GENERAL TERMS AND CONDITIONS OF HDW NEDERLAND B.V. WITH ITS
REGISTERED OFFICE IN HEINENOORD AT ROOISCHAAR NO 6, FILED AT THE
CHAMBRE OF COMMERCE OF ROTTERDAM DATED 05 FEBRUARI 2007.
GENERAL TERMS AND CONDITIONS
General
These terms and conditions are applicable to all our offers, orders, contracts of sale, rental and lease
agreements, supplies of goods, and all cases in which services are performed by us, repairs included.
Any deviations from these terms and conditions shall be valid only if and to the extent that they are
confirmed in writing by our Executive Board and only for the purpose of the agreement in which
contrary stipulations were made.
Our company shall observe due diligence in executing all orders of its clients, thereby taking into
account their justified interests to the best of its ability.
For the purpose of the following, "us" is taken to mean "our company" in its capacity of offerer, seller,
lessor, supplier, contractor, executor, repairer, and the like.
We are always entitled to amend or supplement these terms and conditions. Principal shall be informed
by us on this matter. However, amendments or supplements shall not be applicable to agreements that
were concluded prior to such amendments or supplements.
Offers and agreements
All our offers, tenders and quotations are always non-binding and shall be made on the basis of the
prices and specifications prevailing at the time of the order.
Contracts of sale and rental and lease agreements shall be established, like amendments and additions
thereto, after our Executive Board has approved and/or endorsed the agreements.
Each agreement shall be concluded by our company on the condition subsequent that the principal turns
out to be sufficiently solvent; if our Executive Board so desires, the principal shall provide proper
security for fulfilling his obligation.
In this case and also in the event that the legal form of the principal is changed after the purchase
agreement has been established, only we, and not the principal, are entitled to wholly or partly dissolve
an agreement, without any intervention of the court being required, while we are not bound to pay any
compensation to the principal.
The seller and/or lessor shall not be liable for any errors and deviations from representations, drawings
and statements of measurements and weights, appearing in price-lists and for offers and/or order
confirmations. They are deemed to have been provided approximately; drawings and the like shall
remain his property and may not be copied or furnished to third parties without his permission.
Any additions and/or contrary undertakings rendered at a later date shall be valid only to the extent that
our company has confirmed them in writing.
Deviations with reasonable tolerance shall not grant the other party the right of recovery, compensation
of damage or any other right.
Terms, Delivery Times and Force Majeure
Delivery times and repair times are non-binding and shall be stated only approximately, unless expressly
agreed otherwise in writing. Terms stated shall be from the date of the purchase agreement, the delivery
order or the rental agreement.
If a term stated, other than through force majeure, is exceeded by more than three months, the principal,
after a written notice of default by stating a reasonable last term, shall be able to cancel the order.
For the remainder, the following shall apply:
In case of suspension by exceeding specified delivery time or repair time for any reason whatsoever, the
principal is never entitled to dissolve the agreement, either in part or as a whole, or have same dissolved,
nor shall he have a right to compensation. Nor has the principal the right to refuse the performance by us
or payment to us.
Force majeure shall release us from any contractual and other obligations of any nature or by any reason
whatsoever.
Force majeure shall be taken to mean:
(civil) war and insurrection, also outside the Netherlands; epidemics; fires and other interruptions of
operations in our company or the company of suppliers; delay in the supply of goods; cessation of the
production of the sold model, or the (ongoing) default of suppliers with regard to goods ordered by us or
activities assigned to us; transportation problems, strikes, exclusion, stoppage; theft or embezzlement
from our warehouses or workplaces, including theft and/or damage and/or loss of any object given in
repair or in store, and/or during transportation and similar circumstances and events; as well as any
circumstance hampering the normal business operations of our company, as a result of which fulfilment
of the agreement cannot in reasonableness be demanded from us.
If any interim changes are made to a purchase and/or order to carry out activities or the execution is
delayed by circumstances attributable to the purchaser, the delivery time or performance of activities
shall be extended by the duration of the additional activities necessary as a result of these changes or of
the suspension.
