These Standard 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 3500 Hasselt, Kempische Steenweg 293, bus 36, company registration number 0648.896.643, RPR Antwerpen, afdeling Hasselt, (“Hammer-IMS”) to a customer (“Customer”). These terms and conditions, together with the related proposal and agreement and/or purchase order shall constitute the entire agreement (“Agreement”) between the parties.
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. If either party believes that other matters beyond those covered in this document are part of the Agreement, the parties will (a) describe and acknowledge them on the face of the Agreement or (b) staple a copy or description of them to the Agreement and initial them before signing; 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.
Hammer-IMS or its Authorized Service Provider will repair or replace the Equipment upon the sole discretion of Hammer-IMS, after the Customer delivered proof of the defect, to make it free of defects at the time of delivery and during the warranty period. Unless explicitly otherwise stated, the Equipment will be transported at the Customer's risk. The risk passes to the Customer as soon as the Equipment leaves Hammer-IMS's warehouse. The Equipment has been inspected before it leaves the warehouse. No complaints for loss or damages will be accepted. The Equipment is free from defects in material and workmanship if it meets, upon the passing of risk, the specifications and obligations provided by Hammer-IMS. Hammer-IMS cannot be liable if 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.
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 riots, floods, misuse, neglect or improper service by anyone except Hammer-IMS or its Authorized Service Provider), are excluded from this warranty. 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. Warranty terms regarding the Software are contained in the Software license contained in the Software.
THE FOREGOING WARRANTIES ARE IN LIEU OF ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR INTENDED OR PARTICULAR PURPOSES, EACH OF WHICH IS HEREBY DISCLAIMED.
As regards the Equipment, Hammer-IMS will not be responsible to Customer for consequential, exemplary or incidental damages (such as loss of profit or employee's time) regardless of the reason. 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. Limitations of liability regarding the Software are contained in the click-through license contained in the Software.
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. Hammer-IMS and/or its Authorized Service Provider may provide basic Installation Site information. 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 Customer on a time and materials basis on any additional questions or issues regarding installation site preparation. Hammer-IMS shall have no liability for such consultations. 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). Installation and any remedial and preventive maintenance will be performed by Hammer-IMS or its Authorized Service Provider during normal business hours. 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. Customer will provide computer time for any remedial and preventive maintenance or installation at no cost to Hammer-IMS. Hammer-IMS will accept responsibility in the event that damages are caused by the negligence of its employees or designees while they are on Customer's premises or any third party’s premises in the course of performing installation or servicing purposes.
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 damage or penalty for delay in delivery, or for failure to give notice of delay. However, Hammer-IMS will use all reasonable efforts to give notice of delays. Delays will not be grounds for cancellation or compensation. Delivery occurs Ex Works on the actual shipping date, and title and the risk of loss transfer to Customer upon shipment. Freight and insurance will be prepaid and invoiced unless otherwise specified on the face hereof. The Customer must inspect the delivered Equipment immediately after receipt. Hammer-IMS must be informed of possible complaints via registered mail before the Equipment is used and no later than three (3) calendar days from delivery to the Customer.
All prices are expressed in euro (exclusive of VAT and possible excise duties or other taxes of any nature), 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. Hammer-IMS retains the right to change prices and to correct possible typing errors regarding the estimate. Hammer-IMS may change the price of its Equipment unilaterally if these price changes are the result of objective circumstances outside of its powers, such as a change in VAT and excise duties, packaging and delivery costs. This list of objective circumstances is not exhaustive and is only used as an example. 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.
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. Unless otherwise stated in the Agreement, payment terms shall be: Due on Receipt for the deposit invoice, 30 days net for all other invoice. On overdue accounts, Customer shall pay interest at the rate of 2% per month (or the highest legal interest rate, if lower). 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. Every complaint regarding the Equipment must be reported to Hammer-IMS within eight (8) calendar days after the delivery. After a complaint has been received the payment obligation for the Equipment which are subject of the complaints will only be suspended after written approval from Hammer-IMS. After the Customer is informed of Hammer-IMS's decision of the complaint, the suspension will expire. Equipment that is returned shall not be accepted without prior written approval from Hammer-IMS. Invoices that are not objected to via registered mail within eight (8) calendar days will be considered to be accepted and final.
Customer grants Hammer-IMS a first priority security interest in all Equipment and Software delivered until payment in full (price interest and cost) for such Equipment and Software has been received by Hammer-IMS. Customer hereby grants Hammer-IMS the right to file such protective financing or similar statements to confirm and record Hammer-IMS’ security interest in all Equipment and Software.
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.
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.
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.
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. 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. 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).
Customer acknowledges that it has read the Agreement, understands it, and agrees to be bound by its terms and conditions. Further, 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.