GENERAL SALES, SUPPLY AND PAYMENT CONDITIONS FOR HOTEK SECURITY BV.
Article 1: DEFINITIONS
In these General Conditions the terms below have the following meaning:
- Client: the (legal) person, the (part of the) company or institution that orders the supply of items or services (Agreement) or the formulation of an Offer.
- Consumer(s): the (natural) person who does not act for purposes related to his trade, business, craft or profession.
- Hotek: Hotek Security BV. A limited partnership established in Etten-Leur, the Netherlands. Hotek Security & Comfort Systems is the trade name, hereinafter called “Hotek”.
- Agreement(s); the Agreement to supply items and/or supply services between Hotek and the Client.
- Offer(s): among other things, all included and/or possible modifications of and additions to tenders, price indications, rates, instructions, as well as commitments.
Article 2: APPLICABILITY OF CONDITIONS
- The conditions below are declared to apply to all Offers and Agreements.
- Deviating conditions are only legally valid if and in as far they have been agreed upon expressly in writing, and only apply to the respective Agreement(s) and/or Offer(s).
- By supplying the Offer(s) and Agreement(s) the client declares to be familiar with the contents of the Hotek conditions.
- If any or several separate provision(s) in the General Conditions between the client and Hotek prove to be invalid, the other provisions in these terms and conditions will remain valid. Both parties will replace the content of the single or several separate provisions by a provision agreed by both parties, the content of which will approximate the original provision as much as possible.
- The conditions below and the applicability thereof, as established in Article 2a, represent the full rights and obligations of the Client and Hotek, and replaces all applicable written and/or verbal agreements/comments or statements.
Article 3: OFFERS AND AGREEMENTS
- All offers and/or tenders of Hotek, in whichever form, are free of any obligations and apply for the period indicated in the offer and/or tender, and in default thereof for a maximum of 10 business days from the date the offer and/or tender was sent. In other cases Section 2b applies.
- The Agreement enters into force in accordance with a written acceptation/confirmation. If the nature and/or scope of the Agreement do not require written confirmation, the invoice serves as the order confirmation.
- The Agreement(s) of the Client on the behalf of third parties is/are considered to be signed on behalf of those third parties. The Client vouches for the knowledge and acceptance of the Conditions by third parties.
- In the case where data and drawings are provided to Hotek by the Client, Hotek may reasonably assume they are correct and form the basis for an Offer.
- The prices stated in the Offer are based on supply ex-works (EXW), in accordance with Incoterms 2000.
- An Agreement is entered into subject to condition precedent of the creditworthiness of the Client.
- The (test) models, designs provided, images and programmes etc. provided by Hotek constitute part of the Offer(s) and remain at all times the property of Hotek. They may not be provided in full or partially to third parties, without written permission from Hotek.
Article 4: INTELLECTUAL PROPERTY RIGHTS
- Unless agreed otherwise, Hotek retains the copyright and all industrial property rights in the Offers, including (test) models, provided designs, images and programmes etc. it issues.
- The rights to the data mentioned in Article 3a remain the property of Hotek, regardless of whether the costs for the manufacturing thereof were charged to the Client. This data may not be copied, used or provided to third parties, without the express permission of Hotek. In the event this provision is breached, the Client is liable to pay a fine of € 25,000 to Hotek. This fine can be claimed, apart from damages, by virtue of the Law.
- The client must return the data provided to him as referred to in Article 3a on first request within the term set by Hotek as determined in the article below.
- In the event this provision is breached, in the sense of delay, damage and non-return, the The Client is liable to pay a fine to Hotek amounting to the gross price + 8% administration costs, which will be invoiced with a minimum of € 500. This fine can be claimed, apart from damages, by virtue of the Law.
Article 5: PRICE LISTS AND WEBSHOP PRICES
- The stated prices are excluding value added tax (VAT) and packing. Prices are stated in Euros. Hotek is entitled to modify the prices and/or rates of items or services that have not yet been supplied and/or not yet paid for any changes in price determining factors, such as factory costs, raw material prices, wages, exchange rates, foreign currencies, transport costs, import duties or charged that are equal to those, if 3 months have passed since the conclusion of the Agreement.
Article 6: DELIVERY TIME AND INSTALLATION PROJECTS
- The delivery time is established by Hotek after agreement with the Client.
- The delivery time commences on the first business day after the conclusion of the Agreement.