In case of termination of the agreement by us, said agreement shall be dissolved by operation of law
without any judicial intervention being required. Any instalments already paid shall then, if no activities,
supplies, etc. have taken place, be refunded by us to the principal.
Delivery
Delivery shall be effected ex company; if delivery elsewhere has been agreed upon with the principal,
the additional costs involved shall be for the account of the principal, unless expressly agreed upon
otherwise in writing.
The risk of the goods shall pass to the principal at the time that the goods have been set apart for the
purpose of the principal in our companies or elsewhere.
The goods shall always be conveyed for the account and risk of the principal.
The delivery shall be deemed to have taken place as soon as we have informed the principal that the
goods can be picked up as from a specific date. At the time of the aforesaid notification, the principal
shall be liable to pay our company.
The principal shall be bound to pick up the goods within one week after the aforesaid notice, unless he
has made a contrary arrangement with our Executive Board in writing. If the goods are not picked up
within this term, the principal, notwithstanding the provision under "attributable shortcoming in
fulfilment", shall be bound to pay an amount of storage charges to be established by us. Moreover, we
shall be entitled to arbitrarily sell the goods in accordance with the provisions for the attention of
retention of title, if the principal after a repeated written notice is in default of picking up the goods,
without prejudice to our rights arising from the provisions under "attributable shortcoming in
fulfilment".
Upon delivery of the goods, the goods are not insured by us and any road-tax due has not been paid by
us.
If no further directions were given to us by the principal, the manner of packing, transportation, and the
like shall be determined by us with due care, without bearing any liability in this regard.
Prices
Our prices are net prices. No deductions or discounts can be applied, unless agreed otherwise and
confirmed in writing by our Executive Board.
If after the entering into the agreement prices of materials, raw materials and semi-manufactured
articles, wages, premiums, levies and other rights, carriage, taxes, exchange rates and/or other factors
that help fixing the price of the goods or services, including prices that are charged to us by our
suppliers, are changed, we shall be entitled to adjust our prices accordingly. Such a price adjustment
shall never give the principal the right to dissolve the agreement and/or cancel the delivery order. In
consumer agreements, in which an interim increase is applied by us within three months after the
agreement has been entered into, our principal is expressly given the chance to invoke dissolution of the
agreement.
If at the request of principals or due to the lack of data or instructions or other causes on the part of the
principal the execution of the order is delayed, all prices of our company shall be increased by the
additional costs, including loss of interest, incurred by our company as a result.
When we offer goods for sale upon payment in other foreign currency, we shall reserve the right to pass
on price-increasing exchange rate movements of the Euro in respect of that currency to the principal, as
long as these goods have not yet been delivered.
Payment
Unless otherwise agreed upon in writing, payment is to be effected in cash to our company or into a
bank/giro account to be determined by us upon the delivery of the goods or immediately after
performing services, without any discount or right to compensation being allowed.
We shall always be entitled to demand from the principal full or partial payment in advance of or down
payment of the agreed amount.
In case of purchases or rent on account, which shall take place only after prior written permission of our
Executive Board, payment shall be due within 14 days after the date of invoice.
We are entitled to suspend the fulfilment of our obligations if the principal has failed to pay the purchase
price due.
Attributable shortcoming in fulfilment
If the principal has not picked up the goods within one week after the notice referred to under "delivery"
sub 3, if he has not or not duly or only partially fulfilled his payment obligations, or fails to fulfil any
other provisions of the agreement concluded with him or if he fails to fulfil these terms and conditions
completely or in a timely manner, and if his goods are seized, if he files a petition for a suspension of
payments or a bankruptcy petition, dissolution of the agreement entered into between parties shall be
effected forthwith on that date via a written notice to the principal. In that case the amount payable to us
by him shall be immediately exigible in full – regardless of any previous engagements regarding the
manner of payment – including an increase of 15% of the total gross invoiced value of the goods
delivered or to be delivered without prejudice to our right to suspend the execution of the agreements
still in effect and/or dissolve said agreements fully or partially, such at our discretion, after written
notice to the principal without any obligation to pay compensation to the principal.
