TERMS & CONDITIONS
Terms & Conditions
of Hannspree Europe Holdings B.V.
applicable in Business Relations
with Merchants and Companies
These general terms and conditions (the “Terms and Conditions”) apply and form an integral part of:
a. all quotations and offers (hereinafter both referred to as “Offer”) by Hannspree Europe Holdings B.V. (hereinafter “Hannspree”) to the Buyer;
b. all acceptances, acknowledgements or confirmation by Hannspree (hereinafter all referred to as “Confirmation”) of any order of Buyer, including without limitation order of Buyer resulting from any pricing- or other framework agreement between Buyer and Hannspree, unless explicitly agreed otherwise in writing between Hannspree and Buyer;
c. any agreement resulting from such Offer or Confirmation; and
d. any agreement incorporating these Terms and Conditions by reference (both types of agreements referred to under (c) and (d) shall hereinafter be referred to as an “Agreement”), regarding the sale by Hannspree and purchase by Buyer of goods (“Products”), unless Hannspree explicitly agrees in writing to exclusion hereof.
Any terms and conditions set forth on any document or documents issued by Buyer (including “Pull Documents” as defined below) either before or after issuance of any document by Hannspree setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Hannspree, and any such document shall be wholly inapplicable to any sale made by Hannspree and shall not be binding in any way on Hannspree. No Offer, Confirmation or Agreement constitutes an acceptance by Hannpree of any other terms and conditions and Hannspree does not intend to enter into an Agreement other than under these Terms and Conditions.
Any Offer is expressly made conditional on Buyer’s assent to all of the terms contained in the Offer without deviation. Acceptance by Buyer of an Offer may be evidenced by (i) Buyer’s written or verbal assent or the written or verbal assent of any representative of Buyer, (ii) Buyer’s acceptance of delivery of the Products or payment of purchase price for the first instalment of the Products (if applicable), or any such acceptance by any representative of Buyer, or (iii) other conduct by Buyer or any representative of Buyer consistent with acceptance of the Offer.
In the event that any Offer or Confirmation is sent in response to Buyer’s blanket purchase order, the terms and conditions of that Offer or Confirmation, including these Terms and Conditions, shall apply to any “pull” by Buyer or delivery by Hannspree, irrespective of whether Buyer submits additional purchase orders (electronically or otherwise) (“Pull Documents”) and whether Hannspree provides a Confirmation to such additional purchase orders. All terms and conditions of such Pull Documents are hereby rejected.
Hannspree’s Offers are open for acceptance within the period stated by Hannspree in the Offer or, when no period is stated, within thirty (30) days from the date of the Offer, but any Offer may be withdrawn or revoked by Hannspree at any time prior to the receipt by Hannspree of Buyer’s acceptance related thereto.
If Hannspree receives an order from Buyer for the sale by Hannspree and purchase by Buyer of Products and such order is not a response to an Offer by Hannspree, or if Hannspree receives an order or acceptance by Buyer which deviates from Hannspree’s Offer, such order or acceptance, respectively, shall be deemed to be a request for an Offer only.
An acceptance by Buyer of any Offer made by an order gatherer, liaison officer, agent or sales representative for Hannspree shall first constitute an Agreement between Hannspree and Buyer upon explicit Confirmation by Hannspree itself.
The Buyer is bound by the order for delivery placed with Hannspree as Supplier for three weeks from the date of its receipt by Hannspree. To be legally valid, orders for delivery must be confirmed by Hannspree in writing. An invoice sent to the Buyer in respect of the relevant order is also deemed to be written confirmation.
If the order confirmation issued by Hannspree puts the Buyer in a better position with regard to prices, delivery terms or the provisions of these Terms and Conditions, the Buyer is deemed to have accepted such deviations.
Trade terms, used in Offers, Confirmations or otherwise, are to be interpreted in accordance with the International Rules for the International Chamber of Commerce (ICC Incoterms 2000) as valid at the time the Agreement is entered into, if and in as far as these do not contradict with these Terms and Conditions.
