Algemene voorwaarden

Homar General Conditions of Sale

Clause 1 – General

• Homar B.V. (hereinafter referred to as: ‘Seller’) is registered at the Chamber of Commerce under no. 08128102 and has its registered office and principal place of business at Marconiweg 15 in (8071 RB) Nunspeet, the Netherlands.
• ‘Conditions’ means these Homar General Conditions of Sale.
• ‘Puchaser’ shall entail anyone who purchases goods and/or services from the Seller or concludes a different agreement with the Seller.
• ‘Agreement’ means the agreement and/or subsequent agreements between the Seller and the Purchaser.
• ‘Equipment’ means all the goods to be sold and/or supplied by the Seller to the Purchaser within the meaning of Article 3:2 of the Dutch Civil Code (hereinafter referred to as: ‘DCC’).
• ‘Terminate’ means (in Dutch) ‘opzeggen’.
• ‘Set aside’ means: (in Dutch): ‘ontbinden’.
• ‘Consequential Damage’ means, inter alia, loss of profit, loss of business, loss of use, loss of production, loss of contract or economic loss, penalties imposed by governments or any enforcing authorities or any other indirect or consequential losses or damage.

Clause 2 – Applicability

• All quotations issued by and all Agreements concluded between the Seller and the Buyer regarding the sale and delivery of Equipment and/or services rendered by the Seller are exclusively subject to these Conditions. The applicability of any general terms and conditions used by the Purchaser is hereby expressly rejected.

Clause 3 – Conclusion of the Agreement

• An Agreement between the Seller and the Purchaser is only concluded after the Seller has confirmed the Purchaser’s order by means of a written (sales) confirmation by an authorized person or after the Seller has started the performance of the Agreement.
• With respect to the content of the Agreement between the Seller and the Purchaser, only what is referred to or stated concerning the Agreement in the (sales) confirmation of the Seller and in the Conditions shall be decisive.
• Any modification requested and/or agreed to the Agreement can only be effected in writing and undersigned by both the Seller and the Purchaser. This provision qualifies as an agreement as to the burden of proof in the sense of Article 153 Dutch Code of Civil Procedure and Article 7:900 sub 3 DCC. Following from the foregoing, evidence of an agreed modification between the Seller and the Purchaser can only be produced by a written statement as referred to above; all other written statements and/or witness testimonies regarding an agreed modification effected by oral statements and/or any other actions have been excluded as evidence.

Clause 4 – Prices

• Prices indicated on quotations and price charts of the Seller do not include taxes and other levies, unless otherwise agreed. The Seller is entitled to charge taxes, import duties, levies and other taxes imposed by the authorities, or increases thereof, whether or not known and/or applicable at the time of conclusion of the Agreement.
• The prices in quotations are based on the delivery term stipulated in the Seller’s (sales) confirmation. In the absence of such stipulation the rate is based on the EX Works value.
• In the event of changes to prices and/or (other) factors that determine prices, such as exchange rates, wages, taxes, import and export duties, expenses, freight and the like change after an offer from the Seller or an order from the Purchaser, the Seller shall in all cases be entitled to adjust the prices in accordance with and with regard to the mandatory provisions in this case.

Clause 5 – Payment

• The Purchaser shall pay the agreed price, the taxes and other charges within fourteen (14) calendar days of the invoice date, unless explicitly agreed otherwise in writing.
• All – actual – legal and other costs (of proceedings) incurred by the Seller, arising from or relating to incorrect or untimely fulfilment of obligations by the Purchaser, including but not limited to court costs and reasonable lawyers’ fees, shall be entirely at the expense of the Purchaser.

Clause 6 – Retention of title and transfer of ownership

• All Equipment, including the delivered documents, to be and already supplied by the Seller shall remain the exclusive property of the Seller until the Purchaser has fulfilled all its obligations towards the Seller with respect to the corresponding, previous and subsequent Equipment supplied by the Seller, activities performed or yet to be performed, as well as with respect to the (future) claims by the Seller against the Purchaser due to (future) failure by the Purchaser to fulfil its commitments towards the Seller (including costs and interest).
• The Purchaser is not entitled to encumber or to sell the Equipment in any way or to remove it in any other way from recovery by the Seller, until ownership has been transferred in accordance with Clause 6.1.
• The Purchaser is required to treat Equipment that has been supplied subject to retention of title with care and retain them as identifiable property of the Seller, until ownership has been transferred.
• If the Purchaser is negligent in complying with its payment obligations to the Seller, or if the Seller has reason to fear that the Purchaser will fail to fulfil these obligations, the Seller shall – irrespective of any other legal remedies available – be entitled to retrieve the Equipment supplied subject to the retention of title immediately, without prejudice to the Seller’s right to claim damages.