If the principal is in default of fulfilling his payment obligations in full or in a timely manner, he shall
owe us interest of 1.5% per month on the outstanding amount, without prejudice to the provisions in the
previous paragraph, to be calculated from the date of invoice until the date of full payment.
If the principal is in default, all expenses and costs, both judicial and extrajudicial, including the costs of
legal assistance provided to our company shall be for his account – such without prejudice to the
increase of 1.5% referred to sub paragraph 1 – with a minimum of 15% of the principal sum plus the
turnover tax due.
Retention of title
If the goods have been supplied before the relevant invoice, payable or not, has been paid to us in full by
the principal – in some cases increased by costs and/or expenses – these goods shall remain our
property, until the date of full payment.
As long as the payment of the goods has not been made in full, the principal shall not have the right to
alienate or encumber the goods, give said goods in non-possessory pledge, lease, pledge or allow third
parties to use same on loan however described or in any way bring them outside his company. Nor shall
the principal have the right to not leave the goods in their original form, or to change them through
specification, accession or confusion of property.
As long as the goods are our property pursuant to the provisions in the previous paragraph, the principal
shall be obliged to sufficiently insure these goods against fire, theft, claims of third parties and own risk
for his own account. The principal shall be obliged in some cases to transfer his rights arising from the
insurance policy concerned to us. Upon first request, the principal shall specify for us the insurance
company involved.
In case of attributable shortcoming in fulfilment, as described, we are entitled to take back our goods,
after written notice to the principal that the agreement has been dissolved and to retain them with the
right to sell. If these goods have been processed into a new product by the principal contrary to the
above, the principal shall be bound to immediately pay compensation in full.
In the aforementioned case the purchaser shall be obliged to notify us in writing, if third parties invoke
(alleged) rights to goods subject to retention of title as stated.
Guarantee
We guarantee new goods supplied by us insofar as the manufacturer's guarantee and/or that of our
suppliers sees to it;
We shall not be liable to the principal, except insofar as it ensues from the guarantee provided pursuant
to paragraph 1. In respect of damage arising either directly or indirectly from the use of the goods
supplied or repaired by us, unless caused by own intent and/or gross negligence on our part, we shall
never be liable, such, however, subject to stipulations of mandatory law regarding (product) liability,
such in particular if the damage was caused by ignoring directions on our part, inexpert/careless actions,
repairs carried out by others and use outside normal business operations. The principal shall be obliged,
on pain of expiry of our guarantee clause mentioned in the previous paragraph, to notify us immediately
upon finding a shortcoming by registered letter. He shall also be obliged to keep the faulty part and
return it to us (post-paid), if we so desire.
Costs of repairs and/or materials, which may fall under the guarantee provided by us shall be paid
inclusive of additional costs immediately and in accordance with the provisions under "payment".
Restitution shall be granted in case of acceptance of the guarantee claim by the manufacturer and/or
supplier and up to an amount not exceeding the amount thus reimbursed to us.
Our guarantee obligation shall lapse if the principal fails to meet his payment obligations. The principal
shall never be entitled to refuse payment to us for the reason that we have not yet (entirely) fulfilled our
guarantee obligations towards him.
No guarantee shall be provided on used goods supplied by us, unless expressly agreed upon and
confirmed by our Executive Board in writing.
Our liability is limited, save for provisions of mandatory law regarding (product) liability in case of a
failure to fulfil guarantee obligations, to the costs of repair/replacement by third parties, such, however,
only after proper notice of default stating a reasonable term.
Liability
Save for the generally prevailing laws of public order and good faith, as well as provisions of mandatory
law regarding (product) liability, we shall not be held to pay any compensation for loss, of any nature
whatsoever either directly or indirectly, to persons, to movable and/or immovable property, both with
the principal and with third parties. Any claim regarding consequential and/or loss of profits and/or
injury to persons located in, on or near that object, or carry out activities for that object is excluded. In
any case we shall not be liable for damage arising from or caused by the use of the object supplied or by
the unfitness thereof for the purpose for which the principal bought it. As from the time of delivery the
goods shall always and exclusively be for the risk of the principal (see "Delivery").
