ARTICLE I – DEFINITIONS
Hydraloop – shall mean Hydraloop Inc., a Delaware corporation.
Customer – shall mean any natural person or business entity with whom Hydraloop and its employees deal in the course of its business, including representative(s), business partner(s), successor(s) and including visitors of the Hydraloop’s website.
Contract – shall mean the contract between Hydraloop and the Customer regarding the provision of Hydraloop’s Services, the use and purchase of Hydraloop’s Products.
Products – shall mean decentralized water recycling products provided either directly by Hydraloop, or by its partners from time to time in any territory,
Product data – shall mean weights, measures, capacities, test results, yields and other product data provided in writing by Hydraloop.
Services – shall mean services in relation to Hydraloop’s Products.
ARTICLE II – GENERAL
1. Applicability – These general sales conditions apply to all offers, quotes and exclusively govern all Contracts between Hydraloop and the Customer, all other legal relationships arising between Hydraloop and the Customer, and any subsequent amendment to the Contract unless otherwise agreed by the parties in writing. These general sales conditions shall be applicable even if Hydraloop uses third parties to deliver Products. No other terms and conditions shall be binding upon Hydraloop unless accepted by it in writing. Hydraloop expressly rejects any general terms and conditions used by Customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void and do not bind Hydraloop.
2. Severability – If one or more provisions of these general sales conditions are at any time entirely or partly annulled or declared void by a court, the other provisions will remain in full force and effect.
3. Third-party components provisioning – For complete components obtained by Hydraloop from third parties and which Hydraloop forwards as complete components and/or builds in without alteration, the delivery conditions of the third party apply if and insofar as they contain more restrictive limitations than indicated in these general sales conditions, if these more restrictive limitations are reported to the Customer.
ARTICLE III – OFFERS AND ORDERS
1. Revocability – All offers of Hydraloop are non-binding and may be revoked at any time, unless Hydraloop stated otherwise in writing. Hydraloop may not be bound by an offer or quote if the Customer can reasonably understand that the offer or quote or a part thereof contains an obvious mistake or error in writing.
2. Request for proposal – All offers of Hydraloop are based on the information provided by the Customer, and Hydraloop may rely on the accuracy thereof. The Customer guarantees that it has provided all information essential to the purpose and performance under the Contract to Hydraloop truthfully and on time.
3. Combined offer -No offer shall oblige Hydraloop to partial performance for partial payment.
4. No future right -Offers and quotes do not automatically apply to any future purchase orders to be issued by Customer.
5. Mutual consent – No order shall be deemed accepted by Hydraloop unless confirmed in writing by Hydraloop’s authorised representative.
6. Cancellation – No Order accepted by Hydraloop may be cancelled, varied or suspended by the Customer unless the parties agree otherwise and in writing. Customer shall indemnify Hydraloop in full against all loss (including loss of profit), costs (including labour costs and materials used), damages, charges and expenses incurred by Hydraloop as a result of cancellation, variation or suspension.
ARTICLE IV – PRICES
1. Ex works – All prices are in the currency as stated in Hydraloop’s offer and/or Invoices.
2. Purchase price tax – All prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on Hydraloop or Customer by any taxing authority (other than taxes imposed on Hydraloop’s income), related to Customer’s purchase order.
3. Price increase – If Hydraloop agrees to a price, fixed or otherwise, with the Customer, Hydraloop shall be authorised to increase this price without the Customer being authorised to terminate the Contract because of such an increase if:
- the price is increased because of increases in costs of parts or raw materials that could not reasonably have been foreseen at the time that the Contract was entered into, or
- the price is increased with ten (10) percent of less, because of a change in the current exchange rate on the Amsterdam stock exchange between the euro and the currency of the country in which Hydraloop purchases the products to be delivered, or
- there are changes in law such that a tax is levied that is or becomes irrecoverable with a consequent increase to the costs to Hydraloop of delivering the Products or performing Services.
