Term and Conditions HEGO
General Terms and Conditions of Sale and Delivery
These General Terms and Conditions are filed at the office of the Commercial Register of the Chamber of Commerce in Lelystad, and at the office of the District Court in Amsterdam. Unless otherwise agreed in writing, these General Terms and Conditions apply to and form part of all agreements and legal relationships entered into by Hego Walserijprodukten BV, which also trades under the name of Hego Steel Trading and is hereinafter referred to as ‘HEGO’.
2. Formation of agreements and quotations
All quotations and offers issued by HEGO are non-binding. The agreement is formed by written confirmation of the order by HEGO. The specifications of the scope and execution of the order or instructions, as noted in the written confirmation of the order, are binding. Any terms and conditions of purchase issued by the customer are not binding for HEGO. Unless otherwise agreed, orders and instructions are irrevocable once issued.
3. Weight and quantity
The measurements and weights noted on the measurement or weight slip presented by HEGO will be used to determine the quantity delivered. If the customer can demonstrate a deviation of more than 10 percent, the invoice or payment will be revised accordingly by mutual agreement. The customer always has the right to be present or to be represented while goods are weighed or measured in order to monitor the process. If HEGO has produced goods, or arranged for goods to be produced, to the customer’s specifications, the customer is obliged to accept 20 percent oversizing.
Goods will be delivered ex-works or from one of the warehouses in the Netherlands at HEGO’s discretion. HEGO reserves the right to determine the method of transport, unless the customer sends HEGO written instructions regarding the method of transport at least two weeks prior to the goods being dispatched. HEGO is entitled to deliver orders in parts and the customer is obliged to accept partial deliveries. The time frame quoted for delivery is approximate only and is not a hard deadline. HEGO is entitled to make deliveries at approximately the agreed time.
5. Retention of title
HEGO retains the title to goods that have been sold until all sums owed under the agreement, which also include claims against the customer for non-compliance with the agreement and sums owed for partial deliveries, have been paid in full. In the event of late payment by the customer, HEGO is entitled to repossess goods that have been sold without being obliged to issue a demand for payment or notice of default and without recourse to the courts, without prejudicing any of its other rights in connection with late payment. While HEGO retains the title to goods that have been sold, customer may only process or resell the goods in the normal course of business. The customer is obliged to notify HEGO immediately if goods that still belong to HEGO are seized or if third parties make any other claim on the goods in question. The customer is also obliged to inform those levying an attachment or making any other claim on the goods that the goods in question are the property of HEGO.
Unless otherwise agreed, all prices are quoted ex-works or exclusive of delivery from the specified warehouse and exclusive of packaging. All prices are based on the foreign exchange rates, import duties and other taxes and levies that affect the cost price that apply when the agreement is signed. If there is a change in one or more of these factors before goods are delivered within the time frame agreed for delivery, the price will be revised so the change is fairly taken into account.
Unless otherwise agreed, invoices must be paid within 30 days of the invoice date, without setoff or discount. Payment is to be made by means of bank transfer to HEGO’s account. However, HEGO may deviate from the provision in the previous sentence and is entitled to demand payment in cash (which is also understood to include cash on delivery) for every delivery or partial delivery. If, despite the issuing of a written demand for payment, the customer fails to pay the sum specified in the demand for payment in full within the period specified in the demand for payment, without prejudice to any other rights that HEGO is entitled to exercise, this will mean that: (a.) all other outstanding claims that HEGO has against customer are immediately due and payable; (b.) HEGO is entitled to charge interest for late payment on the sum specified in the demand for payment at a rate of 5% above the statutory interest rate per year; (c.) HEGO is entitled to unilaterally terminate or suspend the carrying out of (part of) the agreement, and any other agreements with the customer, by registered letter without being required to issue notice of default, without recourse to the courts and without being obliged to provide any form of compensation; (d.) all costs incurred by HEGO, including costs incurred in asserting its claims against the customer, are to be paid by the customer.
Goods are at the customer’s risk as soon as they are dispatched by HEGO. Unless the customer has arranged transport insurance and has notified HEGO to this effect in writing sufficiently in advance, HEGO will insure the goods during transport to the delivery address. The cost of this insurance is included in the price. HEGO will only arrange storage insurance if this is explicitly agreed in writing, in which case all related costs must be paid by the customer.
