GENERAL TERMS AND CONDITIONS OF DELIVERY HESTIA

ARTICLE 1.           DEFINITIONS

1.1     In these general delivery conditions the following terms have the following meanings:

a.    'Hestia': the private company Hestia Cardiovascular Service Center BV, with its registered office in Losser, registered in the trade register of the Chamber of Commerce under number 76135187, or one or more of its group companies.

b.    'Customer': any natural or legal person who enters into an Agreement with Hestia or with whom there is contact or negotiation or to whom Hestia has made an offer.

c.    'Terms and Conditions': these general terms and conditions of delivery.

d.    'Agreement': any agreement between Hestia and the Customer regarding the sale and / or delivery of Products and / or the delivery of Services by Hestia to the Customer, any amendment or addition thereto, as well as all (legal) acts in preparation and / or in the execution of that agreement.

e.    'Services': all services delivered and / or to be provided by Hestia and work performed and / or to be performed, in whatever form and by whatever name, including any Deliverables delivered and / or to be delivered.

f.     'Products': all products delivered and / or to be delivered by Hestia.

g.    'Proposal': an offer from Hestia, in whatever form and by whatever name, for the (intended) sale and delivery of Products and / or performance of Services by Hestia and / or compensation / prices therefor, including any change or addition thereto.

h.    'Deliverables': the work products referred to in the Agreement that Hestia has delivered and / or must deliver to the Customer under the Agreement, in whatever form and by whatever name, including but not limited to any reports and / or work products.

i.     'Specification': the specification drawn up by Hestia of the Products and Services delivered by Hestia, which is stated in the Agreement, or in the absence of a written Agreement, the order confirmation from Hestia or, in the absence thereof, the latest Quotation from Hestia.

 

ARTICLE 2.           APPLICABILITY

2.1     These General Terms and Conditions apply to and form an integral part of all Quotations and confirmations from Hestia with regard to the purchase and / or delivery of Products and / or Services by Hestia and every Agreement, by whatever name.

2.2     The applicability of any general or specific terms and conditions used by the Customer, under whatever name, is hereby expressly rejected by Hestia.

2.3     Amendments and additions to the General Terms and Conditions only apply if they have been explicitly agreed in writing between Hestia and the Customer. The change and / or addition only applies to the relevant Agreement.

2.4     In the event that any provision of the Agreement is in conflict with any provision of the General Terms and Conditions, the provision of the Agreement will prevail.

2.5     Natural and legal persons who are directly or indirectly affiliated with Hestia and who are involved in any way in the services provided by or on behalf of Hestia, as well as third parties engaged by Hestia in the performance of the Agreement, may also rely on these General Terms and Conditions.

 

ARTICLE 3.           FORMATION OF AGREEMENTS

3.1     Quotations from Hestia, in whatever form, are without obligation, unless explicitly stated otherwise in writing by Hestia.

3.2     Agreements, as well as amendments and additions thereto, are only concluded if and insofar as they have been accepted or confirmed by Hestia in writing by a person who, according to the Chamber of Commerce, is authorized to legally represent Hestia in this matter, or after Hestia has started with the implementation of the Agreement.

3.3     Samples, models, proofs, images, materials and information shown and / or provided with regard to the Products and / or Services in Quotations, offers, brochures and the like, including but not limited to images, sizes, weights, colors, technical data, prices, etc. are only informative and not binding.

3.4     With regard to the agreed specifications, minor deviations in, among other things, quantity, sizes, weights and colors or deviations therein that fall within a reasonable tolerance according to trade practice in the industry are permissible and can never constitute grounds for complaints.

 

ARTICLE 4.           OBLIGATIONS OF THE CUSTOMER

4.1     The Customer will, on its own initiative and upon a request from Hestia, fully cooperate with Hestia and provide all information, data and documents that may be necessary or relevant for the preparation of a correct Quotation and / or the correct and timely performance of obligations. by Hestia in accordance with the Agreement, in a timely manner and in the desired form and in the desired manner available to Hestia.

4.2     The Customer is also obliged to inform Hestia in writing without delay and on its own initiative about all facts and circumstances, including changes therein, that may be of importance to Hestia in connection with the performance of the Agreement.