4. Price for Services – For the rendering of Services, the daily price includes travel time and shall exclude any incidental costs incurred by Hydraloop for the purposes and in the course of providing the Services including but not limited to travel and accommodation costs, costs of materials to be used and/or processed and costs for transporting materials and tools.
ARTICLE V – PERFORMANCE UNDER THE CONTRACT
1. Third-party claims – To the extent required for the proper performance under the Contract, Hydraloop has the right to have the Contract partly performed by third parties.
2. Time estimate – If a period has been agreed within the term of the Contract for the completion of certain work or the delivery of certain products, this period shall be considered an estimate and shall never constitute a final deadline for Hydraloop.
3. Limited Liability – Advice provided by Hydraloop in the context of delivery and installation of Products Is provided “as is” without any warranty or liability, unless the advice is provided as under a specifically agreed upon separate purchase order and specifically paid for by Customer.
4. Legal compliance – The Customer shall comply with all relevant laws, rules and regulations affecting its obligations and the performance under the Contract and shall obtain at its own costs and expenses all necessary permits and licences. Upon Hydraloop´s request, the Customer shall furnish information or documentation of its compliance.
ARTICLE VI – AMENDMENT OF THE CONTRACT
1. Amendment – Any subsequent changes in the performance of the Contract required by the Customer after the signing of the Contract (Change Order) must be made known to Hydraloop by the Customer in writing. Any such change to the Contract shall only be valid if it has been accepted in writing by both, Hydraloop and the Customer.
2. Change Orders – Each Change Order shall detail the requested changes to the applicable Contract. The Change Order will become effective upon the execution of the Change Order by both parties, and the Change Order will specify the period of time within which the parties must perform. Both parties agree to act in good faith and promptly when considering a Change Order requested by the other party but neither party Is obligated to execute a Change Order. No Change Order shall become effective unless and until it Is signed by both parties.
ARTICLE VII – COOPERATION OF THE CUSTOMER
1. Provision of Information – The Customer shall promptly, both upon Hydraloop’s request and on its own, provide Hydraloop with all relevant information which Hydraloop requires for its proper performance under the Contract.
2. Lack of information – If the Customer fails to make information necessary for the performance under the Contract available or fails to do so in a timely manner, or fails to make such information available in accordance with the applicable agreements, or if the Customer fails to perform other obligations under the Contract, Hydraloop shall be authorised to suspend performance under the Contract.
3. Consequential Costs – If Hydraloop incurs additional costs because requested information or documents were not made available in a proper and timely manner, such costs shall be borne by the Customer.
4. Internet connection – To the extent that equipment delivered must be connected to internet, Customer will provide a proper and stable internet connection. Customer is responsible for the costs of such internet connection.
ARTICLE VIII – OBLIGATION TO INSPECT AND COMPLAINTS
1. Examination of Products and Services – The Customer must inspect all Services performed or Products delivered by Hydraloop or have them inspected immediately after they have been delivered by or on behalf of Hydraloop. In this context, the Customer must ascertain whether the Services performed, or Products delivered by Hydraloop are in conformity with what has been agreed between the parties.
2. Waiver – If the Customer does not submit a written complaint to Hydraloop within eight (8) business days after it has inspected and discovered or should have inspected and discovered a failure on the part of Hydraloop to perform under the Contract, the Customer has waived his or her right to make a claim on the basis of this failure.
3. Suspension – If the Customer believes that it has a legitimate complaint, it shall not have the right to suspend its payment and other obligations or terminate the Contract.
4. Procedure – The Customer must give Hydraloop the opportunity to investigate a complaint or have a complaint investigated. If a complaint concerns Products, these Products must remain at the disposal of Hydraloop. If it is established that a complaint is unfounded, Hydraloop shall be reimbursed for all costs Hydraloop incurred in relation to the investigation.
5. No admission – It will not be considered an admission of any shortcomings by Hydraloop, if such has been remedied by Hydraloop.
