General conditions - Hemsson B.V.
Version August 2013
Article 1. Definitions
the private company with limited liability Hemsson B.V., with registered office in Wierden and principal place of business at Stegeboersweg 11, 7642 NP Wierden, listed in the Trade Register of the Chamber of Commerce under number 64929442 (hereinafter referred to as: Hemsson).
The non-consumer which instructs Hemsson to supply goods and/or services is referred to as customer.
Any natural or legal person acting for purposes relating to his business or profession and who therefore cannot be regarded as a consumer.
d. Order or assignment
An order or assignment is concerned if the customer requests Hemsson to supply goods and/or services.
An agreement exists after acceptance of the order or assignment by Hemsson. This also applies when the customer has paid the price quoted by Hemsson in full, unless Hemsson immediately notifies the customer that no agreement has been formed and refunds the amount concerned.
All goods and/or services supplied by Hemsson to its customers.
Article 2 Applicability
1. These General Conditions apply to all offers, quotations and agreements under which Hemsson delivers products, of whatever nature, to its Customer, even if these Products are not explicitly specified in these provisions. Amendments to these general conditions are only valid if they have been agreed upon by the parties in advance and in writing.
2. These General Conditions also apply to agreements with Hemsson, for the performance of which Hemsson has to engage third parties.
3. These general conditions are also intended for the employees of Hemsson and its management.
4. Any General Conditions used by the Customer are herewith explicitly rejected by Hemsson.
5. The invalidity or annulment of one or more provisions of these General Conditions at any time shall not affect the applicability of the remaining provisions. Hemsson and the Customer will then enter into consultations to agree upon new provisions to replace the invalid or annulled provisions, which new provisions will correspond as much as possible with the purpose and scope of the original provisions.
6. If there is uncertainty regarding the interpretation of any provision of these General Conditions, they shall be interpreted in accordance with the spirit and intention of these provisions.
7. Any situation between the parties not provided for by these general conditions will be assessed in the spirit and purpose of these General Conditions.
8. Failure on the part of Hemsson to enforce strict compliance with these General Conditions shall not mean that these provisions are not applicable or that Hemsson has lost any right to demand strict compliance with the provisions of these Conditions.
9. By accepting an offer and/or placing an order, the Customer accepts the applicability of these conditions.
10. The Customer and Hemsson acknowledge the legal validity of electronic communication.
Article 3 – Offers, Quotations and Prices
1. All quotes and offers of Hemsson are free of obligation, unless an acceptance term is stated. A quote or offer will lapse if the product to which the quote or offer relates is no longer available.
2. Hemsson is not bound to its quotes or offers if the Customer knows or should reasonably understand that the quotes or offers or a part thereof, contain an apparent mistake or transcription error
3. Unless agreed otherwise, the prices stated are ex warehouse. The prices are therefore exclusive of transport, other costs incurred in connection with the delivery, VAT and other levies imposed by the government. Changes in wages or in the cost of materials or raw materials, insofar as they are spent, respectively used immediately for the agreed performance, can be passed on by Hemsson, without any further surcharge. This also includes cost increases as a consequence of (additional) test and safety requirements imposed on Hemsson and/or the party from which Hemsson purchases its (parts for its) Products by the government or otherwise.
4. A compound quote will not oblige Hemsson to perform part of the order for a corresponding part of the indicated price. Offers or quotes do not automatically apply to future orders.
5. If the price stated in the agreement between the Customer and Hemsson is expressed in a currency other than the euro, Hemsson is authorised to charge exchange rate fluctuations in full.
Article 4. Force majeure
1. Hemsson is not obliged to perform any obligation to the Customer if it is prevented from doing so as a result of a circumstance which is not due to its fault, and is not at its expense either under the law, a legal act or generally accepted practice.
2. In these General Conditions, the term force majeure means, in addition to everything it is understood to mean in law and jurisprudence, all external causes, foreseen or unforeseen, which are beyond the control of Hemsson, but in consequence of which Hemsson is unable to perform its obligations. This includes strikes at Hemsson or third parties. Hemsson also has the right to invoke force majeure if the circumstance which prevents the (further) performance of the agreement arises after Hemsson should have fulfilled its obligation.
3. During the period of force majeure, Hemsson may suspend the obligations under the agreement. If this period lasts longer than two months, either party is entitled to terminate the agreement without any obligation to pay compensation to the other party.
