General terms and conditions TWC Trading with Commitment B.V.
trading under the name Helmacab Parts.
Private limited liability company with regular structure Helmacab Holland B.V. is registered at the Chamber of Commerce under number 11060790 and is established on Griendweg 72, 4209DB in Schelluinen.
Hereafter referred to as Helmacab Parts.
- In these general conditions, the terms below are used in the following meaning, unless expressly stated otherwise:
- Offer: any written offer to Buyer for the delivery of Products by Seller that these conditions are an inextricable part of.
- Company: the natural or legal person acting from the exercise of a profession or business.
4 Buyer: the natural or legal person acting from the exercise of a business or profession, entering into a (Distance) Agreement with Seller.
- Agreement: the purchase (distance) agreement stipulating the sale and delivery of Products that were bought by Buyer from Helmacab Parts
- Products: the Products that are offered by Helmacab Parts are (customized) specialist cables for various sectors.
- Seller: the offeror of Products to Buyer, in the following: Helmacab Parts.
- These general conditions are applicable to every Offer of Helmacab Parts and to each Agreement between Helmacab Parts and a Buyer and to each Product that is offered by Helmacab Parts
- Before a (distance) Agreement is concluded, Buyer is provided with these general conditions. If this is not reasonably possible, then Helmacab Parts will indicate to Buyer in what manner Buyer can peruse the general conditions, which in any event are published on the website of Helmacab Parts, so that Buyer is able to easily store these general conditions on a durable data carrier.
- In exceptional situations, these general conditions can be derogated from if such has been established explicitly and in writing with Helmacab Parts
- These general conditions are also applicable to additional, modified, and subsequent agreements with Buyer. Any possible general and/or purchasing conditions of Buyer are expressly rejected.
- If one or more provisions of these general conditions are partially or entirely void or are annulled, the other provisions of these general conditions remain effective and the void/annulled provision(s) will be replaced by a provision with the same purport as the original provision.
- Ambiguities regarding the content, interpretation, or situations that have not been arranged for in these general conditions must be assessed and interpreted in the spirit of these general conditions.
- If reference is made in these general conditions to she/her, this must also be understood as a reference to he/him/his, if and to the extent applicable.
- All offers made by Helmacab Parts are non-committal, unless expressly indicated otherwise in writing. If the Offer is limited or valid under specific conditions, this is stated expressly in the offer. An Offer can only be said to pertain if it has been established in writing.
- Helmacab Parts is only bound by the Offer if the acceptance thereof is confirmed by Buyer in writing within 30 days, or because Buyer has settled the amount owed already. Helmacab Parts nevertheless has the right to refuse an Agreement with a potential Buyer for reasons that are legitimate for Helmacab Parts
- The Offer contains a precise description of the Product offered with the associated prices. The description has such detail that Buyer is able to make a sound evaluation of the Offer. Apparent mistakes or errors in the Offer cannot bind Helmacab Parts Any possible pictures and specific information in the Offer are only an indication and cannot constitute grounds for any compensation of damages or the rescission of the (distance) Agreement. Helmacab Parts cannot guarantee that the colours in the picture correspond exactly with the actual colours of the Product.
- Delivery Times and Terms stated in the Offer of Helmacab Parts are indicative and in case of their overrunning do not grant Buyer any right to rescission or damages, unless expressly established otherwise.
- A combined price quotation does not oblige Helmacab Parts to deliver a part of the matters included in the promotional offer or Offer against a part of the quoted price.
- If and to the extent there is a promotional offer, this does not automatically apply to backorders. Promotional offers are only valid for as long as there is availability and in accordance with the principle of first come first serve.
Article 4 Adoption of the Agreement
- The Agreement is adopted at the moment that Buyer has accepted an Offer from Helmacab Parts
- An Offer can be made by Helmacab Parts via e-mail or through the website.
- If Buyer has accepted the Offer by concluding an Agreement with Helmacab Parts, Helmacab Parts will confirm the Agreement with Buyer in writing, or at least by e-mail.
- If the acceptance deviates (on minor points) from the Offer, Helmacab Parts is not bound by it.
- Helmacab Parts is not bound by an Offer if Buyer could reasonably have expected or has had or should have understood that the Offer contained an apparent mistake or typing error. No rights can be derived from such mistake or typing error by Buyer.
- The right of revocation is excluded for Buyer that is a Company.
Article 5 Implementation of the Agreement
- Helmacab Parts will carry out the Agreement to the best of their understanding and ability.
- If and to the extent the proper implementation of the Agreement requires such, Helmacab Parts has the right to have certain activities carried out by third parties at own discretion.
