General terms and conditions
Article 1. Definitions
1.1. HAIL EUROPE: the private company with limited liability HAIL EUROPE B.V., registered in the trade register of the Chamber of Commerce under number 76914917, having its registered office in Alkmaar and its place of business in (1821 SE) Alkmaar at Barnsteenstraat no. 9.
1.2. Customer: the counterparty, being a natural person or legal entity acting in the course of a profession or business, who enters into an Agreement with HAIL EUROPE, as well as who requests a quotation from HAIL EUROPE and is provided with a quotation by HAIL EUROPE.
1.3. Agreement: the binding Agreement between HAIL EUROPE and Customer, in any form whatsoever, including any amendments and supplements thereto, and any (further) order given/granted pursuant to the Agreement.
1.4. Written or In Writing: the term 'Written' or ‘In Writing’ also includes by email or other electronic means.
1.5. Product(s): the Products offered for sale by HAIL EUROPE, mainly intended for the hospitality industry, explicitly including but not limited to skin, hair, and body care products, whether or not using a private label and/or sold under brand products, and various accessories.
1.6. General Terms and Conditions: these General Terms and Conditions, which apply to the (legal) relationship between the Parties and have been filed with the Chamber of Commerce under number 76914917.
1.7. Party(ies): HAIL EUROPE, Customer, or both Parties.
1.8. Website: the Websites operated by HAIL EUROPE, being one or more webshops for the sale of Products by HAIL EUROPE, including but not limited to www.hail-europe.com and www.hail-europe.nl.
Article 2. Applicability
2.1. These General Terms and Conditions are applicable to all offers and quotations of HAIL EUROPE, as well as to all Agreements to be entered into by HAIL EUROPE and activities resulting therefrom, to the exclusion of the Customer's general terms and conditions.
2.2. Conclusion of an Agreement, as described in article 4 of these General Terms and Conditions, implies acceptance of these General Terms and Conditions by the Customer.
2.3. Deviations from these General Terms and Conditions must be expressly agreed In Writing. Deviations shall then only apply to the relevant offers and Agreements to which these General Terms and Conditions apply.
2.4. Failure by HAIL EUROPE to always demand strict observance of these General Terms and Conditions shall not imply that these General Terms and Conditions are not applicable and/or that HAIL EUROPE loses the right to demand strict observance of these General Terms and Conditions in future cases, similar or otherwise.
2.5. The nullification and/or nullity of any provision of these General Terms and Conditions shall not affect the validity of the remaining provisions of these General Terms and Conditions. The conflicting, invalid provision shall be deemed to have been replaced by a provision that does justice as much as possible to the intent and purport of the original provision.
2.6. General Terms and Conditions of the Customer shall not be accepted by HAIL EUROPE unless expressly agreed In Writing with HAIL EUROPE.
2.7. These General Terms and Conditions shall be made available to the Customer prior to the conclusion of the Agreement and may also be consulted at any time on the Website. The General Terms and Conditions will be sent free of charge upon request.
Article 3. Offers and quotations
3.1. All offers and quotations of HAIL EUROPE are always without obligation, unless expressly stated otherwise In Writing, or if they contain a deadline for acceptance. If an offer or quotation includes a deadline for acceptance, the offer or quotation shall in any case expire as soon as this deadline has passed.
3.2. Every offer of HAIL EUROPE is valid as long as Products are in stock. Offers do not apply to future orders or backorders.
3.3. If an offer or quotation contains a non-binding offer and is accepted by Customer, HAIL EUROPE has the right to revoke the offer within three (3) days after receipt of the acceptance.
3.4. If an acceptance by the Customer, whether or not on minor points, differs from the offer contained in HAIL EUROPE's offer, HAIL EUROPE shall not be bound by it. The Agreement will not be concluded in accordance with this deviating acceptance, unless HAIL EUROPE indicates otherwise In Writing.
3.5. HAIL EUROPE is not bound by an offer if the Customer should reasonably have expected or should have understood that the offer contains an obvious mistake or clerical error. Customer cannot derive any rights from this mistake or slip of the pen.
3.6. A compound quotation does not oblige HAIL EUROPE to deliver part of the Products included in the offer at a corresponding part of the quoted price.