ARTICLE IX – GUARANTEE
1. Term – Hydraloop will provide Product warranties to the first end-purchaser / end-user of the Products only, as set forth in the separate Warranty Certificate delivered with the Product. On the terms and conditions set forth in the Warranty Certificate, Hydraloop warrants for a period of twenty-four (24) months following the delivery of a Product, that its Products, as delivered, shall be free of manufacturing or design defects that materially impinges on the use of the Product (“Defect(s)”) and Hydraloop will remedy such Defects or have such defects remedied or, at Hydraloop’s discretion, will deliver replacement parts, provided that the Customer strictly complies with Hydraloop’s instructions. In case of an alleged Defect, Customer must submit a complaint in a format determined by Hydraloop and all sums due to Hydraloop must be fully paid. If the alleged warranty claim concerns a product or parts of a product that is not produced by Hydraloop, Hydraloop’s warranty does not apply, instead only the warranty of the manufacturer/supplier of such product or part applies.
2. Right to inspect – Hydraloop has the sole discretion to determine if the Product, or the part in question, should be made available for inspection by its representative or whether the same should be returned to Hydraloop at Customer’s expense and risk of loss. Customer shall also be responsible for all costs of redelivery of an alleged defective part after examination or repair by Hydraloop unless Hydraloop in its sole discretion decides otherwise.
4. Indemnification – All claims under the guarantee shall become void if:
- the Product has been used or maintained incorrectly, including but not limited to use of the Product in a manner contrary to the instructions in the product documentation and other documentation and change of the Product’s control gear without Hydraloop’s prior written consent,
- in the opinion of Hydraloop, Products have been incorrectly or inadequately connected or assembled and/or repaired or modified by the Customer, or any third parties, or used in a manner or under conditions or circumstances not reasonably contemplated by Hydraloop or disclosed to Hydraloop prior to the order,
- the nature of the input water or other governing data to the Product has significantly changed in composition since the order was placed,
- the Customer or third parties performed work on the Product without Hydraloop’s express written permission,
- defects in or damage to Products is the direct or indirect result of abnormal conditions, lightning strike or other external factors that affect Products.
5. Quality of Services – For a period of three (3) months after performance of Services, Hydraloop guarantees that such Services were performed with reasonable care and skill. If a Service was not performed competently, Hydraloop shall perform this Service again, free of charge.
6. Order of Priority – In case of any inconsistencies between the terms of this Article IX and any warranty terms in the Warranty Certificate, the terms in the Warranty Certificate take precedence.
ARTICLE X – TERMINATION AND SUSPENSION
1. Default and failure – Hydraloop shall be authorised to suspend the performance of its obligations or terminate the Contract if:
- the Customer fails to perform obligations under the Contract or fails to do so in full or in a timely manner, or Hydraloop has good reason to fear that the Customer will fail to perform the obligations referred to;
- the Customer goes into liquidation, is granted a moratorium, is declared insolvent, is placed under guardianship or administration, loses all or part of its power to dispose of its capital or income, the Debt Management (Natural Persons) Act is declared applicable to the Customer, or if the Customer sells its business or attachment is levied against the Customer.
2. Impossibility; Impracticability – In addition, Hydraloop shall be authorised to terminate the Contract if circumstances occur which are such as to make performance of the Contract impossible or if circumstances occur which make performance under the Contract impracticable.
3. Suspension costs – If Hydraloop terminates the Contract or suspends Its obligations to perform, it shall not be liable for any damages nor bear the costs resulting from such action
4. Right to claim – If Hydraloop terminates the Contract, all invoices issued to Customer shall become immediately due and payable.
5. Compensation of losses – If termination is attributable to the Customer or if Hydraloop suspends performance is allowed under the Contract, the Customer shall be liable to Hydraloop for the direct and indirect loss suffered, and costs incurred by Hydraloop as a result of such termination or suspension.
6. After termination – After termination of the Contract, these general sales conditions continue to apply insofar as they have independent significance or insofar as they determine the consequences of the termination, including, but not limited to, the provisions concerning secrecy, delivery, liability, jurisdiction and applicable law.