- Buyer makes sure that all information for which Helmacab Parts indicates that it is required or of which Buyer should reasonably understand that it is necessary for the implementation of the Agreement, is timely provided to Helmacab Parts If information required for the implementation of the Agreement is not timely provided to Helmacab Parts, then Helmacab Parts has the right to suspend the implementation of the Agreement.
- Upon the implementation of the Agreement, Helmacab Parts is not obliged or bound to follow the indications of Buyer if the content or scope of the Agreement is changed as a result. If the indications entail additional work for Helmacab Parts, Buyer is obliged to correspondingly compensate the additional or added costs.
- Before proceeding with the implementation of the Agreement, Helmacab Parts may require security from Buyer, or full payment in advance.
- Helmacab Parts is not liable for damage, of any nature whatsoever, that has occurred because Helmacab Parts relied on incorrect and/or incomplete information provided by Buyer, unless such incorrectness or incompleteness was known to Helmacab Parts
- Buyer safeguards Helmacab Parts against any possible claims by third parties that incur damage in connection with the implementation of the Agreement and that is attributable to Buyer.
- If the start, progress, or commissioning/delivery of the Agreement is delayed because, for example, Buyer has not or has not timely supplied all information requested, renders insufficient assistance, the (down) payment has not been timely received by Helmacab Parts, or due to any circumstance outside the control of Helmacab Parts any delay occurs, Helmacab Parts is entitled to a reasonable extension of the delivery term. All established delivery terms never are strict time limits. Buyer must declare the default of Helmacab Parts in writing and grant them a reasonable term enabling them to still deliver. As a result of the delay that has occurred, Buyer is not entitled to any compensation of damages.
- Buyer is obliged to receive the matters at the moment that they are made available in accordance with the Agreement, also in the event they are offered sooner or later than was established.
- If the Buyer refuses to accept or is negligent with the provision of information or instructions that are required for the delivery, Helmacab Parts has the right to store the matters at the expense and risk of Buyer.
- If the Products are delivered by Helmacab Parts or an external transporter, Helmacab Parts has the right, unless established otherwise in writing, to bill any other possible delivery costs. These will in such case be billed separately, unless expressly established otherwise.
- If Helmacab Parts requires information from Buyer in the context of the implementation of the Agreement, the delivery time only commences after Buyer has provided all information that is required for the implementation to Helmacab Parts
- If Helmacab Parts has submitted a term for delivery, it is indicative. For delivery outside the Netherlands, longer delivery terms apply.
- Helmacab Parts has the right to deliver the matters in batches, unless this was derogated from by Agreement, or unless no independent value is associated with the partial delivery. Helmacab Parts has the right to separately invoice what is thus delivered.
- Deliveries are only carried out if all invoices are settled, unless expressly established otherwise. Helmacab Parts reserves itself the right to refuse delivery if there is a legitimate fear of non-payment.
Article 7 Packaging and transport
- Helmacab Parts commits itself towards Buyer to adequately package the matters to be delivered and to secure them in such a manner that upon normal use they will reach their destination in proper condition.
- Unless established otherwise in writing, all deliveries occur inclusive of sales tax (VAT), including packaging and packaging material.
- The acceptance of matters without comments or observations on the bill of lading of the receipt counts as evidence that the packaging was in proper condition at the time of delivery.
- During the term of validity of the Offer, the prices of the Products offered are not increased, barring in the event that there are changes to VAT rates.
- The prices listed in the Offer are inclusive of VAT, unless expressly stated otherwise.
- The prices as mentioned in the Offer are based on cost factors that are effective at the time of conclusion of the Agreement, such as: import and export duties, freighting and unloading charges, insurance, and any possible levies and taxes.
- In case of Products or raw material for which there are price fluctuations on the financial markets and on which Helmacab Parts does not have any influence, Helmacab Parts may offer these Products at variable prices. It is indicated in the Offer that the prices are target prices and that they may fluctuate.
Article 9 Payment and collection policy
- Payment must preferably take place in advance in the currency in which the invoice was prepared, by way of the method indicated.
- Buyer cannot derive any rights or expectations from a budget issued beforehand, unless parties have expressly established otherwise.
- Buyer must settle payment beforehand, on the bank account communicated to him, and in accordance with the payment details of Helmacab Parts Only following the explicit, written consent of Helmacab Parts can parties establish a different payment method.
- If a periodic payment obligation of Buyer has been established, Helmacab Parts has the right to modify the effective prices and rates in writing, with due regard for a term of 3 months.
- In case of liquidation, bankruptcy, attachment, or suspension of payments of Buyer, the claims of Helmacab Parts on the Buyer are immediately payable.
