General Terms and Conditions of HKliving B.V. (Ch. of Comm. no. 53793560)
In these general terms and conditions (“Conditions”) the following words will have the following meaning:
a. The Contractor/Vendor HKliving B.V., having its corporate seat in De Dieze 2, 8253 PS Dronten, hereinafter referred to as “HKliving”;
b. The Commissioning Party/Buyer: each natural or legal person in the capacity of entrepreneur or consumer to whom HKliving supplies products or makes products available, or for the benefit of whom HKliving provides services, or with whom HKliving enters into a purchase agreement or an agreement to perform services, or with whom HKliving has started consultations or negotiations on entering into a purchase agreement or an agreement to perform services;
c. Agreement: each purchase agreement and/or assignment concluded between HKliving and the Commissioning Party/Buyer, each amendment or addition to such agreement and all (legal) acts for the preparation and execution of such agreement.
d. Products: In these general terms and conditions products are understood to mean all goods offered to the Commissioning Party/Buyer by HKliving on the basis of a purchase agreement, within the framework of service provision or otherwise;
e. Services: all work, in whatever form and by whatever name, executed by or on behalf of HKliving in connection with the Products or otherwise;
f. Order: each assignment from the Commissioning Party/Buyer
2.1 All HKliving’s offers and other legal acts and all agreements concluded by HKliving with the Commissioning Party/Buyer are subject to these conditions.
2.2 The applicability of any general terms and conditions of the Commissioning Party/Buyer in the capacity of entrepreneur are explicitly rejected by HKliving.
2.3 Any changes and additions to this Agreement and/or these Conditions can only be agreed on in writing.
2.4 If a change and/or addition as referred to in the previous paragraph is agreed, this change and/or addition will only apply to the Agreement in question.
2.5 By accepting an offer or executing a payment, the Commissioning Party/Buyer fully accepts the applicability of these Conditions without reservations.
2.6 The provisions of these Conditions can only be deviated from in writing, in which case the other provisions remain in full force.
3.1 All offers are without obligation. HKliving will not be bound until it has accepted or otherwise confirmed and approved an Order in writing. HKliving is entitled to refuse Orders or to attach certain conditions to delivery and/or assignment, unless explicitly provided otherwise.
3.2 If the Commissioning Party’s/Buyer’s acceptance varies (also in perceived minor points) from the offer included in the quotation, HKliving will not be bound to it. The Agreement will not be effected in accordance with this varied acceptance, unless HKliving indicates otherwise.
3.3 A compound quotation does not oblige HKliving to execute a part of the Order or a part of the delivery at a corresponding part of the price quoted.
3.4 If no prior acceptance of an Order has taken place, for example in the event of sales from stock, the purchase agreement comes into effect when HKliving wholly or in part meets the Commissioning Party’s/Buyer’s request to deliver, or when HKliving sends an invoice to a Commissioning Party/Buyer who requested delivery. The invoice is then deemed to reflect the agreed Order or work correctly.
3.5 HKliving has drawn up all specifications of numbers, measurements, weights and/or other indications of Products and/or Services with due care, but HKliving cannot guarantee that no deviations will occur. If any deviations should occur with regard to the Products or materials delivered and/or Services provided, the necessary additional Products, materials or Services will be purchased by the Commissioning Party/Buyer at the same conditions and price. Any excess material delivered will not be taken back by HKliving. Drawings or designs shown are mere indications of the relevant Products and/or Services. If the Commissioning Party/Buyer proves that the Products delivered and/or Services provided and/or the work contracted vary from HKliving’s specifications, drawings or designs to such an extent that he/it can no longer reasonably be obliged to purchase, the Commissioning Party/Buyer will be entitled to terminate the Agreement, but only inasmuch as termination is necessary. Page2 File number PTB.6.16.012981
3.6 Any images, drawings and suchlike provided by HKliving will remain the possession of HKliving and may not be copied, reproduced or made available to third parties without its explicit consent.
The Commissioning Party/Buyer is obliged to provide HKliving promptly with all information that HKliving in its opinion needs for a correct execution of the Agreement. The offer is based on the information provided for the purpose by the Commissioning Party/Buyer, and HKliving may rely on its correctness and completeness. The Commissioning Party’s/Buyer’s information will be the basis for the formation of the Agreement. The Commissioning Party/Buyer guarantees that the information provided to HKliving is correct, complete and reliable, also if it comes from third parties.