Unless otherwise specified in any Offer, Confirmation or Agreement, delivery takes place Ex-Works HANNspree’s warehouse in Venlo, The Netherlands or other facility designated by Hannspree. The risk passes to the Buyer when the Products are handed over. Handover to a freight forwarder is equivalent to handover to the Buyer. Notwithstanding paragraph 8 of Article 1 delivery dates communicated or acknowledged by Hannspree are approximate only, and Hannspree shall not be liable for, nor shall Hannspree be in breach of its obligations to Buyer, because of any delivery made within a reasonable time before or after the stated delivery date. Hannspree agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the agreed delivery date.
In the event Buyer contests delivery, Buyer must request a proof of delivery from Hannspree within ninety (90) days of the date of Hannspree’s invoice, otherwise delivery shall be deemed completed.
Buyer will give Hannspree written notice of failure to deliver and thirty (30) days within which to cure. If Hannspree does not cure within thirty (30) days, Buyer’s sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement.
If Buyer fails to take delivery, then Hannspree may deliver the Products in consignment at Buyer’s costs and expenses.
No transport packagings or any other packagings according to the stipulations of the Packaging Ordinance shall be taken back. This does not apply to Euro pallets the Buyer is obliged to dispose of packagings at his own expense.
3. AVAILABILITY OF SUPPLIES AND RAW MATERIALS PROVISO
Timely delivery is conditional on Hannspree’s receiving correct and timely delivery from its own suppliers in the event of matching transactions. Hannspree shall inform the Buyer without delay in the event that the contractual Products or their relevant input products are unavailable and shall – in the event of withdrawal from the contract – refund to the Buyer any payment that the latter may already have made without delay (refund of advance payment).
Prices in any Offer, Confirmation or Agreement are in euros, based on delivery Ex-Works (Incoterms 2000) Hannspree’s warehouse or other facility designated by Hannspree, unless agreed otherwise in writing between Buyer and Hannspree and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products. Hannspree will add taxes, duties and similar levies to the sales price where Hannspree is required by law to pay or collect them and will be paid by Buyer together with the price.
Changes in prices are admissible if more than two weeks have elapsed between submission of an Offer, Confirmation or Agreement and the agreed date of delivery. In the event that there is an increase in wages and salaries, in the prices of raw materials, cost of materials or market cost prices in the period until the delivery date, Hannspree shall be entitled to reasonably raise the price in accordance with the cost increase. The Buyer shall only be entitled to withdraw if the price increase exceeds the increase in the general cost of living between the date of the order and delivery to a not insubstantial extent.
Unless otherwise agreed by the parties the purchase price (including any and all taxes, duties or levies) shall become due for payment immediately after conclusion of the Agreement (in advance). The Buyer shall be in default 30 days after the due date for payment of the selling price without any further declarations from Hannspree if he has not paid the selling price within this period. The buyer owes Hannspree interest, set at the official Dutch interest rate for trade transactions, without any further notice of default being required for all of his overdue amounts, starting from the last day an amount should have been paid. In the event of any defects in the Products delivered, the Buyer shall not be entitled to the right of retention unless the Products delivered are obviously defective. In such a case, Buyer shall only be entitled to withhold payment if and provided that the sum withheld is in reasonable proportion to the defects and estimated expenses for subsequent performance – especially for elimination of the defects. The Buyer shall not be entitled to assert claims and rights on grounds of any defects unless he has made all due payments and the amount due is in reasonable proportion to the value of the – defective products.
Buyer shall not offset, withhold or reduce any payment(s) due by it to Hannspree. The payment of fees and charges is a covenant of Buyer that is independent of the other covenants made by the parties hereunder.
In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Hannspree shall have the right to refuse performance of any work and delivery of any Products until payments are brought current and Hannspree may suspend, delay or cancel any credit, delivery or any other performance by Hannspree. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law or in equity.