- Helmacab Parts has the right to have the payments executed by the Buyer serve primarily to be deducted from the costs, subsequently to reduce the mature interest, and finally to be deducted from the principal sum and the current interest. Helmacab Parts can, without falling into default as a result, refuse a proposal for payment if the Buyer indicates a different order for allocation. Helmacab Parts can reject full settlement of the principal sum id thereby the matured and current interest, as well as the costs, are not settled as well.
- In case Buyer does not comply with his payment obligation and has not complied with his obligation within the payment term established for it, Buyer falls into default.
- As from the date that Buyer is in default, Helmacab Parts will be entitled, without any further default notice, to the statutory (commercial) interest from the first day of default until full settlement and compensation of the extrajudicial costs, to be calculated in conformity with article 6:96 BW (Civil Code) according to the table from the decree on extrajudicial collection costs ‘besluit vergoeding voor buitengerechtelijke incassokosten’ of 1 July 2012.
- If Helmacab Parts has incurred more or higher costs that are reasonably necessary, these costs are eligible for compensation. Also the judicial and enforcement costs incurred are borne by Buyer.
- All matters delivered by Helmacab Parts remain the property of Helmacab Parts until the Buyer has complied with all obligations below from all Agreements concluded with Helmacab Parts
- Buyer is not authorised to pawn the matters subject to retention of tile, nor to encumber them in any other manner, if the property has not been transferred completely.
- If third parties levy an attachment on the matters delivered under retention of title or wish to establish or enforce rights thereto, Buyer is obliged to inform Helmacab Parts concerning as soon as may reasonably be expected.
- In the event that Helmacab Parts wishes to exercise its property titles as indicated in this article, Buyer already presently grants unconditional and irrevocable permission to Helmacab Parts or to third parties to be designated by the latter to access all those areas where the property of Helmacab Parts is located and to recover those matters.
- Helmacab Parts has the right to keep the Product(s) purchased by Buyer under their control if Buyer has not (fully) complied with his payment obligations yet, despite an obligation for the transfer or release of Helmacab Parts After Buyer has complied with his obligations still, Helmacab Parts will exert itself to deliver the purchased Products as soon as possible to Buyer.
- Costs and other (consequential) damage as a result of the keeping under their control of the purchased Products are at the expense and risk of Buyer and will upon first request be refunded to Helmacab Parts by Buyer.
- Helmacab Parts guarantees that the Products are compliant with the Agreement, with the specifications stated in the offer, usability and/or soundness, and the legal rules/requirements at the time of adoption of the Agreement. This applies as well if the matters to be delivered are intended for use abroad and Buyer has expressly reported such use in writing at the time of adoption of the Agreement to Seller.
- Products in principle are subject to a manufacturer’s warranty of one year.
Article 12 Suspension and rescission
- Helmacab Parts is authorised to suspend compliance with the obligations or to rescind the Agreement if Buyer does not or does not fully comply with the (payment) obligations from the Agreement.
- Helmacab Parts is furthermore authorised to rescind the Agreement existing between them and Buyer, to the extent it has not been implemented yet, without judicial intervention, if the Buyer does not timely or does not properly comply with the obligations that flow for him from any Agreement concluded with Helmacab Parts
- Helmacab Parts is furthermore authorised to (let) rescind the Agreement without any prior default notice if circumstances occur that are of such a nature that compliance with the Agreement can impossibly or by standards of reason and fairness can no longer be required, or in the event circumstances occur otherwise that are of such a nature that the unaltered maintenance of the Agreement cannot reasonably be expected.
- If the Agreement is rescinded, the claims of Helmacab Parts on Buyer become instantly exigible. In case Helmacab Parts suspends compliance with the obligations, they retain their entitlements from the law and the Agreement.
- Helmacab Parts always retains the right to demand compensation of damages.
Article 13 Limitation liability
- If the implementation of the Agreement by Helmacab Parts leads to liability of Helmacab Parts towards Buyer or third parties, then such liability is limited to the costs billed in connection with the Agreement by Helmacab Parts, unless the damage has occurred as a result of wilful intent or gross fault. The liability of Helmacab Parts is limited in any case to the damage amount that is disbursed at most by the insurance company per event per year.
- Helmacab Parts is not liable for consequential damage, indirect damage, loss of profit and/or losses incurred, missed savings, and damage as a result of the use of the delivered Products is excluded.
- Helmacab Parts is not liable for and/or obliged to restore damage that has occurred as a result of the use of the Product. Helmacab Parts provides strict instructions for maintenance and use that must be observed by Buyer. All damage to Products as a result of the wearing and using thereof is expressly excluded from liability (also including traces of use, usage damage, dropping damage, light and water damage, theft, going missing, etc.).
- Helmacab Parts is not liable for damage that is or may be the result of any action or omission in connection with (incomplete and/or incorrect) information on the website(s) or of linked websites.