3.7. Verbal offers and quotations may not be binding unless subsequently confirmed by HAIL EUROPE In Writing, by means of invoicing or otherwise.
3.8. All information, quantities, compositions, formats, dosages, weights, prices, illustrations, announcements and other specifications (provided In Writing, orally, by telephone or otherwise) provided by HAIL EUROPE are made with the utmost care, but HAIL EUROPE cannot guarantee that no deviations can or will occur. In the unlikely event they do occur, they will not bind HAIL EUROPE in any way whatsoever.
Article 4. Agreements
4.1. An Agreement shall only come into effect upon confirmation and acceptance by HAIL EUROPE or if HAIL EUROPE has expressly commenced execution of the Agreement.
4.2. Parties expressly agree that a valid Agreement may also be concluded by using electronic forms of communication. The absence of a signature does not affect the binding force of the offer and its acceptance.
4.3. Any deviation or amendment to the Agreement shall only be binding on HAIL EUROPE if agreed In Writing between the Parties.
4.4. If the Agreement is amended, HAIL EUROPE will indicate to what extent the amendment or supplement to the Agreement will affect the price initially quoted. In doing so HAIL EUROPE will, as far as possible, attempt to provide a quotation in advance.
4.5. If the Customer is referred to as more than one (legal) entity, they shall all be jointly and severally liable for compliance with the Agreement. If the Agreement is entered into by a third party on behalf of the Customer, such third party guarantees that the Customer has accepted these General Terms and Conditions, failing which the third party shall be bound by these General Terms and Conditions as if it were the Customer.
4.6. HAIL EUROPE is entitled to engage third parties for the execution of the Agreement.
4.7. Except with the explicit In Writing consent of HAIL EUROPE, the Customer is prohibited from assigning any rights or obligations under the Agreement to third parties.
4.8. HAIL EUROPE is authorized to refuse a request to enter into an Agreement in whole or in part for reasons of its own, or to suspend the execution of Agreements already in progress. This authority may be invoked inter alia due to the content, nature, purport or form of such request, as well as due to technical objections, refusal of (advance) payment or conflict of the request with the interests of HAIL EUROPE or third parties including other customers.
4.9. The Customer may not invoke an Agreement if before or during the execution of the Agreement it appears that the information provided by the Customer regarding species, numbers, compositions, formats, weights and dosages is incorrect or incomplete. In such case HAIL EUROPE reserves the right not to execute the Agreement or not to continue its execution. In such case HAIL EUROPE can never be held liable to compensate the Customer for any damages, without prejudice to the right and the possibility of HAIL EUROPE to claim damages from the Customer or to execute the Agreement at a higher price than agreed upon, to which payment the Customer shall be obliged.
4.10. Cancellation of an Agreement by the Customer shall not be possible unless HAIL EUROPE has agreed to this In Writing. If and insofar as HAIL EUROPE agrees In Writing to a cancellation of the Agreement, this shall at the very least be subject to the condition that the Customer pays a cancellation fee, consisting of an amount of 15% of the invoice amount involved in the Agreement if the cancellation relates to the sale delivery and acceptance of Products from HAIL EUROPE's standard product range and the full (i.e. 100% of the) invoice amount if the cancellation relates to the sale, delivery and acceptance of Products not belonging to HAIL EUROPE's standard product range (including Products printed by name and/or intended specifically for the Customer).
Article 5. Execution of Agreement
5.1. If during the execution of the Agreement it appears that for a proper execution of the Agreement by HAIL EUROPE it is necessary to modify and/or supplement the Agreement, HAIL EUROPE will inform Customer as soon as possible. Parties will then proceed to amend the Agreement in a timely manner and in mutual consultation.
5.2. If Parties agree that the Agreement will be amended and/or supplemented, the time of completion of the execution may be affected as a result. In that case HAIL EUROPE will inform Customer as soon as possible.
5.3. If an amendment and/or addition to the Agreement will have financial or other (quantitative and/or qualitative) consequences, HAIL EUROPE will inform the Customer in advance.
5.4. Customer shall timely provide all data or instructions necessary for HAIL EUROPE to perform its obligations under the Agreement. The Customer shall also timely provide any information or instructions that the Customer should reasonably understand are necessary for HAIL EUROPE to perform its obligations under the Agreement. If Customer fails to provide such information or instructions or fails to do so on time, Customer shall be entitled to suspend execution of the Agreement. Any additional costs resulting from the delay caused by this shall be borne entirely by Customer.
