General Terms and Conditions of HuizingHarvest B.V. for the Product Support Department

General Terms and Conditions of HuizingHarvest B.V. for the Product Support Department

Contents

Article 1: Applicability.

1

Article 2: Offers.

1

Article 3: Recommendations and information provided.

1

Article 4: Delivery period / execution period.

2

Article 5: Cancellation.

2

Article 6: Force majeure.

3

Article 7: Risk transfer.

3

Article 8: Entering into an employment relationship with an employee.

3

Article 9: Changes to the work.

3

Article 10: Execution of the work.

4

Article 11: Delivery of the work.

4

Article 12: Liability.

4

Article 13: Warranty and other claims.

5

Article 14: Obligation to complain.

6

Article 15: Payment.

6

Article 16: Applicable law and competent court.

7

 

Article 1: Applicability

1.1. These terms and conditions apply to all offers issued by the Product Support Department of HuizingHarvest B.V., to all agreements concluded by this department and to all potential follow-up agreements, all this insofar as the Product Support Department of HuizingHarvest B.V. makes the offer or supply.

1.2. HuizingHarvest B.V. will hereafter be referred to as “the Contractor”. The other party will hereafter be referred to as “the Client”.

Article 2: Offers

2.1. All the Contractor’s offers have a validity period of 30 days.

2.2. The Contractor will not fail towards the Client and will not be obliged to pay any compensation if, for any reason, the contacts between Client and the Contractor prior to a potential project, including a specific request for a performance, do not result in the actual execution of an assignment, or the execution of an assignment within the period desired by the Client.

Article 3: Recommendations and information provided

3.1. If the Client provides the Contractor with data, drawings and suchlike, the Contractor may rely on the correctness and completeness of this information when performing the agreement.

3.2. The Client determines and is responsible for the scope and efficiency of the activities to be performed. The Client decides about the (technical) specifications based on which the activities will eventually be carried out.

3.3. The Client indemnifies the Contractor against any and all third-party claims concerning the use of recommendations, drawings, calculations, designs, materials, samples, models, etc. provided by or on behalf of the Client.

Article 4: Delivery period / execution period

4.1. The delivery period and/or execution period will be determined by the Contractor and the Client in consultation.

4.2. In determining the delivery period and/or execution period, the Contractor assumes that it will be able to execute the assignment under the circumstances known to it at that time.

4.3. In the event of contract extras or an extension, the delivery period and/or execution period will be extended by the amount of time the Contractor needs in order to supply (or arrange the supply of) the requisite materials and parts and to carry out the contract extras. If the contract extras cannot be not fitted into the Contractor’s schedule, the activities will be performed by arrangement as soon as the schedule allows this.

4.4. In the event of a suspension of obligations by the Contractor, the delivery period and/or the execution period will be extended by the duration of the suspension. If the continuation of the activities cannot be fitted into the Contractor’s schedule, the activities will be performed by arrangement.

4.5. The Client will have to reimburse the Contractor for all the costs incurred by the latter due to a delay in delivery and/or execution as referred to in the previous paragraph of this article.

4.6. The delivery period and/or execution period being exceeded will under no circumstances entail any right to compensation or termination.

4.7. The Contractor is authorised to have the assignment carried out by any staff members it considers suitable for that purpose. The Client cannot request that a specific same staff member be made available for the execution of an assignment.

Article 5: Cancellation

5.1. If the Client, after awarding the assignment, cancels the assignment before the start of the project:

a. 0-5 working days before the start of the project, the Client will owe the Contractor 100% of the contract fee;

b. 6-10 working days before the start of the project, the Client will owe the Contractor 50% of the contract fee;

c. >11 working days before the start of the project, the Client will owe the Contractor 25% of the contract fee.

Article 6: Force majeure

6.1. The Contractor will have the right to suspend the fulfilment of its contractual obligations towards the Client if force majeure temporarily prevents it from fulfilling these obligations.

6.2. Among other things, force majeure includes the circumstance that suppliers, subcontractors of the Contractor’s or carriers engaged by the Contractor fail to fulfil their obligations, or to do so in time, as well as the weather, earthquakes, fire, power cuts, the loss, theft or disappearance of tools or materials, roadblocks, strikes or work interruptions, negative travel advice and import or trade restrictions.