With due observance of the provisions stated in the above passage we, by simply collecting the goods
supplied by or on behalf of the principal, shall be indemnified against any claims of the principal and/of
third parties to pay compensation, regardless whether the damage was caused by manufacturing or
composition faults or by any other causes.
Nor are we liable for any damage whatsoever, caused to persons, goods, both movable and immovable,
or the (living) environment in the broadest sense, caused in connection with goods supplied by us and/or
activities carried out by us, such if said damage is caused by persons subordinate to us who are engaged
by us for the execution of the activities, on the condition that there is no intent or gross negligence.
Liability towards third parties
Liability towards third parties arising directly or indirectly from the presence and/or the use of goods
supplied by us shall always be for the account of the principal and he shall fully indemnify us in this
regard.
Liability, risk and insurance
The principal shall be obliged to insure the objects, on which or from which activities will be carried out
by us, against damage caused by fire or storm for his own account. We can never be held liable for
losses for that reason from the time that the goods were delivered.
Restriction of liability shall always be effective if and insofar our liability insurers grant mo coverage in
respect of damage, in the execution of the agreement(s), caused to us and/or to third parties.
Statutory regulations
The goods shall meet the statutory regulations applicable in the Netherlands to operation, transportation
and safety on the date that the agreement is concluded.
Should there be any amended statutory regulations between the date of the taking effect of the
agreement and the delivery and the commencement of operations, respectively, the relevant goods shall
be adjusted to these new regulations as soon as possible. Any costs connected hereto shall be for the
account of the purchaser. If we have any objections against the application of the amended regulations,
we shall be obliged to notify the purchaser on these objections.
If the purchaser – non-consumer demands that amended regulations be applied, he shall express this
wish to us in writing.
Repairs and Trade-in
Notwithstanding the other provisions, in case of repairs or trade-in of goods the following provisions
apply: When upon the purchase of a new "machine" on trade-in of a used "machine", the purchaser of
the new machine in anticipation of the delivery thereof continues to use the machine to be traded in, the
machine to be traded in shall become the property of our company, after actual delivery thereof to us has
taken place. Until that time all costs, losses and fall in value, as a result of the use, losses or lack of
maintenance, shall be for the account and risk of the purchaser of the new machine.
A change or increase of the agreed price of the new machine in accordance with the provisions sub
"prices" shall not result in a corresponding change or increase of the trade-in price, unless expressly
agreed upon in writing.
We are entitled to revised the agreed trade-in price in case of extension of the delivery time of a new
machine.
Repair and/or maintenance activities carried out by us and/or by third parties after we have outsourced
such activities shall be guaranteed by us during a period of three months calculated from the time of
completion of the activities, provided that the client in principle immediately after finding the fault, but
no later than eight days after this finding, reclaims and we are given the opportunity to remedy the fault.
Any claim to this guarantee shall lapse of third parties carried out activities without our knowledge and
permission that can be connected to the activities carried out by us previously in respect of which the
guarantee is invoked, unless the absolute necessity of immediate remedy has taken place and this can de
demonstrated by means of the data supplied by the relevant repairer.
Replaced materials or goods shall be transferred to the principal, if the principal expressly so requested
when giving the repair order. In all other cases the principal shall be deemed to have unconditionally
relinquished these materials and goods for our benefit, without being able to claim any compensation.
Assembly, Installation, Set-up and Commencement of Operations
All assembly, installation, set-up and commencement of operations activities, as well as all additional
activities, which are not part of the assembly, with due observance of the legal rules of public order and
good faith, except insofar as expressly agreed upon otherwise in writing, shall be for the risk and
account of the principal.
Lease-General
Lessor is always HDW Nederland B.V.
Lease shall always be effected on these terms and conditions and in writing by separate rental
agreement.
Lease-Price
The term of lease shall be working days of 8 hours; in the event of work at night and/or on Saturdays
and Sundays, this extra time shall be charged on the basis of the applicable rate.
Operation, daily maintenance and fuel have not been included in the rent. Non-use of the leased property
does not grant the right to reduction of the rent or suspension of the agreement, unless the non-use is the
result of a defect that according to these terms and conditions should be for the account of the lessor.