4.3     The customer is responsible for the correctness, reliability, completeness and legality of the information, data and documents provided or made available to Hestia, even if these originate from third parties, and including the timely provision thereof. Any consequences of not making the information, data and documents available, or not providing them in a timely manner or properly, or providing cooperation, are at the expense of the Customer, including but not limited to delays and (additional) costs.

 

ARTICLE 5.           PERFORMANCE OF THE AGREEMENT

5.1     Hestia only takes on a best efforts obligation towards the Customer.

5.2     Hestia will perform the Services with due observance of the care of a good contractor.

5.3     Hestia cannot be obliged to commence the performance of the Agreement until all necessary information has been received from the Customer and all necessary cooperation has been provided by the Customer.

5.4     Hestia is entitled to engage third parties for the performance of the Agreement. Hestia is not liable for shortcomings or other acts and / or omissions of these third parties, except in the case of intent or gross negligence on the part of Hestia. When an appeal is made to third parties, Hestia is entitled to accept limitations in liability applied by third parties on behalf of the Customer.

5.5     Only Hestia is regarded as the contractor vis-à-vis the Buyer. This also applies if it is the Customer's express or implied intention that the Agreement and / or the Services are performed by a specific person. The applicability of article 7: 404, 7: 407 paragraph 2 and 7: 409 BW are expressly excluded.

5.6     Hestia determines the manner in which and the person (s) by whom the Services are performed.

5.7     Hestia is only obliged to provide Deliverables to the Customer if and insofar as Hestia and the Customer have agreed this in writing in the Agreement and the Customer has fully and timely fulfilled its payment obligations.

 

ARTICLE 6.           DELIVERY

6.1     All (delivery) terms, (delivery) dates, deadlines stated or agreed by Hestia are or are only approximate and are only indicative and never apply as a strict deadline. Nevertheless, Hestia will make reasonable efforts to meet its estimated deadlines.  

6.2     The mere fact that a (delivery) term, (delivery) date or deadline specified by Hestia or agreed between the parties, whether or not final, does not cause Hestia to be in default. The customer is never entitled to compensation, suspension, cancellation or dissolution in the event of late delivery. In all cases - therefore also in the event that the parties have explicitly agreed in writing on a final (delivery) term, (delivery) date or deadline - Hestia will only be in default due to exceeding of time after the Customer has given it written notice of default, whereby it has a reasonable term for compliance. and compliance has not been made within that reasonable period, whereby the shortcoming can be attributed to Hestia. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that Hestia is given the opportunity to respond adequately.

6.3     Hestia is not bound by any (delivery) term, delivery date or deadline, which may or may not be final, that can no longer be met due to circumstances beyond its control that occurred after entering into the Agreement. Hestia is also not bound by a final (delivery) date, (delivery) term or deadline, whether or not final, if the parties make a change to the content or scope of the Agreement (additional work, change of specifications, etc.) or a change in the approach to the implementation of the Agreement.

6.4     Delivery periods, etc. commence at the time of the conclusion of the Agreement and all information and cooperation required for the detailed information and cooperation have been received by Hestia from the Customer.

6.5     Hestia is authorized to deliver the Products and / or Services in parts, in which case Hestia has the right to invoice each partial delivery.

6.6     If Hestia has performed or delivered services, products or other performances at the request or with the prior consent of the Customer that fall outside the content or scope of the agreed Products and / or Services, these Products and / or Services will be reimbursed by the Customer in accordance with the agreed rates and in the absence thereof according to the usual rates of Hestia. Hestia is never obliged to comply with such a request and may require a separate written agreement to be concluded for this. The Customer accepts any changes to the Products. Services and additional work may have consequences, including but not limited to the agreed or expected time of completion of the delivery / service.

6.7     Unless otherwise agreed in writing between the parties, delivery of the Products will take place Ex Works, warehouse Hestia in the Netherlands, in accordance with the International Chamber of Commerce (ICC) Incoterms 2020. All Products will be transported at the expense and risk of the Customer, including if freight was paid for the condition before shipment and / or Hestia chooses the mode of transport and / or the carrier.