If it is agreed that the Agreement will be executed in stages, HKliving - if applicable - may suspend execution of such parts that belong to a next stage or the execution of partial deliveries until the Commissioning Party/Buyer has fulfilled his/its (entire) obligation to pay HKliving.
6.1 Terms/delivery times advised by HKliving to the Commissioning Party/Buyer in connection with the Agreement are only meant to be indicative and can never be considered as a deadline whose non-observance constitutes default, not even in the event of an ultimate date.
6.2 If outside the event referred to in article 5 execution of the Agreement by HKliving cannot be realized within the agreed term, HKliving will advise the Commissioning Party/Buyer as soon as possible of the term in which it will be able to execute the Agreement.
6.3 If any term advised by HKliving is breached, HKliving will not be in default until the Commissioning Party/Buyer has given written notice of default and has granted HKliving a reasonable later term to meet its obligations towards the Commissioning Party/Buyer.
6.4 Any goods that can be delivered from stock will be sent immediately when ordered. HKliving may charge shipping costs for sending the goods ordered. Delivery of the goods ordered will be effected at the mailing address known at HKliving, not being of a temporary nature, and the goods will be delivered to a natural person (the ‘purchaser’) present at the delivery address.
6.5 The purchaser must sign for receipt of the Products. The only exception is when purchaser has grounds to refuse pursuant to the law.
6.6 If the purchaser refuses to take delivery or is negligent in providing the information or instructions necessary for delivery, the Products will be stored for the account and at the risk of the Commissioning Party/Buyer.
6.7 Subject to evidence to the contrary, HKliving will have met its obligation to deliver as soon as the goods delivered by HKliving have been offered once to the purchaser. In the event of home delivery, the transporter’s report to the effect that delivery was refused will serve as full evidence of the offer to deliver, subject to evidence to the contrary.
6.8 If the goods offered are refused, the return cargo and storage charges and the risk of damage or loss of the refused goods will entirely be charged to the Commissioning Party/Buyer, unless the Commissioning Party/Buyer invokes the right to terminate the purchase or the entitlement to replacement of the goods on proper grounds.
6.9 A desired delivery date stated by the Commissioning Party/Buyer will only constitute a desired, indicative delivery date. The actual delivery date may vary and will not be definite until it is confirmed by HKliving.
7.1 Unless the Commissioning Party/Buyer is a consumer, all prices, costs and rates advised by HKliving are exclusive of turnover tax and any other levies imposed by the authorities. Prices and rates apply to the Agreement referred to in the confirmation of the assignment/quotation in accordance with the specifications and periods stated.
7.2 On conclusion of the Agreement, the Parties may agree on a fixed price. If no fixed price is agreed, the price will be determined on the basis of the hours actually spent (on a cost-plus basis). The price will then be calculated according to HKliving’s usual hourly rates applicable during the period the work is executed, unless a deviating hourly rate is agreed.
7.3 When an assignment exceeds a term of three (3) months, the costs due will be charged to the Commissioning Party/Buyer periodically (monthly).
7.4 HKliving will always be entitled to charge any price-increasing circumstances occurring after the quotation was submitted or the Agreement was concluded to the Commissioning Party/Buyer. If the Commissioning Party/Buyer is a consumer, the consumer will be entitled to terminate the Agreement if the cost price increase is desired by HKliving within three (3) months after the Agreement was concluded. Page3 File number PTB.6.16.012981
7.5 In the event of a price increase of the fixed fee or hourly rate of more than 10%, each Commissioning Party/Buyer will be entitled to terminate the Agreement. The Commissioning Party/Buyer will not be entitled to terminate the Agreement, if the authority to increase the fixed fee or hourly rate arises from an authority by virtue of the law.
7.6 HKliving will notify the Commissioning Party/Buyer of its intention to increase the fixed fee or hourly rate in writing. This notification will contain the size of the increase and the date when it will become effective.
