SOWNet Technologies B.V. (hereinafter referred to as ‘SOWNet’) is a private limited company, established in Pijnacker (statutory seat in Delft) and registered in the trade register of the Chamber of Commerce under number 27287332.
In these General Terms and Conditions (hereinafter referred to as ‘Terms’) the following definitions apply:
a. Purchase: the agreement whereby SOWNet commits to deliver the Product to the Buyer, and the Buyer commits to pay a price in money for it;
b. Control Work: the legally required quality controls – whether or not supplemented with the quality controls that SOWNet applies internally – with regard to the Product concerned, and – if applicable – the measuring, weighing and/or counting of the Product concerned;
c. Documents: the written information and/or particulars – including but not limited to – communications, data, documents and (usage) instructions, provided by SOWNet to the Client within the Order, and which do not include Knowledge, a Quote and/or an Invoice;
d. Retention of Title: the – subject to the suspensive condition of payment of the total amount of the Order under which SOWNet has delivered the Product concerned, by the Buyer to SOWNet – retention of ownership of a Product by SOWNet;
e. Properties: the characteristics of the Product, which i) the Buyer – based on the Quote and Purchase concerned – may expect, ii) are necessary for normal use of the Product concerned, iii) the presence of which the Buyer need not doubt, and iv) if the Quote concerned mentions special use of the Product, also the characteristics necessary for this special use of the Product concerned;
f. Invoice: the payment note for i) the Product, delivered by SOWNet to the Buyer within the Purchase concerned and/or ii) (part of) the Work, performed by SOWNet within the Assignment concerned;
g. Warranty: the exhaustively listed obligations of SOWNet to – in case of a Complaint -: i. deliver the missing Product or part of the Product concerned to the Buyer; ii. repair the damaged, non-functioning and/or deviating Product or part of the Product concerned; or iii. replace the damaged, non-functioning and/or deviating Product or part of the Product concerned;
h. Data: the – whether or not obtained from third parties – information, particulars, communications, knowledge, data, documents, descriptions and/or documents – such as but not limited to – plans, drawings, calculations, (maintenance and/or repair) notes and/or user instructions – and facts and/or circumstances, which are relevant for the execution of the Order and/or which the Client can reasonably assume could be relevant for executing the Order;
i. Knowledge: all – whether or not written – know-how, expertise, science, technology, innovation, experience and/or information, which are either present at SOWNet at the time of Order Confirmation, or are acquired by SOWNet through and/or during the execution of the Order – including but not limited to technical or practical concepts, descriptions, drawings, designs, calculations and data;
j. Complaint: the written complaint that there is Non-conformity;
k. Client: Buyer and/or Principal, and one and the same insofar as the Buyer or Principal is relevant in the context of the sentence in which ‘Client’ is used;
l. Buyer: any legal entity or natural person – acting in the exercise of a profession or business and not being a consumer – who intends or is in the process of buying a Product from SOWNet or has already bought;
m. New Offer: the Client’s response to the Quote, with modifications, additions and/or extensions to the Quote concerned;
n. Non-conformity: the Product not corresponding to the Quote and/or Purchase concerned because the Product concerned i) does not possess the Properties and/or ii) does not comply with the Control Work;
o. Quote: the offer drawn up in writing by SOWNet – in the name of the Client – regarding the Purchase and/or Assignment, including any appendices – including but not limited to – (technical) concepts, descriptions, drawings, designs and calculations;
p. Assignment: the agreement whereby SOWNet commits to perform Work for the Principal;
q. Principal: any legal entity or natural person – acting in the exercise of a profession or business and not being a consumer – who intends or is in the process of granting an assignment to SOWNet to perform Work or has already granted;
r. Order: the Purchase and/or Assignment, and one and the same insofar as the Purchase or Assignment is relevant in the context of the sentence in which ‘Order’ is used;
s. Order Confirmation: i. the written acceptance by the Client of the Quote without modifications, additions and/or extensions; ii. the verbal or written confirmation by SOWNet of the assignment granted by the Principal to SOWNet to perform Work; and/or iii. the written confirmation by SOWNet of a Quote and/or New Offer verbally approved by the Client;