- The delivery time as established in Article 6a is established under the condition that Hotek can carry out its undertakings in compliance with the Agreements under the normal conditions that apply at that moment.
- In the case extra work is required, the delivery time is extended by the time required to supply/have supplied the materials and parts for that purpose, and to carry out the extra work. If the extra work cannot be accommodated in Hotek's planning, the activities will be concluded as soon as the planning so allows.
- Hotek will do its utmost to comply with the delivery time. The Client does not have the right to cancel the Agreement and/or claim damages in the event the delivery time is exceeded, unless a delivery deadline was agreed upon by Parties in writing. The mentioned damages will never amount to more than the damage that demonstrably and directly is the result of exceeding the delivery time.
- Delivery will be delayed by Hotek as long as the Client is in default with regard to his payment obligations towards Hotek, for any reason whatsoever.
- If partial payments have been agreed upon, delivery will only take place after the partial payment has been made.
- During installation, Hotek's engineers should be provided with unlimited access to all necessary rooms. A storage room for the tools should also be available. Hotek's engineers can be recognised by the Hotek work clothing and are not allowed to accept orders from third parties. All orders are issued via the Hotek project manager. During the installation period, Hotek's engineers shall have a free parking space at their disposal for at least 1 car. Extra parking costs and waiting hours are charged separately. Installation of door locks takes place in accordance with the applicable construction instructions; possible additional costs for painting doors and window frames are at the expense of the Client.
Article 7: DELIVERY, TRANSPORT AND CALL OUT CHARGES
- The delivery is completed as soon as the products and/or services have been delivered/provided at the address as stated by the other Party, or have been received at the stated address.
- From the time of delivery, the risk for loss and/or damage to items is at the expense of the Client. The items are transported at the risk of the Client, and only if Hotek receives any compensation for damage and/or loss of these items will it make this compensation available to the Client in the form of a credit bill.
- Unless otherwise agreed upon in writing, the service is delivered by Hotek to the Client in accordance with EXW, Incoterms 2000.
- Transport and call out charges are at the expense of the Client, unless otherwise agreed upon in writing. Call out charges for projects are charged at the currently applicable project rate. The call out charges for individual maintenance and/or service activities are charged at the currently applicable rate per kilometre for return trips.
- Transport costs for webshop orders are calculated after introduction of the delivery address. For orders outside the designated destination zones defined by Hotek, transport costs are calculated on the basis of the size of the package and the delivery address. These deliveries are only sent after the full amount for the order and the shipping costs has been received, unless different payment conditions have been agreed.
Article 8: PAYMENT
- Payment should take place in the way as mentioned on the invoice and no later than 14 business days after the invoice date, unless otherwise agreed upon in writing. If the client orders for the first time, the first invoice must be paid in full before delivery is made. When an order is placed by a consumer, delivery will only take place after full payment of the invoice.
- Settlement or netting is not allowed.
- If an Agreement may be carried out in parts, Hotek is entitled to charge the Client for the partial deliveries carried out.
- If the Client has not paid an invoice within the agreed time, the Client is liable to pay interest after expiration of this time, equal to 10% per annum, but at least equal to the statutory interest, if that is higher at the time of the default.
- Hotek is entitled, if the Client does not settle the invoice within the time as stated in Article 8a, to partially or completely cancel the Agreement without legal intervention, and claim back the supplied items and/or services and/or to claim damages.
- The collection costs incurred by Hotek, both judicial and extrajudicial, are at the expense of the Client. The extrajudicial collection costs are deemed to amount to at least 15% of the invoice amount, with a minimum of € 250,- or as much more as Hotek will be able to prove to have made.
- In the event of untimely or non-payment, no service activities are carried out. This also applies to faults.
Article 9: RESERVATION OF OWNERSHIP AND RIGHT OF LIEN
- Hotek reserves the ownership of the items and installations delivered by Hotek, until the complete payment of all claims (including interest and costs) on the Client have been settled.
- Upon expiration of the invoice term, Hotek reserves the right to repossess the supplied services and/or goods delivered, and to enter locations that provide access to where the goods are located and where the services were carried out.
- Under the reservation of ownership, the Client is never authorised to burden and/or loan and/or hand over the goods supplied in any way, so long full settlement has not yet taken place.
- The Client is never entitled to process or sell the goods received by virtue of Agreement, within the framework of the Client's ordinary activities. In this case, the Client timely informs the buying party in advance about the full contents of this Article.