7.7 If the Commissioning Party/Buyer wishes not to accept the increase of the fixed fee or hourly rate of more than 10% as expressed by HKliving, the Commissioning Party/Buyer is entitled to terminate the Agreement within fourteen (14) days after the notification referred to, with effect from the date mentioned in the notification of HKliving when the adjustment of the price or rate would come into force.
8.1 HKliving does not offer a more comprehensive warranty of goods delivered than the warranty conditions of the manufacturer of these goods, however without affecting the Commissioning Party’s/Buyer’s rights arising from mandatory statutory provisions.
8.2 However, HKliving is never responsible for the ultimate suitability of the goods for each individual application by the Commissioning Party/Buyer, nor for any advice with regard to the use of application of the goods.
8.3 The Commissioning Party/Buyer is not obliged to check the goods delivered immediately upon receipt. If the goods delivered turn out to be wrong, defective or incomplete, the Commissioning Party/Buyer must immediately notify HKliving in writing of the defects, before proceeding to return the goods to HKliving. Any defects or goods delivered wrongly must and can be reported to HKliving by the Commissioning Party/Buyer, being an entrepreneur, no later than eight (8) days after delivery. Any defects or goods delivered wrongly must and can be reported to HKliving by the Commissioning Party/Buyer, being a consumer, no later than two (2) months after delivery. The goods must be returned in unused state and in their original packaging, inclusive of accessories and accompanying documentation. The right to claim and return will lapse when the goods are put to use or damage has occurred after the defects have been established, or if the goods are encumbered and/or resold after the defects have been established.
8.4 If HKliving finds the Commissioning Party’s/Buyer’s complaints valid, HKliving will at its discretion either replace the goods delivered free of charge or make arrangements in writing with the Commissioning Party/Buyer about compensation, on the understanding that HKliving’s liability is limited in accordance with the provisions in article 14.
8.5 This warranty will not apply, if: A) and as long as the Commissioning Party/Buyer is in default to HKliving; B) the Commissioning Party/Buyer has repaired or processed the goods delivered himself and/or has had them repaired or processed by a third party; C) the goods delivered have been exposed to abnormal circumstances or treated otherwise negligently or contrary to the instructions of HKliving and/or the manual on the packaging; D) the defectiveness is wholly or in part the consequence of government regulations regarding the nature or quality of the materials applied.
9.1 In the event of permanent force majeure, HKliving is entitled to terminate the Agreement with the Commissioning Party/Buyer without court intervention by means of a written declaration. HKliving will not be liable towards the Commissioning Party/Buyer for any damage incurred by the Commissioning Party/Buyer of whatever extent in this regard.
9.2 In the event of temporary force majeure, HKliving will be entitled to extend the terms within which execution of the Agreement is due by the time during which the temporary impediment applies. If the impediment mentioned lasts longer than six months, the Commissioning Party/Buyer may demand termination or partial termination of the Agreement, without the Commissioning Party/Buyer being entitled to compensation for damages, all this without prejudice to the payment and other obligations of the Commissioning Party/Buyer in this regard of the part of the Agreement already executed by HKliving.
9.3 If on occurrence of the force majeure HKliving has already partially fulfilled its obligations or will only be able to fulfil its obligations partially, HKliving will be authorized to invoice the part of the Agreement partially executed or to be executed separately.
10.1 Notwithstanding actual delivery, the ownership of the Products does not pass to the Commissioning Party/Buyer until he/it has completely fulfilled all that he/it owes or will owe to HKliving pursuant to the Agreement and/or these Conditions, including the purchase or contract price, any surcharges, interests, taxes and costs payable Page4 File number PTB.6.16.012981 by virtue of these Conditions or the Agreement, and on the bases of work executed or to be executed pursuant to the Agreement.
10.2 Any sum received from the Commissioning Party/Buyer will first serve to settle such claims as HKliving may have on the Commissioning Party/Buyer with respect to which HKliving has not claimed a retention of title as in paragraph 1. After that any sum received from the Commissioning Party/Buyer will first serve to settle any interests and costs payable as referred to in article 12, paragraphs 3 and 4.
10.3 Until ownership of the Products has passed to the Commissioning Party/Buyer, the Commissioning Party/Buyer will not be entitled to hire the Products out to third parties, or give them in use, to pledge them to third parties or encumber them in any other way for the benefit of third parties. The Commissioning Party/Buyer, being an entrepreneur, will only be entitled to sell, supply or deliver the Products of which HKliving is the owner to the extent that this is necessary for its normal business operations.
