Article 1 – Applicability
1.1 The terms and conditions set out below shall always apply to all legal relationships under which Hemabo Kunststoftechniek B.V. (hereinafter: “Hemabo”) carries out work and/or supplies goods. These general terms and conditions shall in any event form part of all agreements to which Hemabo is a party and shall also apply during negotiations (the pre-contractual phase) in which Hemabo is involved and which precede any legal relationship or agreement. These general terms and conditions are also intended for the employees of Hemabo and its management, if and insofar as they should at any time enter into a legal relationship with the other party.
1.2 The following terms and conditions shall remain exclusively applicable, even if the letterhead, invoices and/or other documents from the other party refer to or state that his/her or other general terms and conditions would apply. Unless agreed otherwise in writing, the applicability of the general terms and conditions or clauses of the other party or third parties is excluded. In the event of any conflict between the terms and conditions below and the provisions in the agreement, the provisions in the agreement shall prevail.
1.3 Any additions, amendments, further agreements or arrangements, or deviating clauses to the contract or these general terms and conditions whereby Hemabo enters into or agrees to obligations, shall not be deemed to have been agreed between the parties unless they have been confirmed in writing by Hemabo. Hemabo reserves the right at all times not to invoke the provisions set out in these general terms and conditions. Any deviations from these terms and conditions shall be on a one-off basis, unless confirmed in writing between the parties on each occasion. Verbal commitments made by employees of Hemabo shall not be binding on Hemabo.
1.4 If one or more provisions in these terms and conditions are at any time wholly or partially void or annulled, the agreement and these terms and conditions shall remain in force for the rest, and the relevant provision shall be replaced by mutual agreement with a provision that approximates the original intention as much as possible.
1.5 Any ambiguities regarding the explanation or content of one or more provisions of our terms and conditions must be interpreted ‘in the spirit’ of these general terms and conditions.
Article 2 – Offers
2.1 All offers, quotations, price lists and the like, however named, issued by Hemabo are non-binding, unless they specify a time limit for acceptance. If no time limit is specified, a period of 20 calendar days shall apply. This period may be extended by Hemabo by means of a written notification to the other party, which must also specify the duration of the extension.
2.2 If a quotation contains a non-binding offer and this offer is accepted by the other party, Hemabo is entitled to withdraw the offer within 2 working days of receiving the acceptance.
2.3 The prices charged by Hemabo, as well as the prices stated in the quotation or offer, are exclusive of VAT, costs and other government levies. These costs may include, but are not limited to, travel and accommodation costs, transport costs, postage costs, packaging costs, administration costs, installation and assembly/disassembly costs, storage costs, security costs, insurance costs, research costs, import and export duties, measurement costs and invoices from third parties engaged. Hemabo is authorised to charge these costs separately in connection with the (performance of) the agreement. If no price has (yet) been agreed, the prices and rates applied by Hemabo at the time of carrying out the work or making the delivery shall be charged to the other party.
2.4 If the other party’s acceptance differs from Hemabo’s offer as set out in the quotation or proposal, Hemabo shall not be bound by that agreement, unless Hemabo declares that it wishes to be bound by the agreement.
2.5 Quotations and price estimates must always be accepted in their entirety. Unless otherwise specified by Hemabo, acceptance of only part of a quotation does not constitute an agreement in respect of that part.
2.6 The quotation or offer is based on the performance of work under normal circumstances and during the normal working hours applied by Hemabo, as well as the supply of the materials required for this, unless the parties expressly agree otherwise in writing.
2.7 The quotation or offer is based on the information provided by the other party and any measurements taken by Hemabo.
2.8 Images and descriptions, as well as dimensions and weights, appearing in brochures and quotations are not binding on Hemabo. Samples, brochures, drawings, models, specifications of colours, dimensions, weights and other descriptions shown and/or provided are as accurate as possible, but are for illustrative purposes only. No rights may be derived from them.