- Helmacab Parts is not responsible for errors and/or irregularities in the functionality of the website and is not liable for malfunctions or the unavailability for whatever reason of the website.
- Helmacab Parts does not guarantee a correct and complete transmission of the content of e-mail sent by and/or on behalf of Helmacab Parts, nor the timely receipt thereof.
- All claims of Buyer on account of the falling short on the part of Helmacab Parts lapse if they have not been reported in writing, including substantiation, to Helmacab Parts within one year after Buyer was aware or could reasonably have been aware of the facts he bases his claims on. All claims of Buyer lapse in any event one year after the ending of the Agreement.
- Helmacab Parts is not liable in case as a result of a situation of force majeure they are unable to comply with their obligations on grounds of the Agreement, nor can they be held to comply with any obligation if they are prevented from doing so as a result of a circumstance that cannot be blamed on their fault and that neither pursuant to the law nor to a legal transaction or commonly held opinion is considered their responsibility.
- By force majeure is intended in any case, though it is not limited to, what is defined as such in the law and in jurisprudence, (i) force majeure of suppliers of Helmacab Parts, (ii) the not properly complying with obligations by suppliers who were prescribed or recommended by Buyer to Helmacab Parts, (iii) defectiveness of matters, devices, software, or materials of third parties, (iv) government measures, (v) power malfunctions, (vi) malfunction of the internet, data network and telecom facilities (for example due to: cybercrime and hacking), (vii) natural disasters, (viii) war and terrorist attacks, (ix) general transport issues, (x) work strikes at the company of Helmacab Parts, and (xi) other situations that in the opinion of Helmacab Parts fall outside their sphere of influence which temporarily or permanently prevent compliance with their obligations.
- Helmacab Parts has the right to appeal to force majeure if the circumstance preventing (further) compliance enters into effect after Helmacab Parts should have complied with their undertaking.
- During the period that the force majeure continues, Parties can suspend the obligations from the Agreement. If this period lasts longer than two months, each of the parties has the right to rescind the Agreement, without any obligation to compensate damage to the other party.
- To the extent Helmacab Parts at the time the force majeure enters into effect has already partially fulfilled its obligations from the Agreement or will be able to do so, and the part fulfilled or to be fulfilled respectively an independent value can be attributed, Helmacab Parts has the right to separately invoice the part already fulfilled or still to be fulfilled respectively. Buyer is obliged to settle this invoice as if it regarded a separate Agreement.
The risk of loss or damaging of the Products that are the object of the Agreement is transferred to Buyer at the moment that the matters leave the warehouse of Helmacab Parts
Article 16 Intellectual Property Rights
- All intellectual property rights and copyrights of Helmacab Parts lie exclusively with Helmacab Parts and are not transferred to Buyer.
- It is prohibited to Buyer to disclose and/or multiply, alter, or provide to third parties all documents that are subject to the intellectual property rights and copyrights of Helmacab Parts without the express prior written consent of Helmacab Parts If Buyer wishes to apply changes to matters delivered by Helmacab Parts, Helmacab Parts must give its explicit approval for the intended changes.
- It is prohibited to Buyer to use the Products that are subject to the intellectual property rights of Helmacab Parts otherwise than is established in the Agreement.
Article 17 Privacy, data processing, and security
- Helmacab Parts handles the (personal) data of Buyer and visitors of the website(s) with care. If so requested, Helmacab Parts will inform the data subject.
- If Helmacab Parts on grounds of the Agreement must provide for the security of information, such security will be compliant with the established specifications and a level of security that, in view of the state of the art, the sensitivity of the data, and the associated costs, is not unreasonable.
- If Buyer is not satisfied with the Products of Helmacab Parts and/or has complaints about the (implementation of the) Agreement, Buyer is obligated to report these complaints as soon as possible, though no later than within 14 calendar days after the relevant occasion that has led to the complaint. Complaints can be reported at firstname.lastname@example.org, specifying “Complaint” as the subject.
- The complaint must be sufficiently substantiated and/or explained by Buyer for Helmacab Parts to be able to take the complaint under advisement.
- Helmacab Parts will respond as soon as possible, though no later than within 14 calendar days after receipt of the complaint, to the complaint substantively.
- Parties will try to reach a solution in mutual consultation.
- To each Agreement between Helmacab Parts and Buyer, Netherlands legislation is applicable. The applicability of the (CISG) Vienna Commercial Convention is expressly excluded.
- In case of the interpretation of the content and purport of these general conditions, the Dutch text thereof is always decisive. Helmacab Parts has the right to unilaterally modify these general conditions.
- All disputes that have arisen due to or in connection with the Agreement between Helmacab Parts and Buyer are settled before the competent court of law of Rotterdam unless provisions of mandatory law lead to the competence of another court.
Schelluinen, February 1 2022