these Terms and Conditions to “in writing”, this also refers to messages sent by fax or e-mail or app.
Article 2 – OFFERS AND AGREEMENTS
- Offers are based on any information provided by the Other Party at the time of application.
- All offers and price lists of Hydrobag©, in whatever form, are free of obligation and approximate, unless expressly indicated otherwise in writing. They only apply to the Other Party to whom they are addressed, unless explicitly stated otherwise.
- All offers expire thirty (30) days after the date of the offer, unless explicitly stated otherwise in the offer concerned.
- Within the framework of offers made by Hydrobag© to the Other Party catalogues, drawings, illustrations and advice provided by Hydrobag© are not binding and remain the property of Hydrobag©. Counterparty is responsible that these are not copied and/or made available to third parties or given for inspection. Hydrobag© is not obliged to provide detailed drawings to the customer within the framework of offers.
- Weights, dimensions, capacities, prices, yields and other information included in catalogues, prospectuses, circulars, advertisements, images, price lists and other documents originating from Hydrobag© only have the character of indications.
- If Hydrobag© has shown or provided samples or test results to the Other Party within the framework of offers, the eloquence of these shall be deemed to be of a purely indicative nature with regard to the quality, quality, etc. of the goods to be delivered in connection therewith.
- Hydrobag© cannot be held to its offer if the Other Party can or could reasonably have understood that the offer, or a part thereof, contains an obvious slip of the pen or mistake.
- Hydrobag© shall only be bound by an offer if it has received written notice of acceptance from the Other Party within the offer period, with which the agreement is concluded. If the notice of acceptance is received by Hydrobag© after the expiry of the offer period, an agreement shall only come into being if Hydrobag© informs the customer in writing or if Hydrobag© has in fact commenced the execution of the order.
- For all other agreements come into being if and insofar Hydrobag© has accepted in writing an order given by the Other Party, or if Hydrobag© has actually started with the execution of the order. The written acceptance of an order by Hydrobag© is deemed to reflect the agreement between parties correctly and completely, unless the Customer has protested against the content of the acceptance in writing to Hydrobag© within forty-eight (48) hours after the time of receipt of the acceptance.
- Acceptances by Customer of offers made by Hydrobag© and orders given by Customer to Hydrobag© and accepted by it are irrevocable. However, after acceptance of an offer of Hydrobag© by the Customer or after acceptance by Hydrobag© of an order from the Customer, Hydrobag© shall be entitled within forty-eight (48) hours after the time of acceptance to revoke or reject the concerning offer or order without giving reasons, so that no agreement is made after all, without Hydrobag© being and/or becoming liable for damages towards the Customer.
- Modification or termination of an agreement by the Customer is only possible with the express and written consent of Hydrobag©. If the Customer wishes to change or terminate the agreement entered into and Hydrobag© consents thereto, the Customer is – unless expressly agreed otherwise in writing – obliged to compensate Hydrobag© for any financial loss, of whatever nature and of whatever name, including loss of profit.
- All offers made by Hydrobag© and agreements concluded between Parties shall at all times take place subject to the creditworthiness of the Other Party, this exclusively at the discretion of Hydrobag©. Hydrobag© is at all times entitled to demand a bank guarantee and/or other security from the Customer, if so desired, equal to the invoice amount associated with the offer or entered into agreement, or to demand payment in advance, and to suspend the execution of an agreement (to be entered into) until the requested security has been provided or payment has been received in advance, as the case may be.
- Promises by and agreements with subordinates of Hydrobag© shall only bind Hydrobag© if and in so far as these promises and/or agreements have been confirmed in writing to the Other Party by a manager or authorised representative of Hydrobag©. Under subordinates is understood anyone who is not a director and has no power of attorney. In case of doubt on the part of the Customer regarding the power of representation of one of the employees of Hydrobag©, for verification purposes, contact must be made with a person who, according to the Trade Register, is authorised to represent Hydrobag© in and out of court as a director or authorised representative.