4. Insofar as Hemsson has already partly performed its obligations under the agreement at the time when the force majeure arises or will be able to do so, and the partial performance that has taken place or is to take place has independent value, Hemsson will be entitled to separately invoice the part already performed or to be performed. The Customer shall pay this invoice as if it were an invoice for a separate agreement.
Article 5. Samples , models and examples
If Hemsson has shown or provided a model, sample or example, this is deemed to be shown or given only by way of an indication. The qualities of goods to be delivered may differ from the sample, model or example, unless it has been explicitly agreed that they would be delivered in accordance with the sample, model or example shown or provided.
Article 6 Delivery
1. Hemsson will deliver the order immediately after the goods are ready for delivery. All (delivery) dates mentioned by Hemsson for the delivery of the Products as well as the installation thereof are determined based on the information known to Hemsson when the agreement was concluded, but are never binding. If delivery does not take place in time, Hemsson will only be in default after a written notice of default. The Customer is not entitled to any compensation for any damage whatsoever, if Hemsson is in default as described here.
2. When placing an order, the Customer is obliged to provide all the information needed to handle the transaction adequately. If the data required for the performance of the Agreement is not available to Hemsson, or is not available to Hemsson in good time or not in accordance with the agreements made, or not available due to other factors attributable to the Customer, the Products shall be deemed to have been delivered on the delivery date or on the date on which the Products were presented to the Customer for delivery or the date on which the Products are ready to be collected. Hemsson is entitled to charge the costs incurred in accordance with its usual rates.
3. Transport damage and damage to property of Customers due to the delivery or taking back of Products of Hemsson must be reported immediately (but not later than within 24 hours) to the carrier and to Hemsson. Hemsson accepts no liability for such damage if the damage is not reported or not reported in good time to Hemsson.
4. If the goods provided by the Customer and/or the Products created by Hemsson are not collected, Hemsson will retain them for six weeks, commencing on the date of the order. Hemsson does not accept any responsibility for any damage which may arise from the storage.
5. After the period referred to in paragraph 4 of this Article all (title) claims of the Customer shall lapse and Hemsson will no longer be under any obligation, in particular the obligation to refund any (advance) payments made.
Article 7. Acceptance
1. The Products delivered by Hemsson are deemed to have been accepted by the Customer at the time when the Products are delivered as referred to in Article 6 of these General Conditions.
2. The Customer is obliged to receive the purchased Products at the time when they are delivered to the Customer or at the time when they are made available to it under the agreement.
3. If the other party refuses to receive them or fails to provide information or instructions necessary for the delivery, the goods will be stored for the risk of the other party. In that case, the other party shall pay any additional costs due, including at any rate storage costs.
Article 8. Time of risk transfer
The risk of loss or damage to the Products that are the subject of the Agreement shall pass to the Customer at the time when the Products are delivered to the Customer by Hemsson.
Article 9 Retention of title
1. Hemsson retains the title of all the Products it delivers to the Customer until all its claims on such Customer in respect of the delivered Products and in respect of the services related to the delivered Products have been paid in full. The retention of title also serves as security for claims of Hemsson on the Customer for failure to comply with the agreement(s) referred to above.
2. The Customer is authorised to dispose of the goods delivered under retention of title in the context of its normal business operations. In that case, the Customer is obliged to deliver the Products to third parties subject to retention of title as well.
3. Hemsson is authorised to take back the Products delivered under retention of title to the Customer, whether or not they have been used, if the Customer has not fully fulfilled its obligations to Hemsson, or not fulfilled them completely and/or in good time or if there are good reasons to assume that the Customer will not fully fulfil its obligations to Hemsson or not fulfil them completely and/or in good time.
4. The Customer shall provide security at the request of Hemsson for the fulfilment of the obligations of the Customer in the form and up to the amount desired by Hemsson immediately at the request of Hemsson.
Article 10. Warranty
1. Hemsson guarantees that the delivered goods are free of design, material and manufacturing faults for a period of 12 months after delivery.
2. If the item has a design, material or manufacturing fault, the Customer is entitled to have the item repaired. Hemsson may choose to replace the item if repair comes up against objections. The Customer is only entitled to replacement if repair of the item is not possible.