t. Product: a movable physical item from SOWNet’s range or an improved Prototype that is ready for production;
u. Prototype: the first, original model, prefiguration and/or basic design of a – physically controllable – object, which – if included in the Proposal – may possibly result from an Assignment;
v. In Writing: in written form, in the sense of ‘in black and white’ and including written communication via electronic and/or telephone traffic;
w. Confidential Information: i) the Knowledge, ii) the Documents, iii) the Prototype, iv) all – whether or not marked as confidential – information concerning SOWNet’s business operations and v) all Data and/or other information marked as confidential – by means of a clear caption – at the time of disclosure – including but not limited to verbal, written and electronic disclosure;
x. Proposal: that part of a Quote that contains the entirety of descriptions, (technical) concepts, drawings, designs and/or Prototypes and is included in the Quote concerned under the chapter ‘The Proposal’;
y. Work: the activities, tasks and/or services that SOWNet offers as its business activities – such as but not limited to (technical) research, (further) development, treatment, adaptation, maintenance, updating, upgrading, application, integration, implementation, installation, testing, advising, supporting, guiding and/or training.
The Definitions that apply to these Terms are always written with a capital letter and are formulated both in this Article and elsewhere in these Terms. The singular of a Definition also includes the plural form thereof and vice versa, unless it appears otherwise from the Definition concerned and/or from the context of the sentence in which the Definition is used. For the readability of the Terms, singular and plural of the Definitions are used interchangeably.
Without prejudice to the provisions of paragraph 4 of this Article, the Terms apply to all legal relationships between SOWNet and the Client, including (future, follow-up and/or amended) Quotes, Order Confirmations, Purchases, Assignments, Invoices, negotiations leading thereto and resulting transfers of ownership, deliveries and/or other acts.
The applicability of i) the Vienna Sales Convention, ii) any other general terms and conditions – including those of the Client – and iii) any amendment to these Terms are expressly excluded, unless explicitly stated otherwise in the Quote or Order Confirmation concerned.
In the event that versions of these Terms exist in other languages, the text of the Dutch language version of these Terms is always decisive for the interpretation of versions in a language other than Dutch.
An amendment to these Terms included in a Quote only relates to the Quote concerned and any resulting Order, and is never applicable to ongoing and/or future Quotes, Order Confirmations and/or Orders.
The Terms, Quote, Invoices and – if applicable – the New Offer accepted in writing by SOWNet, always contain all conditions and agreements between SOWNet and the Client regarding the Order concerned. In case of discrepancy between the aforementioned documents, they prevail in the following order:
the Quote,
these Terms,
the Invoices and
the New Offer accepted in writing by SOWNet.
The Terms are also stipulated for the benefit of – and therefore also apply to the Client for – employees, the management of SOWNet and any third parties that SOWNet engages for the execution of the Order.
The conditions – listed within the various Parts of these Terms – apply as follows: a. Part A, entitled ‘General’, always applies to both the individual Purchase or Assignment, as well as the mixed Order, one and the same insofar as the Purchase or Assignment is relevant within the mixed Order concerned; b. Part B, entitled ‘With regard to the Assignment’, always applies to both the individual Assignment and the mixed Order, one and the same for only that part of the mixed Order concerned that relates to the Assignment; and c. Part C, entitled ‘With regard to the Purchase’, always applies to both the individual Purchase and the mixed Order, one and the same for only that part of the mixed Order concerned that relates to the Purchase.
These Terms are available at www.sownet.nl. A copy of the Terms can be saved and/or printed from this site, and will be sent and/or emailed free of charge at the Client’s request.
The Quote includes – if applicable – at least the following details: i) the name and/or description of the Work and/or each type of Product, ii) the price per unit and type of Product, iii) an (hourly) rate and/or a (fixed) price, iv) the purpose of the Order and v) the start date of the Order.
