GENERAL TERMS AND CONDITIONS
These general terms and conditions have been filed with the Chamber of Commerce and Industry in Utrecht under number 30063472. These terms and conditions can be requested there and from Pouw. Version 2 – 2021.
GENERAL PROVISIONS
1.
General
These general terms and conditions apply in any case to all offers, quotations, agreements, and all other legal acts with the private limited company Theo Pouw Beheer B.V. and one or more of its affiliated companies or operating companies of this company (including, at the time of filing the general terms and conditions: Theo Pouw B.V., Theo Pouw Exploitatie B.V., Theo Pouw Materieel B.V., Theo Pouw Recycling B.V., Theo Pouw Secundaire Bouwstoffen B.V., and Theo Pouw Secundaire Bouwstoffen Weert B.V.), hereinafter referred to as: "Pouw." The party with whom Pouw has concluded agreements or is in negotiations thereof is hereinafter referred to as "the other party."
2.
Quotations
All quotations from Pouw are non-binding, unless otherwise stated in the quotation.
3.
Changes and additional work
If Pouw agrees to changes in a concluded agreement, the other party is obliged to pay Pouw all resulting costs on the part of Pouw as costs of additional work. If changes (or additional work) result in a delay in the performance of the agreement, the deadlines specified by Pouw will be extended by the period of that delay, without prejudice to the provisions of these general terms and conditions regarding force majeure.
4.
Deadlines
The deadlines specified by Pouw to the other party in connection with the performance of the agreement are never strict deadlines, even if they are final deadlines. If a deadline specified by Pouw is exceeded, Pouw will only be in default after the other party has given Pouw written notice of default and Pouw has been granted a reasonable period of time to still fulfill its obligations towards the other party.
5.
Complaints
The other party is obliged to notify Pouw in writing of any complaints regarding the performance of the agreement by Pouw within two working days of receipt of the goods or after delivery of the services by Pouw, stating the reasons for the complaint. Any claim against Pouw will lapse if this period is exceeded.
6.
Force majeure
In addition to what is understood in this regard in law and case law, force majeure on the part of Pouw includes all external causes, foreseen and unforeseen, over which Pouw has no influence, but as a result of which Pouw is unable to fulfill its obligations, including in any case, but not limited to: business interruptions, strikes, disruption in the supply of energy or materials, transport difficulties, fire, explosions, acts of war, wars, and any other external calamities, frost, storms, or unworkable weather, government measures that affect the performance of the agreement, and any failure on the part of third parties involved in the performance of the agreement, whether or not at Pouw's request. In the event of force majeure, Pouw is entitled to charge the costs for the part of the agreement already performed. In the event of temporary force majeure on the part of Pouw, Pouw is entitled to extend the terms within which the agreement must be performed by the duration of the temporary impediment. In any case of force majeure, Pouw is entitled to charge the costs for the part of the agreement already performed.
7.
Rates and billing
Unless otherwise specified, the rates quoted by Pouw are exclusive of VAT and any other government-imposed levies. Unless otherwise agreed in writing and insofar as any third parties engaged do not invoice the other party directly, the costs of third parties engaged by Pouw will also be borne by the other party. Pouw shall at all times be entitled to charge the other party for any price-increasing factors that have arisen after the quotation was issued or the agreement was concluded. In the event of partial deliveries by Pouw to the other party, Pouw shall be entitled to invoice each partial delivery separately. If the other party wishes delivery before 6:00 a.m. or after 6:00 p.m. or on Saturdays, Sundays, and public holidays, Pouw is entitled to charge an additional fee for this.
8.
Intellectual property rights
Unless otherwise agreed with the other party, Pouw retains all copyrights and other intellectual or industrial property rights or similar rights to all data, drawings, calculations, models, and other documentation provided to the other party. The other party is prohibited from alienating, encumbering, copying, reproducing, publishing, or otherwise using or exploiting the rights and items referred to in the previous sentence, or making them available to third parties in any way, whether or not in return for payment of any compensation, without Pouw's prior written consent.
9.