2.9 Unless otherwise stated, Hemabo does not guarantee the product’s suitability for a particular purpose. The suitability of the goods supplied for a specific application is at the other party’s own risk. Hemabo shall not be liable for any errors or discrepancies in illustrations, drawings and the specification of dimensions and weights contained in quotations, offers and/or order confirmations, and Hemabo shall not be obliged to pay compensation in respect of any damage whatsoever, of whatever nature and on whatever grounds whatsoever.
2.10 The other party is aware of any deviations. With regard to the goods supplied, the other party agrees to the applicable tolerances. Minor deviations that fall within the tolerances do not constitute grounds for rejection. In such cases, Hemabo shall not be liable and shall not be obliged to pay compensation in respect of any damage whatsoever, on whatever grounds.
2.11 All documents provided by Hemabo, as well as any copies made thereof, in particular drawings, product and work specifications, shall remain the property of Hemabo, as does the right to use them, and must be returned to Hemabo upon its first request; furthermore, without its written consent, these documents may not be copied nor made available to third parties.
2.12 The other party guarantees to Hemabo at all times that the use of the data provided by the other party, or otherwise, will not cause Hemabo to contravene any statutory provisions or the protected rights of third parties. The other party fully indemnifies Hemabo against all direct or indirect consequences of any claims that a third party may validly bring against it on the grounds of a breach of the warranty referred to in this clause.
2.13 Hemabo expressly reserves the right to make price changes, even after the agreement has been concluded. Hemabo is entitled to pass on to the other party any increases in rates, charges, taxes, wage increases, transport costs, price rises for necessary materials, changes in exchange rates, etc., to the other party. In addition, Hemabo is entitled to index its prices annually.
2.14 Offers or quotations do not automatically apply to follow-on orders.
Article 3 – Contract duration; delivery periods, performance and modification of agreement
3.1 The contract between Hemabo and the other party shall terminate upon fulfilment of the contract. Hemabo shall perform the contract to the best of its knowledge and ability and in accordance with the requirements of good workmanship. Hemabo shall determine the manner in which the agreement is to be performed, unless the parties have expressly agreed otherwise in writing.
3.2 The contract is concluded when the management of Hemabo, or an employee to whom sufficient authority has been granted, confirms the order. In cases where the order is not confirmed, the contract is concluded upon the actual performance of the order. Hemabo is entitled to require the other party to provide adequate security for the fulfilment of its obligations. If the other party fails to comply with this request from Hemabo, Hemabo is entitled to suspend the fulfilment of its obligations or to terminate the agreement without notice of default.
3.3 Agreed or specified time limits are not binding on Hemabo, but are purely indicative. Under no circumstances shall such time limits be regarded as strict deadlines. Should a deadline be exceeded, the other party must always give Hemabo written notice of default. Hemabo must then be granted a reasonable period of time to still perform the agreement. The time required by Hemabo, Hemabo’s suppliers or third parties engaged by Hemabo to rectify defects or to supply replacement goods shall serve as the basis for determining a reasonable period. Exceeding this timeframe does not entitle the other party to terminate the agreement, refuse payment or otherwise fail to fulfil its obligations. Nor does exceeding the delivery times oblige Hemabo to pay compensation for any loss whatsoever, on whatever grounds. If the commencement or progress of the agreement is delayed by factors for which the other party is responsible, the other party shall compensate Hemabo for any loss and costs arising therefrom.
3.4 Hemabo supplies goods in accordance with the order specifications. This means that the other party must provide the specifications, design, drawings and STEP (or similar) files. The STEP or similar files shall take precedence and be decisive. The other party is obliged to provide Hemabo with all information necessary for the performance of the agreement, of which the other party is aware or can reasonably be expected to be aware that it is or may be important for the performance of the order. The other party guarantees the accuracy and completeness of such information. The period for the performance of the assignment shall not commence until the other party has made this information available to Hemabo. Hemabo shall not be liable and shall not be obliged to pay compensation in respect of any damage whatsoever, of whatever nature and on whatever grounds whatsoever, arising from Hemabo having relied on incorrect and/or incomplete data and specifications provided by the other party.