- Hydrobag© reserves the right to deliver other goods (e.g. of another brand) than those agreed with the Other Party, provided they are of the same quality.
- Except for the explicit written permission of Hydrobag©, the Customer is not allowed to transfer rights and obligations by virtue of agreements made with Hydrobag© to third parties, including companies affiliated with the Customer.
- The other party authorises Hydrobag©, if so desired, to have the order carried out by a third party to be appointed by Hydrobag©. The customer agrees in advance with the transfer by Hydrobag© to (a) third party(ies) of all rights and obligations resulting from the agreement(s) entered into by Hydrobag© with the customer.
Article 3 – PRICES
- Unless otherwise stated/agreed in writing, all amounts mentioned by Hydrobag© in offers, agreements or other documents originate from Hydrobag©:
- stated in euros, with any exchange rate changes being passed on;
- Excluding turnover tax (VAT), import duties and other taxes, levies and duties imposed by the government;
- Excluding the costs of packaging and insurance;
- based on ex-factory delivery, unless Parties expressly agree otherwise in writing.
- The prices mentioned by Hydrobag© in offers or the prices agreed between Parties are based on purchase prices and other cost factors. If one or more of the price components is increased by more than two and a half percent (2.5%) after the offer or after the conclusion of the agreement and before full execution of the agreement, Hydrobag© is entitled to increase its offer or the agreed price accordingly. Cost factors may include, but are not limited to: import prices, wages, social and government charges, government levies, transport costs, insurance premiums, exchange rate of the Euro against the foreign currency in which Hydrobag© has purchased the goods, import duties, taxes and levies. In this respect it is irrelevant whether the deliberate increase was foreseeable for Hydrobag© at the time of the offer or the conclusion of the agreement.
Article 4 – Payment and SECURITY
- Payment of the amounts charged by Hydrobag© to Customer must be made within thirty (30) days after invoice date, unless another term of payment has been agreed in writing. This term of payment (or another agreed term of payment) concerns a fatal term as meant in article 6:38 sub a of the Civil Code, so that in case of non-payment or incomplete payment within this term the default of the Customer will occur by operation of law, therefore without any notice of default by or on behalf of Hydrobag©.
- If any term of payment has been exceeded by the Other Party, the total outstanding invoice amount, as well as the other outstanding invoices, shall be immediately due and payable, even if payment in instalments had previously been agreed. All outstanding invoices of Customer are also immediately due and payable if one or more of the circumstances mentioned in art. 16.1 of these Conditions occur, this without prejudice to the right of Hydrobag© to compensation of damage, costs and interest.
- If payment has not been made or has not been made in full within the term of payment referred to in Article 4.1 of these Terms and Conditions (or an agreed other term of payment), the Other Party will be in default immediately – therefore without any notice of default being required – and will owe interest of 1.5% per month (whereby part of a month will count as a whole month), or the statutory (commercial) interest if this is higher, on the outstanding invoice amount. Furthermore, all extrajudicial (collection) costs incurred by Hydrobag© will be at the expense of the Customer, which costs will amount to at least fifteen percent (15%) of the outstanding invoice amount, increased by the interest due thereon as mentioned above, with a minimum of € 150 (in words: one hundred and fifty euros), this without prejudice to Hydrobag©’s right to claim the actual extrajudicial (collection) costs from the Customer, as far as these costs exceed the aforementioned percentage.
- Payment shall be made without settlement to the bank account(s) indicated by Hydrobag© on the invoice, at the place of establishment of Hydrobag© or upon delivery. The value date indicated on the bank statements of Hydrobag© shall be decisive for receipt and shall therefore be regarded as the day of payment. Payments made by the Customer shall first be applied to the interest and extrajudicial (collection) costs due to Hydrobag© as referred to in art. 4.3 of these Conditions and then to due and payable invoices which have been outstanding for the longest time, even if the Customer states at the time of payment that the payment relates to another invoice.