6.8     Hestia will inform the Customer as soon as possible about the time and place of delivery, and the Customer will collect the Products as soon as possible, in any case within 30 days of the notification from Hestia. Delivery will be deemed to have taken place at the time that the Products are made available by Hestia to the Customer.

6.9     If the Buyer does not take delivery of the Products on time, it will be in default without notice of default and the Products will be stored at its expense and risk and / or sold by Hestia. In that case, the Purchaser will owe the purchase price plus storage costs, interest and all other costs actually incurred as compensation, without prejudice to Hestia's other rights.

 

ARTICLE 7.           DURATION OF THE AGREEMENT AND TERMINATION

7.1     The Buyer is never entitled to prematurely terminate an Agreement that has been entered into for a definite period, unless and then only in the cases that the parties have explicitly agreed in writing.

7.2     If an agreement, which by its nature and content does not end with completion, has been entered into for an indefinite period of time, it can be canceled by either party in writing, with due observance of the agreed notice period, or in the absence thereof, a reasonable notice period. Hestia will never be obliged to pay any compensation due to cancellation.

7.3     Hestia has the right to dissolve the Agreement in whole or in part or to suspend its obligations under the Agreement or any other agreement with the Customer, with immediate effect and without the intervention of a court and without prejudice to the other rights that Hestia has (to fulfillment and / or compensation), if:

a.    The Customer acts in violation of any provision of the Agreement or these General Terms and Conditions;

b.    The Customer applies for a moratorium or a moratorium has been granted;

c.    the Customer's bankruptcy has been filed for or declared;

d.    if the Customer's company is liquidated or terminated;

e.    a significant portion of the Purchaser's business assets have been seized;

f.     the business of the Customer or a substantial part thereof has been sold to a third party.

7.4     In the event of termination of the Agreement, regardless of the reason, the Customer will owe a fee to Hestia in accordance with the Agreement for the Services provided and costs incurred up to and including the termination date, and any claim (s) of Hestia on the Customer will become immediately due and payable. Due to the termination, Hestia is never obliged to any refund of monies already received or any compensation as a result of the termination of the Agreement. This does not affect the Customer's possible right to compensation in accordance with these General Terms and Conditions in the event that Hestia has failed attributably in the fulfillment of its obligations and / or has acted unlawfully.

7.5     Obligations for the Customer and rights for Hestia as laid down in these General Terms and Conditions and / or the Agreement, which expressly or by their nature or purport must also remain in force after expiry or termination of the Agreement, remain in effect after expiry or termination.

 

ARTICLE 8.           PRICES

8.1     All stated prices and rates (i) are in euros, (ii) are net cash, (iii) are exclusive of VAT, other levies that are or will be imposed by the government and expenses, (iv) are exclusive of any packaging and (v) are based on EX-Works, warehouse / office of Hestia in the Netherlands, according to the ICC Incoterms 2020, unless explicitly agreed otherwise in writing.

8.2     Unless explicitly agreed otherwise in writing, Hestia is entitled to separately charge the Customer for overhead costs, travel time, travel and accommodation costs and other costs incurred by Hestia in connection with the Agreement, including costs of third parties engaged.

8.3     If no price or rate has been agreed in the Agreement, the prices and rates for the Products and Services that Hestia uses at the time of concluding the Agreement will apply.

8.4     If, after the Agreement has been concluded, an increase in one or more cost-determining factors occurs, even if this occurs as a result of foreseeable circumstances, Hestia is entitled to pass on this increase to the Customer.

8.5     If the application of Article 8.4 should lead to a price increase within a period of 3 months after entering into the Agreement, the Customer is entitled to cancel the Agreement within five (5) days after he has been notified of the price increase by means of a registered letter. in writing as of the date on which the adjustment would come into effect, without being entitled to any compensation. However, the Customer does not have such a right to terminate if the Customer and Hestia have agreed that applicable prices and rates will be adjusted with due observance of an index or other criterion agreed between the parties. Moreover, if Hestia indicates after receipt of such dissolution from the Customer that it renounces the price increase, the dissolution will then have no effect and the Agreement will remain in force.