10.4 The Commissioning Party is obliged to store the Products delivered under retention of title carefully and recognizable as HKliving’s property and to insure them against risks such as fire, explosion, damage and theft. At HKliving ‘s first request the Commissioning Party/Buyer will assign all rights on the relevant insurers in connection herewith to HKliving.
10.5 If and as long as HKliving is the owner of the Products, the Commissioning Party/Buyer will notify HKliving without delay if any part of the Products is lost or damaged, or the Products have been attached and/or if in any other way, a claim is laid on the Products or part thereof. At HKliving ‘s first request, the Commissioning Party/Buyer will furthermore inform HKliving where the Products HKliving is the owner of are located.
10.6 In the event of attachment, moratorium - provisional or otherwise - or bankruptcy, the Commissioning Party/Buyer will immediately point out HKliving’s rights (of ownership) to the seizing bailiff or the receiver.
11.1 Payment by the Commissioning Party/Buyer must be effected within thirty (30) days after date of invoice in the manner indicated on HKliving’s quotation, unless agreed otherwise in writing. All terms of payment will be considered as a deadline whose non-observance constitutes default, unless expressly agreed otherwise. Any right to set-off of the Commissioning Party/Buyer, being an entrepreneur, for whatever reason, will explicitly be excluded.
11.2 Any objections against invoices sent by HKliving to the Commissioning Party/Buyer, being an entrepreneur, do not suspend its obligation to pay.
11.3 If the Commissioning Party/Buyer fails to pay, or fails to pay in time or in full, he in the capacity of a consumer will owe the statutory interest over the outstanding amount of the invoice, or it in the capacity of entrepreneur will owe the statutory commercial interest over the outstanding amount of the invoice, whereby part of a month will be calculated as a whole month, without prior notice of default.
11.4 If the Commissioning Party/Buyer is in default in the (prompt) performance of his/its obligations, the extrajudicial collection costs in accordance with the Extrajudicial Collection Costs Decree 2012 will be charged, without prejudice to the other rights accruing to HKliving, such as the right to compensation of damages or performance.
12.1 The Commissioning Party/Buyer in the capacity of entrepreneur must lodge any complaints about the work performed or the Products delivered in writing by means of a registered letter to HKliving within eight (8) days after delivery. This term of eight (8) days after delivery is extended by two (2) calendar months for a Commissioning Party/Buyer being a consumer. The notice of default must comprise a description as detailed as possible of the defect, in order to enable HKliving to react adequately.
12.2 Any complaints with regard to the performance of the Agreement by HKliving will never entitle the Commissioning Party/Buyer, being an entrepreneur, to suspend its obligation to pay vis-à-vis HKliving.
12.3 If HKliving considers a complaint well-founded, HKliving will be entitled to execute the Agreement in question again, or to remedy the complaint in any other way.
12.4 If the Commissioning Party/Buyer, being an entrepreneur, is of the opinion that HKliving has failed to execute the Agreement promptly, fully or adequately, the Commissioning Party/Buyer is obliged to notify HKliving thereof without delay in writing by means of a registered letter in accordance with the provisions of paragraph 1, and to make the claims based thereon enforceable at law by means of a summons within twelve (12) months after the date of the notification referred to above or within twelve (12) months after that notification should have been made, in default thereof all its rights in this regard will lapse by the mere expiry of the term. Page5 File number PTB.6.16.012981
13.1 The purchase prices do not include assembly, putting into operation and after sales service costs, unless agreed otherwise.
13.2 If HKliving has undertaken to assemble and commission the Products sold and delivered, it will only accept liability with respect to the operation of the Products, if: a. assembly and commissioning is performed in accordance with its instructions, and if it has the right to put a mechanic in charge of the work. Travelling costs and accommodation, food and similar costs for the mechanic are for the account of the Commissioning Party/Buyer. b. the circumstances - in the broadest sense of the word - at the location where assembly and commissioning must take place do not form an impediment and the foundation, walls and suchlike on which the Products must be set up or affixed are applied, executed and/or repaired in the correct manner before the work commences. All additional work, including but not limited to offering the Products to be processed or organizing the set-up (location) will be for the account of the Commissioning Party/Buyer. Furthermore, the Commissioning Party/Buyer must provide the necessary assistance in the form of manpower of auxiliary materials for his/its own account.
