General terms and conditions

Article 1. Scope
1. These general terms and conditions apply to all agreements and/or activities and/or actual legal relations of HB Watertechnologie, HBWT, HB Tuintechniek V.O.F., HB Tuintechniek and HB advies  (hereinafter: HBWT). The acceptance and retention by the client without comment of an offer or order confirmation, to which reference is made to these general terms and conditions, constitutes agreement to the application of these general terms and conditions. These general terms and conditions also apply to all agreements where third parties are involved for their execution.
2. The applicability of the General Terms and Conditions used by the Client is expressly rejected.
3. Deviation or flexible application of the general conditions by HBWT does not affect the applicability of the conditions. HBWT may still demand immediate compliance with the conditions.
4. Should any provision of these General Terms and Conditions be void or annulled, the remaining provisions shall remain in full force and effect and the void or annulled provision(s) of these General Terms and Conditions shall be replaced by (a) new, legally permissible provision(s) taking into account, to the extent possible, the purpose and purport of the void or annulled provision(s).
5. HBWT reserves the right to amend or supplement these General Terms and Conditions.

Article 2. Quotations

1. All offers are non-binding.
2. A composite quotation does not create an obligation to deliver a part at a corresponding part of the price quoted for the whole.
3. If the quotation is not accepted, HBWT has the right to charge the client for all the costs it had to incur in order to issue the quotation. The client is obliged to return the quotation with all related documents within eight days.
4. Prices are exclusive of VAT unless otherwise stated.

Article 3. Agreements
1. (Verbal) agreements bind HBWT only after they have been confirmed in writing by HBWT / as soon as HBWT has commenced performance with the agreement of the client.
2. Orders should be accompanied by a clear, written description of the order. The scope of HBWT's obligations is determined solely by what is confirmed in writing in the agreement, unless the parties expressly agree otherwise in writing.
3. Amendments to an order once issued in writing are only binding for HBWT if confirmed by it in writing.
4. Where HBWT, at the request or with the prior consent of the client, carries out work which falls outside the scope of the work already agreed upon, such work will be reimbursed by the client to HBWT in accordance with HBWT's usual rates. However, HBWT is not obliged to comply with such a request and may require a separate written agreement to that effect.

Article 4. Payment
1. HBWT is entitled to demand an advance payment from the client prior to the execution of the agreement, which advance payment will not exceed 50% of the total invoice amount.
2. Payment of invoices should be made within 14 days of the invoice date, in euros by deposit or transfer to a bank or giro account designated by HBWT. Objections to the number of invoices submitted do not suspend payment obligations.
3. If the client has the order subcontracted by HBWT, the client will assign to HBWT, at HBWT's first request, their claim(s) against third parties obtained from this transaction. Client hereby irrevocably authorises HBWT to proceed with the collection of the claim(s) in question.
4. If the client fails to make payment within the 14-day period, the client shall be in default by operation of law. Client shall then owe interest of 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. Interest on the amount due will be calculated from the time the client is in default until the moment of payment of the full amount.
5. If the client defaults or is in default in the fulfilment of its payment obligations, all reasonable costs incurred to obtain satisfaction - in and out of court - shall be borne by the client.
6. HBWT has a lien on all data, papers and other goods in its possession until such time as the client has paid all that they owe HBWT.
7. Payments made by the client always serve to settle, firstly, all interest and costs due, secondly, payable invoices that have been outstanding the longest.
8. In case of liquidation, bankruptcy or suspension of payment of the client, the claims of HBWT and the obligations of the client towards HBWT are immediately due and payable.