Unless a validity period is included in the Quote, the Quote is made without obligation. The aforementioned non-binding nature means that SOWNet may still promptly revoke the Quote in writing – up to and including after the Order Confirmation.
All dates, terms and/or schedules mentioned in the Quote are not fatal, unless explicitly stated otherwise in the Quote or Order Confirmation concerned.
The Client uses the Quote, its contents and/or modifications, additions and/or extensions made by SOWNet exclusively to evaluate their interest in accepting the Quote concerned. If the Quote concerned does not lead to an Order, the Client returns the Quote concerned upon first written demand from SOWNet.
The Order is formed through the Order Confirmation, unless the Quote is revoked by SOWNet in the manner as stipulated in the second (2nd) sentence of paragraph 2 of this Article.
The Client makes all Data – over which the Client can or should reasonably be able to dispose – available to SOWNet in a timely and proper manner, even if SOWNet has not explicitly requested this Data. The Client guarantees the accuracy, completeness and reliability of the Data provided to SOWNet.
SOWNet is entitled to engage third parties for the execution of the Order, whereby SOWNet – in choosing and engaging third parties – exercises the necessary due diligence.
Unless explicitly stated otherwise in the Quote or Order Confirmation concerned, all prices and/or rates mentioned in the Quote and all agreed with the Order are in Euros (€), excluding VAT and excluding the additional costs and work mentioned in paragraphs 3 and 4 of this Article.
If the Quote states an hourly rate, the fee is calculated based on the hours worked multiplied by the hourly rate applicable to the Order concerned. Unless explicitly stated otherwise in the Quote or Order Confirmation concerned, the aforementioned hours worked also include the time that – in the context of the Order concerned – i) is traveled, ii) is spent on engaging third party(ies) and/or iii) is spent processing the work performed by third parties.
Additional costs consist of the actual costs incurred that – in the context of the Order concerned – were initially for the account of SOWNet. These additional costs include, for example – but are not limited to – (extra-)judicial costs, claims from third parties as described in Article 10, paragraph 4 and/or surcharges, administrative or other supplementary costs included in the Quote. Any additional costs are charged by SOWNet to the Client.
Work – performed by third parties engaged by SOWNet – is charged to and invoiced to the Client.
SOWNet is entitled to i) demand security from the Client, sufficient for complete fulfillment of the Order concerned, and/or ii) request a down payment for the execution of the Order. The down payment is offset against the last Invoice belonging to the Order concerned.
The Client receives the Invoices in accordance with the invoicing terms as stated in the Quote and/or Order Confirmation concerned.
Payment must be made within fifteen (15) days after the invoice date, in the manner indicated on the Invoice. This payment term of fifteen (15) days is a fatal term.
In the event that one and the same Order has multiple Clients, all these Clients are jointly and severally liable for the payment of all Invoices of the Order concerned.
The Client is never entitled to suspend payment of an Invoice, even in case of a Complaint. Furthermore, the Client has no right to any set-off – including but not limited to – independent withholding and/or deduction of a percentage of the (total) amount of the Invoice. These percentages include, for example – but are not limited to – discount percentages for payment within fifteen (15) days after the invoice date.
If an Invoice is not paid on time or not paid in full, the Client – from the fifteenth (15th) day after the invoice date – is in default by operation of law. In addition, the Client – without further notice of default and without prejudice to other rights of SOWNet – i) owes the statutory interest on the outstanding amount and ii) all (extra-)judicial costs related to collection to SOWNet.
Furthermore, if the Client i) does not – or insufficiently – provide the security demanded by SOWNet for complete fulfillment of the Order and/or ii) has not paid an Invoice on time or not paid in full, SOWNet has the right to: a. suspend the transfers of ownership, deliveries and other acts with regard to the Purchase concerned; and/or b. suspend the performance of the Work with regard to the Assignment concerned, in whole or in part, until the demanded security has been provided or the amount of the Invoice concerned has been fully received by SOWNet.