Article 6. Prices and price changes
6.1. All prices charged by HAIL EUROPE are in euros (€) and are exclusive of sales tax and other government levies and increases, unless expressly stated otherwise.
6.2. The prices charged by HAIL EUROPE are based on cost price factors as applicable on the date of the offer.
6.3. Should any of the cost price factors (such as, but not limited to, purchase prices, raw material costs, freight costs, energy costs, tax rates, import and export duties or foreign currency exchange rate changes) of a Product change in the period between the date of the offer and the date of delivery, HAIL EUROPE shall be entitled to adjust the agreed price accordingly.
6.4. HAIL EUROPE reserves the right to change, discontinue and/or replace the sale of (certain) Products (or any part or content thereof) with other Products at any time without prior notice. HAIL EUROPE shall not be liable to Customer or to any third party for any modification, price change, suspension, discontinuance and/or replacement of Products.
6.5. Obvious (writing and/or manipulation) errors in the quotation, such as obvious inaccuracies, may be corrected by HAIL EUROPE even after the Agreement has been concluded.
6.6. Unless expressly stated otherwise, delivery costs for the delivery of Products are not included in the price. Special rates apply for delivery outside the Netherlands. HAIL EUROPE will indicate the costs of delivery, which are to be borne by the Customer, to the Customer upon conclusion of the Agreement.
6.7. With regard to certain payment methods, further conditions may apply with regard to the delivery method and related costs. This will be communicated to Customer.
Article 7. Payments
7.1. The amounts due under the Agreement by Customer to HAIL EUROPE shall be charged by invoice. Payment shall be made in euros (€) and within the term of payment specified in the Agreement, being the fatal term of payment. If no term of payment is stated in the Agreement, payment shall be made within fourteen (14) days of the invoice date, being the fatal term of payment.
7.2. Customer cannot invoke any right of discount, suspension or deduction. Compensation by Customer shall only be permitted if HAIL EUROPE has acknowledged Customer's claim In Writing.
7.3. Customer shall at all times and irrespective of the agreed payment terms, be obliged to provide security for the payment of the amounts payable to HAIL EUROPE under the Agreement at HAIL EUROPE's first request. The security offered shall be such that the claim together with any interest and costs due in respect thereof shall be adequately covered and that HAIL EUROPE shall be able to recover same without difficulty. Any security later rendered insufficient must be supplemented to an adequate security upon HAIL EUROPE's first request.
7.4. Payments, regardless of the appointment, shall first be deemed to have been made in settlement of interest and costs, and subsequently in settlement of the oldest outstanding invoice.
7.5. If the deadline for payment is exceeded, the Customer shall be in default by operation of law and shall thereafter be liable to pay contractual interest of 2% per month (cumulative) on the amount due, with each month that has elapsed counting as a full month, without prejudice to the other rights that HAIL EUROPE may enforce against the Customer on account of non-payment or late payment. In the event that the statutory interest rate is higher than the aforementioned percentage, the Customer shall be liable for the statutory interest, with each month that has elapsed counting as a full month.
7.6. HAIL EUROPE is entitled and authorized, when a situation of default arises, to immediately suspend and discontinue the execution of the Agreement, until the Customer has paid its outstanding financial obligations in full.
7.7. In the event HAIL EUROPE is forced to outsource its claim, Customer shall be liable for all costs, both judicial and extrajudicial, in addition to its further claims for damages, the latter being fixed at 15% of the amount to be claimed, with a minimum of € 750,-- (seven hundred and fifty euros). The amount to be claimed in this case means the total of the outstanding invoice amounts plus the (contractual) interest due.
7.8. In the event of Customer's bankruptcy, suspension of payments or receivership, Customer's obligations under the Agreement to HAIL EUROPE shall become immediately due and payable.
Article 8. Deliveries
8.1. The delivery times quoted by HAIL EUROPE are only indicative and should never be considered as deadlines. HAIL EUROPE may provide further information regarding delivery times on the Website or by other means In Writing or orally upon request. Such information is indicative only.
