General Terms and Conditions of HBX Deco B.V., Herenweg 100, 2201 AL Noordwijk, the Netherlands, as filed with the Court and the Chamber of Commerce under number 27280927 (hereinafter referred to as ‘HBX Deco’).

 

Article 1: General

  • These general terms and conditions apply to all contracts concluded by HBX Deco of Noordwijk, the Netherlands, with a counterparty practising a profession or operating a business. The parties are entitled to agree terms and conditions at variance from these general terms and conditions, but such variations apply only if made in writing.
  • The contracts referred to in the first paragraph of this article consist of any contracts concluded by HBX Deco, and specifically of contracts of sale.
  • Unless HBX Deco has given its explicit consent in writing, a counterparty to a contract with HBX Deco is not entitled to assign to a third party the rights and obligations ensuing from the said contract.
  • HBX Deco does not accept a general reference made by a buyer to its own terms and conditions. Such a reference does not affect the exclusive applicability of these general terms and conditions.
  • Any general terms and conditions drawn up by the counterparty do not apply.

 

Article 2: Offers

  • All offers are made by HBX Deco without obligation, unless a fixed term for acceptance is specified in the offer in question.
  • HBX Deco may not be compelled to supply goods for the price stated in the offer if the offer contains an apparent typing or printing error.
  • In the event of orders placed by telephone and/or email, HBX Deco is not liable for the consequences of any erroneous deliveries and/or invoices resulting from the telephone call and/or email message in question. The above is not affected by any written confirmations of orders placed by telephone and/or email such as are received after the date on which the goods ordered by telephone and/or email are supplied.

 

Article 3: Contract

A contract is formed only once HBX Deco has confirmed an order in writing or has performed an activity following from the order. In the case of a contract of sale involving a request for the supply of goods in instalments, the contract is deemed to have been formed in full once the first instalment has been delivered or the first partial delivery has been made.

 

Article 4: Price increase

If more than three months elapses between the date on which the contract is formed and the date of delivery, and if the price of one of HBX Deco’s cost-determining factors rises during this period such that the cost for HBX Deco goes up by more than 5%, HBX Deco is entitled to charge a higher sale price in line with the rise in the cost price.

 

Article 5: Force majeure

  • The term ‘force majeure’ is understood to refer to any situation in which HBX Deco is not able to fulfil any or all of its obligations as a result of circumstances that are beyond its control and which cannot be attributed to HBX Deco either by law, under a guarantee given by HBX Deco or in accordance with generally prevailing opinion.
  • The following circumstances are regarded in any event as constituting force majeure:
  • If a force majeure event as described in the two foregoing paragraphs prevents the contract from being discharged, whether temporarily or permanently, the seller is entitled at its own discretion either to extend the delivery period by the amount of time during which the contract cannot be discharged or to cancel the sale if this is impeded by the force majeure event. If the buyer sends the seller a written demand to this effect, the seller is obliged to state its choice within a period of eight days. If the period during which the contract cannot be discharged does not last for more than one month, the seller is not entitled to cancel the sale. HBX Deco may in no event be held liable for any failure to deliver some or all of the goods ordered if it has not explicitly committed itself in writing to do so in response to a demand from the buyer as described above.

·       natural disasters, pandemics, war, international or national armed conflicts and preparations for such conflicts, measures taken by domestic, foreign or supranational government bodies, including but not limited to decisions connected with import quotas and all other government decisions, specifically including decisions taken by customs authorities that affect HBX Deco.

 

Article 6: Call-off orders

If HBX Deco and the counterparty have agreed on a call-off deadline, the counterparty will be charged for all reasonable expenses, without exception, caused by a failure on the counterparty’s behalf to collect the goods in question in good time.

 

Article 7: Cancellations

  • The counterparty is entitled to cancel a contract or to return goods that have been supplied to it only with the prior written consent of HBX Deco.
  • If the counterparty decides, on the basis of the first paragraph of this article, to cancel the contract or to return goods that have been supplied to it, the counterparty will owe HBX Deco a fee to cover the costs incurred by HBX Deco as well as a reasonable payment to make good the loss or to compensate HBX Deco for lost profits.

 

Article 8: Delivery

  • Unless otherwise agreed, all deliveries will be made ex warehouse. In all other cases, HBX Deco will decide on the method of transportation used. In practice, goods will be delivered to the point closest to the works or warehouse that the vehicle in question can safely reach and leave by a road that is suitable for the vehicle in question.
  • The counterparty is obliged to unload the goods referred to in the first paragraph of this article as quickly as is reasonably possible after the arrival of the vehicle in question. The counterparty will unload the goods within the customary amount of time, with the aid of suitable staff and equipment. The counterparty should follow the carrier’s instructions when unloading the goods.
  • If it has been agreed that the goods are to be delivered ex works or ex warehouse, this will be effectuated in practice by loading the goods onto a vehicle selected by the counterparty.

