General terms and conditions
Table of contents:
- Definitions and applicability conditions
- Quote / agreements
- Prices / payment
- Retention of title
- Suspension / termination
- Force majeure
- Applicable right / disputes
Article 1: Definitions and applicability conditions
1.1. For the purpose of these general terms and conditions, the following definitions apply:
- HAIL Europe: the private limited company HAIL Europe BV, registered at the Chamber of Commerce in Alkmaar under number 76914917, established at 1812 SE, Alkmaar, at the Barnsteenstraat9;
- CUSTOMER: any party in a contractual relationship with HAIL Europe under an agreement made with HAIL Europe.
1.2. These general conditions apply to all offers and quotes made by HAIL Europe, as well as any closed agreements with HAIL Europe by the customer and any resulting contracts.
1.3. Deviations from these terms and conditions are only valid if agreed to in writing by HAIL Europe and customer and apply only to the specific agreement to which the exceptions relate.
1.4. General conditions of customer are not accepted by HAIL Europe, unless expressly agreed in writing with HAIL Europe.
1.5. The general terms and conditions are handed over to the customer before closing the agreement and are always available on the website of HAIL Europe: www.hail-europe.com. On request, the general conditions will be sent free of charge.
Article 2: Quote / Agreement
2.1. All quotes made by HAIL Europe are without engagement.
2.2. A binding agreement with HAIL Europe will only be formed after express acceptance in writing by HAIL Europe, or if HAIL Europe has made clear that the performance of the agreement, for instance by means of delivering an order, has begun.
2.3. The information provided in prospecting, price lists and other printed matter of HAIL Europe such as images, colour schemes, sizes, weights etc. will only serve as an approximation unless HAIL Europe expressly declared that these can be viewed as exact representations.
Article 3: Prices / Payment
3.1. All prices quoted by HAIL Europe are excluding VAT, unless expressly stated otherwise.
3.2. The prices quoted by HAIL Europe are based on cost factors such as applicable on the date of the offer.
3.3. If one of the cost-determining factors (including, but not limited to, purchase prices, freight, tax rates, import and export taxes or changes of foreign currency) of an item changes in the period between the date of the offer and the date of delivery, HAIL Europe has the right to adjust the agreed price accordingly.
3.4. Unless expressly agreed otherwise, payment must be made within 14 calendar days of the date of invoice.
3.5. Unless agreed otherwise, payment shall be deemed to have been effected when the bank account of HAIL Europe is credited or in case of payment to HAIL Europe in cash on the date of receipt.
3.6. As soon the term mentioned in 3.4 is exceeded, the customer is in default, without any advance notice being required.
3.7. In case of default, the customer is due 2% interest per month or part of a month on the full invoice amount, starting on the due date of the invoice. Customer is also due reasonable and proportional extrajudicial collection costs. Furthermore, the customer is due all legal costs and associated costs of legal assistance, including amounts not assigned by the court, which HAIL Europe had to make regarding the performance of the agreement with customer, unless HAIL Europe is sentenced as losing party by the judge to fully bear the costs.
3.8. If HAIL Europe gives notice of default or summons to pay, the customer is already in default by exceeding the payment term mentioned in 3.4.
3.9. Payment of customer will first tend to the settlement of all due costs, then the interest and then the invoices due that have been outstanding the longest, even if the customer states that the payment relates to a later invoice.
3.10. Settlement of the invoice amount with receivables on HAIL Europe can only occur to the extent that the receivables are payable and are either legally irrevocably established or expressly acknowledged by HAIL Europe.
Article 4: Delivery
4.1. The delivery of the goods, hereinafter referred to as “items”, commences on the day of the conclusion of the agreement or if the following occurs later on the day on which an agreed deposit is paid in full or before the information to be provided by the customer relevant to the performance of the agreement has been received.
4.2. The delivery dates specified by HAIL Europe shall never be regarded as deadlines, unless expressly agreed otherwise in writing. When exceeding these delivery terms, customer does not have the right to terminate the agreement.
4.3. In the event of a late delivery, HAIL Europe should be given a written notice of default and HAIL Europe should be awarded a period of at least 14 calendar days to still fulfil its delivery obligation, unless reasonableness and fairness justify a longer period given the circumstances.
4.4. The risk of the items shall pass to the customer on the time of arrival of the items on the agreed place of delivery unless expressly agreed otherwise.
4.5. HAIL Europe is entitled to make partial deliveries. Each delivery will be considered a separate delivery and treated as such with all related legal consequences.