 

ARTICLE 9.           INVOICING AND PAYMENT

9.1     Unless the parties have explicitly agreed otherwise, the Customer must pay invoices from Hestia without discount, suspension, deduction and / or settlement in the invoiced currency and within fourteen (14) days after the invoice date. by means of a transfer to a bank account indicated by Hestia.

9.2     If the Customer does not pay the amounts due, not fully or not on time, the Customer will be in default by operation of law without further notice of default and the Customer will be in default, without any reminder or further notice of default being required, and without prejudice to Hestia's other rights, statutory commercial interest in Article 6: 119a BW - and the costs referred to in Article 9.4 - on the outstanding amount, from the due date until the day of full payment.

9.3     All extrajudicial and judicial costs actually incurred, internal and external, that Hestia incurs as a result of the Customer's non-compliance with its (payment) obligations or if Hestia has become involved in a procedure against the Customer in another way, as claiming or defendant, will be borne by the Buyer, even if these costs exceed the liquidated costs.

9.4     If two or more persons or legal entities have jointly commissioned or placed the order with Hestia, they are jointly and severally bound to Hestia.

9.5     Payments by the Customer, notwithstanding the description, will be credited with costs, then with interest and then with invoices in order of age, even if they have not yet expired.

9.6     Hestia will at all times have the right to ask the Customer (i) to provide security for the fulfillment of all its obligations under the Agreement in a manner that Hestia considers to be sufficient or (ii) payment in advance. If the Customer fails to provide such security or payment in advance, Hestia will be entitled to suspend further performance of the Agreement until the Customer has provided the requested security or payment in advance.

 

ARTICLE 10.        RESERVATION OF OWNERSHIP

10.1   All Products delivered to the Customer remain the property of Hestia, as long as the Customer has not yet fully complied with all its payment obligations arising from any Agreement with Hestia and / or these General Terms and Conditions - either for Products delivered or to be delivered -, including but not limited up to the purchase price, interest and collection costs. The Products delivered under retention of title are at the expense and risk of the Buyer.

10.2   In the event that a Product is intended for export to Germany, the property law consequences of the retention of title of the Product intended for export are governed by Germany - namely the law of the State of destination - if on the basis of that law the right of ownership does not lose its effect until the price has been paid in full. If it concerns a Product intended for export to a country other than the Netherlands or Germany, the property law consequences of the retention of title of the Product intended for export are governed by the law of the State of destination, if (i) that the relevant law contains more favorable provisions for Hestia (in the opinion of Hestia) and (ii) if on the basis of that right the right of ownership does not lose its effect until the price has been paid in full. The designation only takes effect if the Product is actually imported into the designated State of destination.

10.3   Until full payment of the price has taken place, the Customer is obliged to watch over the Products with the greatest possible care and to keep them properly insured against usual risks, also on behalf of Hestia. The Customer must keep the Products in such a way that they cannot be mixed with other goods or that no specification or accession occurs. Insofar as mixing, accession or specification occurs due to the actions of the Customer, all claims of Hestia against the Customer are immediately and fully due and payable.

10.4   The Customer will store and mark the Products in such a way that they can at all times be identified as Products of Hestia delivered under retention of title.

10.5   The Customer will immediately inform Hestia if the Products are damaged or lost, or if they are seized or claimed by third parties. At Hestia's first request, the Customer will inform it of the location of the Products.

10.6   Before full payment has been made, the Customer is not authorized to work or process the Products, to dispose of them in whole or in part, to rent them out to third parties, to give them into use, to pledge them or otherwise encumber them with rights, or to dispose of these Products in any way. beyond its control, unless in the context of its normal business operations. Hestia is authorized to immediately reclaim the Products without notice of default if the due date for payment is exceeded or if Hestia has reasons to believe that the Customer will not fulfill its obligations and to collect them or have them retrieved at the expense and risk of the Customer. from where they are located.

10.7   The Customer hereby grants Hestia irrevocable authorization for this purpose to collect the Products for this purpose, to remove them from where (in) they are located and to enter or have entered into areas that are in use by the Customer. The Customer will furthermore do or refrain from doing everything that is reasonably necessary to enable the retrieval of the Products. All costs of reclaiming and retrieving the Products will be charged to the Customer.