6. RESCHUDELING AND CANCELLATION
No order, Agreement or any part thereof may be rescheduled or cancelled without Hannspree’s prior written consent.
7. FORCE MAJEURE
Hannspree shall not be liable for any failure or delay in performance if:
a. such failure or delay results from the fact that Hannspree’s manufacturing volume of the Products concerned is lower than anticipated due to interruptions in the manufacturing process; or
b. such failure or delay does not result from its fault; or
c. such failure or delay is caused by Force Majeure as defined below or by law.
In case of such a non-attributable failure, the performance of the relevant part(s) of the Agreement will be suspended for the period such non-attributable failure continues, without Hannspree being responsible or liable to Buyer for any damage resulting therefrom.
The expression; “Force Majeure” shall mean and include any circumstances or occurrences beyond Hannspree’s reasonable control – whether or not foreseeable at the time of the Offer, Confirmation or Agreement – as a result of which Hannspree cannot reasonably be required to execute its obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labor, materials or components. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Hannspree to extend for a period of three (3) consecutive months), Hannspree shall be entitled to cancel all or any part of the Agreement without any liability of Hannspree towards Buyer. In the event Hannspree’s production is curtailed, for any reason, Hannspree shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in Hannspree’s Offer, Confirmation or Agreement, as the case may be.
8. LIMITED WARRANTY AND DISCLAIMER
Hannspree warrants that under normal use the Products shall, at the time of delivery to Buyer and for a period of twelve (12) months from the date of delivery (or such other period as may be agreed-upon in writing by the parties), be free from defects in material or workmanship and shall substantially conform to Hannspree’s specifications for such Product, or such other specifications as Hannspree has agreed to in writing, as applicable. Hannspree’s sole and exclusive obligation, and Buyer’s sole and exclusive right, with respect to claims under this warranty shall be limited, at Hannspree’s option, either to the replacement or repair of a defective or nonconforming Product or to an appropriate credit for the purchase price thereof. Hannspree will have a reasonable time to repair, replace or credit. The non-conforming or defective Products shall become Hannspree’s property as soon as they have been replaced or credited for.
Buyer may ship Products returned under warranty claims to Hannspree’s designated facility only so long as the returns are in conformance with Hannspree’s then-current return material authorization policy and are accompanied by a duly completed return material authorization form issued by Hannspree. Where warranty adjustment is made, Hannspree will pay for freight expenses. Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith.
Notwithstanding the foregoing, Hannspree shall have no obligations for breach of warranty if the alleged defect or non-conformance is found to have occurred as a result of environmental or stress testing, misuse, neglect, improper installation, accident, or as a result of improper repair, alteration, modification, storage, transportation or improper handling.
The express warranty granted above shall extend directly to Buyer and not to Buyer’s customers, agents or representatives. Except for warranty of title, the express warranty granted above is in lieu of all other warranties, whether express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability, or non-infringement of intellectual property rights. All other warranties are hereby specifically disclaimed by Hannspree.
Subject to the exclusions and limitations set forth in Articles 8, 9 and 10 of the Terms and Conditions, the foregoing states the entire liability of Hannspree in connection with defective or non-conforming Products supplied hereunder.
9. GENERAL LIABILITY
In cases of intent or gross negligence on the part of Hannspree or one of its representatives or agents, Hannspree is liable in accordance with the statutory provisions. Otherwise Hannspree is liable only under the statutory provisions for product liability in accordance with Articles 185 upto and including 193 of Book 6 of the Dutch Civil Code. The claim for compensation of damages for the breach of essential contractual obligations is, however, limited to the damages foreseeable and typical to the Product. In the absence of the exceptional circumstances set forth in paragraph 2 of this Article, the liability of Hannspree is limited, also in cases of gross negligence, to the damages foreseeable and typical to the Product.