- Hydrobag© is at all times entitled, if desired, to demand full or partial security from the Customer, in the form of a bank guarantee or other security, for the fulfilment of due and non-payable payment obligations of the Customer.
- Hydrobag© is entitled to suspend the fulfilment of its obligations until Customer has fulfilled all its due (payment) obligations.
- Hydrobag© is entitled to set off all claims against Customer against any debt Hydrobag© may have to Customer, or to (legal) persons affiliated with Customer.
- Customer is under no circumstances entitled to suspend any payment to Hydrobag©.
- Complaints from Customer about (the amount of) invoices of Hydrobag© must be submitted in writing to Hydrobag© within eight (8) working days after the date of the invoice to which any complaint relates. With regard to invoices which have not been protested by Customer within this period, it is established between Parties that they are correct and accepted by Customer.
Article 5 – DISTANCE, TRANSPORT AND RISK
- The place and method of delivery shall be determined in the contract. Delivery shall be deemed to be the presentation of the goods at the agreed place and time, even if the Other Party does not take delivery of the goods. The delivery dates given by Hydrobag© or agreed with the customer are target dates and explicitly do not count as deadlines. Exceeding of delivery dates does not entitle the customer to (replacement) damages or suspension of any obligation of the customer resulting from the agreement.
- If carriage paid delivery has been agreed, transport shall take place at the expense and risk of Hydrobag©. In all other cases the transport will take place at the expense and risk of
- The method of transport, shipment, packaging etc. shall be determined by Hydrobag©, unless otherwise agreed in writing. Possible specific wishes of the customer regarding transport, shipment and packaging are only carried out by Hydrobag© if the customer has declared in writing to bear the additional costs.
- Hydrobag© shall not be liable for any damage and/or defects which may be observed on arrival of the goods during transport and which are at the risk of Hydrobag©, if they are not immediately noted on the corresponding return consignment note, delivery note or similar document. If Hydrobag© delivers the goods outside the usual working hours of the customer, the damage and/or defects mentioned in the previous sentence must be reported in writing to Hydrobag© at the latest the next working day, failing which Hydrobag© is also not liable for the damage and/or defects in question.
- The goods are deemed to have been delivered by Hydrobag© and to have been accepted by the Other Party:
- on delivery ex works/warehouse: as soon as the goods have been loaded into or onto the means of transport;
- in the case of carriage paid delivery: as soon as the goods have been delivered and unloaded on site.
- In the case of delivery free of charge, Hydrobag© does not need to transport the goods further than to where the means of transport can reach a properly rideable and safe (made) terrain. Delivery will always take place next to the means of transport, while the Other Party is obliged to take receipt of the goods there.
- Customer and Hydrobag© shall jointly take care of the unloading in such a way that Hydrobag© can fulfil its obligations to unload as well as possible. If Customer remains in default with this, then the costs resulting from this will be entirely for his account.
- In the event of delivery to one or more specific locations where further regulations apply pursuant to (a) special rule(s), the Other Party must ensure – whether or not by engaging third parties – correct compliance at its own expense and risk.
- Hydrobag© shall only be in default after exceeding an agreed term of delivery if it has received a written notice of default from the Other Party, in which Hydrobag© is given another term of one (1) month, in order to deliver as yet and fulfil this term.
- When exceeding an agreed term of delivery, after Hydrobag© has been put in default as meant in art. 5.9 of these Conditions, Customer shall have the right to dissolve the agreement, provided that the shortcoming of Hydrobag© actually justifies the dissolution. In case of dissolution, the customer has no right to compensation of any kind and no right to, with or without judicial authorisation, carry out work or have work carried out for Hydrobag© for the account of Hydrobag©, unless the exceeding of the term of delivery is the result of intent or gross negligence of the management of Hydrobag© and/or its managing subordinates.
- Unless agreed otherwise in writing, Hydrobag© is, if desired, entitled to deliver to the Customer in parts (part-deliveries) which can be invoiced separately by Hydrobag© to the Customer. For the application of these Conditions each partial delivery is considered as an independent delivery.