Article 5. Execution of the assignment
1. HBWT will execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good workmanship, based on the state of the art known at the time.
2. If and to the extent required for the proper execution of the agreement, HBWT has the right to have certain activities carried out by third parties.
3. The client will see to it that HBWT has timely access to: the data and approvals required for the design of the work (such as data and information relating to the location of cables, pipes and/or ducts, permits, exemptions, KLIC reports, clean soil declarations and permits, if necessary in consultation with HBWT); the site in or on which the work is to be carried out; and sufficient opportunity for the supply, storage and/or removal of equipment and/or resources. If the information or goods required for the execution of the agreement are not provided to HBWT in time, HBWT has the right to suspend the execution of the agreement and/or to charge the client for the additional costs resulting from the delay according to the usual rates.
4. If it has been agreed that the agreement will be executed in stages, HBWT can suspend the execution of those parts which belong to a subsequent stage until the client has approved in writing the results of the preceding stage.
5. If work is carried out by HBWT or third parties engaged by HBWT in the context of the assignment at the client's premises or at a location designated by the client, the client will, as a rule, provide the facilities reasonably required by those employees free of charge.
6. The client must ensure that the public road is cleaned and kept clean before, during and after works involving the use of the public road. If the client fails to do so, HBWT is authorised at all times to take care of cleaning the public road and keeping it clean itself. It will charge the costs it incurs for this to the client.
7. Client will ensure the installation of warning signs, etc., unless otherwise agreed.
8. HBWT is allowed to take photos of the assignments whether or not provided by third parties and to use these photos for promotional purposes.
9. Client cannot derive any rights from advice and information received from HBWT if they do not directly relate to the assignment.
10. Client is responsible for the drawings and calculations made by them or on their behalf and for the functional suitability of materials prescribed by them or on their behalf.
11. Client may examine (or have examined) materials HBWT intends to use before processing them at their own expense. If HBWT suffers damage as a result, such damage will be borne by the client.

Article 6. Amendment of the agreement
1. If, during the execution of the agreement, it appears that for a proper execution it is necessary to change or supplement the work to be done, the parties will timely and in mutual consultation adjust the agreement accordingly.
2. If the parties agree that the agreement will be amended or supplemented, this may affect the time of completion of the execution.
3. If the amendment or supplement to the agreement will have financial and/or qualitative consequences, HBWT will inform the client in advance.
4. Notwithstanding paragraph 3, HBWT will not be able to charge additional costs if the amendment or supplement is the result of circumstances attributable to HBWT.

Article 7. Delivery time
1. The delivery time is determined by HBWT by approximation and is never a deadline.
2. In determining the delivery time, HBWT assumes that it can carry out the order under the circumstances known to it at that time.
3. The delivery time runs from the moment all technical details have been agreed and all necessary data are in HBWT's possession, the agreed payment has been received and all other conditions for the execution of the order have been fulfilled.
4. If there are circumstances other than those known to HBWT when it set the delivery time, HBWT may extend the delivery time by the time necessary to execute the order under those circumstances. If the work cannot be fitted into HBWT's schedule, it will be completed as soon as the schedule allows.
5. If there is additional work, the delivery time will be extended by the time required to deliver (or have delivered) the materials and parts for it and to carry out the additional work. If the additional work cannot be fitted into HBWT's schedule, the work will be completed as soon as the schedule allows.
6. If there is a suspension of obligations by HBWT, the delivery time will be extended by the duration of the suspension. If continuation of the work cannot be fitted into HBWT's schedule, the work will be completed as soon as the schedule allows.
7. A project is deemed delivered when it is put into use by client and/or when the delivery list is issued and signed for approval by client.

Article 8. Confidentiality
1. Both parties are obliged to maintain confidentiality for all confidential information they have received from each other or from other sources in the context of their agreement. Information is considered confidential if this has been communicated by the other party or if this results from the nature of the information.
2. If, on the basis of a statutory provision or a judicial decision, HBWT is obliged to disclose confidential information to third parties designated by the law or by the competent court, and HBWT cannot in this respect invoke a legal right to refuse to give evidence or a right recognised or permitted by the competent court, then HBWT is not obliged to pay damages or compensation and the client is not entitled to dissolve the agreement on the basis of any damage caused by this.
3. HBWT will impose its obligations under this article on third parties it engages.

Article 9. Intellectual property rights
1. Unless otherwise agreed, HBWT retains  the copyrights and all industrial property rights to the offers made by it and any provided designs, illustrations, drawings, (trial) models, software etc.
2. The rights to the data mentioned in paragraph 1 remain the property of HBWT regardless of whether the client has been charged for their production. This data may not be copied, used or shown to third parties without the express permission of HBWT. If this provision is breached, the client will owe HBWT a penalty of 25,000 euros. This fine can be claimed in addition to damages under the law.
3. Client must return the data provided to them as referred to in paragraph 1 upon first request within the time limit set by HBWT. If this provision is breached, the client will owe HBWT a fine of 1,000 euros per day. This fine can be claimed in addition to damages under the law.