Payment / set-off / suspension / security
Payment by the other party must be made within 30 days of the invoice date, unless other terms are stated on the invoice. If Pouw invoices on the basis of a counter-invoice from the other party, this must be received by Pouw within 14 days of the service being provided. If this is not the case, Pouw is entitled to send an invoice without a counter-invoice. Any right of set-off or suspension on the part of the other party, on whatever grounds and for whatever reason, is excluded, unless Pouw has given its written consent. Payments made by the other party will first be used to settle the interest and costs owed and then the oldest unpaid invoices, even if the other party gives a different title to its payment. The other party undertakes, at Pouw's first request, to provide security or to supplement existing security as security for the other party's payment obligations to Pouw under agreements concluded with Pouw. If the other party fails to pay, does not pay on time or does not pay in full, it will owe interest of 1% per month on the outstanding invoice amount without prior notice of default, whereby part of a month will be counted as a whole month. Furthermore, all judicial and extrajudicial costs incurred by Pouw in connection with the collection of the claim(s) from the other party shall be borne by the other party, without prejudice to Pouw's other rights, such as those to compensation or performance. These costs shall amount to at least 15% of the amount to be collected, with a minimum of €1,000.
10.
Liability, limitation period, and indemnification
Pouw is not liable for any damage suffered or to be suffered by the other party or third parties in connection with or arising from the performance of the agreement, except in the case of intent or gross negligence on the part of Pouw. Pouw is never liable for damage and/or costs that are in any way related to or arise from actions, omissions, errors, and/or the quality of the work delivered by third parties engaged by Pouw in the performance of the agreement. If and insofar as, despite the provisions of this article or elsewhere in these general terms and conditions, Pouw is found to be liable to the other party, this liability is limited to the amount covered by Pouw's liability insurance in that specific case. If Pouw's liability insurance does not provide cover, or if the damage in question is not covered by insurance, Pouw's liability shall at all times be limited to the amount invoiced by Pouw to the other party in the context of the performance of the agreement (excluding VAT) in the 12 months prior to the event causing the damage, up to a maximum of EUR 50,000. Any legal action by the other party against Pouw shall lapse one year after the termination and/or completion of the relevant part of the agreement to which the claim relates. The other party indemnifies Pouw and other (legal) persons engaged by Pouw in the performance of the agreement against all claims from third parties relating to agreements performed by or on behalf of Pouw, unless it is established in court that this damage is the result of intent or gross negligence on the part of Pouw and the other party also demonstrates that it is not at fault in this regard. The other party is liable to Pouw for damage suffered by Pouw, its employees, or third parties as a result of the items made available by the other party for the performance of the agreement.
11.
Suspension, termination, and retention
In addition to all other rights to which it is entitled, Pouw has the right to terminate the agreement concluded with the other party, without prior notice of default or judicial intervention, without compensation by Pouw to the other party, by means of a written statement, in whole or in part and with immediate effect, if: a) there is force majeure; b) the other party (provisional) suspension of payments is granted to the other party, the other party's bankruptcy is requested or the other party itself files for bankruptcy, the debt restructuring scheme for natural persons applies to the other party, the other party offers its creditors a (private) agreement or convenes a meeting of creditors for this purpose; c) the other party's business is liquidated and/or the other party's business activities are effectively discontinued or relocated to a place outside the Netherlands; d) the other party's assets are placed under administration or management, the other party's assets are seized and this seizure is maintained for at least one month, or recourse is otherwise sought against the other party's assets; e) the control relationships at the other party change in such a way that proper fulfillment of the other party's obligations can no longer be guaranteed or is jeopardized; or f) if the other party fails to comply with any obligation or prohibition under the applicable laws or regulations, this agreement, and/or these general terms and conditions. Pouw is entitled to exercise a right of retention on any goods that Pouw has in its possession on the basis of a legal relationship with the other party, as security for the payment of all claims that Pouw has against the other party.
12.
Applicable law
The relationship between Pouw and the other party is governed exclusively by Dutch law.
13.
Competent court
All disputes arising from or related to agreements between Pouw and the other party, including disputes that are only considered as such by one of the parties, as well as all agreements arising from or related to these, will be settled (in the first instance) exclusively by the District Court of Midden-Nederland.