Furthermore, SOWNet is entitled to terminate the Order by a written statement if the Invoice – for the down payment of the Order concerned – is not paid on time or not paid in full by the Client.
SOWNet has and retains full and complete (intellectual) ownership and all intellectual property rights – including all copyrights – of all Knowledge, Documents and Prototypes.
In no case does an Order extend to the transfer of ownership and/or any (intellectual) property right of Knowledge, a Document and/or a Prototype, unless explicitly stated otherwise in the Quote or Order Confirmation concerned. Furthermore, a Purchase only extends to the transfer of bare ownership of the Product.
Insofar as the execution of an Order leads to a patentable Proposal or other matter, SOWNet has the right to apply for a patent in its name and at its expense. At SOWNet’s request, the Client provides all required cooperation in filing a patent application.
SOWNet has and retains at all times the complete and free usage rights to all Knowledge, Documents and/or Prototypes. In addition, SOWNet acquires and retains complete and free usage rights to all Data that the Client makes available to SOWNet, provided that this does not include Confidential Information of the Client. These complete and free usage rights include, for example – but are not limited to – the right to use for itself, to use for the benefit of third parties and to have third parties use.
SOWNet is also entitled to use the name and/or logo of the Client for promotional activities of SOWNet, provided with due care.
The Client ensures that use of the Documents and/or Prototype is done with utmost care. This utmost care includes at least: a. limiting the aforementioned use as much as possible to use within its own company; b. observing the conditions of Article 7, Article 8 and Article 9; and c. only deploying the aforementioned use in service – in case of a Purchase – of applying and/or using the Product, and – in case of an Assignment – of the purpose of the Assignment concerned, one and the same with the exception of paragraph 4 of this Article.
If the purpose of the Assignment entails that the Principal should make (the content of) the Assignment and/or Documents known to a third party and/or have it used by a third party, the Principal – in exception to paragraph 3 of this Article – is entitled to do so only and exclusively under the strict conditions that the Principal: a. emphasizes to the third party concerned that neither they nor other third parties can derive any right from (the content and/or execution of) the Assignment and/or Documents; b. declares Article 9 mutatis mutandis applicable to the third party concerned; and c. ensures that the aforementioned use by the third party concerned is in accordance with these Terms.
Unless explicitly stated otherwise in the Quote or Order Confirmation concerned, the recipient of Confidential Information (hereinafter referred to as ‘Recipient’) must protect, keep secret and strictly confidential the Confidential Information. This confidentiality obligation means that the Recipient: a. applies the same degree of precaution and safeguards as the Recipient uses to protect its own confidential information, which degree certainly may not be less than that of good care; b. only makes use of Confidential Information – or only copies, reproduces or otherwise multiplies Confidential Information – in strict accordance with Article 7 and Article 8; c. may only disclose Confidential Information to its own employees who have an interest in becoming aware of the Confidential Information concerned; and d. may not – whether via electronic and/or telephone traffic – directly or indirectly – distribute, disclose or make known Confidential Information to a third party and/or anyone other than the aforementioned employees.
If disclosure of Confidential Information is explicitly permitted in the Quote concerned, Order Confirmation concerned or in these Terms, the Recipient declares applicable with each disclosure conditions and provisions identical to these Terms – and in particular to Article 7, Article 8 and Article 9.
The confidentiality obligation does not apply to Confidential Information: a. that is already in the possession of the Recipient at the time the Confidential Information concerned is communicated to the Recipient; b. that is or becomes publicly known, without this being the result of any culpable act or omission by the Recipient; c. that is lawfully obtained by the Recipient from a third party; and/or d. that is obtained by the Recipient from its own research without any use being made or having been made of the Confidential Information concerned.
Without prejudice to the provisions in paragraphs 3 and 5 of this Article, SOWNet is only liable for damage that is the direct result of an attributable shortcoming by SOWNet in the execution of the Order concerned, and only insofar as this shortcoming is the result of: a. a lack of due diligence that could reasonably be expected from SOWNet given the actions performed within the Order up to the moment of liability; or b. intent or gross negligence on the part of SOWNet. In addition, SOWNet bears the risk of liability for damage caused by death or physical injury caused by a defect in the Product.
