1.1 These general terms and conditions apply to any proposal and agreement and/or purchase order relating to equipment (“Equipment”) sold and/or rented by Hammer-IMS NV, with registered office in 3540 Herk-de-Stad, Industrieweg 1401, company registration number 0648.896.643, RPR Antwerpen, division Hasselt, (“Hammer-IMS”) to a customer (“Customer”).
1.2 A ’Customer’ means every company to who Hammer-IMS sends a proposal, who places a purchase order with Hammer-IMS, with who Hammer-IMS intends to conclude or has concluded an agreement or to who Hammer-IMS provides services.
1.3 These terms and conditions, together with the related proposal and agreement and/or purchase order shall constitute the entire agreement (“Agreement”) between the parties. Parties may only explicitly deviate from the Agreement in writing.
1.4. The Customer's terms and conditions shall only apply if they are explicitly confirmed in writing by both parties prior to the execution of the order or agreement. The application of these terms and conditions is an essential condition for Hammer-IMS to conclude the agreement.
1.5.The Customer declares to have received these general terms and conditions prior to concluding the agreement or placing a purchase order and that she has been able to take note of its contents. Hammer-IMS requests the Customer to accept and sign these terms and conditions prior to the conclusion of the agreement by means of signing the proposal, confirmation by e mail or in any other express written manner.
1.6. Should one or more provisions of these terms and conditions be, in whole or in part, excessive or invalid, this provision shall not entail the nullity of the remaining general terms and conditions. The parties agree to replace the excessive or invalid clause by a legally valid clause, which shall correspond to the original intention of the parties, or as closely as possible.
1.7. Hammer-IMS and the Customer may, in addition to these general terms and conditions, make further special agreements regulating the relationship between the parties. These are only valid and can only prevail over these general terms and conditions if they have been expressly concluded in writing.
1.8. Hammer-IMS reserves the right to adapt or modify its general terms and conditions at any time. These general terms and conditions will only be applicable as soon as the Customer has effectively taken note of them and expressly agreed to them.
1.9. This English language version of the general terms and conditions is the original version and in the event of discrepancies shall always take precedence over any translation communicated for information purposes.
2.1. The Agreement governs the sale and/or rent by Hammer-IMS of Equipment and/or the license by Hammer-IMS of the associated proprietary computer programs and related information (collectively, Software) included with the Equipment at the time of sale/rent and listed on the face of the Agreement to Customer. The Customer has selected the Equipment and Software based only on their specifications.
2.2. If either party believes that other matters beyond those covered in this document are part of the Agreement, the parties will first (a) describe and acknowledge them on the face of the Agreement or (b) staple a copy or description of them to the Agreement and thereafter initial them before signing (“Amendment”); otherwise, they are not included as part of the Agreement for the purchase of this Equipment and license of Software.
After Customer signs the Agreement (or any Amendment to it), the Agreement will become a binding contract after written confirmation in order form by Hammer-IMS.
Customer shall agree that the Software shall be licensed by Hammer-IMS to the Customer based on either a subscription based license agreement or a perpetual license agreement to be agreed between the parties in which the terms and conditions for the use of the Software by the Customer shall be comprised.
4.1. The Equipment and Software shall remain property of Hammer-IMS until the payment in full (price, interest and costs) for the Equipment and the Software has been received by Hammer-IMS.
As long as the ownership has not passed from Hammer-IMS to the Customer, the Customer may not transfer, encumber or establish any rights or obligations on the Equipment.
The provisions of this clause will remain applicable in the event of bankruptcy of the Customer.
This clause is subject to any deferring INCOTERM ® (2020) agreed upon by the parties. In this case the INCOTERM ® (2020) will prevail.
4.2. Notwithstanding clause 4.1. of these general terms and conditions or unless explicitly otherwise stated, the Equipment will be transported at the Customer’s risk. The risk of loss passes to the Customer as soon as the Equipment leaves Hammer-IMS’s warehouse.
The Equipment has been inspected before it leaves the warehouse.
This transfer of risk clause shall be subject to any INCOTERM® (2020) that the parties may have agreed, in which case it shall take precedence.
4.3. The delivery terms in the order form or any other agreement coming from Hammer-IMS are only mentioned for information purposes and are therefore not binding unless agreed explicitly otherwise.
If conditions arise which prevent compliance with delivery schedules, Hammer-IMS will not be liable for any direct damage or penalty for delay in delivery, except for its own willful misconduct or gross negligence or that of its subcontractors. However, Hammer-IMS will use all reasonable efforts to give notice of delays.
Delivery occurs Ex Works on the actual shipping date. Freight and insurance for the shipment will be due by the Customer. They will be prepaid and invoiced unless otherwise specified on the face hereof.
5.1. The Customer must inspect the delivered Equipment or Software immediately after receipt. Every complaint regarding the non-conformity or visible defects of the Equipment must be reported to Hammer-IMS via registered mail indicating the motivation no later than three (3) calendar days after the delivery. 5.2. Every complaint regarding hidden defects of the Equipment or Software must be reported to Hammer-IMS via registered mail indicating the motivation within eight (8) calendar days after the determination of the hidden defect.