3. The warranty shall not apply if the damage is caused by improper handling or failure to follow the instructions.
4. If the warranty relates to a product manufactured by a third party, the warranty is limited to the warranty provided by the respective manufacturer for that product.
Article 11. Defects; complaint periods
1. The Customer shall inspect the purchased Products on delivery (or have them inspected) or as soon as possible thereafter. The Customer shall ensure that the delivered goods are in compliance with the agreement, namely:
- whether the correct Products have been delivered;
- whether the delivered Products comply with the agreements made in terms of quantity (amount and number;
- whether the delivered Products meet the agreed quality or, in their absence, the requirements that may be set for normal use and/or commercial purposes.
A consignment note accompanying the delivery of the Products, a packing slip or similar document, is deemed to correctly state the quantity of the delivered Products, unless the objection of the Customer reported to Hemsson was in regard to the quantity.
2. If any visible defects or shortcomings are established, the Customer shall report this to Hemsson immediately upon delivery.
3. Defects that are not visible shall be reported in writing by the Customer to Hemsson within 3 days after discovery, but not later than within 3 months after delivery.
4. Even if the Customer files a complaint on time, its obligation to pay for and accept orders placed continues to exist.
5. Products may only be returned to Hemsson after prior permission from Hemsson.
6. Minor deviations deemed admissible in trade cannot constitute grounds for complaints.
7. If and when the Customer distributes and/or resells and/or distributes the delivered Products, any right to complain shall be cancelled.
Article 12 Payment, default, collection costs
1. Payments can be made in accordance with (any of) the method(s) (iDEAL, bank transfer, single direct debit, PayPal, invoice) indicated during the ordering process. In regard to payments made by bank or giro the date of payment is the date on which the amount is credited to the bank account of Hemsson.
2. Unless agreed otherwise, payment must be made before the delivery takes place.
3. Payments made by the Customer shall always serve as payment for any owed interest and costs and subsequently as payment of those invoices which have been outstanding the longest, even if the Customer states that the payment relates to a later invoice. If an order is carried out in parts, Hemsson is authorised to invoice each part separately. Hemsson is authorised to suspend the delivery of parts that have not been invoiced yet until the parts that have been invoiced have been paid in full.
4. The Customer may not offset amounts payable to the Customer against amounts to be claimed from Hemsson, unless it has obtained explicit permission for the setoff from Hemsson.
5. The Customer shall be in default by operation of law if the payment terms stipulated by Hemsson are exceeded, without any demand letter or notice of default being required and all claims of Hemsson on the Customer will then be immediately due.
6. From the day the payment term is exceeded, the Customer shall pay statutory interest on the amounts owed by the Customer due to the delay in fulfilment.
7. All the judicial and extrajudicial costs incurred by Hemsson to achieve fulfilment of the obligations of the Customer shall be paid by the Customer. The extrajudicial costs are set at 15% of the total amount due, with a minimum of € 250.- (exclusive of VAT).
8. In the case referred to in paragraph 5, Hemsson reserves the possibility to suspend the fulfilment of its obligations to the Customer.
Article 13 Purchase obligation
1. The Customer is obliged to grant the necessary cooperation required for the performance of Hemsson and requested by Hemsson, which explicitly includes the obligation to take delivery of the ordered Products.
2. Delivery of the Products is deemed to be refused if the ordered Products have been offered for delivery to the Customer but delivery has proved to be impossible due to circumstances not attributable to Hemsson. The Customer will immediately be in default without any further notice of default being required. The day on which the refusal occurs constitutes the delivery date of the Products.
3. The costs incurred by Hemsson arising from this default are for the account of the Customer, without prejudice to the other rights of Hemsson in respect of this shortcoming of the Customer.
Article 14 Intellectual property
Hemsson reserves the rights and powers awarded to it by virtue of the laws and regulations regarding intellectual property rights. The Customer is not permitted to state any brand names on Products delivered by Hemsson.
Article 15 Liability
1. Hemsson is only liable for property damage insofar as the damage is caused either by defects in the delivered Products or because of a shortcoming of persons or goods used by Hemsson in connection with the fulfilment of its obligations under this agreement, attributable to Hemsson.
2. The liability of Hemsson referred to above is limited to damage directly resulting from the performance of the agreement and for a maximum amount equal to the amount of the price paid by the Customer to Hemsson for the Product.