 

Article 9: Risk

  • If the goods are delivered in accordance with the first paragraph of article 8, HBX Deco will remain liable for the goods until they have been unloaded as referred to in the second paragraph of article 8.
  • The counterparty is fully liable for the cost of unloading as described in the second paragraph of article 8, which is entirely at the counterparty’s risk.
  • If the goods are delivered in accordance with the third paragraph of article 8, HBX Deco is liable for the loading of the goods, and the counterparty assumes liability once the goods have been loaded onto the vehicle. As from this point in time, the goods travel at the counterparty’s risk and expense.

 

Article 10: The customer’s obligations

If the goods are delivered in accordance with the first paragraph of article 8:

  • If the goods are delivered to the counterparty in accordance with the first paragraph of article 8, the counterparty should immediately note any visible defects or damage on the delivery note or carriage document, or alternatively ask the carrier to draw up a report on the defects or damage.
  • If the goods are delivered to the counterparty in accordance with the first paragraph of article 8 by means of delivery to a third party who retains the goods on the counterparty’s behalf, the counterparty is obliged to carry out the check referred to in the first paragraph of this article within 24 hours of the third party having received the goods on its behalf.
  • If the goods are delivered ex works or ex warehouse, the counterparty should check the goods as soon as they have been delivered (in other words, immediately after delivery) in order to ascertain whether they comply with the terms of the contract, notably as regards precision, quantity and compliance either with the agreed quality specifications or with the usual requirements in similar cases.

If the goods are delivered ex warehouse:

 

Article 11: Non-compliance

  • The counterparty is not entitled to bring a claim against HBX Deco on the grounds that the goods supplied do not comply with the terms of the contract if the counterparty has not notified HBX Deco thereof as soon as possible and in any event within 14 days of the date of delivery. Such notice should be given by the counterparty in writing and accompanied by photographic evidence, or else promptly confirmed in writing and accompanied by photographic evidence.
  • The counterparty may not bring a valid claim against HBX Deco on the grounds of clearly visible defects or damage if the counterparty has not noted the defects or damage in question on the delivery note or carriage document, or if the carrier has not drawn up a report on the defects or damage.
  • The counterparty is responsible for proving that the goods supplied do not comply with the terms of the contract.
  • The counterparty is not entitled to cancel the entire order or the purchase of the goods supplied, or to refuse to pay either some or all of the amount owing, or to claim compensation from HBX Deco on account of minor variations in the goods supplied, whether in terms of dimensions, colour, shape or packaging. The same applies to modifications made by the supplier or manufacturer from whom HBX Deco obtains the goods, in so far as the modifications do not materially affect the essential nature of the goods. The counterparty is also not entitled to complain if the goods supplied have been used for a purpose other than that for which they are normally intended; if the defects are due to normal wear and tear; if the damage is caused by negligence on the part of the customer or a third party (including but not limited to inadequate maintenance) or  by the customer failing to act in accordance with HBX Deco’s instructions, directions and recommendations.
  • If the counterparty complains to HBX Deco about the goods supplied, the counterparty should promptly give HBX Deco an opportunity to inspect the goods. HBX Deco will perform any further checks in a manner that causes the least inconvenience; the counterparty will enable HBX Deco to perform such further checks, if necessary by handing over the goods in question. Should the complaint prove to be unfounded, the counterparty is liable for all expenses reasonably and actually incurred in connection with the necessary checks.
  • Without prejudice to the counterparty’s right to rely on a right of suspension, the counterparty remains obliged to pay for and take collection of the goods it has ordered. This applies even if the counterparty has given notice in good time that the goods supplied do not comply with the terms of the contract.

7.  Any returns should be sent carriage paid and will be accepted only after prior consultation. For the purpose of the application of this provision, all partial deliveries are regarded as constituting separate deliveries.

 

Article 12: Liability for the goods supplied

  • HBX Deco is liable for the goods supplied only if the following provisions are observed:
    • if HBX Deco has given a written guarantee, HBX Deco accepts liability only if this follows unambiguously from the guarantee;
    • HBX Deco’s liability ends if it is the victim of a force majeure event, in which case HBX Deco is entitled to terminate all or part of the contract on the grounds that it is not able, either permanently or temporarily, to fulfil its obligations;
    • HBX Deco’s liability is at all times limited to a sum corresponding with the invoice amount. HBX Deco is on no account liable for any loss of profit and/or business interruption loss;
    • if the contract in question involves partial deliveries and partial invoices, the calculation of the limit of HBX Deco’s liability is based on the partial invoice for the delivery that forms the basis of the liability.
  • If HBX Deco fails to meet its delivery obligations and if this failure is attributable to HBX Deco, HBX Deco is liable for the ensuing loss; this liability is limited to a sum corresponding with 100% of the value of the invoice that would have been sent had delivery been made.
  • The buyer undertakes to indemnify HBX Deco against any third-party action brought on the grounds of a copyright infringement in relation to the order placed with HBX Deco by the counterparty.
  • The counterparty undertakes to indemnify HBX Deco against any customs debt or debts relating to orders placed with HBX Deco by the counterparty, unless the counterparty is able to prove that any claim as referred to above is the result of wilful misconduct and/or gross negligence on the part of HBX Deco itself.
  • HBX Deco is not liable for wilful misconduct and/or gross negligence on the part of third parties engaged by HBX Deco for the purpose of discharging the contract.