- Hydrobag© shall, if it is not given the opportunity to execute the agreement by the Other Party or by third parties for whatever reason, have the right to store the goods to be delivered at the expense and risk of the Other Party (including the risk of quality reduction) or to have them stored at a place to be chosen by Hydrobag©, without prejudice to Hydrobag©’s retention of title. The related transport costs and possible other costs shall also be at the expense of the Other Party. In such a case the Customer shall remain obliged to pay the agreed price for the goods to be delivered and to take them away.
- If Hydrobag© does not deliver on time, Customer is under no circumstances entitled to suspend the (payment) obligations which arise for him from the agreement.
Article 6 – DELIVERY AND CALL FOR DELIVERY
- In order to determine the delivery time, a certain date and time shall be mentioned in the contract, or a certain period of time.
- If a period is specified in the contract for delivery, delivery shall take place within that period, it being understood that the date shall be determined in accordance with the provisions of the following paragraph.
- Unless otherwise agreed in writing, the cosignatory shall call up in good time, but at least five (5) working days before the start of the period. In case of such call-off the Parties shall agree on the date of delivery within a period of time or agree on a different date of delivery or a new period of delivery. The Customer shall notify Hydrobag© in writing of what has been further agreed.
- In case delivery on demand has been agreed, without any time limits for demand, Hydrobag© shall be entitled, if within three (3) months after the conclusion of the agreement not all goods have been demanded, to summon the Other Party to state a period within which everything will have been demanded.
- This period to be mentioned by the Other Party may not exceed a period of three months, counting from the day the Other Party could reasonably have taken note of the summons from Hydrobag©.
- Customer is obliged to comply with the aforementioned summons, failing which Hydrobag© is authorised to dissolve the agreement without judicial intervention and if desired to claim damages from Customer.
Article 7 – HEALTH
- A consignment note, delivery note or similar document issued at the time of delivery of the goods shall be deemed to correctly reflect the quantity of the goods delivered, unless the Other Party notifies Hydrobag© of its objection immediately after receipt of the goods.
- Even if the Other Party notifies Hydrobag© in time that it has been delivered less than stated on the document referred to in Article 7.1 of these Conditions, this does not give it the right to suspend its (payment) obligations towards Hydrobag©.
Article 8 – OWN RESPONSIBILITY
- Without prejudice to the provisions of these Conditions, all goods delivered or to be delivered or given on consignment by Hydrobag© for the benefit of the Other Party shall remain the property of Hydrobag© until the moment that the Other Party has fully complied with all its payment obligations (including interest and costs) towards Hydrobag©, for whatever reason, which fall within the framework of Article 3:92 of the Dutch Civil Code.
- Counterparty shall be obliged to keep the goods delivered by Hydrobag© separate and to mark them in such a way that it is clear that these goods originate from Hydrobag©. If the customer does not fulfil this obligation, all goods present at the customer which correspond with the goods delivered by Hydrobag© are presumed to have been delivered by Hydrobag© and to fall under the retention of title included in art. 8.1 of these conditions.
- Counterparty is obliged to keep the goods delivered by Hydrobag© insured against the usual dangers (including fire, explosion and water damage and theft). All claims of the customer against its insurer(s) shall be pledged by the customer to Hydrobag© as additional security for the claims of Hydrobag© against the customer as soon as Hydrobag© informs the customer that this is desirable.
- Before Hydrobag© has been paid in full, the other party is not authorised to take possession of the goods in whole or in part to third parties, to give them on loan or to use them, to pledge them and/or to encumber them in any other way, with the exception of alienation by the other party within the framework of a normal business practice.
- In case of loss, theft, seizure and the like of goods delivered by Hydrobag© to the Other Party but belonging to Hydrobag© on the basis of art. 8.1 of these Conditions in ownership, the Other Party is obliged to report this to Hydrobag© within twenty-four (24) hours after discovery thereof.