Article 10: FORCE MAJEURE
- In case of force majeure the obligations of the Parties are mutually suspended, without Hotek being liable for any damages, without prejudice to the right of Hotek to payment from the Client for activities already performed before force majeure arose.
- Hotek will inform the Client in the event of force majeure as soon as possible on the suspension.
- Force majeure is understood to mean: any circumstance that was unforeseeable when the Agreement was signed, due to which compliance with the commitments cannot be reasonably demanded. In the case where force majeure is of a permanent nature or is longer than 20 business days, during which in all reason compliance cannot be demanded, each Party can cancel the Agreement for the future by a single written statement.
Article 11: GUARANTEES & CLAIMS
Regarding a period of liability of 12 months from the date of delivery, with exemption of every other provision by whatever title, Hotek determines the following;
- Liability for defects is limited to repairing goods, delivered services and/or crediting what was charged before the delivery, given the Client can demonstrate that the defects to the delivered items and/or provided service have occurred within the guarantee term, which is described in the tender, and furthermore that the defects are exclusively or mainly the result of construction errors or the use of poor materials.
- If an agreed performance for the work is concerned, Hotek vouches for the good quality of the delivered items, construction and the materials used, on the condition that Hotek was free to choose those. If it turns out that the delivered items, construction or used materials are not of good quality, Hotek will repair or replace them. The items, delivery and installation for repair or replacement are agreed upon in writing by Hotek with the Client and are at the expense of Hotek.
- If the agreed performance of an item delivered is concerned, Hotek vouches for the good quality of the delivered item. If it turns out that the item was not of good quality upon delivery, the item must be returned post-paid to Hotek with a completed RMA form, as obtained via service.hotek.nl. Hotek will then repair the item, replace it, or credit the Client for a proportionate part of the invoice.
- If the agreed performance of processed items or materials supplied by the Client is concerned, Hotek vouches for the good quality of the processing carried out. Where the poor quality of the processing is established, the Parties will agree either to carry out the processing once again, for which the Client supplies new materials at his own expense, or Hotek repairs the defect, for which the Client returns the material post-paid to Hotek, or Hotek credits the Client for a proportionate part of the invoice.
- If liability as described in Article 11a is concerned, the Client should inform Hotek about this within 14 business days by registered mail.
- The Client can only call upon Article 11 if he has complied with all his obligations towards Hotek.
- If the Client calls upon the guarantee provisions, the Client should provide Hotek with the opportunity to investigate the correctness of the stated defects.
- Claiming or crediting as established in Article 11 does not indemnify the purchaser from his payment obligations towards Hotek in the sense of Article 8.
- The Client will indemnify Hotek from each form of guarantee for defects in delivery for supplied items and/or services and/or used materials if normal wear, improper use, no or improper maintenance and/or installation, mounting, modification or repairs by the Client or third parties are concerned.
- No guarantee is provided for delivered items that were not new at the time of delivery.
- Each liability for the items delivered by Hotek is excluded, as far as allowed by statute.
- The Client is not entitled to refuse or postpone payment based on a claim concerning a certain item or supplied service or other deliveries or services, to which the claim does not apply. Hotek can never be held liable for compensation for commercial damage possibly resulting from claims
Article 12: LIABILITY
- Hotek is liable for damage sustained by the Client that is a direct and exclusive result of a shortcoming that can be attributed to Hotek.
- With due regard of what is established in Article 11, the liability is limited to the damage which demonstrably and directly is the result of the fault, and only damage which eligible for compensation for which Hotek is insured, or should have been insured, in all fairness, in view of the practice applicable in the branch.
- Insurance claims should be reported to Hotek by registered mail within 8 days of the discovery of the damage. After the expiration of the period indicated above, the liability right lapses.
- Loss of turnover, loss of profit, and commercial damage to the Client, damage caused by auxiliary goods, consequential damage resulting from intent and/or gross negligence of non-managed subordinates or auxiliary staff is not eligible for compensation.
- The Client indemnifies Hotek for all claims from third parties, due to product liability, as a result of a defect in an item that was supplied by the Client to a third party and that (also) consisted of items and/or materials supplied by Hotek.
Article 13: ANNULMENT AND DISSOLUTION
- Complete or partial annulment of an Agreement by the Client is only accepted if the Client pays reasonable compensation for the costs incurred by Hotek, the loss suffered by Hotek, or the loss of profit suffered by Hotek.