5.3. No valid complaint can be filed outside the abovementioned time periods.
5.4. Equipment can only be returned with prior written consent between the Parties.
6.1. Hammer-IMS cannot be liable if the Customer does not meet its obligations. In particular any and all stipulated specific obligations and conditions for installation and placement, repair, modification, application and handling, including but not limited to: environmental conditions (exposure to heat, coldness, outdoor air, moisture, humidity, required temperature …), technical requirements, available power source and vibration.
6.2. Normal consumable or expendable parts (such as but not limited to fuses, lamps or lasers) and repairs required during the warranty period because of abnormal use or conditions (such as but not limited to v misuse, neglect or improper service by anyone except Hammer-IMS or its Authorized Service Provider), are excluded from this warranty.
6.3. The warranty period for the Equipment is twelve (12) months and shall start after commissioning. The warranty period will never exceed fifteen (15) months after delivery at the Customer site. The warranty period for spare parts is six (6) months after delivery to the Customer site.
6.4.Warranty terms regarding the Software are contained in the Software license contained in the Software.
6.5.The foregoing warranties are in replace of any other warranties, whether express or implied, including without limitation any warranties of merchantability or fitness for intended or particular purposes.
7.1. Hammer-IMS shall not be liable for direct damages of any kind, except for its own willful misconduct or gross negligence or that of its subcontractors, unless the parties expressly agree otherwise in writing.
7.2. Unless in event of its own willful misconduct or gross negligence, Hammer-IMS, as regards the Equipment, will not be responsible to the Customer for consequential, exemplary or incidental damages (such as loss of profit or employee's time) regardless of the reason.
7.3. In no event shall the liability and/or obligations of Hammer IMS under the Agreement or arising out of the purchase, lease, license and/or use of the Equipment by Customer or others exceed the purchase price of the Equipment.
7.4. Limitations of liability regarding the Software are contained in the click-through license contained in the Software. 7.5. Hammer-IMS will execute the Agreement to the best of its efforts.
7.6. Hammer-IMS cannot be held liable nor be held liable for any costs related to the further commercialization of Equipment by the Customer.
8.1. Hammer-IMS and/or its Authorized Service Provider will install the Equipment and provide any reasonable remedial and preventive maintenance which is required to keep the Equipment in good operating condition during the warranty period, unless otherwise stated in the Agreement.
8.2. Hammer-IMS and/or its Authorized Service Provider may provide basic Installation Site information. The Customer will be responsible for having the installation site properly prepared before the Equipment is installed. Hammer-IMS and/or its Authorized Service Provider will consult with the Customer on a time and materials basis on any additional questions or issues regarding installation site preparation.
Unless in event of its own willful misconduct or gross negligence, Hammer-IMS shall have no liability for such consultations. 8.3. In addition to the installation charge(s), if any, as specified on the face of the Agreement, Customer will arrange and pay for any special handling charges (including without limitation all costs of preparing the installation site and all storage, drayage, cranes, building modifications or other similar charges).
8.4. Installation and any remedial and preventive maintenance will be performed by Hammer-IMS or its Authorized Service Provider during normal business hours.
8.5. Hammer-IMS, its Authorized Service Provider and Customer will cooperate to satisfy any Customer security requirements and still allow full and free access to the Equipment.
8.6. The Customer will provide computer time for any remedial and preventive maintenance or installation at no cost to Hammer IMS.
8.7. Hammer-IMS will only accept responsibility in the event that damages are caused by the willful misconduct or gross negligence of its employees or designees while they are on the Customer's premises or any third party’s premises in the course of performing installation or servicing purposes.8.8. In the contractual relationship between Hammer-IMS and the Customer, the application of article 5.90, paragraph 2 of the Civil Code is excluded.
9.1 All prices are expressed in euro (exclusive of VAT and possible excise duties or other taxes of any nature, as well as possible additional costs, such as transportation, packaging or delivery costs), unless explicitly stated otherwise. Every increase of the VAT rate or possible other taxes between the order and performance are to be paid by the Customer.
9.2 Hammer-IMS retains the right to change prices and to correct possible typing errors regarding the estimate.
9.3 Hammer-IMS reserves the right to change the price of its Equipment or Software unilaterally if these price changes are the result of objective circumstances outside of its powers, such as (i) a change to the information or data provided by the Customer or if such information should prove to be incorrect or incomplete and/or (ii) a change in VAT and excise duties, transportation packaging and delivery costs, labor costs, social charges or energy prices. This list of objective circumstances is not exhaustive and is only used as an example.
9.4. The delivered Equipment remains property of Hammer-IMS as long as the complete purchase price has not been paid, even if the Equipment is modified or converted.