3. Hemsson accepts no liability for damage relating to lost profits, damages for loss or loss of data (files), lost savings, damage due to interruption of business operations and interruptions due to a fault in a business process or damage due to exceeding a term, or any other indirect or consequential damage. The Customer indemnifies Hemsson against any and all third-party claims in this respect.
4. Neither does Hemsson accept liability if the goods to be delivered are not suitable for the purpose for which the Customer wishes to use them if that purpose has not been made known to Hemsson. The Customer must investigate suitability itself.
5. Hemsson is not liable for any damage of any nature whatsoever arising from or after the Customer has taken the delivered Products into use, processed or processed them, has delivered them to a third party or has had a third party deliver them for use.
6. Hemsson does not exclude liability for damage resulting from intention or wilful recklessness of Hemsson or of any of its management staff.
Article 16 Force majeure
1. The term force majeure as referred to in this article includes circumstances which fully or partly prevent the fulfilment of the obligations of Hemsson and which are not attributable to Hemsson. This includes strikes, fire and other disturbances of the business of Hemsson or its suppliers, government measures and default of suppliers.
2. In such a case, the Customer is not entitled to terminate the agreement. Hemsson will inform the Customer as soon as possible of the occurrence of such a situation.
3. If the period in which fulfilment of the obligation by Hemsson is not possible due to force majeure is longer than one month, either party will be authorized to terminate the agreement by registered letter, without judicial intervention and without any obligation to pay compensation.
Article 17 Termination
If the Customer fails to fulfil any obligation to Hemsson under the agreement or in the event of bankruptcy or suspension of payment of the Customer or in the event its goods are seized, Hemsson will be authorised to terminate the agreement with immediate effect without judicial intervention, without prejudice to the rights of Hemsson to compensation.
Article 18 Third Party Products
If and insofar Hemsson delivers Products of third parties to the Customer, provided that the Customer has been informed of this in writing by Hemsson, the conditions of those third parties shall apply to those Products, replacing the provisions of these conditions which deviate from them. The Customer accepts the terms and conditions of third parties referred to above. The conditions referred to above will be provided by Hemsson. If and insofar as the conditions of third parties referred to above are deemed not to be applicable to the relationship between Hemsson and the Customer for any reason, the provisions of these General Conditions shall apply.
Article 19 – General
1. If Hemsson, at any time, or from time to time, does not use a right or remedy it is entitled to under the agreement, this shall not be regarded as, nor interpreted as a waiver of that right or remedy.
2. Hemsson is authorised to transfer the agreement and any and all rights and obligations arising from it to another company.
3 The provision by Hemsson of technical information, advice or instructions shall never be construed as granting a warranty or license fees.
4. The headings above the articles of these conditions only serve as reference and as such do not affect the interpretation of the agreement.
5. In the event of any conflict between any provision of the General Conditions and provisions of the individual agreement, the provisions of the individual agreement shall prevail.
6. Each claim on Hemsson, irrespective of the grounds, arising from the agreement or these conditions, shall expire if it has not been instituted within two years after the cause arose.
Article 20 Export
1. In the event of export of Products by the Customer, the relevant export provisions shall apply. The Customer shall indemnify Hemsson against any and all claims of third parties in connection with violations of the export provisions concerned, that are attributable to the Customer.
2. In the event of export of the Products, Hemsson is not responsible for compliance of the goods to be delivered with the technical requirements, standards and/or regulations imposed by laws or regulations of the country where the goods are to be used. This does not apply if, when the agreement was concluded, this was reported and all the required information and specifications were submitted.
3. Any other technical requirements of the Customer regarding the goods to be delivered, which deviate from the standard requirements, shall be explicitly stipulated by the Customer and accepted by Hemsson when the purchase agreement is concluded.
Article 21 Exclusion of the Vienna Sales Convention
Application of the Vienna Sales Convention (the United Nations Convention on the International Sale of Goods 1980; CISG) is explicitly excluded if and insofar as the provisions of these General Conditions and the agreements to be concluded between Customer and Hemsson differ from such Convention.
Article 22 Applicable law, disputes
Agreements governed by the General Conditions as well as any further agreements ensuing from them shall be governed by Dutch law. Any disputes in this regard shall be settled by the competent court in the place where the offices of Hemsson are located. Disputes, for the cognizance of which the court is competent in the first instance, shall be settled by the court in Overijssel, Netherlands.