- If the Client does not, improperly, or untimely comply with one or more commitments resulting from the Agreement, Hotek is entitled to dissolve and/or suspend the Agreement without proof of default and without judicial intervention, without Hotek being held liable for any compensation for damages, without prejudice to Hotek's right of compensation for damages . In case of dissolution, the invoice for the respective delivery is immediately claimable.
Article 14: RETURN SHIPMENTS AND CONSIGNMENT SHIPMENTS
- Return shipments are only accepted after prior consultations and accompanied by a return number / RMA form as stated by Hotek. In the case of returning items supplied by Hotek, the value of the items to be taken back will be determined by Hotek.
- Shipments with an invoice value below € 90,00 are not taken back, unless otherwise agreed in writing by Parties.
- Repair shipments should always be sent post-paid to Hotek. Carriage free shipments are not accepted by Hotek.
- Consignment products are invoiced to the client, unless otherwise agreed. If the goods are returned post-paid to Hotek within 60 days without any traces of use, crediting will take place.
Article 15. SAAS SERVICE (Software as a Service, application via the cloud)
- If the service (partly) extends to services relating to SaaS, the provisions of this article also apply.
- It is not permitted to use the service in a manner that is contrary to the rights of third parties or in violation of Dutch or other applicable laws and regulations.
- The client fully determines the content of the data stored by the service. Hotek does not accept any liability for the data stored and / or made accessible by means of the service. The client indemnifies Hotek against claims from third parties that are based on the statement that unlawful information is displayed or distributed via the (web) application.
- Should Hotek have a reasonable suspicion, or come to the realization that the data, which the client has distributed or saved with the help of the service, are unlawful, then Hotek can immediately act to block access to it. Hotek will be in no case liable for damage resulting from such actions.
- The client will prepare and behave with a degree of care with regard to the service, which may be expected from the client. The client is not permitted to give the impression, when using the service, that the client is a partner of Hotek, unless Hotek expressly granted written permission to do so.
- The client is not allowed to use the service for more than one company or to have several clients work on one environment.
- Hotek can set a maximum for the amount of storage space, CPU, memory or data traffic per month that the client may use in the context of the service. If this maximum is exceeded, Hotek is entitled to charge the client an extra amount, in accordance with the amounts for extra storage space, memory, CPU or data traffic that are mentioned in the Agreement or block the service, making the (web) application is no longer available. Blocking the service is also permitted if the client, in the opinion of Hotek, uses a disproportionate amount of capacity from the server(s), all without any obligation to pay compensation. If, in the opinion of Hotek, the client creates a danger to the functioning of the serve (s) or the network of Hotek or third parties, Hotek is entitled to take all measures it reasonably deems necessary to avert this danger or to appearance.
- If the client acts contrary to these General Terms and Conditions, Hotek has the right to block the client from accessing the service.
Article 16. AVAILABILITY AND MAINTENANCE
- Hotek endeavours to make the service available, but does not guarantee uninterrupted availability.
- Hotek actively maintains systems and networks. If maintenance is expected to lead to a restriction of availability, Hotek will do this outside of office hours. Maintenance is announced in advance where possible. Maintenance in connection with emergencies can take place at any time and is not announced in advance.
- Hotek may from time to time adjust the functionality of the Framework. Feedback and suggestions are welcome, but in the end Hotek decides for itself which adjustments it will or will not make. Hotek will report at least thirty days in advance which adjustments it intends to implement. This can also mean that a certain functionality disappears. It is not possible to waive a specific adjustment for the client only. Hotek is entitled to no longer provide or maintain components of the Framework.
- If agreed in writing, a back-up of the data stored by the client can be made available upon request and against payment of a reasonable fee. The time of making the backup is determined by Hotek. Making the backup is a service provided by Hotek and gives no guarantee.
- If, in the opinion of Hotek, a danger arises for the functioning of the computer systems or the network of Hotek or third parties and / or services via a network, in particular by excessive sending of e-mail or other data, poorly secured systems or activities of viruses, Trojans and similar software, Hotek is entitled to take all measures it reasonably deems necessary to avert or prevent this danger.
- Copies of the software must be explicitly agreed in writing.
- Parties can conclude a Service Level Agreement for additional conditions regarding availability and maintenance.
Article 17. PRIVACY AND SECURITY
- Personal details may be processed when entering into an agreement or using a service. Under the General Data Protection Regulation (GDPR) the client applies as "responsible" and Hotek as the "processor".