Liability is completely excluded for damages to legal assets of the Buyer caused by the delivery item, e.g. damage to other property. This shall not apply in the event of intent or gross negligence, breach of essential contractual obligations or in the event of liability on grounds of harm to life, physical injury or harm to health.
The provisions of the two preceding paragraphs extend to damages in addition to performance and damages in lieu of performance, whatever the legal basis thereof, including but not limited to damages based on defects, breach of duties under the contract or acts of TORT. These provisions shall also apply to claims for compensation for wasted expenditure.
10. LIMITATION OF LIABILITY
Except for Buyer’s liability under paragraph 3 of this Article, no party shall be liable to the other for any lost profits or lost savings, indirect, incidental, punitive, special or consequential damages whether or not such damages are based on TORT, warranty, contract or any other legal theory – even if such party has been advised, or is aware, of the possibility of such damages. In no event shall Hannspree be liable for any damage, costs or expenses associated with warranty or intellectual property infringement claims whether for the replacement or repair of products, including labor, installation or other costs incurred by Buyer and, in particular, any costs related to the removal or replacement of any Products soldered or otherwise permanently affixed to any printed circuit board, excess procurement costs, or rework charges.
Hannspree’s aggregate and cumulative liability towards Buyer under any agreements regarding sale by Hannspree and purchase by Buyer between Hannspree and Buyer and resulting from any event(s) occurring during a calendar year and for any series of events triggered by the same cause started during a calendar year, shall not exceed the lesser of (a) the amount actually received by Hannspree in the twelve (12) months immediately preceding the event, or series of events, as the case may be, giving rise to any liability for the Products causing any liability and (b) an amount of Euro 1 million, but in case of liability for delay or non-delivery of Products, also never more than the purchase price of the delayed or non delivered Products concerned.
Hannspree’s Products are not designed, authorized or warranted to be suitable for use in medical, military, air craft, space or life support equipment nor in application where failure or malfunction of a Hannspree Product can reasonably be expected to result in a personal injury, death or severe property or environmental damage. Inclusion and /or use of Hannspree’s Products in such equipment or applications, without prior authorization in writing of Hannspree, is not permitted and at Buyer’s own risk. Buyer agrees to fully indemnify Hannspree for any damages resulting from such inclusion or use.
Any Buyer’s claim for damages must be brought by Buyer within ninety (90) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim. Any claims that have been brought or filed in conflict with the preceding sentence are null and void.
The Buyer shall examine the Products without delay after delivery. The Buyer shall inform Hannspree without delay in writing of any defects which he has discovered when examining the Products. Otherwise the Products shall be deemed accepted in good order and without defects.
If contractual Products are not delivered or handed over to the Buyer but to a third party on the Buyer’s instructions, that third party shall be authorized by Buyer and obligated towards Hannspree to honour and observe the aforementioned duties and obligations of Buyer. The behaviour of the third party shall be deemed to be that of the Buyer and shall consequently be attributed to the latter.
The limitations and exclusions set forth above in this Article 10 shall only apply to the extent permitted by applicable mandatory law.
11. LIMITATION PERIOD
The limitation period for any claims and rights on grounds of defects of the Products delivered shall be one year, whatever the legal basis thereof.
The limitation periods stipulated in the foregoing Paragraph 1 shall also apply to all claims for damages against Hannspree in connection with the defect – irrespective of the legal basis for such a claim. If and to the extent that there are any claims for damages of any kind against Hannspree that are not connected to a defect, the limitation periods as stipulated in Paragraph 1 shall also apply to such claims.
The limitation periods pursuant to the foregoing Paragraphs 1 and 2 shall apply subject to the following proviso:
a) The limitation periods shall not apply in cases of intent.
b) The limitation periods shall also not apply if Hannspree has fraudulently concealed defects or if and to the extent that Hannspree has given a warranty as to the condition and quality of the Products. In the event of fraudulent concealment on the part of Hannspree, the statutory limitation periods that would apply in the absence of malicious intent shall also apply in lieu of the periods of the foregoing Paragraph 1.
c) The limitation periods shall apply to claims for damages, excluded therefrom are, however, cases of harm to life, physical injury or harm to health, claims pursuant to the Articles 185 upto and including 193 of Book 6 of the Dutch Civil Code, cases of grossly negligent breach of duty or breach of essential contractual obligations.
d) The limitation periods shall not apply to any rights of recourse of the Buyer pursuant to Article 185 of Book 6 of the Dutch Civil Code.