3.5 All deliveries are made subject to retention of title as further described in Article 6. Delivery is understood to mean: placing the goods at the disposal of the other party or a third party collecting the goods on behalf of the other party.
3.6 The counterparty is obliged to check the supplied goods immediately after delivery for quantity, quality, specification, and all other deviations from what has been agreed.
3.7 Delivery shall be made ex Hemabo warehouse, unless otherwise agreed in writing, either by making the goods available to the other party or by handing them over to the relevant carrier. The dispatch of goods shall be at the other party’s risk and expense, using a carrier designated by Hemabo. The other party is entitled to designate a carrier itself, at its own expense and risk. The other party is obliged to take delivery of the goods at the moment they are made available to it. If the other party refuses to take delivery or fails to provide the information or instructions necessary for delivery, Hemabo is entitled to store the goods at the other party’s expense and risk. All resulting damage, including damage arising from the failure to take delivery of the goods, shall be borne by the other party.
3.8 All goods supplied to the other party shall be at the risk of the other party from the moment of delivery. The same applies from the moment the other party is in default with the performance of the actions with which they must cooperate for delivery.
3.9 Hemabo reserves the right, for reasons relating to production or the packaging unit of the item in question, to increase or decrease the quantity specified in the contract by a maximum of 10% without notifying the other party. The other party is also obliged to pay Hemabo the price corresponding to the amended quantity delivered.
3.10 Hemabo is at all times authorised to engage third parties to fulfil any obligation arising from the agreement. Hemabo is authorised to carry out the order in different phases, or to deliver the order in instalments, and to invoice those phases or instalments separately.
3.11 If the other party has reserved the right to carry out certain parts of the agreement itself, the other party shall be liable for any delay in the supply or performance thereof. The other party must ensure that the work to be carried out by third parties, which does not form part of the agreement with Hemabo, is carried out in such a manner and in a timely fashion that the performance of the work by Hemabo is not delayed as a result.
3.12 Where the contract is carried out in phases, Hemabo shall at all times be entitled to suspend the performance of the work relating to the next phase until the other party has approved the work carried out in the preceding phase.
3.13 If the other party fails to fulfil its obligations as set out in this Article 3, Hemabo shall be entitled to suspend its activities, or to terminate the contract without further notice of default, without being obliged to compensate the other party for any loss incurred as a result.
3.14 The other party shall ensure that all information and approvals which Hemabo specifies as being necessary, or which the other party ought reasonably to understand are necessary for the performance of the agreement, are provided to Hemabo in good time. If the information and approvals required for the performance of the agreement are not provided to Hemabo in good time, Hemabo shall be entitled to charge the other party for any additional costs arising from the delay, in accordance with the usual rates.
3.15 The other party shall not use any outcome of the agreement in a manner that contravenes export laws and regulations. The other party shall indemnify Hemabo against any claims by third parties arising from non-compliance with export laws and regulations. Hemabo may suspend its obligations and the other party’s rights until a licence required by export laws and regulations has been granted. Hemabo may terminate the agreement without any liability towards the other party if such a licence is not granted or is not expected to be granted within the foreseeable future. Hemabo may also terminate the agreement prematurely and with immediate effect, without being liable to pay any compensation to the other party, if continuation of the agreement is not permitted under export laws and regulations.
Article 4 – Suspension, termination and interim cancellation of the agreement
4.1 Hemabo shall at all times be entitled to suspend performance of its obligations or to terminate the contract without notice of default if:
a. the other party fails to fulfil its obligations under the agreement, or does not fulfil them completely or on time;
b. the other party is liquidated, applies for a moratorium or bankruptcy, an attachment is levied against the other party, the other party requests the application of the statutory debt restructuring, or any other circumstance whereby the other party is no longer able to freely dispose of its assets.