8.2. The term of delivery of the Products shall commence on the date of execution of the Agreement or, if later, on the date on which an agreed down payment has been made in full or on the date on which information relevant to the execution of the Agreement has been received from the Customer.
8.3. In case of late delivery, HAIL EUROPE must be notified in writing of the default and granted a period of at least fourteen (14) calendar days in which HAIL EUROPE may still fulfill its obligation to deliver, unless reasonableness and fairness under the circumstances justify a longer period.
8.4. The risk of the Products shall pass to the Customer at the time of arrival of the Products at the agreed place of delivery, unless expressly agreed otherwise.
8.5. HAIL EUROPE is authorized to make partial deliveries. Each partial delivery shall be considered and treated as a separate delivery with all related legal consequences.
8.6. Customer shall make a contribution to freight costs to be determined by HAIL EUROPE if the transaction between Customer and HAIL EUROPE involves an invoice amount less than the free house amount. HAIL EUROPE reserves the right to charge the Customer freight charges if delivery of the Products takes place outside HAIL EUROPE's usual days of delivery. The forwarding costs to be incurred by HAIL EUROPE in this case will be charged by HAIL EUROPE to the Customer.
8.7. All designs, plates, templates etc. whether or not at the request of the Customer or on the instructions of HAIL EUROPE, even if they have been or will be charged in full or in part to the Customer, shall remain the property of HAIL EUROPE. Customers may be charged by HAIL EUROPE for the costs of designs, plates, templates etc. made for the purpose of a quotation requested by the Customer.
8.8. The method of packaging, shipment and choice of packaging material shall be determined by HAIL EUROPE. Empty packaging, unless otherwise agreed In Writing, will not be taken back by HAIL EUROPE. Customer shall comply with the provisions as included and described in article 13 of these General Terms and Conditions.
Article 9. Retention of title and lien
9.1. HAIL EUROPE remains the owner of all Products delivered by it as long as the Customer has not fully complied with all that it is obliged to do under the Agreement, in particular with its payment obligations, including interest and costs.
9.2. HAIL EUROPE shall be entitled at all times to take back or cause to be taken back the Products it has delivered. The Customer hereby authorizes HAIL EUROPE or any third parties engaged by HAIL EUROPE to enter the premises and other buildings where the delivered Products are stored and/or placed and to do or refrain from doing anything that is or may be conducive to the repossession of the delivered Products, under penalty of forfeiting an immediately payable fine of € 10,000.-- (in words: ten thousand Euros) per day that the Customer remains in default.
9.3. The Customer shall not be permitted to assert any rights to Products subject to retention of title pursuant to this article, such as pledging the Products or encumbering them with any other right. The Customer is furthermore obliged to immediately notify HAIL EUROPE In Writing if any third party wishes to assert any rights to Products subject to retention of title pursuant to this article.
9.4. The Customer undertakes, upon HAIL EUROPE's first request:
- to insure and keep insured the Products subject to retention of title under this article against fire, explosion and water damage as well as against theft and loss and to submit the relevant policy or policies of this insurance to HAIL EUROPE for inspection;
- to pledge all Customer's claims against insurers with regard to the Products delivered by Customer that are subject to retention of title pursuant to this article to HAIL EUROPE in the manner prescribed in article 3:239 of the Dutch Civil Code;
- to pledge to HAIL EUROPE, in the manner prescribed in article 3:239 of the Dutch Civil Code, any claims that the Customer may acquire against the Customer upon the resale of Products delivered by HAIL EUROPE that are subject to retention of title pursuant to this article;
- to mark and identify the Products delivered by HAIL EUROPE that are subject to retention of title pursuant to this article;
- to cooperate in any other way to all reasonable measures HAIL EUROPE wishes to take for the protection and safeguarding of its proprietary rights in relation to the Products delivered under retention of title, all this under penalty of an immediate fine of € 10,000.-- (in words: ten thousand Euros) for each day it remains in default without further notice.
9.5. In the event HAIL EUROPE cannot invoke its retention of title because the Products it has delivered have unexpectedly been mixed, transformed or copied, the Customer shall be obliged to pledge the newly formed Products to HAIL EUROPE, under penalty of an immediate fine of € 10,000.-- (in words: ten thousand Euros) per day that it remains in default and without further notice of default.
