Hamat B.V. General Terms and Conditions,
filed with the Chamber of Commerce on 08-11-2016
These are the General Terms and Conditions of Hamat B.V., having its registered seat in Genemuiden, registered with the Chamber of Commerce under company number 50141708.
Article 1 General provisions
- These General Terms and Conditions apply to any and all offers, agreements and other legal transactions designed to have legal consequences in which Hamat B.V. is involved, and also to any and all consequences of such. In the event that these General Terms and Conditions apply to one agreement, they shall also be deemed to apply to any and all agreements arising from the first agreement.
- The applicability of the other party’s Conditions of Purchase or other Terms and Conditions is hereby explicitly precluded.
- In the event that one or more provisions of these General Terms and Conditions should be declared null and void and/or quashed in full or in part, the remaining provisions of these General Terms and Conditions shall continue to apply in full.
Article 2 Quotations and offers
- All quotations and offers issued by Hamat B.V. are without obligation and shall be valid for a period of 3 months, unless a different term for placing orders is stated in the quotation. All quotations and offers shall expire if the product which is the object of the quotation or offer becomes unavailable in the meantime.
- Hamat B.V. shall not be bound to any quotations or offers, or parts thereof, which the other party can reasonably be expected to understand contain an apparent error or misspelling.
- The prices listed in Hamat B.V.’s quotations or offers are exclusive of VAT, other government taxes and any other expenses incurred as part of the agreement, including postage costs, unless otherwise stated.
- If the other party accepts a product which differs slightly or substantially from the offer made in the quotation or offer letter, Hamat B.V. shall not be bound to deliver the product in question.
- A compound quotation shall not create any obligation on Hamat B.V.’s part to deliver part of the order against a corresponding part of the price quoted for the entire order. Prices listed in one offer or quotation shall not automatically apply to future orders.
Article 3 Term for delivery; performance; amendments of the agreement
- If a date is agreed or stated for the delivery of certain products, this shall never be construed as a hard deadline. In the event that such a soft deadline is exceeded, the other party must serve Hamat B.V. a written note of default. In such cases, Hamat B.V. must be offered a reasonable period of time to belatedly execute the agreement.
- In the event that Hamat B.V. requires information from the other party in order to execute the agreement, the term for execution of the agreement shall not commence until such time as the other party has furnished Hamat B.V. with all the requested information.
- Unless explicitly agreed otherwise, Hamat B.V.’s products shall be delivered ex works. The other party shall be required to purchase the product at the time of its being placed at the other party’s disposal. In the event that the other party refuses to purchase the product or is negligent with regard to providing the information or instructions required to enable the delivery of the said product, Hamat B.V. shall be entitled to place the product in a storage facility at the other party’s expense and risk.
- Hamat B.V. is entitled to have certain tasks performed by third parties.
- In the event that the other party should fail to meet its obligations vis-à-vis Hamat B.V. properly, the other party shall be liable for any damages (including expenses) directly or indirectly incurred by Hamat B.V. as a result.
- If Hamat B.V. has agreed with the other party on a fixed price, Hamat B.V. shall at all times be entitled to raise this price, in cases where such a price increase arises from a power or requirement enshrined in the law or legislation, or in the event that such a price increase is necessitated by increased prices for raw materials, wages, etc., or by any other grounds which Hamat B.V. could not reasonably have expected to occur at the time it entered into the agreement. Such a price increase shall not give the other party the right to cancel the agreement.
- If the price increase, not due to an amendment of the agreement, exceeds 10% of the agreed price and occurs within three months of the signing of the agreement, the other party, which is entitled to invoke Title 5 of Chapter 3 of Book 6 of the Dutch Civil Code, shall be exclusively entitled to cancel the agreement by means of a written announcement to that effect, unless Hamat B.V. declares itself willing to execute the agreement on the basis of the original provisions, or in the event that the price increase arises from a power or legal requirement imposed on Hamat B.V., or in the event that the parties have agreed that the product shall be delivered more than three months after the purchase.