6.3. The Contractor will no longer be authorised to suspend fulfilment if the temporary inability to fulfil has lasted for more than six months. After the end of this period, the Client and the Contractor may terminate the agreement with immediate effect, but only with regard to the part of the obligations that has not yet been fulfilled.

6.4. If there is a situation of force majeure and fulfilment is or becomes permanently impossible, both parties will be entitled to terminate the agreement with immediate effect with regard to the part of the obligations that has not yet been fulfilled.

6.5. The parties will not be entitled to compensation of the losses sustained or to be sustained on account of the suspension of fulfilment or the termination within the meaning of this article.

Article 7: Risk transfer

7.1. If the Contractor carries out the transport, the risk of loading, transport and insurance will be borne by the Client. In that case, transport will take place on the basis of CIP. The Client can take out insurance against these risks.

7.2. The Client must ensure that all permits, exemptions and other decisions necessary for the execution of the work are obtained in time.

7.3. If the Contractor has to obtain permits, exemptions or other decisions for a project, it will proceed from the Client’s specifications. If this information is not correct, the associated risk will be borne by the Client.

Article 8: Entering into an employment relationship with an employee

8.1. The Client will not enter into an employment relationship with a staff member of the Contractor’s.

8.2. If the Client enters into an employment relationship with a staff member of the Contractor’s in contravention of Article 8.1, the Client will owe the Contractor compensation equalling 100 times the agreed fee per day worked.

Article 9: Changes to the work

9.1. Changes to the work will in any case constitute contract extras or contract reductions if:

a. there is a change to the design, the specifications or the contract documents;

b. the information provided by the Client does not correspond to reality;

c. estimated quantities differ by more than 10%.

9.2. Contract extras will be charged on the basis of the price-determining factors applicable at the time when the contract extras are performed.

Contract reductions will be settled on the basis of the price-determining factors applicable at the time when the agreement was concluded.

Article 10: Execution of the work

10.1. The Client will ensure that the Contractor can perform its activities without interruption and at the agreed time, and has access to the facilities prescribed by health and safety laws and regulations while carrying out these activities.

10.2. The Client will ensure that the Contractor’s staff members are not exposed to hazardous substances and conditions, such as rotating and sharp components. If staff members should sustain damage/injury, this will be at the Client’s risk.

10.3. If the Contractor’s staff members have to spend the night on the Client’s premises or stay at a hotel arranged by the Client, this stay must comply with Western standards and food hygiene must be at a level that is acceptable by Western standards.

Article 11: Delivery of the work

11.1. The work will be regarded as having been delivered if the Client has approved the work or report, or has effectively put the work into operation in any way.

Article 12: Liability

12.1. In the event of an imputable failure, the Contractor will be authorised to fulfil its contractual obligations after all.

12.2. The Contractor’s obligation to pay compensation on whatever statutory basis will be limited to the losses against which the Contractor is insured under an insurance policy taken out by it or for its benefit, whereby the compensation will never exceed the amount paid out under this insurance policy in the case concerned.

12.3. If the Contractor, for whatever reason, is unable to invoke limitation of liability pursuant to Paragraph 2 of this article, the obligation to pay compensation will be limited to 15% of the total contract sum (excluding VAT). If the agreement provides for blocks of work or partial deliveries, the obligation to pay compensation will be limited to 15% (excluding VAT) of the contract sum for that block of work or partial delivery.

12.4. The following losses are ineligible for compensation:

a. consequential losses. Among other things, consequential losses include business interruption losses, loss of production, loss of profits, transport costs and travel and subsistence expenses. Where possible, the Client can take out insurance against such losses;

b. damage to property in the Contractor’s care, custody and control. Among other things, such damage includes damage caused by or during the execution of the work to items undergoing work or to items situated in the vicinity of the work location. If desired, the Client can take out insurance against such damage.

12.5. The Contractor will not be liable for damage to materials supplied by or on behalf of the Client that is the result of improper processing.

12.6. The Client indemnifies the Contractor against any and all third-party claims due to product liability as a result of a fault in a product which the Client supplied to a third party and which (partly) consisted of products and/or materials supplied by the Contractor. The Client will have to reimburse the Contractor for all losses sustained by the latter in this context, including the (full) costs of defence.