Article 10. Examination and right of complaint
10.1. HAIL EUROPE shall endeavor to do everything necessary to ensure that the Products to be delivered by it meet the requirements that can reasonably be expected of them.
10.2. The Customer shall be obligated, immediately upon execution of the Agreement, to thoroughly inspect the Products delivered by HAIL EUROPE for errors and defects and, in the event of their presence, to notify HAIL EUROPE In Writing immediately but no later than three (3) working days after delivery.
10.3. In the event the Customer fails to notify HAIL EUROPE within three (3) working days after the time of delivery of errors and defects that could or should have been discovered upon thorough examination, the Customer shall be deemed to have agreed to the condition in which the Products have been delivered as aforesaid, and the right to complain shall lapse.
10.4. The Products delivered by HAIL EUROPE shall in any case be considered sound, if the Customer has put the delivered Products or a part of the delivered Products to use, has treated or processed them, has delivered them to third parties, or has had them put to use, has had them treated or processed, or has had them delivered to third parties, unless the Customer has observed the provisions of this article.
10.5. After complaints have reached HAIL EUROPE in accordance with article 10 paragraph 2, HAIL EUROPE shall as soon as possible investigate the merits of the complaint(s). Customer shall allow representatives of HAIL EUROPE to examine the Products in question. Following this investigation HAIL EUROPE will decide whether the complaint is founded. If the complaint is founded, HAIL EUROPE will have the option to either replace the Products or credit the Customer for an amount equal to the price owed by the Customer for the Products in question. If HAIL EUROPE and the Customer cannot agree on the merits of the complaint, the decision on the merits of the complaint will be left to an expert to be appointed by Parties in joint consultation.
10.6. As an extension of the provisions in article 10 paragraph 5, in case of complaints regarding Products delivered per package, Customer cannot be obliged to credit the price due by Customer for the Products delivered per package, if the Customer has used all or part of the Products delivered per package. The expert's decision shall be binding. The costs of this expert examination shall be borne by the Party ruled against by the expert. HAIL EUROPE shall notify the Customer In Writing that it wishes to make use of this expert examination. The Customer shall then have the right, for a period of one (1) month, to apply to the competent court in accordance with these General Terms and Conditions with regard to this dispute.
10.7. Return of delivered Products is only permitted if express consent In Writing has been obtained from HAIL EUROPE.
10.8. If the period of three (3) working days referred to in subsections 2 and 3 of this article must, according to standards of reasonableness and fairness, be considered unacceptably short, even for a careful and alert Customer, such period shall be extended until, at the latest, the first moment when investigation or notification of HAIL EUROPE is reasonably possible for the Customer.
Article 11. Tolerances
11.1. With regard to the Products delivered by HAIL EUROPE, with respect to the agreed specifications, the deviations listed below are permissible both upwards and downwards. The average of the total quantity delivered in terms of type, quality, color and execution shall serve as a criterion. For specifications other than those mentioned below, the deviation allowed in previous deliveries and, in the absence thereof, the usual deviations shall be permissible.
11.2. Notwithstanding the provisions of this paragraph, with respect to any deviations in color, HAIL EUROPE shall be deemed to have performed properly if such deviations are minor. HAIL accepts no liability for incorrect color numbers provided by the Customer. If it concerns an order, whereby a color must be created, which does not occur in the PMS color system or any other color recognition system, Customer must describe the color desired by him as accurately as possible. HAIL EUROPE will in such a case approximate the color desired by Customer as much as possible. Colors supplied on paper or plastic may, when applied to another material, give a different color image which may give the impression that the color applied to the other material is the same as the sample handed over by the Customer to HAIL EUROPE, or the color number made known by the Customer.
11.3. Regarding the quantity, HAIL EUROPE will be deemed to have performed properly if deviations in quantities do not exceed 20% above or below the agreed quantity. Invoicing will take place on the basis of the actual quantity delivered.
11.4. Regarding grammage, thickness, formats etc., HAIL EUROPE will be considered to have performed properly if deviations in the above specifications do not exceed 10% (of grammage), 20% (of thickness) and 5% (of formats) respectively of the agreed specifications.