SPECIAL PROVISIONS FOR THE PURCHASE AND SALE OF GOODS
14.
Definitions
In these special provisions, the following definitions apply:
– buyer: the party to whom Pouw has sold and delivered or will sell and deliver goods pursuant to an agreement;
– seller: the party who has sold and delivered or will sell and deliver goods to Pouw pursuant to an agreement.
15.
Business analysis
When Pouw analyzes goods that have been delivered or are to be delivered, it does so in accordance with the applicable laws and regulations.
16.
Delivery by Pouw
Pouw will at all times supply the primary and secondary building materials from its own stock, which has been approved in accordance with the applicable laws and regulations. Pouw cannot be obliged in any way to provide replacement deliveries from sources other than its own stock. Delivery and transfer of ownership take place at the moment that the item or items sold have left Pouw's business premises, unless transport has been arranged by Pouw, in which case ownership is transferred upon unloading at the location designated by the other party. The buyer shall – on pain of forfeiture of all claims – inspect the item or items for defects within two working days, but in any case before processing of the item or items has taken place, inspect the item or items for defects and inform Pouw in writing within four working days of delivery, but in any case before processing the item or items, of all defects on the basis of which the buyer believes that the item or items do not comply with the agreement.
17.
Returns
Freight ordered by the buyer but not accepted or returned will be charged to the buyer. All damage incurred by Pouw as a result of non-acceptance or returns must be compensated by the buyer, unless the buyer can prove that the delivery does not comply with the agreement.
SPECIAL PROVISIONS FOR THE SALE, DELIVERY, AND PAYMENT OF CONCRETE MORTAR
18.
General
In these special provisions, concrete mortar is understood to mean factory-produced concrete mortar, being a mixture of uniform composition, consisting of the binder cement, aggregates, water, and any additives or fillers to influence certain properties in order to obtain the required quality.
19.
Delivery
In the event of a difference of 3% or less from the agreed quantity of ready-mixed concrete to be delivered, Pouw shall be deemed to have fulfilled its delivery obligation in full.
20.
Rates
Rates are based on deliveries free of charge to appropriate receiving silos, concrete pumps, conveyor belts (in a single unloading movement), or directly to the work site.
21.
Non-standard compositions
In the event of deviating compositions in other concrete compositions and/or qualities than those offered, a surcharge to be determined by Pouw will apply.
22.
Liability
Pouw is not liable for damage resulting from the quality of concrete mortar to which substances and/or other materials have been added by or at the request of the buyer.
23.
Delivery times
Driving onto the work site or delivery address, unloading, and driving away must be completed within 6 minutes per m³. If this time is exceeded due to the buyer's actions, an additional rate per minute will be charged per vehicle.
24.
Return shipments
For returned loads, in addition to the agreed price per cubic meter of ready-mixed concrete, an amount to be determined by Pouw will be charged for each cubic meter.
25.
Delivery times
The concrete mortar is delivered during normal factory hours from Monday to Friday from 7:00 a.m. to 5:00 p.m. For deliveries outside these hours, Pouw will charge overtime rates in consultation with the buyer. With regard to the amount of these overtime rates, the following distinction is important:
a.
For deliveries from Monday to Friday after 5 p.m., a basic overtime rate per hour to be determined by Pouw will apply for the concrete plant, to be increased by an hourly rate to be agreed upon for the number of mixers. These rates will be included in Pouw's offer.
b.
The rates for delivery on Saturdays, Sundays, and holidays, as well as for continuous dumping, will be determined in consultation with the buyer.
SPECIAL PROVISIONS FOR (MINERAL) WASTE MATERIALS OFFERED FOR PROCESSING AT POUW
26.
Offers
The starting point for all agreements relating to (mineral) waste materials is that the (mineral) waste materials to be supplied by the other party must comply with the specifications indicated by the other party or otherwise determined by or on behalf of the other party, on which Pouw has based its offer. Pouw is not obliged to investigate the accuracy of these specifications. The other party must comply with and guarantees compliance with all applicable laws and regulations. In the event of failure to do so, the other party is liable and indemnifies Pouw for all damage suffered and costs incurred by Pouw and/or third parties as a result.