Article 10. Complaints
1. Complaints about work carried out must be reported in writing to HBWT by the client within 8 days of discovery, but no later than 14 days after completion of the work in question. The notice of default must contain as detailed a description of the shortcoming as possible, so that HBWT is able to respond adequately.
2. If a complaint is well-founded, HBWT will as yet carry out the work as agreed, unless this has since become demonstrably pointless for the client.
3. Shortcomings of a part of the delivery do not give the right to reject the entire performance delivered.
4. With regard to externally observable shortcomings of the goods delivered by HBWT, no complaints are possible other than upon direct delivery.
5. Client will never be able to claim dissolution of an agreement on account of complaints or shortcomings.
6. Marble, granite and natural stone are sold with their natural flaws. Their origin and colour are determined by the sample, which is provided only as an approximate likeness, and no identical colour and approximation of the delivery can be requested by the client. A deviation in thickness or flatness is assumed in the stone working industry and can under no circumstances give cause for any complaint. Deviations in dimensions should be accepted. For this, we refer to the European standards (NEN standards).

Article 11. Warranties
1. On goods delivered, HBWT is never obliged to provide a warranty beyond that provided to HBWT by the manufacturer of the goods delivered. All other warranty provisions will be stated by HBWT in its order confirmation.
2. HBWT is never obliged to provide a warranty on trees and/or plants unless HBWT has provided the principal with a written warranty provision of the delivered trees and/or plants and these provisions have been strictly followed by the client.
3. The warranty does not apply if defects and/or damage are caused by: improper maintenance; improper use; wilful negligence; storm (= wind with a wind speed greater than 26 m/sec.), fire, lightning, floods, natural disasters and explosions, third-party damage, vandalism or any other external cause; abnormal environmental pollution, including but not limited to aggressive atmospheres, harmful gases, vapours and/or chemicals; salty atmosphere or any other contact with salt water; excessive temperatures, not caused by the climate; defects of a constructional nature, including structural failure and/or loss of cohesion of the subsoil.

Article 12. Force majeure
1. HBWT is entitled to suspend fulfilment of its obligations if it is temporarily prevented from fulfilling its obligations due to circumstances that could not be foreseen when the agreement was concluded and which are beyond its control.
2. The circumstances referred to in paragraph 1 include the circumstance that HBWT's suppliers and/or subcontractors fail to meet their obligations or fail to do so on time, weather, earthquakes, fire, loss or theft of tools, loss of materials to be processed, road blocks, strikes or work stoppages and import or trade restrictions.
3. The contract may be dissolved for the part of the obligations that have not yet been fulfilled, if performance is permanently impossible or if a temporary impossibility has lasted for more than six months. In such a case, the parties shall not be entitled to compensation for damage suffered or to be suffered as a result of the dissolution. HBWT is entitled to invoice separately the part already fulfilled or to be fulfilled, respectively. The client is obliged to pay this invoice as if it were a separate agreement.

Article 13. Dissolution
1. HBWT is authorised to suspend the fulfilment of the obligations or to dissolve the agreement if: the client fails to fulfil their obligations under the agreement or fails to fulfil them on time; after the conclusion of the HBWT has come to the knowledge of HBWT, circumstances give good reason to fear that the client will not fulfil their obligations; on the conclusion of the agreement the client has been requested to provide security for the fulfilment of their obligations under the agreement and such security is not provided or is insufficient; because of the delay on the part of the principal, HBWT can no longer be required to fulfil the agreement under the conditions originally agreed.
2. If the client fails to comply with their obligations under the agreement and such non-compliance justifies dissolution, HBWT is entitled to dissolve the agreement forthwith and with immediate effect without any obligation on its part to pay any compensation or indemnification, while the client , by virtue of default, will be obliged to pay compensation or indemnification.
3. Furthermore, HBWT is entitled to dissolve the agreement if circumstances arise which are of such a nature that fulfilment of the agreement is impossible or if other circumstances arise which are of such a nature that the unaltered continuation of the agreement cannot reasonably be required of HBWT.
4. If the agreement is dissolved, HBWT's claims against the client are immediately due and payable. If HBWT suspends fulfilment of its obligations, it retains its claims under the law and agreement. If HBWT proceeds with suspension or dissolution, it is in no way bound to compensate for damages and costs thereby incurred in any way.
5. In case of liquidation, of (application for) suspension of payments or bankruptcy, of seizure - if and in so far as the seizure has not been lifted within three months - at the expense of the client, of debt restructuring or any other circumstance as a result of which the client can no longer dispose freely of their assets, HBWT is free to dissolve the agreement at once and with immediate effect, or to cancel the order or agreement, without any obligation on its part to pay any damages or compensation. No judicial intervention or notice of default is required. In that case, HBWT's claims against the client are immediately claimable.