Article 12. Warranties
12.1. For Products or parts of Products, which HAIL EUROPE does not manufacture itself, HAIL EUROPE shall only provide warranty if and to the extent HAIL EUROPE's supplier has provided HAIL EUROPE with warranty. At the Customer's request, HAIL EUROPE may inform the Customer of the warranty provisions of HAIL EUROPE's suppliers.
12.2. HAIL EUROPE's liability under the warranty shall be limited to the replacement of the faulty Products or reimbursement of the amount invoiced for such faulty Products, at HAIL EUROPE's discretion.
12.3. In any case the warranty does not cover defects that are fully or partially the result of:
- non-observance of operating, maintenance and storage instructions, or other than the intended normal use;
- normal wear and tear;
- application of any government regulation regarding the nature or quality of the materials used;
- materials or goods provided by the Customer to HAIL EUROPE for processing;
- materials, goods, working methods and constructions insofar as applied on the Customer's explicit instruction;
- Products obtained by HAIL EUROPE from third parties, insofar as the third parties have not provided HAIL EUROPE with a warranty;
- improper use or use for any other purpose that is customary.
12.4. If the Customer fails to fulfill its obligations under the Agreement(s) concluded with HAIL EUROPE, HAIL EUROPE shall not be held to any warranty with regard to such Agreement(s).
12.5. Alleged non-performance by HAIL EUROPE of its warranty obligations shall not relieve Customer of its obligations under the Agreement with HAIL EUROPE.
Article 13. Waste packaging fund
13.1. In the event HAIL EUROPE has sold and delivered Products on behalf of and for the benefit of the Customer, whereby HAIL EUROPE has used the Customer's packaging materials in the broadest sense of the word, the Customer shall at all times be obliged to report to the Dutch Packaging Waste Fund (see: https://www.afvalfondsverpakkingen.nl/nl) and, as an extension thereof, to pay the relevant waste management levy.
13.2. HAIL EUROPE shall provide the Customer with an annual statement indicating the amount of packaging delivered.
13.3. HAIL EUROPE may never be held liable in the event the Customer breaches one or more of its obligations towards the Packaging Waste Fund, and by extension the Customer shall indemnify HAIL EUROPE against all claims from any other party, expressly including the Packaging Waste Fund and the government, that may arise as a result of the Customer's failure to fulfil, or improperly fulfil, an obligation in respect of the Packaging Waste Fund and the waste management levy.
Article 14. Suspension
14.1. If Customer fails to fulfill any obligation under the Agreement, fails to fulfill it in full or in a timely manner, HAIL EUROPE shall be entitled to suspend fulfillment of its obligations.
14.2. HAIL EUROPE is further authorized to suspend the fulfillment of its obligations under the Agreement (among other things) if:
- after entering into the Agreement HAIL EUROPE has become aware of circumstances that give good reason to fear that the Customer will not, not completely or not timely fulfill his obligations under the Agreement;
- Customer, upon entering into the Agreement, was requested to provide security for the fulfilment of its obligation(s) under the Agreement and such security is not provided or is insufficient;
- circumstances occur which are of such a nature that compliance with the Agreement is impossible or that unaltered maintenance of the Agreement cannot reasonably be required of HAIL EUROPE.
Article 15. Termination
15.1. If Customer fails to fulfill its obligations under the Agreement or circumstances as mentioned in paragraph 2 of this article occur, HAIL EUROPE is entitled to terminate the Agreement immediately (prematurely) (by dissolution or termination), without notice of default being required. In such case the Customer shall not be entitled to any compensation whatsoever and the Customer shall be obliged to compensate HAIL EUROPE for all damages, interest and costs resulting from the (premature) termination (by dissolution or termination).
15.2. Among other things, HAIL EUROPE shall be entitled to terminate (prematurely) the Agreement (by dissolution or termination) if Customer fails to make timely payments or comply with other obligations under the Agreement (including these terms and conditions), or if any of the following circumstances occur or threaten to occur:
one or more of Customer's assets is attached conservatively or executorily and that attachment has not been lifted within five (5) calendar days;
- Customer's bankruptcy is filed for;
- Customer is declared bankrupt;
- Customer is granted suspension of payment, provisional or otherwise, or such suspension of payment is applied for by Customer;
- Customer dies, is placed under guardianship and/or receivership;
- Customer's business is discontinued and/or dissolved and/or liquidated and/or transferred to a third party;
- HAIL EUROPE is declared bankrupt;
- Customer performs or fails to perform actions which bring the good name of HAIL EUROPE or third parties including other Customers into serious disrepute;
- Customer no longer complies with any rules or regulations imposed by or pursuant to the law;
- Customer reports a delay in payment.