If one of the parties to the agreement fails to (fully and promptly) fulfil any obligation (in the case of the customer this applies to any obligation other than the payment obligation), also in the event that one of the parties files a petition for liquidation, is in the process of liquidation, or files an application for or is granted a moratorium of payment, the other party is entitled to unilaterally terminate or suspend the carrying out of (part of) the agreement by registered letter without being required to issue notice of default, without recourse to the courts, without being obliged to provide any form of compensation, and without prejudice to any other rights they are entitled to exercise. If the customer encounters any of the situations listed above, all claims that HEGO has against the customer will be immediately due and payable in full. Should such a situation arise, HEGO also has the right to demand that the customer must make payment in advance or must provide security for payment.
10. Force majeure
If HEGO cannot reasonably be expected to fulfil one or more of its obligations due to one or more of the situations listed below, HEGO has the right to unilaterally terminate or suspend the carrying out of (part of) the agreement by registered letter, without recourse to the courts and without being obliged to provide any form of compensation. Situations that constitute force majeure are restrictive government measures of any kind, epidemics, mobilisation, war, revolution, strike action, seizure, interruption of production, shortage of materials, semi-manufactured products or auxiliary products, lack of power supply, natural disasters, total or partial default by a third-party supplier and any other circumstances beyond HEGO’s control that HEGO could not reasonably have foreseen and that would have led HEGO not to enter into the agreement or not to enter into the agreement under the same conditions had HEGO been aware of the circumstances when the agreement was signed. Fulfilment of the obligations imposed by the agreement in one or more cases in situations such as those referred to in the second sentence of this clause does not affect HEGO’s right to terminate or suspend the carrying out of (part of) the agreement in other situations of force majeure.
HEGO is not liable for any losses incurred by the customer as a result of late delivery, nor is HEGO liable for costs or losses incurred by the customer or a third party as a direct or indirect result of actions or negligence on the part of persons employed or supervised by HEGO, or for costs or losses caused by goods that may or may not be under the supervision of HEGO, unless the costs or losses in question are incurred due to gross negligence on the part of HEGO. HEGO can never be held liable for losses that can be regarded as consequential losses (such as the shutting down of a business).
The customer is obliged to inspect goods delivered by HEGO immediately upon receipt before proceeding to store or use the goods. Complaints must be submitted to HEGO in writing within ten working days of receipt of the goods. If no complaints are submitted within this ten-day period, the customer will be considered to have accepted the delivery unreservedly. In the event that HEGO considers a complaint to be justified, in the absence of a situation of force majeure, HEGO is obliged to take back and replace the goods in question or to make up any shortfall. HEGO is not obliged to provide any form of compensation.
HEGO guarantees the quality of the goods only in the event that and to the extent that HEGO’s suppliers have issued a similar guarantee. The customer bears full risk and all liability for the results obtained from the use of the goods, irrespective of whether the goods are processed separately or in combination with other materials. HEGO does not guarantee that the goods that have been purchased are suitable for the purpose for which customer intends to use the goods.
14. Provision of security
If HEGO is of the opinion that the customer’s financial position warrants such a course of action it has the right to demand payment in cash prior to or on delivery or to postpone or suspend delivery until it is satisfied that sufficient security has been provided for the prompt payment of all present and future claims that HEGO has or may have against the customer under the purchase agreement or on the basis of the legal relationship, at its own discretion.
15. Transfer of rights and obligations and transfer of control
Neither of the parties to the agreement is entitled to transfer some or all of its rights and obligations to another party or to arrange for (part of) the agreement to be carried out by another party, except in the case of HEGO’s right to place its claim against customer in the hands of a debt collection agency, without the prior written consent of the other party. If control of all or a considerable part of the customer’s activities is assumed by another party either directly or indirectly after the agreement has been signed, HEGO has the right to unilaterally terminate (part of) the agreement by registered letter giving 90 days notice, without recourse to the courts and without being obliged to provide any form of compensation. This right ceases to apply if HEGO fails to exercise this right within 30 days of having become aware of the transfer of control.
16. Hardship clause
If factors that the parties regarded as a basis when signing the agreement change to such an extent during the course of the agreement that one of the parties cannot reasonably be expected to comply with one or more of the provisions of the agreement, the parties are to discuss interim changes to the agreement. If they fail to reach an agreement both parties have the right to unilaterally terminate the agreement by registered letter giving 6 months notice, during which time the conditions set out in the agreement continue to apply in full.
17. Applicable law and election of domicile
All of the agreements and other legal relationships that are subject to these General Terms and Conditions are governed by Dutch law. The customer irrevocably elects domicile at the registered office of HEGO.