Article 4 Suspension, annulment and premature termination of an agreement
- Hamat B.V. is entitled to defer meeting its obligations or to cancel the agreement in the event that:
– the other party fails to meet its obligations under the agreement in full and in good time;
– Hamat B.V. learns after entering into the agreement that there are circumstances which provide a reasonable ground to fear that the other party will not meet its obligations;
– the other party was requested at the time of the signing of the agreement to provide sufficient collateral to meet its obligations under the agreement, but has yet to provide such collateral, or has provided insufficient collateral;
– In the event that, due to a delay on the part of the other party, Hamat B.V. can no longer be expected to fulfil the original terms of the agreement, Hamat B.V. shall be entitled to cancel the agreement.
- In addition, Hamat B.V. shall be entitled to cancel the agreement in the event that circumstances arise of a nature as to render the execution of the agreement impossible, or in the event that circumstances arise of such a nature that Hamat B.V. cannot reasonably be expected to fulfil the terms of the agreement without amending the agreement.
- In the event that the agreement is cancelled, any sums owed to Hamat B.V. by the other party which remain outstanding shall be due on demand. In the event that Hamat B.V. suspends the fulfilment of its obligations, it shall remain entitled to its claims under the law and under the agreement.
- In the event that Hamat B.V. decides to suspend or terminate the agreement, it shall not be required in any way to compensate the other party for any damages and/or costs incurred due to this decision in any manner whatsoever.
- In the event that Hamat B.V. decides to suspend or terminate the agreement, it shall be entitled to set off the accounts receivable it owes and is owed, including the costs and statutory interest associated with these accounts.
- In the event that the termination of the agreement can be attributed to the other party, Hamat B.V. shall be entitled to compensation for any damages it may have suffered, including costs and expenditures.
- In the event of liquidation, a request for a suspension of payment, bankruptcy, attachment of the other party’s products (if and insofar as the attachment is not annulled within three months), debt rescheduling or any other circumstance which will prevent the other party from freely accessing its own assets, Hamat B.V. shall be free to cancel the agreement at once and with immediate effect, without any obligation on its part to pay compensation or indemnification. In such cases, any sums owed to Hamat B.V. by the other party shall be due on demand.
- In the event that the other party cancels a previously placed order in full or in part, the other party shall be invoiced for all the objects ordered or prepared as part of the order, plus any costs of supply, removal and/or delivery incurred in obtaining these objects, as well as the wages for the time reserved for the execution of the agreement.
Article 5 Force majeure
- Hamat B.V. shall not be held to fulfil any obligation vis-à-vis the other party if it is prevented from fulfilling such an obligation by a circumstance for which it is not to blame and which cannot be attributed to it under the law, a legal transaction or any commonly held beliefs.
- In addition to the definitions used in legislation and case law, ‘force majeure’ is understood in these General Terms and Conditions to refer to any and all causes, be they foreseen or unforeseen, which cause Hamat B.V. to be unable to meet its obligations, while being outside Hamat B.V.’s direct sphere of influence, including labour strikes at Hamat B.V.’s company or at a third party’s company. In addition, Hamat B.V. shall be entitled to invoke force majeure in the event that the circumstance which is preventing it from executing the agreement, or components thereof, commences after Hamat B.V. was supposed to execute the agreement.
- Hamat B.V. shall be entitled to suspend its obligations under the agreement while the force majeure situation remains in effect. If the duration of this period should exceed two months, either party shall be entitled to terminate the agreement without any obligation of compensating the other party for any damages it may suffer.
- Insofar as Hamat B.V. at the time of the commencement of the force majeure situation has already partially met its obligations under the agreement or will be able to meet these later, and insofar as the obligations already met and still to be met have independent value, Hamat B.V. shall be entitled to send the other party separate invoices for the obligations already met and the obligations still to be met. The other party shall be required to pay such separate invoices as if they were separate agreements.