15.3. If HAIL EUROPE has already performed services in execution of the Agreement at the time of termination, such services and related payment obligations shall not be subject to cancellation, regardless of whether the Agreement has been terminated by dissolution or cancellation.
Article 16. Liability and damages
16.1. HAIL EUROPE shall not be liable for damages suffered by Customer unless they are the direct result of an attributable shortcoming or wrongful act of HAIL EUROPE. In such case HAIL EUROPE's liability shall be limited to fulfillment of the warranty obligations described in article 12.
16.2. The limitation of liability of HAIL EUROPE as contained in this article shall not apply in case of willful intent or deliberate recklessness on the part of HAIL EUROPE.
16.3. Further to the provisions of this article, HAIL EUROPE shall not be liable due to the mere fact that the Product desired by the Customer is revoked, destroyed or otherwise challenged by third parties (such as government agencies, tax authorities and/or a court).
16.4. If the Agreement is executed for the benefit of several persons or legal entities, the limitation of liability with regard to the Agreement applies to all persons or legal entities involved jointly and they are responsible for dividing the maximum amount of damages to be paid among themselves.
16.5. The Customer shall indemnify HAIL EUROPE against claims from any other party that may arise as a result of the Customer's failure to comply or comply properly with an obligation arising from the Agreement and/or the General Terms and Conditions. This shall not apply if (i) the Customer can prove that the damage is not related to a culpable act or omission attributable to him or (ii) such damage was caused by intent or deliberate recklessness on the part of HAIL EUROPE. This indemnification also applies to third parties engaged by HAIL EUROPE and employees of HAIL EUROPE, as well as to companies affiliated with HAIL EUROPE.
16.6. Any rights of action and recourse shall only be exercised by the Customer and/or its affiliated companies against HAIL EUROPE. No action, claim, claim for damages or otherwise in connection with the Agreement and/or General Terms and Conditions shall be brought by the Customer against the (current or former) employees, directors and (directors of) shareholders of HAIL EUROPE. They may invoke this provision and, if necessary, the foregoing shall apply as an irrevocable third-party clause for no consideration.
16.7. HAIL EUROPE shall not be liable for consequential damages, indirect damages, trading losses, loss of profits, immaterial damages and/or punitive damages. HAIL EUROPE is furthermore not liable in case of force majeure, as described in article 17 of these General Terms and Conditions.
16.8. HAIL EUROPE shall not be liable for damages concerning errors made because Customer or a third party has provided incorrect or incomplete information.
16.9. The Customer must report any damage for which HAIL EUROPE may be held liable to HAIL EUROPE as soon as possible, but in any case within ten (10) days of the occurrence of the damage, under penalty of forfeiting any right to compensation for the damage.
16.10. Customer's rights of action arising from the Agreement and other powers vis-à-vis HAIL EUROPE, in deviation from the statutory limitation periods, shall lapse after the expiration of one (1) year after the damage for which the Customer holds HAIL EUROPE liable first manifested itself, and shall in any event lapse after the expiration of three (3) years after the occurrence of the damage-causing event.
Article 17. Force Majeure
17.1. Circumstances beyond the will and control of HAIL EUROPE, whether or not foreseeable at the time of entering into the Agreement, which are of such a nature that compliance with the Agreement can no longer reasonably be required of HAIL EUROPE, shall be considered force majeure, irrespective of whether permanent or temporary, and shall release HAIL EUROPE from its obligations to perform.
17.2. Force majeure includes in any case: War, riots, natural disasters, pandemics, storm damage, fire, earthquakes, floods, abnormal weather conditions, snow, snowfall, frost, ice conditions, strikes, lockouts or lack of personnel, deficiencies in auxiliary and transport means, shortage of raw materials and nutrients and/or deficiencies in the delivery thereof (including any unreasonable price increases as a result), problems at sea, traffic impediments, theft of goods, breakdowns in electricity supplies, internet connections and cable, telephone or other communication networks such as e-mail, default of third parties engaged by HAIL EUROPE, as well as all impediments caused by governmental measures. Force majeure on the part of suppliers (overseas) of HAIL EUROPE as well as delivery problems in case of so-called difficult to deliver addresses also fall under this force majeure provision.