27.
Ownership (mineral)
Unless expressly agreed otherwise in writing, the (mineral) waste materials become the property of Pouw upon acceptance by Pouw, whereby Pouw becomes responsible for processing the delivered (mineral) waste materials, as well as for the further care and (final) destination of products released during processing.
The transfer of ownership will not be reported to the other party.
28.
Consequences of deviation from specifications
Notwithstanding the provisions of Article 26, Pouw is entitled to investigate the accuracy of the specifications provided by the other party. In cases where a deviation from the specifications referred to in Article 26 is found (the analysis and any counter-expertise in this regard will always be carried out in accordance with the laws and regulations applicable at that time (including the applicable BRL guidelines):
a.
Pouw shall report this to the other party within 5 working days of discovery.
b.
Based on the composition determined upon delivery, Pouw will send the other party a new offer with the adjusted costs for processing by Pouw or processing elsewhere.
c.
Contrary to what is stated above in this article, Pouw is not obliged to notify the other party of a deviation in the quality of the material offered if it appears that the quality of the material is not worse than the other party has indicated. In that case, Pouw is not obliged to make any payment or refund to the other party.
If a deviation from the specifications is such that Pouw would thereby act in violation of applicable laws and regulations and/or its applicable acceptance regulations, the following applies:
a.
Contrary to the provisions of Article 27, ownership shall not transfer to Pouw and the other party shall be obliged to take back the (mineral) waste materials.
b.
All costs and damages, including consequential damages resulting from the deviation from the specifications, including but not limited to costs of earthmoving, storage, inspection, loading, and removal, shall be borne by the other party.
c.
The other party must provide all necessary cooperation to limit the damage to Pouw as much as possible.
SPECIAL PROVISIONS FOR AGREEMENTS TO WHICH THE CHAIN LIABILITY ACT APPLIES
29.
General
These special provisions apply to all agreements in which Pouw acts as the client and the other party acts as a subcontractor or supplier, and to which the Chain Liability Act also applies.
30.
Obligations of the other party
1.
The other party must have and, upon request, show Pouw: a) proof of registration in the commercial register, which is no older than three months; b) a business license, if required; c) a list containing the names of all employees, including their social security numbers, who are employed by him on a weekly basis. The employees of the other party must therefore also be able to identify themselves at any time; d) the payroll records of the employees; e) a recent statement from the tax authorities and the UWV regarding his payment history in relation to the payment of payroll tax and social insurance contributions as referred to in the guideline(s) established within the framework of the Chain Liability Act; f) a copy of an original G-account agreement, insofar as this is required. If, on the basis of the agreement with Pouw, employees are deployed who can be regarded as foreign nationals within the meaning of the Aliens Act, the other party shall provide Pouw, insofar as required under immigration legislation, with g) a copy of a valid work permit and h) a copy of a valid residence permit. The other party indemnifies Pouw against all claims resulting from the other party's failure to comply with this obligation.
2.
The other party undertakes to Pouw to strictly comply with its legal obligation to pay social security contributions and payroll tax on behalf of employees deployed by the other party, and to strictly comply with the applicable collective labor agreement. The other party also guarantees that it will fulfill all its other (legal) obligations relating to the performance of the agreement with Pouw, including in any case those arising from the Chain Liability Act and the Foreign Nationals Employment Act (WAV).
3.
In the event that he fails to comply with the obligations described in paragraphs 1 and 2 of this article and Pouw is held liable in this regard, the other party shall fully indemnify Pouw for any resulting damage.
4.
The other party is obliged to immediately report any changes in the workforce relating to the performance of the work in question or the assignment in writing.
5.