Article 6 Payment and debt recovery expenses
- Payment must be made within 30 days of the invoice date, in the manner indicated by Hamat B.V., in the currency stated on the invoice, unless Hamat B.V. has indicated otherwise in writing. Hamat B.V. shall be entitled to send its invoices at regular intervals.
- In the event that the other party continues to fail to make a timely payment of an invoice, the other party shall be legally in default. In such cases, the other party shall be required to pay an interest rate of 1% per month, unless the statutory interest rate is higher, in which case the other party shall be required to pay the statutory interest rate. The amount of the interest owed shall be calculated from the moment on which the other party is first in default to the moment that the entire amount owed has been repaid.
- Hamat B.V. is entitled to use any payments made by the other party, first, to pay off its expenses; secondly, to pay off the accumulated interest on overdue amounts; and finally, to pay off the principal and the interest currently accruing.
- Hamat B.V. is entitled to refuse an offer of payment (without entering into default) in the event that the other party proposes a different order for the allocation of the payments made. Hamat B.V. is entitled to refuse to accept the complete repayment of the principal if the accumulated interest on the overdue amounts and the interest currently accruing and debt recovery expenses are not repaid at the same time.
- On no account shall the other party be entitled to set off the amount it owes to Hamat B.V.
- The other party shall not be excused from paying the amount owed in the event that it objects to the amount of an invoice. If the other party does not invoke Chapter 6.5.3 (Sections 231 to 247 (inclusive) of Book 6 of the Dutch Civil Code), it shall not be entitled to postpone the payment of an invoice for any other reason, either.
- In the event that the other party has been served a notice of default or is in default of payment of any sums owed, all the reasonable costs incurred by Hamat B.V. to obtain an out-of-court settlement shall be borne by the other party. The non-legal expenses shall be calculated on the basis of rates commonly used in the Dutch debt recovery industry. In addition, Hamat B.V. shall be eligible for reimbursement of the costs actually incurred. Any legal expenses and execution costs incurred shall also be recouped from the other party. The other party shall be required to pay interest on the debt recovery costs owed.
Article 7 Ownership of documents, models, designs, etc.
- The risk of loss, damage or reduction in value shall be transferred to the other party at the moment on which the products come into the other party’s possession.
- Any products supplied by Hamat B.V. to the other party as part of the agreement shall remain the property of Hamat B.V. until such time as the other party has completely met all its obligations under the agreement entered into with Hamat B.V.
- The display materials given in loan to the other party by Hamat B.V. are only to be used for the products supplied by Hamat B.V. and shall be able to be reclaimed by Hamat B.V. at any time.
- Products supplied by Hamat B.V., which pursuant to Article 7.1 of these General Terms and Conditions are subject to retention of title, must not be sold to other parties and must never be used as a means of payment. The other party is not allowed to pawn or otherwise encumber in any way products which are subject to retention of title.
- The other party must always do whatever it can reasonably be expected to do to safeguard Hamat B.V.’s title to the products in question.
- In the event that a third party seeks to seize the products supplied subject to retention of title, or seeks to vest any rights in these products, the other party shall be required to notify Hamat B.V. of this fact at once.
- The other party commits to insuring, and keeping insured, on behalf of Hamat B.V., against fire, damage due to explosions and water, and theft, any and all products supplied subject to retention of title.
- In the event that the agreement relates to the performance of duties with regard to items owned by a third party, Hamat B.V. shall be entitled to exercise the right of retention with regard to these objects if and for as long as the other party fails to pay the invoices for the duties performed and any other outstanding debts (including compensation for damages, interest and expenses) arising from said party’s contractual relationship with Hamat B.V.
Article 8 Warranties; investigation and complaints; period of limitation
- The items to be supplied by Hamat B.V. satisfy all the usual requirements and standards which may apply at the time of the delivery. The items shall be under warranty for a period of six months following the delivery.
- The warranties shall be rendered void if a shortcoming was caused by, or arose due to, circumstances which were beyond Hamat B.V.’s control or in the event that the items were supplied to or processed by a third party at the other party’s behest.