- If Customer does not or not properly comply with the stipulations in art. 8.4 and art. 8.5 of these Conditions, he forfeits towards Hydrobag© an immediately payable fine equal to the purchase price of the goods to which the failure relates, on the understanding that Customer remains obliged to pay Hydrobag© the purchase price with regard to the goods concerned as well.
- In case of violation of the stipulations in art. 8.4 of these Conditions Hydrobag© has the right to take back or have taken back all delivered goods from the place where these goods are at that time, without any authorisation from the Customer or the court being required. Counterparty is obliged to grant Hydrobag© all necessary cooperation for this purpose, in particular by granting (or having granted) access to the company or other premises used by the Counterparty. The cosignatory gives permission for this already now for then.
Article 9 – VALIDITY, QUALITY, AND COMPLAINTS ON DELIVERIES
- Customer is obliged to check the (delivered) goods or the packaging immediately upon delivery for possible quantitative and other visible shortcomings and/or damage, or to carry out this check immediately after Hydrobag©’s notification that the goods are at the disposal of Customer. Possible shortcomings and/or damage of and/or defects to the delivered and/or the packaging, which are present at the time of delivery, must be mentioned by the Customer on the delivery note, invoice and/or transport documentation.
- If the Other Party fails to make the inspection and/or notification as referred to in Art. 9.1 of these Conditions, it is established between the Parties that the fulfilment of the agreement by Hydrobag© is sound. Complaints of the Customer concerning the execution of the agreement concerned shall then no longer be dealt with by Hydrobag©.
- For quantitative and other visible shortcomings and/or damages other than those referred to in Art. 9.1 of these Conditions, it applies that these must be reported to Hydrobag© in writing, stating reasons, immediately after discovery or immediately after they could reasonably have been discovered, but in any case within a period of eight (8) days after the date of delivery, in the absence of which it is established between the Parties that the fulfilment of the agreement by Hydrobag© is sound and the right of the Other Party to complain lapses. Complaints of the Customer concerning the execution of the agreement concerned shall then no longer be dealt with by Hydrobag©.
- The fulfilment of the agreement by Hydrobag© is in any case valid if the delivered or a part of the delivered goods has been used by or on behalf of the Customer, has been treated or processed in any way or has been delivered to third parties.
- If and insofar as nothing else has been expressly agreed between the Parties concerning the quality of the goods, minor deviations in size, colour, surface, structure and other minor defects found shall not constitute grounds for complaints by the Other Party. If and insofar as it has been agreed with regard to the quality of the goods to be delivered that it will be according to a sample, that sample shall be deemed to determine the average quality of the goods.
- The other party may only return the goods about which he has complained to Hydrobag© with the permission of Hydrobag©. In any case the customer has no right of return if the goods delivered by Hydrobag© are no longer in exactly the same condition as at the time of delivery.
- Complaints about deliveries do not entitle Customer to refuse or suspend any payment to Hydrobag©.
- In the event Hydrobag© is of the opinion that a complaint is justified, Hydrobag© has the right, after consultation with Customer, to credit the relevant invoice for a proportional part thereof, or to fulfil the agreement again while maintaining the existing agreement, this under the obligation of Customer to return to Hydrobag© at its request the not properly delivered carriage paid. Under no circumstances does this entitle the Customer to any compensation for damages whatsoever.
- Hydrobag© shall in any case not be under any obligation with regard to a complaint submitted if the Other Party has not fulfilled all its obligations towards Hydrobag© (both financial and otherwise) on time and in full.
- Only if and as far as the complaint is found to be well-founded by Hydrobag©, this will suspend the payment obligation of the Other Party, at least the payment of that part of the invoice to which the complaint relates, until the moment at which the complaint has been settled.
- If and as far as concerning the capacity of the goods to be delivered it has been agreed that these will be according to a specification and/or that the delivery will take place on inspection and/or to the satisfaction of the customer(s) of the customer or his building management, the customer can only derive claims which go further than what is stipulated elsewhere in these terms and conditions, if and as far as these further claims have been explicitly agreed with Hydrobag© and result from the obligation of the customer to specifications, of which the customer has informed Hydrobag© in writing and in time so that Hydrobag© has been able to take this into account in its offer. It is not sufficient for the customer to make a single reference to (standard) conditions applicable to him, but must explicitly indicate which specific provisions the goods must comply with and must hand over the text of these provisions to Hydrobag© when applying for an offer, prior to the conclusion of the agreement.