When a cost price component of the rent stated by the lessor is raised during the agreement (for example
materials, wages, turnover tax, and the like), the lessor may raise the rent proportionally; however, if
this happens within three months after the agreement has been entered into, the lessee shall be free to
cancel the agreement in writing. If an arrangement by the authorities forms an obstacle in this regard,
the lessor shall be entitled to prematurely terminate the rental agreement, without being obliged to pay
any compensation.
Lease-Delivery
Delivery shall take place ex company. The transportation of the leased property from and to our
company shall be for the account and risk of the lessee.
Lease-Term
The lease has been effected for the term stated in the rental agreement, whereby the date(s) on which the
leased property is transported to the lessee, or is transported back to the lessor, respectively, also count
as rent days. In case of a rental agreement for an indefinite period of time, both parties shall observe a
notice period of at least two working days. In case of a rental agreement for a definite period of time, the
lessee shall be obliged to notify the lessor as soon as possible where the leased property is available for
re-transportation, so that the lessor can make sure that the leased property can still be delivered to the
lessor before 6 p.m. on the last day of the rental agreement with the common means of transport. If the
leased property has not been returned after the lapse of the term of the lease, a new lease shall be
deemed to have been effected, for the same term and on the same terms and conditions unless the lessor
objects within one week after the lapse of the former lease.
Lease-Liability in case of damage
Through the receipt of the leased property the lessee shall be deemed to acknowledge that he received
the leased property in a good state of repair, fit the agreed use, and that he has taken cognisance of the
instructions regarding use and maintenance of the leased property. The lessor undertakes to repair or
replace the parts of the leased property that become defect, only as a result of faults in the material or of
the improper working thereof, on the condition that such a fault has been reported by the lessee
forthwith in writing. The obligation does not apply to the electric part of the leased property, and it shall
not apply either if the defect may have been caused by or in connection with circumstances caused by
the lessee, such as injudicious use of the leased property or use for another purpose than that, for which
the leased property was transferred, insufficient maintenance, use of unfit fuel, energy or lubricants,
overburdening, wrong placement or insufficient foundation of the leased property, wrong connection of
the voltage supply and further all cases in which the cause of the defect cannot be clearly established.
Save for the lessor's duty described above, which is expressly limited to the damage caused to the
relevant part itself, the lessor and his personnel shall never be liable for damage caused to, by, or in
connection with the use of the leased property, except for provisions of mandatory law regarding
(product) liability, and also with due observance of the legal rules of public order and good faith.
Save for the lessor's duty described above all risks of the leased property and all costs of the same
maintenance or repair shall be for the account of the lessee during the lease. The lessee shall be liable
for all damage caused to or by or in connection with the use of the leased property, by whatever reason,
regardless whether such damage was caused by the lessee, third parties or by force majeure or by any
either or not hidden defect in the leased property, subject to provisions of mandatory law regarding
(product) liability. The lessee shall indemnify the lessor and his personnel against claims of third parties
in respect of such damage.
If damage arises on the part of the lessee as a result of actions and/or omissions of the lessee and the
lessor is liable, such damage payable by the lessor shall never exceed the rent. In case of damage,
caused to or by the leased object, the lessee shall be obliged to immediately notify the lessor hereof by
phone and in writing and as soon as possible thereafter submit to the lessor the testimonies of witnesses
and/or other documents pertaining to the event. The user of the relevant machine should have the police
immediately draw up an official report of the event to the extent possible.
Lease-Return
If it should turn out after the lapse of the rental agreement that a change has taken place in the state and
condition of maintenance of the leased property, the lessee shall be allowed to restore the leased
property to its original state and condition of maintenance within 14 days after termination of the rental
agreement, in default of which the lessor shall have this carried out for the account of the lessee, such
with compensation by the lessee on account of loss of the use of the leased property during this term and
the time involved in repairing or repurchasing the lost items.