4.2 If the agreement is terminated, Hemabo’s claims against the other party shall become immediately due and payable. If Hemabo suspends the performance of its obligations, it shall retain its rights as provided for by law and under the agreement.
4.3 Should Hemabo proceed to suspend or terminate the agreement, it shall in no way be liable to compensate the other party for any loss or damage.
4.4 In the event of liquidation, (applications for) a moratorium on payments or bankruptcy, or attachment – if and in so far as the attachment has not been lifted within one month – at the other party’s expense, debt restructuring or any other circumstance as a result of which the other party can no longer freely dispose of its assets, Hemabo shall be free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or damages. In such a case, Hemabo’s claims against the other party shall become immediately due and payable.
Article 5 – Cancellation
5.1 If the other party cancels, they shall be liable to pay compensation. This is based on lost revenue, calculated using industry averages. The compensation is calculated as the gross profit margin (fixed and variable costs, profit margin), less variable costs not incurred, such as delivery costs. The compensation amounts to 30% of the contract sum excluding VAT, unless the parties have agreed otherwise. This is 50% if the other party cancels whilst having already been informed that the (partial) delivery can take place. In the case of bespoke work, the percentage is 100%.
5.2 The percentages referred to in paragraph 1 are fixed, unless Hemabo can prove that its loss is greater or the other party can demonstrate that the loss is less.
5.3 Cancellations should preferably be made in writing. In the event of a verbal cancellation, Hemabo will confirm this in writing.
Article 6 – Retention of Title
6.1 All goods delivered and yet to be delivered shall remain the sole property of Hemabo, until all claims which Hemabo has or may have against the other party, including in any event the claims referred to in Article 3:92(2) of the Dutch Civil Code relating to interest and extrajudicial and judicial costs, have been paid in full.
6.2 The other party is not authorised to resell goods delivered or to be delivered by Hemabo which are subject to Hemabo’s retention of title. The other party is at no time authorised to use goods delivered or to be delivered, which are subject to Hemabo’s retention of title, as a means of payment. The other party is not authorised to pledge the goods subject to retention of title or to encumber them in any other way.
6.3 The other party shall make every effort to safeguard Hemabo’s rights of ownership in respect of the goods delivered or supplied subject to retention of title. If third parties seize the goods delivered subject to retention of title or seek to establish or assert (limited) rights over them, the other party is obliged to inform Hemabo of this immediately.
6.4 The other party undertakes to insure the goods delivered subject to retention of title and to maintain such insurance against fire, explosion and water damage, as well as against theft, and to make the insurance policy available for inspection by Hemabo upon first request. In the event of any insurance payout, Hemabo shall be entitled to such proceeds. The other party hereby grants Hemabo a silent charge in respect of such insurance proceeds. Hemabo is authorised to have the charge registered on behalf of the other party with the Inheritance and Registration Department of the Tax and Customs Administration. Furthermore, Hemabo is authorised to disclose the charge at any time it deems fit.
6.5 In the event that Hemabo wishes to enforce its property rights, the other party hereby grants Hemabo, or third parties to be designated by Hemabo, unconditional and irrevocable permission to enter all those premises and locations where Hemabo’s property is situated and to repossess such property. If the other party fails to fulfil this obligation, the other party shall forfeit a penalty of 15% of the value of the goods which the other party is then unlawfully retaining in its possession. Hemabo is authorised to enforce its rights of ownership if the other party fails to fulfil its obligations, or fails to do so in a timely manner, or if there is a well-founded fear that it will not do so.
Article 7 – Payment
7.1 Payment shall be made as follows, unless otherwise agreed in writing by the parties:
– 30% of the contract sum, including VAT, upon conclusion of the contract;
– 70% of the contract sum, including VAT, upon delivery of the item(s) to the other party.