 

ARTICLE 11.        COMPLAINTS

11.1   The Customer is obliged to examine the delivered Products and / or the Services, or to have them examined, in order to determine whether the delivered Products and / or the Services comply with the Agreement.

11.2   The Customer must notify Hestia in writing of any complaint with regard to the Products and / or Services, stating (i) the Products and / or Services concerned, (ii) the date of purchase, order and / or agreement. , (iii) the date of delivery and (iv) the nature of the failure (“Complaint”). The complaint must contain a description of the shortcoming that is as complete and detailed as possible, so that Hestia is given the opportunity to respond adequately.

11.3   In the event of visible shortcomings and / or missing quantities of the Products and / or Services, the Customer must submit a complaint in writing to Hestia within 5 days after delivery of the Products and / or Services and, if so, these shortcomings and / or or record missing quantities on the relevant transport document.

11.4   With regard to all other complaints with regard to the Products and / or Services, the Customer must submit a complaint in writing to Hestia within 5 days after the date on which the shortcomings became known to the Customer or could reasonably have been known.

11.5   The Customer must notify Hestia in writing of any complaints regarding (the level of) the invoiced amount within 5 days of receipt of the invoice, whereby a description of the complaints must be given as complete and detailed as possible.

11.6   Complaints of any nature whatsoever do not suspend the Customer's payment obligation.

11.7   If the Customer fails to issue a notice of default within the time specified in Articles 11.3 and 11.4 above, this will lead to the loss of any claims whatsoever in this respect.

11.8   If complaints are not made known in writing in time, the Customer is deemed to agree with the Products and / or Services delivered and to have relinquished all rights and powers which it has under the law and / or the Agreement and / or these General Terms and Conditions. Conditions serve.

11.9   In any case, all claims of the Customer will lapse unless legal proceedings have been instituted before a competent court within 12 months after the relevant Product has been delivered, the relevant Service has been provided or had to be delivered or should be provided or an invoice has been sent.

11.10 If the complaint is justified and a timely complaint has been made by the Customer, Hestia is exclusively obliged at its option to (i) delivery of the missing items, (ii) replacement of the Products or parts in question (after which the replaced Products / parts will become the property of of Hestia), (iii) repair or repair of the delivered Product within a reasonable period, (iv) free of charge improvement or re-performance of the Services in question, adjustment of the charged price / rate, or (v) sending of a credit note.

11.11 Return shipments are only made in consultation with Hestia.

11.12 Minor and / or customary deviations and differences in quality, sizes, weights, numbers, colors and other such data, etc., can never be grounds for complaints.

 

ARTICLE 12.    WARRANTY

12.1   Hestia guarantees to the Customer, under the conditions as included in this Article 12, that the Products delivered by him comply with the Specification, unless otherwise agreed in writing.

12.2   Unless Hestia and Customer have expressly agreed otherwise in writing, the Products are not suitable for a special purpose and do not possess special qualities, and Hestia will accordingly not be liable for any lack of conformity of the Products. Unless explicitly agreed otherwise in writing between Hestia and the Customer, Hestia also does not guarantee that the Products are suitable for any application (area).

12.3   If the delivered Product does not comply with the Specification and the Customer has made a timely complaint as described in Article 11, Hestia is, at its option, only obliged to (i) delivery of the missing, (ii) replacement of the Products or parts in question (after which the replaced Products / parts will become the property of Hestia), (iii) repair or repair of the delivered Product within a reasonable period, (iv) refund of a proportional part of the purchase price, or (v) sending a credit note.