Article 14. Liability
1. HBWT is not liable for any damage, as a result of any default by HBWT in the fulfilment of its obligations towards the client or for any damage, directly or indirectly resulting from the performance by or on behalf of HBWT of work carried out by HBWT, unless such damage is attributable to intent or gross negligence on the part of HBWT or its subordinates.
2. Direct damage is exclusively understood to mean: the reasonable costs incurred to establish the cause and the extent of the damage, insofar as the establishment relates to damage within the meaning of these conditions; any reasonable costs incurred to have the faulty performance of HBWT comply with the agreement, unless these cannot be attributed to HBWT; and reasonable costs incurred to prevent or limit damage, insofar as the principal demonstrates that these costs have led to a limitation of direct damage as referred to in these general terms and conditions.
3. If HBWT is liable for direct damages, then such liability is limited to a maximum of the invoice amount, at least that part of the order to which the liability relates.
4. Liability is at all times limited to a maximum of the amount of the payment to be made by HBWT's insurer in the relevant case.
5. Notwithstanding the aforementioned paragraph, in the case of an assignment/agreement with a duration of more than six months, the liability shall be further limited to the part of the fee due over the last six months.
6. HBWT is never liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business interruption.
7. The limitations of liability for direct damage contained in these conditions do not apply if the damage is due to intent or gross negligence HBWT or its subordinates.
8. HBWT is not liable for damages, of whatever nature, in case HBWT, in the execution of the agreement, has relied on incorrect and/or incomplete data supplied by the client, including data and information concerning the location of cables, pipes and/or conduits, unless such incorrectness or incompleteness should have been apparent to HBWT. This also includes damage caused by non-delivery or late delivery of materials or work to be supplied by the client.
9. HBWT does not accept any liability for contaminated soil, hidden asbestos and/or other chemicals, e.g. oil leakage, caused by excavation work, exposing old oil barrels or leakage from the machinery itself, HBWT also does not accept any liability for water pollution caused by the aforementioned, either when contracting, executing or sub-contracting works.
10. HBWT obliges client to submit a KLIC report when issuing an order, and in the event of failure of the correct data in the relevant KLIC report, HBWT does not accept any liability for damage to cables and pipelines and the costs arising therefrom.
11. HBWT can never be held liable if work, as desired by the principal, is not considered advisable by HBWT after notification.
12. HBWT accepts no liability whatsoever for white-out of materials caused by nitric acid, the presence of vermin and the resulting damage, subsidence and/or vibration damage, damage caused by or as a result of tools and/or equipment loaned by HBWT to third parties free of charge, or if trees are lost after trimming.
13. HBWT is not responsible for defects that have arisen after delivery of the goods due to normal wear and tear, inexpert use or lack of care.

Article 15. Indemnities
1. The client indemnifies HBWT against claims by third parties concerning intellectual property rights on materials or data provided by the client, which are used in the execution of the agreement. If the principal provides HBWT with information carriers, electronic files or software etc., the latter guarantees that the information carriers, electronic files or software are free of viruses and defects.
2. The principal indemnifies HBWT against any claims by third parties, who suffer damage in connection with the execution of the agreement and which is attributable to the client. The client indemnifies HBWT against any claim by third parties relating to the use of drawings, calculations, samples, models and the like provided by or on behalf of the client

Article 16. Transfer of risk
The risk of loss of or damage to the items that are the subject of the agreement shall pass to the client at the time they are legally and/or actually delivered to the client and thereby come under the control of the client or of a third party to be designated by the client.

Article 17. Non-acquisition of personnel
During the term of the agreement as well as one year after termination thereof, the client will not in any way, except after proper consultation with HBWT on the matter, employ or otherwise, directly or indirectly, allow employees of HBWT or of companies which HBWT has called upon in the execution of this agreement and which are (have been) involved in the execution of the agreement, to work for them.

Article 18. Applicable law and competent court.
1. All agreements of HBWT are governed by Dutch law.
2. All disputes between HBWT and the client which may arise and for which no solution can be reached by mutual agreement, will be submitted exclusively to a competent court to be appointed by HBWT. Nevertheless, the parties have the right to submit the dispute to an independent arbitration institute.

Adopted in Utrecht on 14-03-2011 and amended on 27-01-2014.General terms and conditions HB Watertechnologie Trade names: HB Watertechnologie, HBWT, HB Tuintechniek,  HB Advies.