4.6. Customer contributes a yet to be established amount by HAIL Europe in the freight if the transaction between customer and HAIL Europe represents an invoice amount less than the carriage paid amount. HAIL Europe reserves the right to charge freight to customer if delivery of the items occurs outside the usual days of delivery, hereinafter referred to as “route days”, of HAIL Europe; the expedition costs HAIL Europe will make in that case will be charged to the customer by HAIL Europe.
4.7. All designs, clichés etc. whether or not made at the request of the customer or by order of HAIL Europe, even if they have been charged wholly or partially to the customer, remain property of HAIL Europe. The costs of designs, clichés etc. made on behalf of a requested quote can be charged to the customer by HAIL Europe.
Article 5: Retention of title
5.1. The items delivered to customer by HAIL Europe remain property of HAIL Europe as long as customer has not paid the due price, interest and costs regarding all delivered items. Costs include the claims that HAIL Europe has against customer due to shortcomings regarding the compliance of other agreements made with customer regarding the delivered items. Customer shall store the items delivered by HAIL Europe, as long as they remain property of HAIL Europe, separately and clearly identifiable.
5.2. If customer fails to fulfil its obligations under the agreement(s) with HAIL Europe or if HAIL Europe has good grounds to fear that the customer will fail, HAIL Europe is entitled to take back the items delivered to customer. This right applies especially – but not exclusively – in case of attachment, if the customer has been granted suspension of payment or if bankruptcy of the customer has been requested or declared.
5.3. Customer shall be liable to HAIL Europe for all damage caused to the items for the transfer of ownership referred to in 5.1.
Article 6: Complaints
6.1. Customer shall approve the items delivered; within 3 working days after receiving the items complaints regarding the delivered items should be reported to HAIL Europe in writing. If customer does not object to the delivered items within the aforementioned period, HAIL Europe will have properly fulfilled the agreement towards the customer.
6.2. After the complaints in accordance with 6.1 have reached HAIL Europe, HAIL Europe will investigate the reasonableness of the complaint as soon as possible. Customer shall consent to representatives of HAIL Europe examining the items in question. Following this investigation, HAIL Europe will decide if the complaint is justifiable. If the complaint is justifiable, HAIL Europe has the choice to replace the items or credit the customer for an amount equal to the price due by the customer for the items in question. If HAIL Europe and customer do not reach an agreement concerning the reasonableness of the complaint, the decision thereof shall be left to an expert to be named by both parties in consultation. For complaints concerning the delivered items per package it applies that HAIL Europe cannot be compelled to credit the price for the items delivered per package due to the customer if the whole or a part of the delivered items per package has been used by customer. The decision of the expert is binding. The costs of this expert investigation will be borne by the party that is proven wrong by the expert. HAIL Europe will notify customer in writing that they wish to make use of this expert investigation. Customer then has the right for the period of 1 month to nevertheless apply to the competent court according to these conditions regarding this dispute.
6.3. Returning of the delivered items is permitted only after obtaining explicit permission of an authorized HAIL Europe employee.
Article 7: Tolerances
7.1. For the items delivered by HAIL Europe the hereinafter-named deviations both upwards and downwards are permissible regarding the agreed specifications. For assessment, the average of the total in a type, quality, colour and design delivered quantum will apply as criterion. For other than hereinafter-named specifications, regarding earlier deliveries the permitted deviations and in absence thereof the usual deviations are permitted.
7.2. Notwithstanding the provisions of this paragraph regarding possible deviations in colour, HAIL Europe will have performed properly if they are minor deviations. HAIL Europe does not accept any responsibility for the specification of incorrect colour numbers by customer, if it concerns an order for which a colour needs to be created, which does not appear in the PMS colour system or other colour recognition system, the customer shall describe the desired colour as accurately as possible. In such a case, HAIL Europe will approach the desired colour by the customer as much as possible. Colours delivered on paper or synthetic material can, if applied to another material, provide another colour image, which may convey the impression that the colour is established, that the colour applied to the other material is equal to the sample handed over by customer to HAIL Europe, or the colour number made known by the customer.
7.3. Regarding the quantity, it applies that HAIL Europe has performed properly if deviations in quantity do not exceed 20% above or below the agreed quantity. Invoicing occurs on the basis of the actual quantity delivered.
7.4. Regarding weight in gram, thickness, sizes etc. it applies that HAIL Europe has performed properly if deviations in above-mentioned specifications do not exceed 10%, 20% and 5% respectively regarding the agreed specification.