12.4   The warranty does not in any case include damage, defects or imperfections that occur in, or are wholly or partly the result of:

a.           minor deviations from specified sizes, weights, numbers, colors and other such data that fall within the tolerance levels as accepted in good commercial practice;

b.           using, maintaining, storing or transporting the Products in an improper manner;

c.           processing, processing, change and / or repair of the Products by the Customer or a third party;

d.           negligence on the part of the Customer or a third party;

e.           failure to observe or act contrary to the instructions, directions or advice of Hestia and / or its supplier;

f.            normal wear and tear;

g.           materials, goods, working methods, etc., insofar as these have been applied at the request or instruction of the Customer, as well as materials and goods supplied by or on behalf of the Customer;

h.           materials or goods used in consultation with the Buyer;

i.            materials and / or parts obtained by Hestia from third parties, insofar as this third party has not provided a warranty to Hestia or the warranty expired by the third party has expired or the relevant damage or cause falls outside that warranty;

j.            a government regulation with regard to the Products or the manufacture or use thereof.

12.5   If the Customer does not, not properly or not timely comply with any obligation under any Agreement and / or these General Terms and Conditions, Hestia is not bound by any guarantee, by whatever name. If the Customer opens sterile packaging of the Product and / or proceeds or has repair or other work carried out in respect of the Product without prior written approval from Hestia, all warranty claims will lapse.

12.6   The warranty obligations of Hestia are exclusively limited to the warranty claims as described in this article 12. The Customer hereby expressly waives all (other) rights and claims it has on Hestia.

12.7   New Products or parts under warranty are delivered Delivered Duty Paid (DDP) ICC Incoterms 2020 warehouse of the Customer in the Netherlands. On-site complaint resolution is at the expense and risk of the Customer, including but not limited to clearing, clearing, disassembling, assembling, setting up and connecting the Products.

12.8   The Products must be made available to Hestia for inspection at the first request, with the freight being paid in advance by the Customer. Return shipments are only accepted after prior written approval from Hestia. The costs of return shipments are at the expense of the Customer and the relevant Products travel at his risk.

12.9   If Hestia supplies the Buyer with Products that it has obtained from other suppliers, the warranty claims of Hestia are in any case limited to the warranty that these third-party suppliers provide to Hestia in this respect.

 

ARTICLE 13.    INTELLECTUAL PROPERTY RIGHTS

13.1   All current and future (intellectual property) rights with regard to the Products, Services, the Deliverables and all (pursuant to and / or in the context of the performance of the Agreement) developed or made available or used data, protocols, training materials, advice, information, data files, analyzes, designs, documentation, reports, Quotations, as well as preparatory material thereof and all other materials (hereinafter 'Information'), including but not limited to copyrights, patent rights, know-how, trademark rights, etc., rest exclusively with Hestia, its licensors or its suppliers and these will remain the sole property of Hestia, or its licensors or its suppliers.

13.2   The Customer undertakes not to violate or affect these (intellectual property) rights in any way, directly or indirectly, through use or otherwise.

13.3   The Agreement and the General Terms and Conditions do not imply any transfer of any (intellectual property) right or any user license, unless expressly agreed otherwise in writing. A right of use accruing to the Customer is non-exclusive, non-transferable to third parties and cannot be sublicensed.

13.4   Without the prior written consent of Hestia, the Customer is not entitled to use the name of Hestia, trademarks, brands, logos, etc.

13.5   Hestia is entitled to use the name, trade names and logos of the Customer in marketing and advertising material and to mention the performance of the Products and / or Services and to specify more specifically which type of Products and / or Services Hestia for the Customer has performed.

13.6   The Customer is not permitted to make the Information available to third parties, to reproduce it or to make copies or have it made copies thereof, without the prior written consent of Hestia.

13.7   The Purchaser will not make any statements to third parties about Hestia's approach and working method, unless Hestia's prior written permission has been granted.

13.8   The Customer must return the Information at Hestia's first request, on pain of a fine of € 500 per day or part of a day that the Customer does not comply with this request, without prejudice to all other rights of Hestia.

 

ARTICLE 14.        LIABILITY AND INDEMNITY

14.1   The total liability of Hestia due to an attributable shortcoming in the performance of the Agreement or an agreement related thereto or arising from it, these General Terms and Conditions, on account of an unlawful act or for any other reason, is limited to the amount that Hestia under receives his professional liability insurance from the insurer with regard to the damage for which he has been held liable by the Customer.