Article 13: Warranty and other claims

13.1. Unless agreed otherwise in writing, the Contractor will warrant the proper execution of the agreed performance for a period of six months after supply or delivery. If a different warranty period has been agreed, the other paragraphs of this article will also apply.

13.2. No warranty will be given in respect of items supplied that were not new at the time of delivery.

13.3. If the agreed performance was not sound, the Contractor will decide whether it will deliver a sound performance after all or credit the Client for a proportional part of the invoice. If the Contractor opts to deliver a sound performance after all, it will decide on the manner and time of execution. If the agreed performance consisted (partly) in processing material provided by the Client, the Client will have to provide new material at its own expense and risk.

13.4.a. No warranty will be given if defects are the result of:

- normal wear and tear;

- improper use;

- non-performance or incorrect performance of maintenance;

- installation, assembly, modification or repair work carried out by the Client or third parties;

- defects in or unsuitability of items provided or prescribed by the Client;

- defects in or unsuitability of materials or resources used by the Client.

b. No warranty will be given in respect of:

- inspection and repair of items pertaining to the Client;

- components falling under manufacturer’s warranty.

13.5. The provisions of Paragraphs 2 to 4 inclusive will apply by analogy to any claims of the Client’s on account of breach of contract, non-conformity or any other ground.

13.6. The Client is unable to transfer any rights pursuant to this article.

Article 14: Obligation to complain

14.1. The Client will no longer be able to invoke a fault in the performance if it failed to complain in writing about this fault to the Contractor within 14 days of the day on which it detected or should reasonably have detected the fault.

14.2. The Client must submit complaints about the level of the invoice amount to the Contractor in writing before the end of the payment term, at the risk of forfeiture of all claims. If the payment term exceeds 30 days, the Client must complain in writing within 30 days of the invoice date.

Article 15: Payment

15.1. Payment is effected at the Contractor’s place of business or into a bank account to be specified by the Contractor. Unless agreed otherwise, payment must be effected within 14 days of the invoice date.

15.2. Unless agreed otherwise, invoices are issued retrospectively each week on the basis of the completed activities.

15.3. If payment has not been effected within the agreed payment term, the Client will immediately owe interest to the Contractor. The interest amounts to 12% per annum, but will equal the statutory interest rate if the latter is higher. For the purpose of the interest calculation, a part of a month will be regarded as a full month.

15.4. The Contractor is authorised to offset the amounts it owes to the Client against amounts owed by the Client to companies affiliated to the Contractor. In addition, the Contractor is authorised to offset the amounts it is owed by the Client against amounts owed to the Client by companies affiliated to the Contractor. Furthermore, the Contractor is authorised to offset the amounts it owes to the Client against amounts owed to it by companies affiliated to the Client. Affiliated companies include the companies pertaining to the same group, within the meaning of Section 2:24b of the Dutch Civil Code, and associates within the meaning of Section 2:24c of the Dutch Civil Code.

15.5. If payment has not been effected within the agreed payment term, the Client will have to reimburse the Contractor for all extrajudicial costs, with a minimum of EUR 75.

These costs are calculated on the basis of the following table (principal sum including interest):

on the first EUR 3,000 - 15%

on the excess up to EUR 6,000 - 10%

on the excess up to EUR 15,000 - 8%

on the excess up to EUR 60,000 - 5%

on the excess over EUR 60,000 - 3%

If the extrajudicial costs exceed the amount resulting from the above calculation, the costs actually incurred will be owed.

15.6. If legal proceedings are resolved in the Contractor’s favour, all the costs incurred by the latter in connection with these proceedings will be payable by the Client.

Article 16: Applicable law and competent court

16.1. Dutch law will apply.

16.2. The Vienna Sales Convention (CISG) does not apply, nor does any other international regulation of which the applicability may be excluded.

16.3. All disputes will be submitted to the Dutch civil court that has jurisdiction over the Contractor’s place of business, unless this is contrary to mandatory law. The Contractor may deviate from this rule of jurisdiction and apply the statutory rules governing jurisdiction.

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