Article 10 – FORCE MAJEURE
- Force majeure is understood to mean a shortcoming which cannot be attributed to Hydrobag©. A shortcoming cannot be imputed to Hydrobag© if it is not due to its fault, nor for its account by virtue of the law, agreement or generally accepted views. This includes in any case – therefore not exclusively – a shortcoming as a result of war, riots, riots, acts of war, strikes and lockouts, natural disasters, blockage of the supply, breakage/failure of machines and/or tools, unavailability of transport, stagnation of supply, road blockades, government measures, import or trade restrictions, as well as any other circumstance, whatever and of whatever name, as a result of which it is reasonably impossible for Hydrobag© to deliver in a normal way (on time).
- If Hydrobag© is of the opinion that it is (going to be) in a situation of force majeure, it shall inform the Other Party as soon as possible.
- If – all this at the discretion of Hydrobag© – the force majeure is of a temporary nature, the obligations of Hydrobag© towards the Other Party shall be suspended until the circumstance giving rise to force majeure no longer occurs, all this at the discretion of Hydrobag©. However, if – this also entirely at the discretion of Hydrobag© – the force majeure situation is of a permanent nature, the Parties may make an arrangement about the dissolution of the agreement and the related consequences. In case of both temporary and permanent force majeure, the other party is not entitled to any compensation, of whatever nature, by Hydrobag©.
- If Hydrobag© has already partially fulfilled its obligations when the force majeure occurs or can only partially fulfil its obligations, Hydrobag© is entitled to invoice that part separately and Customer is obliged to pay this invoice as if it concerned a separate order or a separate agreement.
Article 11 – LIABILITY
- Hydrobag© shall only be liable towards the Other Party for damage suffered by the latter as a direct consequence of gross negligence or intent on the part of Hydrobag©, unless Hydrobag© can prove that the fault could not have been prevented or avoided under the circumstances in question with normal professional knowledge and with due observance of normal attentiveness and manner of professional practice. For compensation, however, only those damages against which Hydrobag© is insured, or should reasonably have been insured, in which last mentioned case the compensation of the damages is limited to the amount charged to the Counterparty for the relevant agreement (excluding VAT).
- If at the time of entering into the agreement it is not possible for Hydrobag© to take out insurance as referred to in art. 11.1 of these Conditions or to extend it afterwards against reasonable conditions, the compensation of the damage is limited to the amount that the Customer has been charged for the agreement in question (excluding VAT).
- Hydrobag© shall under no circumstances be liable for:
- indirect damage such as business, consequential or delay damage of the Other Party (including business interruption, loss of income, etc.), whatever the cause. If necessary, the customer must insure itself against such damage;
- damage caused by Customer’s failure to follow instructions or advice given by Hydrobag© for the storage and/or use of delivered goods;
- damage caused by the use of the delivered goods by the Other Party which is not judicious and/or not in accordance with the agreed and/or customary destination;
- damage as a result of an external cause, such as fire, terrorism or abuse by vandals, etc;
- damage as a result of claims by third parties on the grounds of infringement by the Other Party of intellectual property rights to which it is entitled;
- damage caused by acts or omissions of Customer or third parties in violation of instructions given by Hydrobag© or in violation of the agreement and these Conditions.
- Hydrobag© shall not be liable for acts and/or mistakes of its employees or other subordinates, except in the case of intent or gross negligence on the part of its managerial employees or subordinates.
- Hydrobag© is not liable for damage of any kind, which is caused by or after Customer has put the delivered into use, has processed or processed, has delivered to third parties or has had it put into use, has had it processed or processed or has had it delivered to third parties.