For all claims, the limitation period begins when the Customer collects the Products or the Products are delivered to the Customer.
Unless expressly stipulated otherwise, the statutory provisions governing the commencement, suspension of expiration, interruption and recommencement of limitation periods shall remain unaffected.
12. RIGHT OF RECOURSE (ARTICLE 185 OF BOOK 6 OF THE DUTCH CIVIL CODE)
The Buyer shall only be entitled to recourse against Hannspree pursuant to Article 185 of Book 6 of the Dutch Civil Code if and to the extent that Buyer has not entered into any agreements with his customer that go beyond the statutory warranty claims.
13. RETURN OF GOODS COMPLAINED OF
Products complained of may only be returned to Hannspree with the latter’s approval or acknowledgement of a warranty claim.
14. RETENTION OF TITLE
All Products delivered remain the property of Hannspree (“retained-title goods”) until the satisfaction of all receivables of Hannspree due from the Buyer, regardless of the legal basis, also with regard to the claims to the outstanding balance of receivables even if payments for specifically designated receivables have been made. Title is transferred only after payment in full of the selling price. In the event of a breach of duty by the Buyer, in particular default in payment, Hannspree is entitled, even without setting a deadline, to require the surrender of the Products delivered and/or to withdraw from the contract. The Buyer is obliged to surrender the Products delivered. Unless expressly declared as such, the demand by Hannspree that the Buyer surrender the Products does not constitute withdrawal from the contract.
If Buyer combines, processes or mixes the Products delivered under retention of title by Hannspree with other goods not owned by Hannspree, the latter acquires a share of title to the combined, processed or mixed goods in the proportion of the invoice value of the retained-title goods to the total invoice amount for the other third-party goods. The Buyer keeps these goods safe for Hannspree free of charge.
The Buyer shall only be entitled to sell the retained-title goods in the ordinary course of business and in accordance with his standard terms and conditions and provided that he is not in default. The Buyer shall be entitled and authorized to resell the retained-title goods only subject to the proviso that the account receivable arising from the resale pass to Hannspree. The Buyer is not entitled to dispose of the retained-title goods in any other way. The receivables of the Buyer from the resale of the retained-title goods are already now assigned to Hannspree. In the event that the Buyer sells the retained-title goods together with other goods, which are not owned by Hannspree, the assignment of the accounts receivable from the resale shall be limited to the invoice value of the retained-title goods.
The Buyer shall be entitled to collect accounts receivable arising from the resale of the retained-title goods. The Buyer shall not be entitled to assign these accounts receivable to third parties. This does not affect Hannspree’s right to collect the receivables itself. Hannspree undertakes, however, not to collect the accounts receivable as long as the Buyer duly meets his payment obligations and is not in default. Is this case, however, Hannspree may require that the Buyer notify all receivables assigned and their debtors, provide all details required for their collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
In the event that the value of the collateral in Hannspree’s possession exceeds the claims of the latter against the Buyer by more than 10%, Hannspree shall be obligated, at the request of the Buyer, to release the collateral pro tanto at Hannspree’s discretion.
The Buyer shall notify Hannspree without delay of any attachment or any other impairment by third parties. In the event that the retention of title or assignment provisions are not effective under the law governing a region in which the Products are located at any given time, the security provisions which correspond to retention of title and assignment under the law in that region shall be deemed to be agreed. In the event that this requires the cooperation of the Buyer, the latter shall take all necessary steps to obtain and preserve such rights.