13.3 If as a result of circumstances independent of HKliving’s will, the mechanic will be unable to proceed on a regular basis with the assembly and the putting into operation, the costs arising from this will be chargeable to the Commissioning Party/Buyer.
14.1 HKliving is exclusively liable for damages suffered by the Commissioning Party/Buyer, being an entrepreneur, insofar as this damage is covered by HKliving’s liability insurance.
14.2 HKliving is not liable for any damages suffered or to be suffered by the Commissioning Party/Buyer, being an entrepreneur, or third parties, of whatever nature and/or to whatever extent related to or arising from the performance of the Agreement, including damage to goods owned by the Commissioning Party/Buyer or third parties, and indirect loss, including for example consequential damage and loss of profits, lost savings, and loss due to business interruption, unless HKliving has shown deliberate intent or gross negligence which can be considered equivalent to it.
14.3 HKliving is never liable to the Commissioning Party/Buyer, being an entrepreneur, for damages and/or costs of whatever nature and/or to whatever extent, in whatever manner related to or arising from acts, omissions, errors and/or the quality of the work done by third parties engaged by HKliving when performing the Agreement, unless this damage is partly caused by deliberate intent or gross negligence which can be considered equivalent to it.
14.4 If and to the extent that, notwithstanding the provisions of the above paragraphs, liability to the Commissioning Party/Buyer in whatever capacity and/or for whatever reason should turn out to lie with HKliving, this liability will be limited to no more than the invoice amount (exclusive of turnover tax) charged to the Commissioning Party/Buyer for the materials delivered and/or the work done, which is the cause of the loss or damage, with a maximum of €2,500. An exception to the above is a case of deliberate intent or gross negligence that can be considered equivalent to it. A series of connected incidents counts as one incident.
14.5 Insofar as in a certain case the Commissioning Party/Buyer has not yet been invoiced, the word ‘invoice amount’ in the above text must be read as ‘the agreed fixed price’ or ‘the customary rate’, which would be charged to the Commissioning Party/Buyer for the work done, which is the cause of the loss or damage.
14.6 The Commissioning Party/Buyer indemnifies HKliving against all claims by third parties in respect of the loss or damage in connection with the Agreements executed by HKliving, unless it is established at law that these claims result from deliberate intent or gross negligence which can be considered equivalent to it on the part HKliving and moreover the Commissioning Party/Buyer proves that it is not to blame at all in this matter.
15.1 If the Commissioning Party/Buyer fails to fulfil one or more of his/its obligations (including the obligation to pay) to HKliving promptly or properly, HKliving will be entitled, without prejudice to all its other rights and remedies, to suspend the fulfilment of its obligations to the Commissioning Party/Buyer until the Commissioning Party/Buyer has entirely fulfilled its obligations to HKliving.
15.2 In addition to all its other rights and remedies, HKliving is entitled to terminate the Agreement concluded with the Commissioning Party/Buyer without further prior notice of default or court intervention by means of a written extrajudicial declaration, - in the event of permanent force majeure as referred to article 9 of these general terms and conditions; - if the Commissioning Party/Buyer has been granted a moratorium, provisional or otherwise, liquidation or bankruptcy has been petitioned for the Commissioning Party/Buyer, or the Commissioning Party/Buyer has petitioned for his own bankruptcy or its own liquidation, the Commissioning Party/Buyer has offered his/its creditors a private Page6 File number PTB.6.16.012981 settlement, or convenes a meeting of creditors for this purpose, or if application of the Debt Management (Natural Persons) Act is requested or granted in respect of the Commissioning Party/Buyer; - if the business of the Commissioning Party/Buyer, being an entrepreneur, is wound up and/or its business operations are effectively discontinued or transferred to a location outside the Netherlands.
16.1 HKliving respects the privacy of the online visitors to its website and is the sole owner of the information obtained through this website, unless indicated otherwise. HKliving will not sell, share or rent out this information to third parties in any other way than stated in this privacy statement.