17.3. In case of force majeure HAIL EUROPE has the right to terminate the Agreement, in whole or in part, without judicial intervention and without Customer being entitled to claim damages.
Article 18. Intellectual property rights
18.1. Customer acknowledges that HAIL EUROPE is the owner of, and thus shall exclusively license all intellectual property rights, including patents, copyrights, designs, models, domain names, trademark rights, trade names, photographs, know-how and all other commercial rights and trade secrets, documents, etc. in relation to the Products. There shall be no transfer of any intellectual property rights whatsoever to the Customer, unless explicitly agreed otherwise In Writing. The foregoing also applies to Products designed and/or developed in particular for the benefit of the Customer.
18.2. Except with the express In Writing permission of HAIL EUROPE, the Customer is not permitted to use, let alone adapt, remove and/or modify HAIL EUROPE's intellectual property rights. In the event that HAIL EUROPE grants Customer permission to use its intellectual property rights, Customer shall at all times ensure that no damage is caused to the distinctiveness, reputation, validity and/or goodwill of such intellectual property rights of HAIL EUROPE. Customer is further prohibited from registering trademarks identical or similar to HAIL EUROPE's trademarks, which may cause confusion among the public or mislead the public.
18.3. Customer shall promptly notify HAIL EUROPE In Writing of any infringement or potential infringement of HAIL EUROPE's intellectual property rights that has come to its attention. The decision to take legal action against the aforementioned infringements shall at all times be reserved to HAIL EUROPE.
18.4. The Website and all parts thereof, with the exception of certain hyperlinks, are the property of HAIL EUROPE. You may not disclose, copy or store the Website or any portion thereof without the express In Writing permission of HAIL EUROPE. This permission is not required for personal, non-commercial use.
18.5. In the event the Customer breaches one or more provisions of this article, the Customer shall be liable to pay HAIL EUROPE an immediate penalty of € 10,000.-- (in words: ten thousand euros), payable without further notice of default, plus a penalty of € 1,000.-- (in words: one thousand euros) for each day the breach continues. HAIL EUROPE shall be entitled to claim additional damages if the damages exceed the penalty amount.
Article 19. Privacy and Data Protection
19.1. HAIL EUROPE is the responsible party for processing Customer's personal data in view of the General Data Protection Regulation.
19.2. HAIL EUROPE's privacy statement applies to the processing of Customer's personal data and can be found on the Website.
Article 20. Applicable law and disputes
20.1. The Agreement and its legal consequences are exclusively governed by Dutch law. The applicability of the Vienna Sales Convention is expressly excluded. This also applies if an obligation is wholly or partly performed abroad or if the Customer has its registered office abroad.
20.2. If the Customer is located within the European Economic Area (hereinafter: ''EEA''), all disputes arising from or relating to the Agreement and all resulting agreements to which the General Terms and Conditions apply between Parties shall be settled exclusively by the District Court of Noord-Holland, location Alkmaar (the Netherlands).
20.3. If Customer is not located within the EEA, all disputes arising from or related to this Agreement and all resulting agreements to which the General Terms and Conditions apply between Parties shall be settled exclusively in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (NAI). The arbitral tribunal will consist of one arbitrator, who will be appointed according to the list procedure. The place of arbitration will be Amsterdam. The proceedings will be conducted in English and the arbitral tribunal will decide according to the rules of Dutch law.
Article 21. Amendment and interpretation of the General Terms and Conditions.
21.1. The General Terms and Conditions are subject to amendment and modification. Any future amendments and modifications shall also apply with respect to Agreements entered into prior to the date of amendment and modification, unless expressly agreed otherwise In Writing.
21.2. Amendments and modifications shall enter into force twenty-one (21) days after publication, unless otherwise stated upon publication.
21.3. Deviation from the General Terms and Conditions may only be made by provision in the Agreement. If there is a conflict between the Agreement and the General Terms and Conditions, the terms of the Agreement shall prevail.