ARTICLE XI – PAYMENT
1. Currency – Unless otherwise expressly agreed, payment must be made in the currency stated in Hydraloop’s offer or on its invoices in a manner indicated by Hydraloop within fourteen (14) business days of the invoice date.
2. Advance payment – Hydraloop is at all times authorised, whether the Contract has already been performed in full or in part, to require full or partial payment in advance or require that the Customer gives (additional) security for outstanding payments. Until such advance payment is made or such security is not given, Hydraloop shall be authorised to suspend performance under the Contract.
3. Late payment – Where payment is not made within the terms set forth in this article, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law, if lower, with effect from the first day following expiration of the payment term referred to in this article; part of a month shall be considered a full month.
4. Extrajudicial costs – From the time at which the Customer is in default it shall also owe compensation for all judicial and extrajudicial costs and enforcement costs incurred in connection with the collection of the invoiced amounts.
5.Seniority – Payments shall first be applied towards the payment of costs, next towards interest due and finally towards the principal and accrued interest.
6. Registration of complaints – Complaints concerning the amount of an invoice must be submitted in writing within fourteen (14) business days of the invoice date. After this period, invoices are deemed fully accepted by Customer and Customer shall no longer have a right to complain. The Customer may never set off amounts that it owes to Hydraloop.
7. Fees – Customer shall be liable for amounts which Hydraloop incurs which to collect payment, including without limitation, collection agency fees, reasonable attorneys’ fees and arbitration or court costs.
ARTICLE XII – FORCE MAJEURE
1. Force Majeure – Neither Hydraloop, nor the Customer, will be liable for any failure or delay in performing an obligation under the Contract that is due to any of the following causes, to the extent beyond either party’s reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, including but not limited to COVID-19, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, generalized lack of availability of raw materials or energy. For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder.
2. Interpretation – In addition to the definition of Force Majeure set forth in the previous paragraph, in law and case law, Force Majeure shall also mean all external causes, foreseen or unforeseen, on which Hydraloop cannot exercise any control but which nevertheless make it impossible for Hydraloop to perform its obligations. Additionally, force majeure will also include illness on the part of Hydraloop employees, business interruption, a lack of raw materials, failures to deliver on the part of third parties, faulty materials, government measures, power failures, internet disruptions, malfunctions in the computer network or telecommunications facilities, war, staffing, strike action, riot and general transport problems, also if these circumstances occur at a manufacturer or supplier at which Hydraloop has placed an order in the context of the Contract.
3. No exclusion – Hydraloop also has the right to invoke Force Majeure if a circumstance that prevents performance or further performance occurs after Hydraloop should already have performed its obligations.
4. Term – Hydraloop may suspend obligations under the Contract for the duration of the Force Majeure situation. If this situation persists for more than three (3) months, each party shall be authorised to terminate the Contract without being obliged to pay compensation for damages to the other party.
5. Partial invoice – To the extent that Hydraloop has already performed some of its obligations under the Contract or remains capable of performing some of its obligations at the start of Force Majeure circumstances and the obligations already performed or to be performed have an independent value, Hydraloop shall have the right to invoice separately for the obligations already performed or to be performed. The Customer shall be obliged to pay this invoice, which shall be deemed to be based on a separate Contract.
ARTICLE XIII – LIMITATION OF LIABILITY
1. Scope of liability – HYDRALOOP SHALL NOT BE LIABLE FOR ANY DAMAGES THAT OCCUR AS A RESULT OF HYDRALOOP’S ACTION BASED ON INACCURATE OR INCOMPLETE INFORMATION OR INCORRECT INSTALLATION OR PLUMBING SERVICES PROVIDED BY OR ON BEHALF OF THE CUSTOMER.
2. Limitation of damages – Notwithstanding anything else in this contract to the contrary, hydraloop’S aggregate liability for all claims of any kind shall not exceed the total AMOUNT paid by CUSTOMER for the Products, or services IN CONNECTION TO WHICH THE DAMAGING event occurred.