16.2 Any information which may serve to identify an online visitor to the HKliving website is provided voluntarily by the visitor. HKliving, and its subsidiaries and brands, may use this information to make a visit to the website as easy and pleasant as possible. In addition, this information may be used for analysis and to provide information on the HKliving product portfolio. The visitor gives his/its explicit permission for this. HKliving will be entitled to disclose information about a visitor in special cases, if there is reason to assume that disclosure of such information is necessary to identify, get in touch with or bring proceedings against a person who, whether or not deliberately, prejudices and harms the rights or property of HKliving, other users of its website or other persons who could suffer damage from it. HKliving will be entitled to disclose information about users, if HKliving is of the opinion in good faith that the law so requires.
16.3 HKliving collects non-personal information about its online visitors for establishing the total number of visitors to its website, and the type of browser and the operating system used. At the online visitor’s request, personal data can be removed insofar as this does not require disproportionate effort or costs from HKliving.
17.1 Unless explicitly agreed otherwise in writing, the full copyrights and all other intellectual and industrial property rights in respect of the goods supplied or Services performed by HKliving, such as trademarks rights, design rights, patent rights, sui generis database rights, etc. are exclusively vested in HKliving and/or its suppliers.
17.2 The Parties undertake to take sufficient measures to ensure secrecy with regard to each other’s data of a confidential nature of which they learn during the execution of the Agreement.
17.3 HKliving’s website is protected by copyright. The website is designated for own use or internal use by its customers, and it is prohibited to reproduce the website and its content other than by downloading and viewing it on one single computer, and/or printing one single hardcopy. Without HKliving’s prior written permission it is prohibited to reproduce or forward this website and its content or to make it available on a network in any other manner.
If and to the extent that a certain provision in these general terms and conditions cannot be invoked for reasons of reasonableness, equity or unreasonably onerous character, a meaning will be attached to this provision that corresponds as closely as possible to the original content and purport, so that this provision can nevertheless be invoked.
If any provision of these general terms and conditions should not apply or be contrary to the public order or the law, only the relevant provision will be considered as unwritten, but the other general terms and conditions will remain in full force.
20.1 Each legal relationship between HKliving and the Commissioning Party/Buyer, including offers and quotations by HKliving, is exclusively governed by Dutch law.
20.2 All disputes arising from or in connection with the legal relationship between HKliving and the Commissioning Party/Buyer, and which are subject to these general terms and conditions, will only be submitted to the competent court in the district where the HKliving branch is located and from where it carries out its activities, unless mandatory legal provisions prescribe otherwise.
20.3 If the delivery location is not accessible to an articulated lorry of 15m, the Commissioning Party/Buyer must ask for special transport in advance at extra costs. If the Commissioning Party/Buyer has failed to report this in advance, HKliving may cancel (terminate) the Order and charge the costs incurred to the Commissioning Party/Buyer. The articulated lorry is unloaded from the side and it will be endeavoured to unload as close as possible to the desired delivery location, on the condition this is feasible and responsible. Page7 File number PTB.6.16.012981
20.4 If the Commissioning Party/Buyer is not present at the agreed date of delivery, the extra costs incurred will be at the Commissioning Party’s/Buyer’s expense. If the Commissioning Party/Buyer wants to change the date of delivery, this can be realized free of charge up to one (1) day in advance. When the Order is cancelled or terminated, the Order amount less administrative costs will be refunded to the account of the Commissioning Party/Buyer, unless agreed otherwise.
20.6 If the Commissioning Party/Buyer wishes to cancel (terminate) delivery of the Products or Services, he/it can only do so in writing by means of a registered letter, and unless HKliving waives its right, the following costs will be attached to it: - up to thirty (30) days before the start of delivery forty-five percent (45%) of the invoice amount; - from thirty (30) days to twenty-one (21) days before the start of delivery sixty percent (60%) of the invoice amount; - from thirty (21) days to fourteen (14) days before the start of delivery eighty-five percent (85%) of the invoice amount; - from fourteen (14) days to seven (7) days before the start of delivery ninety percent (90%) of the invoice amount; - seven (7) days before the start of delivery or later hundred percent (100%) of the invoice amount.