- The other party must inspect, or have inspected, the supplied items for quantity and quality at the time these items are placed at the other party’s disposal. If any shortcomings are found, these must be reported to Hamat B.V. in writing within eight days of delivery. If the aforementioned period has expired without Hamat B.V. having received written notice from the other party, the other party shall not be entitled in any way to a repair or replacement of, or compensation for, any item supplied by Hamat B.V.
- The other party must at all time grant Hamat B.V. the opportunity to investigate a complaint, or to have it investigated by a third party.
- Variances in prints, texture and colour differences in the supplied items are not covered by the warranty referred to in this article. The same is true for variances in weight and size.
- In the event that an item has been found to be faulty and that a complaint to this effect has been filed in a timely fashion, Hamat B.V. shall replace the faulty item or ensure its repair within a reasonable period of time, to be established by Hamat B.V. itself.
- In the event that it is established that the complaint is unfounded, all costs incurred by Hamat B.V., including the costs of the investigation, shall be borne in their entirety by the other party.
- Once the warranty period has expired, the other party shall be invoiced for any and all costs associated with the repair or replacement of items supplied by Hamat B.V., including service charges, postage costs and call-out charges.
- Notwithstanding the statutory period of limitation, all claims and pleas against Hamat B.V. and any third parties engaged by Hamat B.V. for the execution of the agreement shall expire after one year.
Article 9 Liability
- If Hamat B.V. should be liable, such liability shall be limited to the provisions of this article.
- Hamat B.V. shall not be liable for any damage, of whatever nature, which arises due to Hamat B.V.’s having used incorrect or incomplete information provided by the other party.
- If Hamat B.V. should be liable for any damage, its liability shall be limited to the invoice value of the order, or rather, to the component of the order to which the liability claim pertains.
- Hamat B.V. shall only be liable for direct damage. Direct damage shall be construed to mean the reasonable costs incurred by the other party to determine the cause and severity of the damage, insofar as determining such bears a relevance to damage within the meaning of these General Terms and Conditions, as well as any reasonable costs incurred by the other party to make Hamat B.V.’s faulty performance answer to the agreement, insofar as these costs can be attributed to Hamat B.V., and any reasonable costs incurred by the other party to prevent or limit the damage, insofar as the other party can demonstrate that these costs helped it reduce the level of direct damage within the meaning of these General Terms and Conditions.
- Hamat B.V. shall never be liable for indirect damage, including consequential loss, loss of earnings, missed opportunities to save money and damage caused by interruptions of operations.
- Hamat B.V. shall never be liable for damage to items entrusted to Hamat B.V. for the sake of storage, processing or any other reason. The other party hereby commits to insuring the items it entrusts to Hamat B.V. against fire, damage due to explosions and/or water, and theft.
- The other party hereby indemnifies Hamat B.V. from claims by any third parties who have suffered damage in relation to the execution of the agreement and whose damage can be attributed to a third party rather than to Hamat B.V.
- The limitations of liability outlined in this article shall not apply in the event that the damage can be attributed to wilful misconduct or gross negligence on Hamat B.V.’s part or on the part of its managers.
Article 10 Intellectual property
Hamat B.V. reserves the rights and competencies to which it is entitled under intellectual property legislation. Hamat B.V. is entitled to utilise the knowledge it has gained as a result of executing an agreement for other purposes, as well, insofar as no strictly confidential information obtained from the other party will be placed at any third parties’ disposal.
Article 11 Governing law and jurisdiction
- All legal relationships to which Hamat B.V. is a party are exclusively governed by the laws of the Netherlands, even in the event that an agreement is executed in part or in full outside the Netherlands or that the other party which is a party to the legal relationship has domicile in a foreign country. The applicability of the Vienna Convention is hereby expressly precluded.
- Any disputes which may arise from a legal relationship to which the present Terms and Conditions apply in full or in part shall be settled by the competent judge in the Netherlands.