 

Article 13: Delivery period

  • Unless expressly agreed otherwise, HBX Deco is not deemed to be in default if it does not supply the goods on the delivery dates it has quoted. The counterparty must first issue a written notice of default in order for HBX Deco to be deemed to be in default.
  • If a delay in the delivery of the goods remains within reasonable limits, the counterparty may not take this as a ground for terminating the contract.
  • HBX Deco’s liability to compensate the counterparty for any loss incurred on account of a failure to meet a strict deadline is limited as follows:
    • HBX Deco is fully liable if the counterparty incurs a loss as a result of a failure to comply with certain contractual obligations in good time and if this failure is the result of wilful misconduct and/or gross negligence on the part of HBX Deco’s directors or managerial staff or is the result of wilful misconduct and/or gross negligence on the part of other members of HBX Deco’s staff;
    • HBX Deco’s liability in the event of a failure to comply with certain contractual obligations in good time is limited to a sum corresponding with the invoice amount. HBX Deco is on no account liable for any loss of profit or business interruption loss.

 

Article 14: Terms of payment, extrajudicial collection costs and right of retention

  • Unless otherwise agreed, payment must be made without any discount or set-off within 30 days of the invoice date. If the counterparty fails to pay within this time limit, it is deemed to be automatically in default without a notice of default being required, regardless of whether or not the counterparty is responsible for the delay in payment.
  • Provided that this is expressly agreed by the parties, HBX Deco may decide for reasons of its own to grant the counterparty a payment discount. A discount of this nature will be based on the invoice amount excluding freight and insurance costs, deposits and tax, and will be specified by HBX Deco on the invoice.

2.  If the counterparty fails to meet its payment obligation, it will owe HBX Deco the statutory rate of interest on the outstanding invoice amount or part thereof as from 30 days after the invoice date, with part of a month being counted as a full month. The counterparty will also owe HBX Deco the costs reasonably incurred in obtaining an out-of-court settlement, which costs will be based on the Voorwerk II report and will amount to 15% of the total invoice amount.

4.  Although HBX Deco is free to decide on the debts to which payments made by the counterparty are allocated, payments will in any event first be used to defray any interest and extrajudicial collection costs that are owing.

5.  HBX Deco is in any event entitled to exercise its right of retention in relation to goods belonging to the counterparty that it has in its possession, until such time as the total amount owed by the counterparty (including interest and charges) has been paid.

 