3. Direct damages – HYDRALOOP SHALL ONLY BE LIABLE FOR ANY DIRECT DAMAGES. DIRECT DAMAGES EXCLUSIVELY MEANS THE COSTS REASONABLY INCURRED TO DETERMINE THE CAUSE AND EXTENT OF THE DAMAGES INSOFAR AS THE DETERMINATION RELATES TO DAMAGES AS DEFINED IN THESE GENERAL SALES CONDITIONS, ANY COSTS REASONABLY INCURRED TO REMEDY A BREACH IN QUESTION CAN BE ATTRIBUTED TO HYDRALOOP AND COSTS REASONABLY INCURRED TO PREVENT OR LIMIT DAMAGES INSOFAR AS THE CUSTOMER SHOWS THAT THIS EXPENDITURE HAS LIMITED DIRECT DAMAGES AS REFERRED TO IN THESE GENERAL SALES CONDITIONS.
4. Indirect damages – HYDRALOOP SHALL NEVER BE LIABLE FOR INDIRECT DAMAGES, WHICH IN GENERAL MEANS, AMONG OTHER THINGS, CONSEQUENTIAL DAMAGES, LOST PROFIT, LOST SAVINGS AND LOSS DUE TO BUSINESS INTERRUPTION AND MORE PARTICULARLY MEANS DAMAGES OR COSTS OF REPRODUCTION OR RECOVERY OF LOST OR DAMAGED DATA OR COMPUTER SOFTWARE.
5. Electronic data – HYDRALOOP IS NOT LIABLE FOR DAMAGES AS A RESULT OF THE LOSS OF ELECTRONIC DATA.
6. Returned Products – HYDRALOOP SHALL ALSO NOT BE LIABLE FOR ANY DEFECT OR FAULT IN OR DAMAGE TO PRODUCTS THAT OCCURS AFTER HYDRALOOP HAS ACCEPTED THESE PRODUCTS FOR REPAIR AND/OR PROCESSING.
7. Misconduct – THE LIMITATIONS OF LIABILITY FOR DIRECT DAMAGE SET OUT IN THESE GENERAL SALES CONDITIONS SHALL NOT APPLY IF DAMAGE CAN BE ATTRIBUTED TO GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD ON THE PART OF HYDRALOOP OR ITS OFFICERS, AFFILIATES OR EMPLOYEES AND SUBORDINATES.
ARTICLE XIV – DELIVERY AND SECURITY INTEREST
1. Purchase money security interest – The Customer (a) grants to Hydraloop a security interest in all Products purchased under the Contract and their proceeds until all payments are made in full; (b) authorizes Hydraloop to execute and file appropriate UCC financing statements or other documents on the Customer’s behalf to perfect Hydraloop’s security interest; and (c) agrees to perform all acts necessary to protect Hydraloop’s interest. Hydraloop shall be subrogated to all of Customer’s rights arising in the event of any payment or other satisfaction for damaged, lost or destroyed Products. Customer shall execute and deliver all instruments and take all other actions necessary to secure such rights.
2. Third-party claims – The Customer must inform Hydraloop immediately if third parties attach, wish to attach or wish to create or enforce rights with respect to the Products delivered subject to a security interest.
3. Insurance – The Customer undertakes that it shall have the Products delivered subject to the purchase money security interest and maintain insurance coverage against any damage caused by fire, explosion and water and against theft, and shall, upon Hydraloop’s request, promptly submit the insurance policy to Hydraloop.
4. Restriction – Products delivered by Hydraloop that are subject to a purchase money security interest pursuant to the provision of paragraph 1 of this article may not be resold or used as a means of payment.
5. No representation – For the period that the Customer has the Products in its possession and payment has not been fully made, the Customer shall make clear to third parties that the Products are subject to Hydraloop’s purchase money security interest and shall keep them separate from any other Products or other business machinery and equipment in its possession.