7.2 Notwithstanding the provisions of paragraph 1, Hemabo shall be entitled to demand payment in cash, or to demand part of the agreed amount as an advance payment, or to obtain security from the other party in some other way to guarantee payment before the other party receives the goods, all at Hemabo’s discretion. Any remaining amounts must be in Hemabo’s possession before the expiry of the payment term. If Hemabo has grounds to demand payment of the remaining amount before the expiry of the official payment term, the other party is obliged to comply with this.
7.3 The payment term is 14 calendar days, unless a different payment term is stated on the quotation/invoice. After expiration of the term, the invoice shall be deemed irrevocably and unconditionally accepted by the other party. Any legal claims must be brought within one year after timely notification of a defect, on penalty of forfeiture. Any complaints do not suspend the other party's payment obligation.
7.4 In the event of non-performance, late performance and/or incomplete performance in accordance with the paragraphs set out above, the other party shall be in default without any notice of default being required. In the event of default, as well as in the event of an application for a moratorium on payments or for the bankruptcy or liquidation of the other party’s business, the other party shall owe Hemabo interest at a rate of 1,5% per month; or, if this is higher, the other party shall owe Hemabo the statutory (commercial) interest pursuant to Article 6:119a of the Dutch Civil Code. In such circumstances, Hemabo shall also be entitled to terminate, in whole or in part, all current agreements with the other party without any judicial intervention. The other party shall be obliged to compensate Hemabo for all costs and losses incurred by Hemabo as a result. Furthermore, any credit granted shall then lapse and all amounts due under other legal relationships (for example, agreements) shall become immediately due and payable.
7.5 In the event of default, as well as in the other circumstances referred to in paragraph 3, all extrajudicial costs – including, in any event, all costs of the authorised representative or solicitor engaged, and court costs including court fees, in relation to the determination of damages and liability, to obtain payment, as well as to prevent or limit damage resulting from events on which liability is based, interest on the principal sum and other costs – shall become immediately payable in addition to the principal sum. The out-of-court costs shall in any event be equal to the actual costs invoiced to Hemabo for legal assistance, or shall amount to 15% of the principal sum, subject to a minimum of €500,, plus any disbursements incurred and taxes due.
7.6 If Hemabo files for the other party’s bankruptcy, the other party shall be liable not only for the principal sum, interest and extrajudicial collection costs, but also for the costs of the bankruptcy petition.
7.7 If Hemabo is found to be wholly or partly in the right in legal proceedings, all costs incurred by Hemabo in connection with the proceedings shall be borne by the opposing party, notwithstanding any partial order for costs.
7.8 Payments to be made by the counterparty shall be made without deduction, suspension, set-off, counterclaim, netting, discharge, or for any other reason whatsoever. The counterparty hereby expressly waives these rights.
Article 8 – Force Majeure
8.1 If the performance of the agreement is rendered impossible by a cause for which Hemabo cannot be held responsible and which does not fall within its sphere of risk, Hemabo shall be entitled to terminate the agreement and to charge the costs incurred to the other party. In any event of force majeure, Hemabo is entitled to terminate the agreement in whole or in part in respect of the unperformed part, or to suspend performance for the duration of the force majeure. Force majeure includes, amongst other things: fire, strike, lockout, sabotage, civil unrest, riot, mobilisation, war, threat of war, state of war, state of emergency, congestion, disruption to land, water or air traffic, flooding, ice drifts and other delays affecting means of transport, government measures regardless of the reason – the cause – or the impact of the measure, the consequences of a pandemic or epidemic, economic force majeure and obligations imposed by the EC, excessive price increases for energy and raw materials, the loss of power supply, the failure or malfunction of a communications network, including the internet and other means of communication or business assets (computers, etc.), the bankruptcy or suspension of payments of Hemabo’s contractors on whom it relies for the performance of the contract, and the total or partial failure of third parties from whom Hemabo receives goods or services to fulfil their obligations, without Hemabo being obliged to demonstrate the extent to which this has contributed to the hindrance or delay.