Any liability of SOWNet for damage – including but not limited to every form and all types of both damage that is in any way related to i) the termination of negotiations preceding the Order, ii) the non-realization of non-fatal terms and/or iii) the use of Data and/or Confidential Information provided by the Client, as well as consequential damage and/or other commercial loss – is limited to the amount that – in the damage case concerned – is paid out under the business liability insurance taken out by SOWNet, increased by the amount of any – pursuant to the policy conditions of this insurance – applicable deductible. Insofar as and/or if – for whatever reason – no payment should take place under said insurance, SOWNet’s liability is limited to the total amount of all – in the calendar year concerned – Invoices paid by the Client belonging to the Order concerned. This total amount is always capped at € 5,000.00 (five thousand Euros) per calendar year.
SOWNet is never liable for any disadvantage and/or every form and all types of damage – including but not limited to consequential damage and/or other commercial loss -, and the Client indemnifies SOWNet against every form of liability as a result of: a. incorrect, incomplete and/or unreliable Data and/or other information provided by the Client; b. failure to observe SOWNet’s instructions regarding, for example – but not limited to – the method of storage, maintenance, treatment and/or use of (a part of) the Product and/or Prototype concerned; c. incompetent and/or improper use of (a part of) the Product and/or Prototype concerned; d. (attempting to) attach items to (a part of) the Product and/or Prototype concerned that should not be attached to (that part of) the Product and/or Prototype concerned; e. (attempting to) attach (a part of) the Product and/or Prototype concerned to items to which (that part of) the Product and/or Prototype should not be attached; f. assembling, installing, repairing, modifying, processing and/or incorporating (a part of) the Product and/or Prototype concerned; g. failure to submit a Complaint in a timely manner and/or not in accordance with Part C.Article 17, paragraph 5; h. the fact or that arises at the moment that the Client itself is in default with the fulfillment of any obligation towards SOWNet; and/or i. Force Majeure.
The Client indemnifies SOWNet against all claims from third parties, which are directly or indirectly in any way related to the Order and/or legal relationships as described in Article 2, paragraph 1, unless the damage resulting from this claim is caused by intent or gross negligence on the part of SOWNet. Furthermore, the Client compensates all costs that SOWNet must incur in connection with claims from third parties, in case there is no intent or gross negligence on the part of SOWNet.
Any liability of SOWNet for acts or omissions of third parties engaged by SOWNet, and the applicability of article 6:76 Dutch Civil Code – liability for auxiliaries – is expressly excluded. Furthermore – and also with regard to all paragraphs of this Article – the provisions of Article 2.6 of Article 2 – Terms also stipulated for the benefit of third parties – remain in full force.
In addition to the provisions of article 6:89 Dutch Civil Code – no reliance on defect in performance if not protested -, a claim for damages must be submitted in writing to SOWNet at the latest within one hundred and eighty (180) days – after the Client discovered the damage -, failing which the right to compensation expires.
A shortcoming in the fulfillment of an obligation towards the Client cannot be attributed to SOWNet if this shortcoming is not due to SOWNet’s fault, nor by virtue of law, legal act or generally accepted principles is for SOWNet’s account (hereinafter referred to as ‘Force Majeure’).
Force Majeure should also be understood to mean: a. any circumstance that SOWNet could not take into account at the time of entering into an obligation with the Client – including the period of legal relationships as described in Article 2, paragraph 1 – and due to which the Client cannot reasonably demand the execution of this legal relationship from SOWNet; b. all external causes – foreseen or unforeseen – over which SOWNet cannot exert influence – including but not limited to an attributable or non-attributable shortcoming or negligence by a third party and whereby SOWNet cannot fulfill its obligations towards the Client; c. circumstances and/or causes – such as but not limited to flooding and/or other natural disasters, fire, power outages, riots, strikes – both in SOWNet’s company and in a company from which SOWNet obtains goods, raw materials, auxiliary materials, Products and/or parts -, restrictive government measures of any nature or restrictions and/or obstacles to production and/or supply of goods, raw materials, auxiliary materials, Products and/or Parts.