- Customer cannot derive any rights from drawings Hydrobag© has made or commissioned to be made on behalf of Customer. Hydrobag© does not guarantee the correctness and/or completeness of these drawings and is not liable if they turn out to be incorrect and/or incomplete (afterwards). Possible orders made by the customer on the basis of these drawings will remain intact.
- Any possible liability of Hydrobag© other than those referred to in art. 11.1 and 11.2 of these Conditions is in any case limited to the amount of the price agreed for the agreement in question (invoice value excluding VAT) or – as far as Hydrobag© is able to redeliver similar goods – to a redelivery of the goods, this at the choice of the Other Party.
- Customer indemnifies Hydrobag© for all claims of third parties due to product liability as a result of a defect in a product which was delivered by Customer to a third party and which (also) consisted of goods delivered by Hydrobag©.
- The limitation and/or exclusion of Hydrobag©’s liability resulting from these conditions shall also apply in favour of the personnel of Hydrobag© and the auxiliary persons involved by Hydrobag© in the execution of the agreement.
- The damage to be compensated by Hydrobag© in connection with any liability will be moderated if the price to be paid by the Customer for the goods delivered by Hydrobag© is small in proportion to the extent of the damage suffered by the Customer.
Article 12 – EMBALLAGE
- Multiple useable packaging (packaging, pallets, etc.) used by Hydrobag© from the delivery and/or for the purpose of delivery shall be invoiced separately by Hydrobag© at the same time as the delivered goods.
- For returned packaging as referred to in Art. 12.1 of these Conditions a credit invoice will be sent to the Other Party as soon as possible after receipt thereof by Hydrobag©.
- Contrary to the provisions of articles 12.1 and 12.2 of these Conditions, Hydrobag© shall not owe any compensation for packaging returned in poor condition at the exclusive discretion of Hydrobag©.
- Packaging that cannot be used more than once shall lapse upon delivery to the Other Party.
Article 13 – RETURNS
13.1 Return shipments will only be accepted if this has been further agreed between Parties.
13.2 Damaged goods and packed goods, of which the packaging is missing or damaged, can never be returned and will in any case not be accepted by Hydrobag©.
13.3 In case of returns Hydrobag© has the right to charge Customer a cost compensation of at least twenty-five percent (25%) of the corresponding invoice value or of the actual costs if these are higher.
Article 14 – RIGHTS OF INTELLECTUAL PROPERTY
- Unless otherwise agreed in writing, Hydrobag© retains the copyrights and all rights of industrial property to the offers, quotations, designs, images, drawings, (test) models, software etc. made by it.
- The rights to the data mentioned in art. 14.1 of these Conditions remain property of Hydrobag©, regardless of whether costs have been charged to the Other Party for their manufacture. This data may not be copied, used or shown to third parties without prior express written consent of Hydrobag©. Counterparty shall owe Hydrobag© a fine of € 25.000,– (in words: twenty-five thousand euro) for each violation of this provision. This fine can be claimed in addition to damages under the law.
- The customer must return the data provided to him as referred to in Art. 14.1 of these Conditions on first request within the period set by Hydrobag©. In case of violation of this stipulation Customer shall owe Hydrobag© a fine of € 1.000,– (in words: one thousand Euros) per day that the violation continues. This fine can be claimed in addition to damages under the law.
Article 15 – Exemption
15.1 Customer indemnifies Hydrobag© against all claims of third parties in connection with the goods/services delivered by Hydrobag© suffered and/or to be suffered by them.