8.2 Force majeure shall also apply in the event that Hemabo orders the goods to be supplied from a third party and that third party fails to deliver for any reason whatsoever. Where goods are ready for dispatch but cannot be transported to their destination due to a cause beyond Hemabo’s control, Hemabo shall be entitled to store them at the other party’s expense and risk and to demand payment for this.
8.3 In the event of force majeure, Hemabo’s obligations under the agreement shall be suspended for the duration of such force majeure, without Hemabo being liable for any compensation in this regard. The other party may never suspend its obligations to pay any sum of money to Hemabo on the grounds of force majeure.
Article 9 – Warranties, inspection and complaints, shortening of prescription and lapse periods
9.1 Goods sold by Hemabo possess only those characteristics necessary for the normal use of such goods. Hemabo shall be deemed to have fulfilled its obligation to supply goods that comply with the contract if the goods meet the specifications as provided by the other party and set out in the contract. If the order consists of the processing of goods supplied by the other party, Hemabo guarantees only that it will carry out the work with due care. Hemabo does not guarantee the accuracy of data, drawings and materials provided by the other party.
9.2 Any advice provided by Hemabo is given in good faith and to the best of its knowledge, and is in no way binding; it shall not give rise to any liability.
9.3 Hemabo shall only be obliged to replace or repair goods supplied if the goods supplied do not comply with the specifications as provided by the other party and set out in the agreement. The other party must, in all cases, afford Hemabo the opportunity to do so. If the agreed service consisted (in part) of the processing of material supplied by the other party, the other party must supply new material at its own expense and risk. In the event of repair or replacement, the other party is obliged to return the goods to Hemabo and to transfer ownership thereof to Hemabo, unless Hemabo specifies otherwise. Return shipments must always be carriage paid.
9.4 The other party is not entitled to terminate the contract with Hemabo in the event of non-conformity.
9.5 Upon expiry of a warranty period agreed in writing, or if no warranty period has been agreed, Hemabo is entitled to charge the other party for all costs of repair or replacement, including administration, postage and call-out charges, transport costs, travel and accommodation costs and travel time to the other party.
9.6 Any form of warranty shall lapse if a defect has arisen as a result of, or stems from, improper or unauthorised use of an item supplied by Hemabo, or the use thereof, incorrect storage or incorrect maintenance.
9.7 The other party is obliged to inspect the goods delivered, or to have them inspected, immediately after the goods have been delivered to it or the relevant work has been carried out by Hemabo. The other party is obliged to check immediately whether the quality and/or quantity of the goods delivered corresponds to what was agreed with Hemabo. Visible defects must be reported to Hemabo in writing within 5 calendar days of delivery. Hidden defects must be reported to Hemabo in writing immediately, but in any event no later than 5 calendar days after their discovery. The notification must contain as detailed a description of the defect as possible, so that Hemabo is able to respond appropriately.
9.8 No claims whatsoever, and of whatever nature, suspend the other party's payment obligation. The other party remains bound by its obligation to take delivery of and pay for the goods otherwise ordered.
9.9 Claims can no longer be made once the items have been processed, or have been processed or handled incorrectly, this being at the sole discretion of Hemabo.
9.10 Notwithstanding the statutory limitation periods, the limitation period for all claims against Hemabo and any third parties involved by Hemabo in the performance of a contract shall be one year. If, for any reason whatsoever, the complaint period set out in paragraph 5 were to be invalid, the statutory complaint periods, as set out, inter alia, in Article 6:89 of the Dutch Civil Code and Article 7:23 of the Dutch Civil Code shall be reduced to three months after the other party has discovered the defect or should reasonably have discovered it.
Article 10 - Limitation of liability
10.1 Claims will only be accepted by Hemabo provided they are submitted to Hemabo in good time as referred to in Article 9. If, at the time the complaint is made, the other party is (still) in any way in default of its obligations, any right to make a complaint shall lapse.