Clause 7 – Risk and delivery

• The risk of the Equipment shall pass to the Purchaser at the moment of delivery, unless the applicable Incoterm stipulates otherwise.
• The delivery will take place if the Equipment is made available by the Seller to the Purchaser. In the event of transport, the delivery will take place if the Equipment is made available by the Seller to the first carrier or, if according to the Agreement the transport is for the risk of the Seller, at the moment when the Equipment is made available (and/or delivered) to the Purchaser in accordance with the applicable Incoterm.
• The Seller does not guarantee that the Equipment will be delivered on the agreed delivery date. In the event of delayed delivery, the Seller needs to be put in default in writing and will subsequently be granted an additional period of six (6) weeks to still comply.

Clause 8 – Transport documents and other documents

• The Seller’s copy of the transport document signed without observations by the carrier is full proof of shipment of the quantities stated on the transport document, as well as of the externally good state of the Equipment.
• All costs caused by or resulting from the preparation and delivery of the required documents for the performance of the Agreement are at the Purchaser’s expense, unless expressly agreed otherwise.
• All works and/or services provided by the Seller in respect of (arranging) import and/or customs documents, including but not limited to arranging and/or providing a certificate of origin and/or an EUR.1 certificate – which obligation, if agreed upon, will qualify as an obligation to use reasonable efforts – will be entirely at the Purchaser’s risk. The Seller cannot guarantee the correctness of these documents. Any and all liability of the Seller to these works and/services, and irrespective of the legal basis of the claim, is explicitly excluded.

Clause 9 – Inspection, complaints and (sole) legal remedies available by Purchaser

• The Seller will provide the Purchaser with the opportunity to inspect the quality and quantity of the Equipment or services prior to delivery. The Purchaser is required to inspect the quality and quantity of the Equipment or services prior to delivery. The Purchaser is required to report and confirm any defect it discovers to the Seller in writing ultimately three (3) days after delivery, together with pictures of the relevant Equipment (or services) and a description of the nature and scope of the defect. In case the Purchaser is in breach with regard to its obligation to investigate and/or its obligation to complain – burden of proof for performing both obligations (timely) resting upon the Purchaser – the Equipment and/or services will be deemed to have been delivered and/or performed in conformity with what has been agreed and any and all claim rights related to and/or based on any (alleged) defect(s) – whether related to the Equipment or services rendered – will be lapsed/forfeited (Dutch: vervallen).
• Any and all liability of the Seller – irrespective of the legal basis of the claim of the Purchaser – for (hidden) defects discovered and/or notified after expiry of the specific term(s) included in Clause 9.1 has been excluded.
• All certificates issued in the country of origin, which are usually deemed sufficient proof for importers with regard to the quality and/or condition, are also deemed sufficient proof of the quality and/or condition for the Purchaser. No counterevidence will be permitted.
• In case of a defect discovered and notified by the Purchaser in accordance with Clause 9.1 the Seller shall refund the purchase price (if payment has already been made). Prior to any refund and upon Seller’s request, and if applicable, the Purchaser is required to return to the Seller the Equipment in its original condition within fourteen (14) days of such request and at its own expense and risk.
• The Purchaser, after discovering any defects, may no longer use or sell the Equipment and/or services. Should the Purchaser do so nonetheless, any and all claim rights related to and/or based on any (alleged) defect(s) will be lapsed/forfeited. The same applies to Equipment that has been altered and/or made into (a) new item(s), or supplied to a third party, by the Buyer.
• The Seller shall not be required to refund the purchase price, if the defective Equipment has not been provided to the Seller on time, and/or the Purchaser has not strictly observed the instructions for storing the Equipment delivered (if any).
• The Purchaser is authorized to set aside the Agreement only in case the referred to in Clause 7.3, i.e. after the additional period of six (6) weeks has been expired without the Seller complying the delivery. The Purchaser waives any and all other rights it has or might have to (partly) set aside the Agreement, be it in whole or partially (and the Seller accepts this waiver).

Clause 10 – Quantities, dimensions, weights and further details

• Minor deviations compared to the specific quantities, dimensions, weights, colors and other such details shall not be regarded as defects and/or shortcomings of the Seller.

Clause 11 – Liability of the Seller

• Seller’s liability in connection with any defects in and/or related to the Equipment or services provided, if any (see Clause 8.3), by means of sole and exclusive remedy is limited to claiming performance of the obligation resting upon the Seller pursuant to Clause 9.4.
• Except in case of intent (opzet) or wilful recklessness (bewuste roekeloosheid) of the Seller, the Seller shall not be responsible or liable to the Purchaser in contract, tort or on any other ground or legal theory, whatsoever and whatever the cause thereof, for any direct, indirect, consequential or any other losses, damages, costs or expenses, all including but not limited to loss of time or loss earnings. The terms ‘intent’ or ‘willful recklessness’ of the Seller shall mean the intent or willful recklessness of the organs of the Seller (organen van de vennootschap), its managers (leidinggevenden), and/or other managerial or executive employees (de leidinggevende ondergeschikten).
• The Purchaser hereby waives (and the Seller accepts this waiver) its right to wholly of partially amend (wijzigen), terminate (opzeggen), suspend (opschorten) and/or annul (vernietigen) the Agreement, and/or its right to set off, to the extent allowed under the applicable law. Purchaser’s right to set aside (partly) the Agreement is limited to Clause 9.7.
• In the event that it is established by the competent court or arbitral tribunal that the Seller is, despite the provisions in Clauses 11.2 and 11.3, still liable for any of the damages meant in Article 11.2 or in case it still establishes an obligation resting upon the Seller to pay and/or refund an amount to the Purchaser, and irrespective of the legal basis of such obligation, the amount(s) to be paid by the Seller to the Purchaser will in total never exceed the invoice/order amount.
• Any claim which the Purchaser may have against the Seller shall be deemed to have been irrevocably withdrawn and/or have lapsed if proceedings in respect of such claim have not been issued and served on the Seller within twelve (12) months after delivery and the Seller shall have no liability howsoever arising whether in connection with the Agreement.