Article 15: Retention of title and right of pledge

  • If the point of supply of the goods is in Germany, HBX Deco chooses German law as governing the retention of title:
    • Goods supplied by HBX Deco are subject to retention of title until such time as the counterparty has met all its payment obligations arising from the mutual business relationship. This retention of title also applies to the acknowledged balance if the counterparty pays HBX Deco on account.
    • The counterparty is entitled to resell the goods supplied to it as part of its normal business activities; however, the counterparty as of now assigns to HBX Deco all debts owed to it by virtue of the resale to the value of the purchase price (including VAT) agreed between the counterparty and HBX Deco, irrespective of whether or not the goods supplied are processed prior to being resold. The counterparty remains entitled to collect these debts after they have been assigned to HBX Deco. This does not affect HBX Deco’s right to collect the debts itself; nonetheless, HBX Deco undertakes not to collect the debts as long as the counterparty properly fulfils its payment obligations and does not default on its payments. However, in the event of the counterparty defaulting on its payments, HBX Deco is entitled to insist that the counterparty informs it about the debts the rights to which it has ceded to HBX Deco and also about the identity of the debtors in question, that it supplies HBX Deco with all information required in order to collect the debts, hands over the relevant documents and informs the (third-party) debtors that it has ceded the rights to the debts to HBX Deco.
    • Any processing of the goods by the counterparty or changes made to the goods by the counterparty is or are deemed in all cases to be carried out on HBX Deco’s behalf. If the goods supplied are processed together with other items that are not owned by HBX Deco, HBX Deco will become the joint owner of the combined goods on a pro rata basis in accordance with the value of the goods supplied and the other items processed at the time when they were processed.
    • If the goods supplied are inextricably linked to other items that are not owned by HBX Deco, HBX Deco will become the joint owner of the new article on a pro rata basis in accordance with the value of the goods supplied and the other items to which they are inextricably linked. The counterparty retains co-ownership on HBX Deco’s behalf.
    • The counterparty is not entitled either to pledge the goods supplied or to transfer title to them by way of security. In the event of third parties attaching the counterparty’s property or performing other acts of disposition in relation to the counterparty’s property, the counterparty must immediately inform HBX Deco thereof and must provide HBX Deco with all information and documents such as it may require in order to enforce its rights. Bailiffs and third parties must be informed about HBX Deco’s property rights.
    • Should the counterparty fail to fulfil its contractual obligations, and in particular in the event of an overdue payment, HBX Deco is entitled to repossess the goods it has supplied, after offering the counterparty a reasonable period in which to fulfil its obligations. Repossession of the goods automatically results in HBX Deco’s withdrawal from the contract. Following the repossession of the goods supplied, HBX Deco is entitled to sell them and to set-off the proceeds of the sale against the amounts owed by the counterparty, after deducting the general expenses incurred in selling the goods.
    • In the event of an overdue payment, the counterparty is obliged to immediately supply HBX Deco upon the latter’s demand with a statement listing the goods supplied by HBX Deco that are present on the counterparty’s premises, even if these goods have already been processed or combined or mixed with other items, as well as with a list of outstanding receivables, together with copies of the relevant invoices sent to third-party debtors.
    • In so far as the value of all HBX Deco’s security interests exceeds the aggregate value of the relevant debts by more than 20%, HBX Deco will at the counterparty’s request release a corresponding part of the security interests in accordance with the counterparty’s wishes.
  • The following provisions apply if the point of supply of the goods is in a country which does not permit the retention of title on a scale as described above:
    • The goods supplied by HBX Deco remain the property of HBX Deco until such time as the counterparty has paid HBX Deco the full price of the goods and has also fulfilled any obligations to pay compensation. All goods supplied by the seller remain the seller’s property until such time as all outstanding debts have been paid in full, including interest and charges (and, in the event of deliveries made on account, until such time as any debit balance owed by the buyer has been settled).
    • The counterparty is entitled to resell goods that are subject to a retention of title by HBX Deco part only in the context of the counterparty’s normal business activities. Until the goods have been paid in full or, as the case may be, until all outstanding debts have been paid in full, the counterparty is not entitled to pledge the goods to third parties or to transfer their ownership other than as part of its normal business activities or in accordance with the purpose for which the goods are normally used. Any violation of the above will lead to the purchase price becoming immediately due and payable in full, irrespective of the terms of payment that have been agreed.
    • If the counterparty fails to fulfil its obligations to HBX Deco, or if there are good reasons for fearing that the counterparty will fail to do so, HBX Deco is entitled to remove the goods that are subject to a retention of title either from the counterparty’s premises or from the premises of a third party who is holding the goods on the counterparty’s behalf, or to instruct an agent to do so on its behalf. The counterparty must fully cooperate with HBX Deco in this respect and pay for any expenses incurred as a result. Failure to do so will result in the counterparty being obliged to pay HBX Deco a penalty of 10% of the amount owed by the counterparty for each day on which the counterparty fails to meet its obligations to HBX Deco. In such an event, the seller is also entitled, without requiring any authorisation from either the buyer or the court, to remove the goods from the place where they are kept or to instruct an agent to do so on its behalf. The buyer must ensure that the seller’s goods do not become the subject of an attachment order. Should this nevertheless happen, the buyer must immediately inform the seller.
    • Should third parties wish to establish or enforce certain rights in respect of goods that are subject to HBX Deco’s retention of title, the counterparty undertakes vis-à-vis HBX Deco immediately to notify HBX Deco and to inform the third parties in question about HBX Deco’s retention of title.
    • The counterparty undertakes vis-à-vis HBX Deco to cooperate within reasonable limits with all measures that HBX Deco intends to take in order to protect its retention of title in relation to the goods.

Article 16: Copyright, models and designs

  • HBX Deco remains at all times the copyright-holder and the holder of all rights in respect of drawings, models, designs, calculations and so forth.
  • The counterparty is not permitted to make use of the rights referred to in the first paragraph hereof without the written consent of HBX Deco.

 

Article 17: Incoterms

All trade names, expressions and abbreviations used in contracts or correspondence relating to contracts must be interpreted in accordance with their definitions as given in the latest version of Incoterms published by the International Chamber of Commerce.

 

Article 18: Jurisdiction

All disputes, including those regarded as such by only one of the parties, will be submitted for adjudication either to the competent court in the Netherlands or (in the absence of a competent court) to the court in The Hague.

 

Article 19: Applicable law

All contracts between HBX Deco and the counterparty are governed exclusively by Dutch law.