6. Execution of rights – Should Hydraloop wish to exercise its rights hereunder as referred to in this article, the Customer hereby grants Hydraloop or third parties designated by Hydraloop unconditional and irrevocable permission to enter the premises at which Hydraloop’s property is kept and also take back the Products.
7. Delivery – Products are delivered Ex Works Hydraloop’s facilities, as indicated in Hydraloop’s offer or on Hydraloop’s invoices. (Incoterms 2020). Partial deliveries are permitted. If Hydraloop agrees to deliver the Products otherwise than at its premises, the Customer shall pay for transportation, packaging and insurance.
8. Transfer of risk – The risk of loss, damage or decrease in value passes to the Customer at the time at which the Products are delivered to the Customer.
9. Delivery period – The agreed delivery period begins on the day that the order is accepted In writing by Hydraloop, all information necessary for the order has been received by Hydraloop and agreed deposits have been made by the Customer.
10. Use of software – If a Product partly includes software, Hydraloop grants the Customer a non-exclusive, non-transferable right to use this software solely in the manner prescribed by Hydraloop, and solely in combination with the Product for which the software is delivered. The Customer is not allowed to make any back/up copies of the software and the software may not be used on hardware other than the product, without Hydraloop’s prior written consent. Hydraloop is free to take technical measures towards protecting its rights on the software and may terminate the software license upon notice of breach of these terms.
ARTICLE XV – INDEMNITY AGAINST THIRD-PARTY CLAIMS
1. Third-party claim – The Customer agrees to indemnify, defend and hold Hydraloop, and its present and future officers, directors, shareholders, employees, agents and its affiliates, harmless from and against all claims of third parties that relate directly or indirectly to the Contract or Products or Services. The Customer’s indemnification shall apply, but shall not be limited to, injury to persons (including death) or damages to personal and real property.
2. Inaccurate information – The Customer particularly agrees to indemnify, defend and hold Hydraloop, and its present and future officers, directors, shareholders, employees, agents and its affiliates, harmless from and against claims for compensation as a result of damages of any nature that occur as a result of Hydraloop’s action based on inaccurate and/or incomplete information provided by or on behalf of the Customer relating to the Contract.
3. Indemnification. CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD HYDRALOOP, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, BUSINESS PARTNERS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, PENALTIES, LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH OR ARISING OUT OF ANY USE OF THE HYDRALOOP’S PRODUCTS, SOFTWARE AND/OR SERVICES OR BREACH OF THIS AGREEMENT, BY CUSTOMER OR ITS USERS. CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD HYDRALOOP, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, BUSINESS PARTNERS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND THREATENED CLAIMS BY ANY THIRD PARTY, INCLUDING EMPLOYEES OF CUSTOMER ARISING OUT OF, UNDER OR IN CONNECTION WITH (1) THE DEATH OR BODILY INJURY OF ANY THIRD PARTY, INCLUDING ANY AGENT, EMPLOYEE, CUSTOMER, BUSINESS INVITEE OR BUSINESS VISITOR OF CUSTOMER, OR, (2) THE DAMAGE, LOSS OR DESTRIBUTION OF ANY TANGIBLE PERSONAL OR REAL PROPERTY AT CUSTOMER’S PREMISES, BOTH ONLY TO THE EXTENT THAT SUCH WAS NOT A RESULT OF GROSS NEGLIGENCE BY HYDRALOOP OR ITS PERSONNEL.
ARTICLE XVI – GOVERNING LAW AND DISPUTES
1. New York Law – This Agreement shall be governed by the laws of the State of New York. Applicability of the 1980 United Nations Convention on Contracts for the International Sale of Goods is excluded.
2. Arbitration – All disputes arising in connection with this Agreement shall be finally settled by arbitration in New York City, New York in accordance with the Arbitration Rules of the American Arbitration Association (AAA). The arbitration proceedings shall be conducted in the English language. If the Contract should be translated into a language other than English, the English version shall prevail in case of any conflict.
ANY CAUSE OF ACTION AGAINST HYDRALOOP, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.