Pouw shall at all times be entitled to pay the social security contributions and payroll tax owed by the other party in respect of the work, for which Pouw is jointly and severally liable to the other party pursuant to the Chain Liability Act, by depositing the amount into the other party's blocked account within the meaning of the Chain Liability Act. Pouw is entitled to estimate the amount reasonably. Without prejudice to the foregoing, after having given notice of default to the other party by registered letter with a period of 10 working days within which the other party can still comply, Pouw is entitled to entitled to deduct the above-mentioned amounts of social security contributions and payroll tax from the (sub)contract price and to pay them directly to the UWV or the Tax and Customs Administration on behalf of the other party. In cases as referred to in the previous three sentences, Pouw will be discharged from its obligations towards the other party insofar as these amounts are concerned by making this payment.
SPECIAL PROVISIONS FOR AGREEMENTS REGARDING LAND RENTED OR USED BY POUW FOR THE PURPOSE OF STORAGE AND TRANSFER ACTIVITIES BY THE OTHER PARTY
31.
Rent or use immovable property
1.
Unless expressly agreed otherwise in writing, the goods and/or waste materials that the other party deposits, stores, or otherwise keeps in or on immovable property rented from Pouw or otherwise obtained from Pouw for use shall at all times remain the property of, and be at the risk and responsibility of, the other party.
2.
The immovable property referred to in paragraph 1 of this article shall be used by the other party exclusively for the storage and transshipment of goods and/or waste materials, in accordance with the specifications set out in Article 26 and in accordance with the specified maximum quantity.
3.
It is not permitted to sublet the immovable property used or rented by the other party (as referred to in paragraph 1) or to otherwise allow third parties to use it.
4.
Access to the immovable property referred to in paragraph 1 shall be available and accessible for use by the other party from Monday to Friday from 7:00 a.m. to 5:00 p.m. (except on national holidays), unless otherwise agreed.
32.
Laws and regulations
The other party shall at all times comply with and satisfy all applicable laws and regulations that apply to it and/or to the storage and transshipment of goods and/or waste materials at any given time.
33.
Consequences of non-compliance
If the other party does not process, transport, store, or otherwise keep the goods and/or waste materials in or on the immovable property rented from or made available for use by Van Pouw in accordance with the provisions of the agreement, these general terms and conditions, and/or the applicable laws and/or regulations:
1.
in addition to all other rights to which it is entitled, Pouw has the right to terminate the agreement concluded with the other party, without prior notice of default and without compensation to the other party, by means of a written statement or, if required by Article 7:231 of the Dutch Civil Code, through judicial intervention, in whole or in part and with immediate effect; and
2.
the other party shall be liable, and shall indemnify Pouw, for any resulting (direct and indirect) damage, including claims from third parties and/or fines and/or penalties imposed on Pouw by the competent (governmental and/or other) authorities, in connection with or (indirectly) resulting from the other party's failure to (timely and/or proper) fulfillment by the other party of its obligations or prohibitions arising from the law and/or regulations and/or the agreement and/or these general terms and conditions.
34.
Excavation and removal
In the event of (early) termination of the agreement, the other party shall excavate, remove, and dispose of all goods and/or waste materials belonging to or originating from the other party that are located on or in the immovable property rented or used by Van Pouw as soon as possible, but no later than within a period calculated on the basis of the removal by or on behalf of the other party of at least 3,000 tons of goods and/or waste per day. If the other party fails to comply with the above, Pouw is entitled to excavate, remove, and dispose of the aforementioned goods and/or waste on behalf of and at the expense and risk of the other party. The other party is liable and indemnifies Pouw on a euro-for-euro basis for all damage suffered and costs incurred by Pouw as a result.
35.
Certainty
Before or during the term of the agreement, Pouw is entitled to require the other party to provide adequate security for payment to Pouw if, among other things, Pouw fears that the other party will not, or at least not in a timely manner, be able to fulfill its payment obligations under the agreement and/or these general terms and conditions towards Pouw. The other party is obliged to provide the security demanded by Pouw at its first request in order to cover its existing and future obligations, including but not limited to obligations relating to the timely and complete removal of goods and waste and the financial consequences of the other party's failure to comply with applicable laws and regulations. If the other party fails to provide such security, Pouw has the right to terminate the agreement with immediate effect. All damage and costs incurred by Pouw as a result of this termination must be compensated by the other party.