Clause 12 – Indemnification

• The Purchaser hereby fully indemnifies (vrijwaren) the Seller and holds the Seller harmless from and against any third party claim(s), such as, but not limited to, tax claims, civil claims, claims related to an infringement of intellectual property rights, social security laws related claims, levy on import claims and/or claims for damages (penalties, whether or not imposed by a government body or any party affiliated with the government, included) and/or from and against any other third party claim, insofar as these claims relate to the Agreement, further agreements and/or (other) contractual documents or shall be based upon the law and/or any other (legal) ground or theory.

Clause 13 – Force majeure

• In addition to (and independently of) the statutory definition the following events will anyhow qualify as force majeure on the part of the Seller: bans on transport, government measures including import and/or export restrictions and sanctions, industrial actions, sit-down strikes, absenteeism due to sickness of staff, epidemics or pandemics, transport problems, IT and software failures, turmoil, (threats of) acts of war, fires, sales prohibitions, anything at the Seller or at its vendors as well as breach of contract by the suppliers of the Seller that renders the Seller unable to (continue) fulfil(ling) its obligations towards the Purchaser.
• If the force majeure situation lasts for more than sixty (60) calendar days and if the Equipment has not yet been delivered, both parties will be entitled to set aside in writing the Agreement in full or in part, without being obliged to pay compensation for that reason.

Clause 14 – Suspension, termination and setting aside the Agreement and setoff

• If the Purchaser does not, not in time or not adequately fulfil one or more of its obligations or is there are good reasons to fear that Purchaser is or shall not be able to fulfil its contractual obligations towards the Seller, or is the Purchaser is declare bankrupt, requests (temporary) moratorium (surcéance van betaling aanvraagt) or proceeds to liquidate its business, as well as when its assets are attached in whole or in part, the Seller to its sole discretion either has the right to suspend its performance under the Agreement or to set aside the Agreement in whole or in part by means of a written notification and without prior notice of default or to terminate the Agreement, always without prejudice to any rights to which the Seller is entitled with respect to compensation for costs, damage and interest.
• In the event of termination or setting aside the Agreement by the Seller, the Seller is entitled at its election, to:

1. the negative difference between the contract price of the Agreement and the market value of the Equipment in question on the day of the non-performance, or;
2. the difference between the contract price of the Agreement and the price of the covering/subsequent sale, without prejudice to the Seller’s right to additional compensation.
   • The Seller shall in all cases be entitled to set off all claims from the Purchaser against the Seller with a monetary value against claims from the Seller and companies that are affiliated with the Seller, with the Purchaser. If the Purchaser is in any way part of a group of companies, the Purchaser shall also be considered in the sense of this clause as all companies belonging to that group in any way.

Clause 15 – Transfer of rights

• The Seller may at any time transfer its rights and/or duties arising from the Agreement with the Purchaser entirely or in part to a third party or offer them as security in some way, for which the Purchaser already grants permission in such an event.
• Unless otherwise agreed the Purchaser can only transfer the rights and/or obligations under the Agreement with Seller’s prior written consent.

Clause 16 – Intellectual and/or industrial ownership rights

• All intellectual and/or industrial ownership rights, of both the Seller and its vendors, on all Equipment supplied or services rendered, shall be retained by the Seller and/or will not be transferred to the Purchaser. The Purchaser agrees not to violate or infringe upon these rights in any way, directly or indirectly, through use or in other respects, and acknowledges the Seller as the entitled party in the matter. The Seller will not be liable for damages that the Purchaser suffers as a result of an infringement of a third-party intellectual property rights.

Clause 17 – Applicable law and jurisdiction

• All legal relationships following from or relating to any offers from the Seller, these Conditions and/or the Agreement(s) will be governed by Dutch law. The applicability of the CISG (United Nations Convention on Contracts for the International Sale of Goods) has been excluded.
• Any dispute arising out of or in connection with any offer of the Seller, these Conditions and/or the Agreement(s) between the Seller and the Purchaser, or further agreements resulting therefrom, shall be settled exclusively (i) before the District Court of Rotterdam, the Netherlands, if the Purchaser has its statutory office in the European Economic Area or (ii) in accordance with the UNUM Arbitration Rules, place of arbitration Rotterdam, the Netherlands, if the Purchaser has its statutory office outside the European Economic Area. Arbitral proceedings, if any, shall be conducted in English. The arbitral tribunal will then be composed of one arbitrator.