- If personal data is processed, the client will ensure that a processor agreement is concluded prior to processing. This processor agreement will be added to the agreement as an appendix.
- Hotek will ensure an appropriate security level in view of the risks that the processing and the nature of the personal data to be protected entail. This, however, only if and insofar as these are located in Hotek's systems or infrastructure. The client will inform Hotek of the type of personal data that will be processed, in order for Hotek to ensure an appropriate level of security.
- The client guarantees that the content, the use and the order for the processing of the personal data is not unlawful and does not infringe any right of third parties, and that all information obligations as well as the permission requirements as laid down in the GDPR, the Telecommunications Act, and other laws and regulations in this area are met.
Article 18. COMPULSORY REGISTRATION DATA BREACHES
- As a responsible person within the meaning of the GDPR, Hotek is at all times responsible for reporting or not reporting a data breach (which is understood to mean: a breach of the security of personal data that leads to a chance of adverse consequences, or has adverse consequences, for the protection of personal data) to the supervisor and / or parties involved. A data breach exists if data has been lost in case of a security incident or if Hotek can not reasonably exclude unlawful processing of data. When there is a data breach, it depends on all the circumstances of the case. The mention of the data breach will therefore be examined on a case-by-case basis and will be dealt with and reported in the process.
- If there is only an unanticipated weak spot in Hotek's security, we speak of a vulnerability and not of a data breach. In that case, Hotek is not obliged to report to the Dutch Data Protection Authority.
- The compulsory registration in any case involves reporting the fact that there has been a breach. In addition, the obligation to report includes:
• What is the (alleged) cause of the breach;
• What the (as yet known and / or expected) consequence is; and
• What the (proposed) solution is.
Article 19: DISPUTES AND APPLICABLE LAW
- All disputes, including those disputes that are only considered as such by one of the Parties and to which these Conditions apply, which arise between the Client and Hotek will be decided upon by a competent judge in Breda, the Netherlands.
- Dutch Law applies to all agreements entered into by Hotek, regardless of the nationality of the Client. The applicability of the Vienna Sales Convention 1980 (CISG) is exempted.
- If these General Sales, Supply and Payment Conditions are translated, in case of disputes concerning the interpretation, the Dutch language version has priority over the translated version.
Article 20: EXCEPTION ON CONDITIONS FOR CONSUMERS
- The general terms and conditions apply to every offer made by Hotek and to every distance contract that has been concluded between Hotek and the consumer, also referred to in previous articles as being the client.
- The consumer can terminate an agreement with regard to the purchase of a product during the legally determined cooling off period of 14 days without giving any reason. Hotek may ask the consumer about the reason for the withdrawal, but not to oblige him to state his reason (s). The consumer uses the European model form for withdrawal included in Appendix I of these conditions.
c) The reflection period referred to in article 20 b) starts on the day after the consumer, or a third party designated by the consumer in advance, who is not the carrier, has received the product, or if the consumer ordered several products in the same order: the day on which the consumer, or a third party designated by him, has received the last product. Hotek may, provided he has informed the consumer in a clear manner prior to the ordering process, refuse an order of several products with a different delivery time.
d) During the reflection period, the consumer will handle the product and packaging carefully. He will only unpack or use the product to the extent necessary to determine the nature, characteristics and operation of the product. The basic principle here is that the consumer may only handle and inspect the product as he would be allowed to do in a store.
e) The consumer shall return the product in new condition with all delivered accessories, if reasonably possible in original packaging, and in accordance with the reasonable and clear instructions provided by Hotek.
f) The consumer bears the direct returning costs of the product(s).
g) After receiving the return shipment, the total amount will be refunded within 14 days.
APPENDIX I: EUROPEAN MODEL FORM FOR WITHDRAWAL
Model form for withdrawal
(only fill in this form and return it when you want to cancel the contract)
- To: [name of entrepreneur]
[geographic address entrepreneur]
[facsimile number entrepreneur, if available]
[e-mail address or electronic address of entrepreneur]
- I / We * share / share * hereby inform you that I / we * are in agreement
the sale of the following products: [product designation] *
the delivery of the following digital content: [indication of digital content] *
the performance of the following service: [service designation] *,
recall / revoke *
- Ordered on * / received on * [date of ordering with services or receipt of products]
- [Consumer nam (s)]
- [Consumer address(s)]
- [Signature consumer (s)] (only when this form is submitted on paper)
* Strike out what is not applicable or fill in what is applicable.