10.1. Unless otherwise stated in the Agreement, invoicing terms shall be: thirty percent (30%) NON-REFUNDABLE deposit with order, thirty percent (30%) after a successful Factory Acceptance Test (FAT), thirty percent (30%) upon delivery, and ten percent (10%) after either a successful Site Acceptance Test (SAT) carried out latest two (2) months after installation or three (3) months after delivery, whichever occurs earlier.
10.2. Unless otherwise stated in the Agreement, payment terms shall be: Due within 7 days after its receipt for the deposit invoice; 30 days net for all other invoice.
10.3. On overdue accounts, Customer shall pay interest at the rate of10% per year, starting from the due date of the (deposit) invoice. The invoice will also be increased by a fixed compensation equal to 10% of the invoice amount (with a minimum of 125 euros) for late payment if the Customer has failed to pay the invoice before its due date. However, Hammer-IMS is entitled to claim a higher compensation if she can prove that the damages exceed the abovementioned fixed compensation.
10.4. The Customer shall in all cases remain jointly and severely liable for the payment of the invoices of Hammer-IMS, even if Hammer-IMS has agreed to draw up the invoices in the name of third parties.
10.5. The Customer shall provide Hammer-IMS with a copy of tax exemption certificate, direct pay certificate or resale certificate for the "Ship to" location if exemption from sales or use taxes is claimed.
10.6. Invoices that are not objected to via registered mail within eight (8) calendar days will be considered to be accepted and final. 10.7. In the event of non-payment of an invoice, all outstanding invoices, even those who are not already due, will become automatically and without any notice of default due and payable.
10.8. In case of late payment of an invoice, Hammer-IMS reserves the right to suspend its services or delivery, even if they had not yet taken place.
10.9. The Customer is never entitled to make deductions for guarantee or for any other reason, or to proceed to compensation.
10.10. The Customer is not permitted to set off any claim that it has against Hammer-IMS against the claims that Hammer-IMS has against the Customer, unless Hammer-IMS has given prior express permission for this.
Customer shall not export, re-export, or otherwise transmit, directly or indirectly, any Equipment or Software except when it shall meet with all European and worldwide applicable export control laws and regulations. These obligations shall survive the termination of the Agreement.
12.1. Neither party will be liable to the other for delays in performing any obligations under the Agreement due to circumstances beyond its reasonable control, including but not limited to revolts, insurrections, riots, wars, acts of enemies, national emergency, strikes, floods, earthquake, embargo, inability to secure materials or transportation, and acts of God, and other events beyond the reasonable control of the parties caused by nature or governmental authorities (“force majeure”). In this case, the obligations of Parties will be suspended for the duration of the force majeure.
12.2. Hammer-IMS may, in the event of changed circumstances, request the Customer to renegotiate the Agreement or order if i) the changed circumstances make the performance of the Agreement excessively difficult, in the sense that normal performance of the Agreement can no longer reasonably be demanded, ii) the change was unforeseeable at the time the Agreement was concluded, iii) the change is imputable to Hammer-IMS, iv) Hammer-IMS has not assumed the risk and v) the law does not exclude this possibility. Changed circumstances include, but are not limited to, a change in legislation or established case law, an increase in fuel prices, an increase in raw materials, import or export restrictions imposed by a government, an increase in production costs, an increase in labor costs, an increase in energy prices.
If any provision of the Agreement is found to be invalid, illegal or unenforceable, then, notwithstanding such invalidity, illegality or unenforceability, the Agreement and the remaining provisions shall continue in full force and effect. In this event the parties will agree upon a valid, binding and enforceable substitute provision which shall be as close as possible to the commercial interests of the invalid or unenforceable provision.
14.1. Customer and Hammer-IMS shall endeavor to resolve any controversy, claim or dispute arising out of or relating to the Agreement, or the performance or breach thereof, by negotiation. 14.2. Any claim that is not resolved by negotiation within thirty (30) days of notification shall exclusively be governed by and interpreted in accordance with Belgian law, excluding its conflict of law provisions. The applicability of the Vianne Sales Convention Is expressly excluded.
14.3. In case of a dispute between the Parties, arising out of the performance, the validity or the interpretation of the Agreement, the Parties agree that these disputes shall be subject to the exclusive jurisdiction of the courts of Antwerp, department Hasselt (Belgium).
15.1. Both Hammer-IMS and Customer will comply with all laws applicable to the Agreement.
15.2. All notices given under the Agreement will only be effective when received in writing. Notices to the Customer and Hammer IMS will be sent via registered mail to the address provided in the Agreement which shall be interpreted being at the latest on the third business day following the sending date.
15.3. Changes or amendments to the Agreement must be in writing and must be priory signed by both parties.
The Customer acknowledges that it has read the Agreement, understands it, and agrees to be bound by its terms and conditions. Further, the Customer represents and agrees that the Agreement and the Software licenses set forth the complete and exclusive statement of the agreement including the governing terms and conditions between the parties, which shall prevail over and supersede all proposals, printed provisions on subordinate Customer documents including purchase orders, oral or written agreements, the Customer’s general terms and conditions and all other communications between the parties relating to the subject matter of the Agreement.