Lease-Terms of use
The lessee is obliged to carefully use the leased property in accordance with its destined use and to
strictly follow the instructions given by the lessor with regard to the use and maintenance. The lessee
shall not alienate or encumber the machines and shall return them upon termination of the rental
agreement due to lapse of time or otherwise in the same state and condition of maintenance as delivered
to the lessee, normal wear and tear excluded, in default of which the lessee shall forfeit an immediately
payable penalty of ‡ 6,807,-- without demand letter, notice of default and/or judicial intervention
without prejudice to the duty of the lessee to pay damages and costs of repair.
The lessee shall not make or tolerate changes in or to the leased property without prior written
permission of the lessor.
A returned machine shall be deemed to be leased, until damage, lack of maintenance and changes have
been remedied and the costs of repair have been paid.
The use of the machines in an aggressive environment, such as in case of beam-, metallisation and/or
spray gun activities is prohibited, unless the machines are adequately protected against this through
covering and express permission has been granted by the lessor. Any damage caused by incorrect
activities, shall in some cases be for the account of the lessee, as well as the damage caused by improper
operating, wrong placement, intent or negligence, caused by actions and/or omissions on the part of the
lessee, during the term of the lease, at least for the period that the leased property is for the account and
risk of the lessee.
For this purpose the term of the lease is deemed to continue until the damage has been remedied and the
costs of repair have been paid. The lessee guarantees towards the lessor and expressly undertakes to
indemnify the lessor against any damage, suffered by the lessor due to the loss of or damage to the
leased property, death of third parties, injury of third parties or damage to property of the lessor, lessee
and/or third parties as a result of – fully or partially – the use or the state of the leased machine or parts
thereof, while they are in the hands or under supervision of the lessee. The lessor shall never be held
liable for damage due to the falling out of a machine. The lessee shall not allow third parties to use the
leased property without written permission and/or sub-lease the leased property.
Maintenance, making changes and/or performing repairs may only be effected by the lessor, unless the
lessee has been given written permission to himself carry out activities or have said activities carried out
by third parties.
The lessee shall ensure that beaconing and lighting are provided and maintained, as required, given the
situation on the site and any police regulation prevailing at that location.
Lease-Replacement
The lessee shall be entitled at all times to replace the leased machine by another machine of the same
type.
The new machine shall be deemed to replace the replaced machine.
Lease-Dissolution
The rental agreement may be dissolved by the lessor without judicial intervention via a written notice to
the lessee for this purpose – without prejudice to the lessor's ability to demand compensation – if the
lessee:
1. acts in conflict with the agreement concluded or with any part thereof;
2. in the opinion of the lessor makes injudicious use of the leased property;
3. files a petition for a suspension of payments, is declared to be bankrupt or a bankruptcy order is
filed, or the leased property is seized against the lessee, either or not rightfully;
4. is placed under tutelage, dies, winds up or alters the legal form of his company;
If the lessor declares that the agreement is dissolved on the above grounds, for which no demand letter
and/or notice of default is necessary, all agreed instalments shall be immediately payable without
demand letter and/or notice of default.
Lease-Payment, Attributable Shortcoming in Fulfilment, Severalty
In case of untimely payment the lessee shall owe interest of 1.5% per month on the amount not paid in a
timely manner, calculated from the due date, and also an amount of extrajudicial collection costs of 15%
of the principal sum due, plus the turnover tax due on this amount as from the date that the claim is
given to a third party for recovery.
If several persons and/or companies are referred to with the lessee, they shall be jointly and severally
bound to observe all duties arising from the rental agreement.
Disputes, Applicable law, Competent Court
Any disputes arising from or connected to agreements with our company – in the broadest sense – shall
be exclusively settled by the ordinary Court, unless parties expressly agree otherwise in writing.
All agreements with the company shall be subject to the law of the Netherlands and said agreements are
only subject to the law of the Netherlands, unless expressly agreed upon otherwise.
The Court in Rotterdam has exclusive competence to take cognisance of the aforesaid disputes also
regarding the request for permission with regard to protective measures in the broadest sense, even if the
other party does not have its registered office and/or place of residence within the district of Rotterdam.
In proceedings before the subdistrict court, however, only the subdistrict court that has jurisdiction to
take cognisance of the aforesaid dispute, shall take cognisance of the case.