14.2   If no insurance payment is made with regard to the relevant damage, the liability of Hestia is limited to compensation for the direct damage up to a maximum of the amount for the relevant Product / Service to which the liability relates, or that (part of) the Agreement. , negotiated price excl. VAT. Customer hereby expressly waives all (other) rights and claims it has on Hestia. 

14.3   Under no circumstances will Hestia be liable to the Customer for any special, consequential, indirect, criminal or incidental damage, including, but not limited to, interruption damage, lost profit, missed savings, increased operational costs, damage as a result of customers of the Customer, loss of customers, diminished goodwill, etc., however caused, regardless of the basis of liability, and whether or not he was previously advised of the possibility of such damage arising in any way under the Agreement or otherwise.

14.4   The limitations of liability as included in articles 14.1, 14.2 and 14.3 apply mutatis mutandis to any indemnification obligations of Hestia that the parties have agreed. Indemnification obligations for Hestia only apply if they have been agreed in writing.

14.5   The limitations and exclusions referred to in articles 14.1, 14.2 and 14.3 do not apply insofar as the damage in question has been caused by intent or deliberate recklessness on the part of Hestia's management.

14.6   Unless fulfillment by Hestia is permanently impossible, the liability of Hestia due to an attributable shortcoming in the fulfillment of the Agreement only arises if the Customer immediately gives Hestia written notice of default, whereby a reasonable period is set for the remediation of the shortcoming, and Hestia also after that period continues to fail attributably in the fulfillment of its obligations. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that Hestia is given the opportunity to respond adequately.

14.7   A condition for any right to compensation to arise is always that the Customer reports the damage to Hestia in writing as soon as possible after it has arisen. Any claim for compensation against Hestia will lapse by the mere lapse of 12 months after the claim arose.

14.8   Hestia is not liable for damage resulting from the provision of false, misleading or incomplete information or documentation by the Customer or third parties, non-compliance with laws or regulations in the field of the protection of privacy and personal data covered by the responsibility of the Buyer, or the withholding of information or documentation or the misrepresentation of matters with regard to information or documentation by parties other than Hestia.

14.9   Customer indemnifies Hestia against all claims and imminent claims from third parties against Hestia, and indemnifies Hestia against all damage suffered by Hestia in connection with such a claim, including all costs incurred by Hestia (including reasonable legal costs) for defense against such claims and all obligations of Hestia towards third parties, if such damage, claims, costs and / or obligations are related to or arise from (i) the performance of the Agreement, except insofar as it has been established by an irrevocable judgment that the damage is the result of intent or deliberate recklessness of Hestia's management, or (ii) application or use of a Deliverable and / or any other outcome of the Services by the Customer or by a third party to whom the Customer has the Deliverable or any other outcome of the Services available unless the Deliverable and / or outcome concerned is the result of intent or gross negligence on the part of the b management of Hestia.

14.10 The provisions of this article 14 as well as all other limitations and exclusions of liability mentioned in these General Terms and Conditions and the Agreement also apply to the benefit of all (legal) persons that Hestia uses in the performance of the Agreement.

14.11 The exclusions and limitations of the liability of Hestia, as described in the previous paragraphs of this article 14, do not include the other exclusions and limitations of liability of Hestia under these General Terms and Conditions, including but not limited to the limitations included in article 11 and 12 of these General Terms and Conditions, and / or the Agreement in full.

 

ARTICLE 15.        FORCE OF THE MAJORITY

15.1   Hestia is not liable for any default or delay in the performance of the Agreement or related agreements, or the damage caused thereby, if the default or delay is due to force majeure as defined in Article 15.2 and / or (ii) the law or case law.

15.2   Force majeure means the circumstances that prevent Hestia from performing the Agreement, or any agreement related to or arising from it, or any part of it, or that make it impossible or unreasonably burdensome for it to do so, regardless of whether those circumstances are at the time. foreseeable or not for the conclusion of the Agreement. Force majeure is in any case, but not exclusively understood to mean: fire, flood, extreme weather conditions, strikes, workforce, war (whether or not declared), force majeure of suppliers and / or (other) auxiliary persons of Hestia, timely fulfillment of obligations by suppliers and / or (other) auxiliary persons of Hestia, terrorism, power failure, system problems, Covid-19, epidemic and pandemic, embargoes, blockades, legal restrictions, government measures and advice in the broadest sense, failure of the internet, computer network - or telecommunication facilities, business, traffic and / or transport disruptions, transport problems and the unavailability of one or more staff members.