15. ASSIGNMENT AND SETOFF
Buyer shall not assign any rights or obligations under the Agreement without the prior written consent of Hannspree. Buyer hereby waives any and all rights to offset existing and future claims against any payments due for Products sold under the Agreement or under any other agreement that Buyer and Hannspree may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf. Hannspree is allowed to assign any rights or obligations under the Agreement to its Affiliates or to any third party in connection with a merger, a change of control or an accounts receivable financing program implemented by Hannspree.
16. BREACH AND TERMINATION
Without prejudice to any rights or remedies Hannspree may have under the Terms and Conditions and/or the Agreement or at law, Hannspree may, by written notice to Buyer, terminate with immediate effect the Agreement, or any part thereof, without any liability whatsoever, if:
a. Buyer fails to make payment for any Products to Hannspree when due;
b. Buyer fails to accept conforming Products supplied hereunder;
c. any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or
d. Buyer violates or breaches any of the provisions of these Terms and Conditions and/or the Agreement
Upon occurrence of any of the events referred to under (a) through (d) above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.
In the event of cancellation, termination or expiration of any Agreement the terms and conditions destined to survive such cancellation, termination or expiration, which shall include without limitation Articles 7, 8, 9, 10 and 11, shall survive.
17. PRODUCT AND PRODUCTION CHANGES
Hannspree reserves the right to make at any time Product and/or production changes. In such event Hannspree represents that said changes shall not negatively affect form, fit or function of the Products and their performance characteristics.
18. DISCONTINUATION OF PRODUCTS
Hannspree reserves the right to discontinue manufacturing and sale of Products at any time. If however at any time during the term of an Agreement under which Hannspree sells and Buyer purchases Products on a regular basis, such regularly sold and purchased Products are to be permanently discontinued (“Discontinued Product”), Hannspree shall use its reasonable commercial efforts to give Buyer prior written notice of such discontinuance and shall use reasonable commercial efforts to accept last-time-buy orders for such Discontinued Product all in accordance with Hannspree’s product discontinuation process and general information related thereto as published on Hannspree’s website.
19. SEVERABILITY CLAUSE
The invalidity, infeasibility or incompleteness of one or more provisions in these General Terms and Conditions or in a contract concluded on the basis of these General Terms and Conditions shall in no way affect the validity of these General Terms and Conditions or the relevant contract. The invalid provision shall be substituted by the statutory provision.
The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from any Offer, Confirmation or Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising therefrom preclude any other or future exercise thereof or the exercise of any other right or remedy arising from any Offer, Confirmation or Agreement or from any related document or by law.
All notices and communications to be given under these Terms and Conditions shall be in writing and shall be deemed delivered upon hand delivery, confirmed facsimile communication, or three (3) days after deposit in the mail of the home country of the party, postage prepaid, by certified, registered, first class or equivalent mail, by returned receipt confirmed e-mail, addressed to the parties at their addresses set forth on the Offer, Confirmations and/or Agreements.
22. MODIFICATION AND CHANGES
Hannspree reserves the right to make any amendments or changes to these Terms and Conditions at any time. Such amendments, modifications and changes shall have effect (1) to all Offers, Confirmations and Agreements referring to such amended or modified Terms and Conditions as from the date of such Offer, Confirmation or Agreement, and (2) to any existing Agreement thirty (30) days from notification of such amendments or modifications by Hannspree to Buyer, unless Buyer has notified Hannspree within such 30 days period that it objects thereto.
23. COURT OF JURISDICTION, APPLICABLE LAW
Court of jurisdiction for all disputes arising from contracts concluded on the basis of these General Terms and Conditions shall be the competent court at Hannspree’s domicile. The law of The Netherlands shall apply to the exclusion of international legal provisions (especially to the exclusion of the UN Convention on Contracts for the International Sale of Goods) – even if the Buyer has his registered office in a foreign country.
These general terms and conditions are deposited at the Chamber of Commerce ofRotterdam on, under number 24401481. All previous terms and conditions are void.