In case of Force Majeure, SOWNet is entitled – immediately and for the duration of the Force Majeure – to suspend the fulfillment of all its obligations towards the Client. Insofar as not hindered by the Force Majeure, SOWNet makes the suspension and cause of the Force Majeure known in writing to the Client.
If the Client does not fulfill an obligation from an Order and/or these Terms on time and/or not in accordance with the Order concerned and/or these Terms, SOWNet puts the Client in default in writing and thereby gives the Client a reasonable term to still fulfill the obligation concerned. If fulfillment of the obligation concerned does not occur within this reasonable term, the Client is in default.
If the Client is in default, i) all rights arising from the Order concerned and belonging to the Client expire immediately and ii) SOWNet is immediately released from all its obligations arising from the Order concerned.
Both the Client and SOWNet can – without written notice of default and without intervention of the court – terminate the Order – in whole or in part and immediately -: a. in case of Force Majeure and this Force Majeure lasts longer than sixty (60) days; b. in case of default by SOWNet respectively the Client; and/or c. SOWNet respectively the Client is in financial distress, has applied for suspension of payment and/or has been or is declared bankrupt. For this termination, the Client respectively SOWNet invokes one or more of the above situations in a written communication to SOWNet respectively the Client.
Dutch law exclusively applies to all Orders and/or legal relationships – as described in Article 2, paragraph 1 – between the Client and SOWNet.
In exception to paragraph 1 of this Article, for the benefit of the proprietary consequences of the Retention of Title, the law of the state of destination of the Product concerned applies if that law contains more favorable provisions for SOWNet regarding the Retention of Title than Dutch law.
In case of disputes arising from an Order – and/or from a Quote and/or Invoice resulting therefrom – the Client and SOWNet will together try to resolve these in the first instance with the help of mediation in accordance with the relevant regulations of the Netherlands Mediation Institute. If it proves impossible to resolve the dispute with the help of mediation, the dispute will be exclusively settled by the competent court of the district of The Hague court.
A dispute exists if the Client has notified SOWNet – or SOWNet has notified the Client – in writing of the dispute concerned.
All Assignments are deemed to have been granted only to, and exclusively accepted by SOWNet. Even if it is the express or implicit intention of the Principal, the provisions of articles 7:404 Dutch Civil Code – execution of assignments by a specific person – and 7:407, paragraph 2 Dutch Civil Code – joint and several liability if an assignment is given to two (2) or more persons – are expressly excluded.
The execution of the Assignment is exclusively for the benefit of the Principal. If it is necessary for the proper execution of the Assignment that SOWNet performs all or some Work on location at the Principal, i) the Principal grants SOWNet free access to its location and ii) – if applicable, the Principal provides SOWNet free of charge with a proper, well-lit and equipped workplace.
The Assignment concerns an obligation to make best efforts, whereby SOWNet: a. observes the care of a good contractor; b. makes efforts to execute the Assignment with the required care and expertise; and c. makes efforts to serve the Principal’s interests to the best of its knowledge and ability.
If the Quote contains a Proposal and/or mentions a Prototype, SOWNet does its utmost to arrive at that Proposal and/or Prototype from the Quote concerned.
Although SOWNet makes efforts to execute the Assignment with the required care and expertise, SOWNet guarantees neither explicitly nor implicitly that the execution of the Assignment will actually lead to the Proposal and/or Prototype.
Should the execution of the Assignment – in whole or in part – lead to the Proposal and/or Prototype, the Proposal and/or Prototype concerned is provided to the Principal at its own benefit and risk, and without any form of warranty, neither explicit nor implicit. SOWNet is therefore not responsible and does not guarantee proper functioning and/or suitability for a specific purpose of the Proposal and/or Prototype concerned.