10.2 Once the aforementioned time limits have expired, the goods delivered shall be deemed to have been irrevocably and unconditionally accepted by the other party. The burden of proof regarding the timely lodging of a complaint rests with the other party. The other party will only be able to prove the validity of its complaint by reference to the goods themselves, whilst the other party also bears the burden of proof that these goods are the same as those delivered by Hemabo and are in the same condition as when they left Hemabo’s warehouse or the warehouse or factory of a third party. Only goods returned at Hemabo’s request and for which Hemabo has approved the complaint will be accepted by Hemabo. Goods returned without justification shall remain available to the other party for a maximum period of 10 working days. Costs of storage and risk shall remain at the other party’s expense. After this period, the goods shall be returned to the other party. The return shipment shall be at the other party’s expense and risk. In the event of a complaint proven by the other party and deemed valid by Hemabo, Hemabo may, at its discretion, either replace the parts or goods to which the complaint relates or issue a credit note to the other party, to the exclusion of any other right of the other party to compensation.
10.3 Hemabo shall under no circumstances – including, for example, in the event of force majeure, complaints, a failure to fulfil an obligation, a tort, incorrect advice, etc. – be liable for any compensation and/or penalty whatsoever, on any grounds whatsoever.
10.4 Insofar as it is established in legal proceedings that the aforementioned full exclusion of liability (paragraph 2) cannot stand, the following applies:
– that the amount payable by Hemabo in respect of damages and a penalty would never (be able to) exceed the amount for which the liability insurance taken out by Hemabo provides cover, subject to the following additional conditions:
– the amount payable by Hemabo / the insurer in respect of compensation and a penalty shall never exceed the amount stated in the invoice relating to the matter(s) in question, not even in the event that the other party is unable to claim a payout from Hemabo’s liability insurer, in which case the following also applies:
– Hemabo shall be liable, at most and exclusively, up to a maximum total amount of €10,000.
10.5 In all cases, however, Hemabo shall never be liable for indirect damage, consequential damage, non-material damage, business interruption, environmental damage, the hire or purchase of a replacement item, loss of profit and/or turnover, or damage arising from liability towards third parties.
10.6 If Hemabo has ordered certain raw materials for its products from one or more third parties and one or more of these third parties have supplied Hemabo with raw materials that differ in one or more respects from what Hemabo ordered, Hemabo shall, in the event that these raw materials are used in its products, under no circumstances whatsoever be liable for any loss or damage incurred by the other party arising from and/or as a result of this.
10.7 Hemabo shall not be liable for any discrepancies in the dimensions of the goods supplied if the dimensions of the goods supplied do not correspond to the dimensions specified by the other party.
10.8 Hemabo accepts no liability for colour variations in items ordered and/or reordered.
10.9 Hemabo shall not be liable for damage to the other party’s property, unless such damage is the result of wilful misconduct or gross negligence on the part of Hemabo.
Article 11 – Indemnity
11.1 The other party shall indemnify Hemabo against any claims by third parties who suffer loss in connection with the performance of the agreement and where the cause of such loss is attributable to parties other than Hemabo.
11.2 Should Hemabo be held liable by third parties on that basis, the other party shall be obliged to assist Hemabo both in and out of court and to take all necessary steps without delay that may reasonably be expected of it in such circumstances. Should the other party fail to take adequate measures, Hemabo shall be entitled, without notice of default, to take such measures itself. All costs and damages incurred by Hemabo and third parties as a result shall be borne in full at the other party’s expense and risk.
Article 12 – Applicable law, complaints and disputes
12.1 All legal relationships between Hemabo and its counterparty shall be governed exclusively by Dutch law, even if an obligation is performed wholly or partly abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
12.2 The court in the place where Hemabo has its registered office shall have exclusive jurisdiction to hear disputes, unless the law expressly provides otherwise. Hemabo shall at all times be entitled to bring the dispute before the court having jurisdiction under the law.
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