Article 16 – DETERMINATION, ADMINISTRATION
16.1 Hydrobag© has the right to fully or partially dissolve the agreement by means of a written notification to the Other Party, without prejudice to the right to compensation of costs, damage and interest, if any:
- Counterparty does not fulfil one or more of its obligations under the agreement, or does not fulfil them on time or properly, in such a way that Hydrobag© cannot reasonably be required to maintain the agreement;
- Counterparty acts contrary to the law in any way;
- suspension of payment has been granted to the Other Party provisionally or definitively, or this has been requested by the Other Party;
- the Natural Persons Debt Rescheduling Act (WSNP) has been declared applicable to the Other Party, or has been requested to do so by the Other Party;
- The Other Party has been declared bankrupt, or its bankruptcy has been applied for, whether or not by the Other Party itself;
- an offer is made by the Other Party to its creditors within the framework of an extrajudicial debt rescheduling;
- A prejudgment attachment or attachment under execution will be levied on (part of) the assets of the Other Party;
- The Other Party is a legal entity and the legal entity is dissolved, or, if the Other Party is a natural person, the Other Party dies or is no longer able to run its business;
- The other party changes its legal form;
- the business of the Counterparty is liquidated;
- The Other Party discontinues or transfers its business or an important part thereof, including the contribution of its business to a company to be incorporated or already existing, or the Other Party changes the objective of its business;
- Circumstances arise, moreover, which jeopardise Hydrobag©’s possibilities of redress, all this at Hydrobag©’s discretion;
- All this without Hydrobag© being under any obligation to pay damages.
16.2 In the event the agreement is dissolved by Hydrobag© on the basis of one or more of the grounds mentioned in art. 16.1 of these Conditions, Hydrobag© is entitled to charge all damage and consequential loss suffered by Hydrobag© as a result (including loss of profit), with a minimum of twenty percent (20%) of the invoice value of the agreement, to the Other Party.
16.3 In case of dissolution Hydrobag© has the right to remove and take back all goods delivered by it. Counterparty is obliged to grant Hydrobag© all necessary cooperation to that end, in particular by granting or having granted access to the company or other premises used by Hydrobag© or persons appointed by Hydrobag©. Counterparty gives permission for this already now for then. The costs of taking back, storage and sale of these items are for the account of the customer. Hydrobag© has the right to either keep the goods under its custody until the customer has fully paid its obligations including interest, costs and damages, or to sell the goods to third parties, in which case the net proceeds will be deducted from the total amount owed by the customer.
Article 17 – REPLACEMENT MEASURES
17.1 Any claim, on any basis whatsoever, from the Customer on Hydrobag© shall lapse irrevocably if Hydrobag© is not involved in legal proceedings by the Customer within a period of six (6) months after receipt of the claim relating to that claim. The said term is an expiry term and is therefore not subject to interruption as meant in article 3:317 of the Dutch Civil Code.
Article 18 – APPLICABLE LAW / DISPUTES
- All offers made by Hydrobag© and all agreements concluded between Hydrobag© and Customer are governed by Dutch law. This also applies to all offers and agreements made or entered into with a Customer residing or established abroad.
- The Vienna Convention on Contracts for the International Sale of Goods (C.I.S.G.) does not apply to the offers and agreements referred to above, nor does any other international regulation of which exclusion is permitted.
- Any disputes between Hydrobag© and the Other Party shall be settled by the court having jurisdiction in the place of business of Hydrobag©, unless this is contrary to mandatory provisions of law. Hydrobag© may deviate from this rule of jurisdiction and apply the legal rules of jurisdiction.
Article 19 – AMENDMENT TERMS AND CONDITIONS
19.1 Hydrobag© is entitled to change these Conditions without prior notice to Customer. If these Conditions are changed, the Conditions that were in force on the day that the concerning offer was made by Hydrobag© or the concerning agreement between Hydrobag© and the Other Party was made shall apply.
Article 20 – DISCLAIMER
20.1 In each situation a risk analysis must be carried out by a qualified surveyor or geodesic, civil engineer, or architect . This should be done before the installation of the Hydrobag© is done and is necessary to determine where the Hydrobag© should be located and is required to ensure that the correct water entry routes have been identified and that the buildings etc. are resistant to the Hydrobag©. The content of this manual has been compiled with the greatest possible care, however, Hydrobag© bv B.V. accepts no liability with regard to possible inaccuracies of the displayed, as well as the improper use of the Hydrobag© and therefore damage caused by the improper use.