Furthermore, SOWNet expressly rejects any and all – whether previously issued – statements and/or warranties about or regarding (the actual leading of the Assignment to) the Proposal and/or Prototype.
Through the formation of the Purchase, SOWNet commits to the transfer of the Product to the Buyer – with Retention of Title – and the Buyer is obliged to pay the total price as calculated in the Quote concerned.
After the formation of the Purchase, SOWNet is obliged to deliver the Product to the Buyer by making the Product available to the Buyer within the delivery term specified in the Order Confirmation (hereinafter referred to as ‘Delivery’).
The Delivery and transfer of risk are in accordance with INCOTERMS® 2010, Ex Works, at the address Weteringweg 2 (2641 KM) in Pijnacker, the Netherlands, unless another INCOTERM® 2010 rule is included in the Quote concerned.
SOWNet is responsible for the Control Work – including the associated costs – necessary for the Delivery of the Product. In addition, SOWNet ensures packaging of the Product in a manner comparable to the method of packaging as used in commercial traffic for products of the same type. If applicable, SOWNet provides the packaging with the appropriate marks.
If the Buyer receives the Product with Retention of Title, the Buyer – as long as the Retention of Title continues -: a. is only and exclusively entitled to use the Product concerned for itself, within its own company and only for the benefit of its own business operations; b. is not entitled to sell, pledge and/or encumber the Product concerned in any other way; c. is obliged to insure and keep insured the Product concerned against those risks against which products of the same type are insured in commercial traffic; and d. is obliged to do everything that can reasonably be expected from the Buyer to secure SOWNet’s ownership rights with regard to the Product concerned.
Furthermore, the Buyer – during the Retention of Title – is obliged to support SOWNet in exercising SOWNet’s ownership rights with regard to the Product concerned. This support includes at least that the Buyer: a. unconditionally and irrevocably grants permission and access to SOWNet – and/or third parties to be designated by SOWNet – to enter the place where the Product concerned is located; and b. does or omits everything that can reasonably be expected from the Buyer to enable SOWNet – and/or third parties to be designated by SOWNet – to take back the Product concerned.
When a third party – during the Retention of Title – seizes the Product or wants to establish or assert rights to the Product concerned, the Buyer is obliged to: a. immediately inform SOWNet of this; and b. point out the Retention of Title to the third party.
The Retention of Title expires on and from the moment that the total amount of the Order – under which SOWNet has transferred the Product concerned – is received by SOWNet. Without prejudice to everything stipulated in Article 7, – on and from the moment of the expiry of the Retention of Title – automatically and only the bare ownership of the Product concerned is transferred to the Buyer.
After formation of the Purchase and after Delivery of the Product, the Buyer is obliged to take receipt of the Product within ten (10) working days, unless SOWNet has communicated another term to the Buyer in writing.
The Buyer takes receipt of the Product i) by collecting the Product at the address mentioned in paragraph 3 of Article 15 or at the address belonging to the other INCOTERM® 2010 rule mentioned in the Quote concerned or ii) in another manner, provided this manner has been communicated in writing by SOWNet to the Buyer. Taking receipt of the Product, the transfer of risk and all associated costs are always governed by the same INCOTERMS® 2010 under which the Delivery takes place.
If the Buyer has not taken receipt of the Product within ten (10) working days – or when SOWNet has communicated another term to the Buyer, not within this other term -, SOWNet is entitled to: a. store the Product for the account and risk of the Buyer and charge the storage and other associated costs to the Buyer as additional costs in accordance with Part A.Article 5, paragraph 3; or b. terminate the Purchase by a written statement.
Immediately after the Buyer has taken receipt of the Product, the Buyer examines whether the Product corresponds to the Quote and/or Purchase concerned. To this end, the Buyer examines at least whether the Product possesses the Properties and/or complies with the Control Work agreed in the Purchase concerned.
If the Buyer establishes Non-conformity, the Buyer must submit a Complaint to SOWNet within five (5) days after this establishment. The Buyer ensures a clear and factual description of the Complaint, and indicates whether it concerns a missing, damaged, non-functioning and/or deviating Product or part of the Product concerned.