Article 8: Warranty
8.1. For items or parts of items that HAIL Europe does not manufacture, HAIL Europe only provides warranty, if and insofar the supplier of HAIL Europe has provided warranty to HAIL Europe. On request of customer, HAIL Europe can notify customer of the warranty provisions of suppliers of HAIL Europe.
8.2. HAIL Europe’s liability under the warranty is limited to the replacement of the defective items, or refund of the invoiced amount for these defective items, always at the choice of HAIL Europe.
8.3. Warranty does not cover the deficiencies that are, partly or wholly, the result of:
- failure to comply with operating and maintenance instructions, or other than the intended normal use.
- normal wear and tear;
- application of any government regulation regarding the nature of quality of the used materials;
- materials or goods that have been provided by customer to HAIL Europe for processing;
- materials, goods, methods and construction to the extent they have been applied at the express instruction of customer;
- third-party items involved by HAIL Europe, if the third parties have not provided any warranty to HAIL Europe;
- improper use or use for any other purpose that is common.
8.4. If customer fails to fulfil its obligations under the agreement(s) made with HAIL Europe, HAIL Europe is not bound by any warranty concerning the agreement(s).
8.5. The alleged failure by HAIL Europe to comply with its warranty obligations does not relieve the customer of its obligations under the agreement with HAIL Europe.
Article 9: Liability
9.1. The liability of HAIL Europe is limited to compliance with the warranty obligations mentioned in article 8, except for intent or gross negligence on the part of HAIL Europe.
9.2. HAIL Europe is in no event liable for compensation other than the invoice value of the items as a result of which the customer has suffered damage.
9.3. In the event of damage, caused by a defect in the delivered item, HAIL Europe at the request of the customer will within a reasonable period of time notify the customer of the identity of the producer of the item or of the one who delivered the item.
9.4. HAIL Europe is not liable if items do not appear suitable for the purpose for which the customer has purchased it. Customer must therefore acquaint itself regarding the suitability of items for the purpose that he thus has in mind in advance.
9.5. Customer indemnifies HAIL Europe from claims of third parties for damages against customer on the grounds of liability for whatever reason.
Article 10: Suspension / Termination
10.1. If customer fails or if HAIL Europe can reasonably expect that customer will fail in the fulfilment of any agreement between HAIL Europe and customer, HAIL Europe has the right to:
- demand from customer for all current and future agreements payment in advance, or immediate payment upon delivery, or proper security for payment;
- suspend its obligations under agreements with customer (also regarding the production and/or processing of the items destined for delivery);
- terminate without judicial intervention the current purchase agreement starting immediately.
10.2. If customer fails to fulfil the agreement HAIL Europe can claim compensation including lost profits.
Article 11: Force majeure
11.1. In these conditions force majeure means any foreseeable or unforeseeable circumstance independent of the will of HAIL Europe that permanently or temporarily impedes the fulfilment of the agreement, as well as, to the extent this was not yet included, war, threat of war, civil war, riots, labour strikes, occupation, boycott, blockage, sabotage, fire, lightning strike, extreme weather conditions, measures of the domestic or foreign government, transport difficulties and other serious interference in the company of HAIL Europe, as well as the impossibility of fulfilment of the agreement as a result of failures of the persons and/or companies engaged by HAIL Europe for the performance of the agreement.
11.2. In case of inability to implement the agreement as a result of force majeure, HAIL Europe is entitled without judicial intervention to either suspend the implementation of the agreement for a maximum of six (6) months, or to wholly or partially terminate the agreement without being held liable for any compensation.
Article 12: Various
12.1. HAIL Europe reserves all rights, including intellectual and industrial property, regarding the delivered items and provided information, drawings, images, product formulations etc. as well as all other provided information to customer within the framework of the agreement.
12.2. Except with prior express and written consent by HAIL Europe, customer is prohibited to multiply, provide access to third parties or to make available the items and documents referred to in the conditions.
12.3. If customer cancels an agreement including items from the standard range of HAIL Europe, customer is due cancellation costs at 15% of the net amount involved in the agreement.
12.4. Cancellation of agreements extending to the supply of items that do not belong to the standard range of HAIL Europe (including the name-printed items) is possible only upon payment of the full invoice amount to HAIL Europe.
12.5. Subject to proof by the customer, file copies of written announcements by HAIL Europe to customer count as proof that these announcements were sent by HAIL Europe to customer.
Article 13: Applicable law / Disputes
13.1. These general terms and conditions and all agreements to which these conditions apply, are subject to Dutch law.
13.2. Disputes arising from agreements between customer and HAIL Europe may only be submitted to the competent court in the District of Amsterdam, which has exclusive jurisdiction to take note thereof.