15.3   In the event of force majeure, the performance of the agreement for Hestia will be suspended for the duration of said force majeure. If this period lasts longer than 3 months, the parties are entitled to dissolve the Agreement in writing.

15.4   If Hestia has already partially fulfilled its obligations under the Agreement prior to the occurrence of the force majeure situation or dissolution, it will be entitled to invoice the part already delivered, and the Customer will pay the invoice as if there is a separate agreement.

 

ARTICLE 16.        PROTECTION OF PERSONAL DATA

16.1   Terms used in the General Data Protection Regulation (EU) 2016/679 (“AVG“) Have the same meaning in this article as in the GDPR.

16.2   If Hestia processes personal data in the context of the Agreement and determines the purposes and means for this, Hestia is the controller within the meaning of the GDPR.

16.3   When a breach in connection with personal data - which is processed within the framework of the Agreement - has taken place, the Customer and Hestia will notify each other without unreasonable delay. Where possible, the Customer and Hestia will consult with each other prior to submitting any reports thereof to a supervisory authority and those involved.

16.4   The Customer and Hestia will inform each other without unreasonable delay of an investigation by a supervisory authority in relation to personal data processed in the context of the Agreement.

 

ARTICLE 17.        CONFIDENTIALITY

17.1   The Customer is obliged to treat all information and data received from or on behalf of Hestia that the Customer knows or should reasonably know to be of a confidential nature, both during and after termination of the Agreement and the Services, and not to disclose it in strict confidence. Information is in any case considered confidential if it is indicated as such by Hestia.

17.2   The Customer party that receives confidential information will only use this confidential information for the purpose for which it was provided.

17.3   In order to fulfill its obligation under Article 16.1, the Customer undertakes towards the other party to exercise at least the same degree of care with regard to the confidentiality of the other's confidential information as they exercise with regard to the confidentiality of their own confidential information.

17.4   The confidentiality obligation does not apply to information and / or data:

a.    that are generally known or form part of publicly accessible information or sources, other than through unlawful disclosure by the receiving party;

b.    which has been made available to the receiving party by a third party without further obligation of confidentiality, which third party has not, according to the receiving party, breached any obligation of confidentiality towards the providing party;

c.    that must be disclosed on the basis of the law, a statutory regulation or a public-law decision or a judicial or arbitral procedure based on the law; and / or

d.    in respect of which a written discharge from the confidentiality obligation has been granted by the providing party.

           In all the aforementioned cases, disclosure is limited to what is strictly necessary.

ARTICLE 18.    APPLICABLE LAW AND COMPETENT COURT

18.1   These General Terms and Conditions, all Offers and all Agreements and any agreements related to or ensuing therefrom are governed by Dutch law.

18.2   All disputes arising from or related to these General Terms and Conditions, a Quotation and / or an Agreement and / or any agreements related or ensuing therefrom will be settled exclusively by the competent court in Enschede, the Netherlands. Nevertheless, Hestia has the right to submit disputes to the competent court in the place of residence of the Customer.

 

ARTICLE 19.        OTHER BUSINESS

19.1   Hestia is entitled to transfer rights and obligations under the Agreement, in whole or in part, to third parties and the Customer grants permission in advance for such a transfer by accepting these General Terms and Conditions. Except with the express prior written consent of Hestia, the Customer may not transfer any rights and / or obligations under the Agreement, in whole or in part, to any third party.

19.2   Hestia is entitled to change these General Terms and Conditions. The amended terms and conditions are deemed to have been accepted if the Customer has not objected in writing to the amended terms and conditions within 14 days after the amended terms and conditions have been sent to him or have become known.

19.3   If any provision in these General Terms and Conditions and / or the Agreement should prove to be void or voidable, the other provisions will remain in full force. The Customer and Hestia are then obliged to replace the relevant provision with a new provision that is not void or voidable and which provision corresponds as much as possible with the purpose and scope of the void or voidable provision.

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