Should the Purchase concern multiple Products, the Buyer is not entitled to – in case a Complaint concerns one Product or not all Products of the Purchase concerned – not accept the remaining Products and/or otherwise refuse.
Furthermore, the Buyer can no longer rely on: a. Non-conformity, if the Buyer has not submitted a Complaint to SOWNet within five (5) days after the Buyer established Non-conformity – or should reasonably have established it -; and/or b. any legal action and/or defense based on Non-conformity, after the expiry of two (2) years after receipt of the Complaint concerned by SOWNet.
SOWNet guarantees that on the day of Delivery the Product materially corresponds to the Quote and Purchase concerned.
If SOWNet receives a Complaint from the Buyer, SOWNet is obliged to assess the Complaint within 15 days and send a substantive written response to the Complaint concerned (hereinafter referred to as ‘Treatment Response’) to the Buyer. In the Treatment Response, SOWNet indicates at least: a. whether the description of the Complaint is clear and factual enough for SOWNet to process the Complaint; or – if the description of the Complaint is not clear and factual enough for SOWNet -: b. what is not comprehensible for SOWNet to process the Complaint.
SOWNet need not process Complaints that: a. do not indicate whether it concerns a missing, damaged, non-functioning and/or deviating Product or part of the Product concerned; and/or b. SOWNet does not assess consistently with the Buyer in terms of content. To this end, SOWNet is obliged to indicate the reason for not processing in the Treatment Response to the Complaint concerned.
If SOWNet processes the Complaint, SOWNet – after sending the Treatment Response to the Complaint concerned and depending on the content of the Complaint – is exclusively obliged to perform the following obligations of the Warranty: a. deliver the missing Product or part of the Product concerned to the Buyer, in case the Complaint concerned mentions that (a part of) the Product concerned is missing; and/or b. repair and/or replace the damaged, non-functioning and/or deviating Product or part of the Product concerned, in case the Complaint concerned mentions that (a part of) the Product concerned is damaged, does not work and/or is deviating, and only under the conditions of paragraphs 5 and 6 of this Article.
SOWNet is only obliged to repair (a part of) the Product concerned if SOWNet can reasonably meet the repair of (the part of) the Product concerned. To this end, it is exhaustively determinative that: a. repair of (the part of) the Product concerned is factually possible; and b. the costs of this repair are in reasonable proportion to the residual value of the Product concerned.
In addition, SOWNet is only obliged to replace (a part of) the Product concerned if: a. in SOWNet’s opinion, (the part of) the Product concerned cannot be repaired; and b. the damage, non-functioning and/or deviation of (the part of) the Product concerned is of such magnitude that – in SOWNet’s opinion – replacement of (that part of) the Product concerned is justified. Should replacement of (that part of) the Product concerned not be justified, SOWNet proposes a reduction on the total price of the Order Confirmation concerned to the Buyer in writing.
The Warranty runs from the day of Delivery and continues for seven hundred and thirty (730) days thereafter.
The Warranty does not apply to parts of a Product that are subject to wear and tear or whose lifespan is determined by the method of use of that part of the Product concerned. Furthermore, the Warranty expires if the Non-conformity is the result of: a. failure to observe SOWNet’s instructions regarding, for example – but not limited to – the method of storage, maintenance, treatment and/or use of (a part of) the Product concerned; b. incompetent and/or improper use of (a part of) the Product concerned; c. (attempting to) attach items to (a part of) the Product concerned that should not be attached to (that part of) the Product concerned; d. (attempting to) attach (a part of) the Product concerned to items to which (that part of) the Product concerned should not be attached; and/or e. assembling, installing, repairing, modifying, processing and/or incorporating (a part of) the Product concerned by the Buyer and/or third parties not acting on behalf of SOWNet.
The transport costs directly related to moving the Product – from the Buyer to the address specified by SOWNet – for the benefit of the Warranty, incurred by the Buyer and approved in writing by SOWNet, are for SOWNet’s account.
