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 and the related services by Hammer-IMS NV, with registered office in 3540 Herk-de-Stad, Industrieweg 1401, company registration number 0648.896.643, RPR Antwerpen, division Hasselt, or any subsidiary or affiliate thereof (collectively, "Hammer-IMS") to a Customer (defined under Clause 1.2).
1.2 A "Customer" means every company to whom Hammer-IMS sends a proposal, who places a purchase order with Hammer-IMS, with whom Hammer-IMS intends to conclude or has concluded an agreement or to whom Hammer-IMS provides services.
1.3 These general terms and conditions, together with the related proposal and/or purchase order and/or agreement shall constitute the entire agreement ("Agreement") between the parties. No party may deviate from the Agreement and these terms and conditions, and any such deviation is not valid and is void unless expressly agreed to in writing by both parties. Notwithstanding anything determined in the Agreement, including these general terms and conditions, to the contrary, if a written contract signed by both parties is in existence covering the sale of the Equipment or Software (as defined below) covered hereby, the terms and conditions of such contract shall prevail to the extent they are inconsistent with these general terms and conditions.
1.4. Customer's execution of, and adherence to, these general terms and conditions is an essential condition for Hammer-IMS to enter into the Agreement. These terms and conditions prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these terms and conditions.
1.5. The Customer declares to have received these general terms and conditions prior to entering into the Agreement or placing a purchase order and the Customer acknowledges and agrees to the contents of these general terms and conditions. The Customer will be bound by the Agreement, including these general terms and conditions, upon the Customer's signing of the proposal, a confirmation by e-mail, or in any other express written manner.
1.6. Hammer-IMS and the Customer may, in addition to these general terms and conditions, make further special agreements regulating to the relationship between the parties. Those special agreements are only valid and can only prevail over these general terms and conditions if they have been expressly agreed to in writing.
1.7. Hammer-IMS reserves the right to amend its general terms and conditions at any time. Any amended general terms and conditions will be applicable to the Customer upon the Customer's written acknowledgement of, and agreement to, such amended general terms and conditions.
1.8. 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 as well as the related Services by Hammer-IMS. 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 by Hammer-IMS in order form.
Customer shall agree that the Software shall be licensed by Hammer-IMS to the Customer based on a machine-locked license 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 the sole 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 or Software.
The provisions of this clause 4.1 will remain applicable in the event of bankruptcy of the Customer.
This clause 4.1 is subject to INCOTERM ® (2020) EX WORKS.
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 of loss. 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 INCOTERM® (2020) EX WORKS.
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 commercially reasonable efforts to give notice of delays.
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 and via email to complaint@hammer-ims.com indicating the non-conformity or visible defects no later than three (3) calendar days after the date of delivery.
5.2. Every complaint regarding hidden defects of the Equipment or Software must be reported to Hammer-IMS via registered mail and via email to complaint@hammer-ims.com indicating the hidden defect within eight (8) calendar days after the determination of the hidden defect.
5.3. If the Customer timely notifies Hammer-IMS of the defects or non-conformity referenced in clauses 5.1 and 5.2 above, and within the applicable periods of time set forth in clauses 5.1 and 5.2, Hammer-IMS shall, in its sole and absolute discretion, (i) replace such non-conforming or defective Equipment, or (ii) credit or refund the purchase price for such non-conforming or defective equipment, together with any reasonable shipping and handling expenses incurred by Hammer-IMS in connection where with, or (iii) discuss the non-conformity situation with the Customer in order to come, within a reasonable time, to a solution in both parties‘ interest. No valid complaint can be filed outside the abovementioned time periods.
5.4. Equipment can only be returned with prior written consent of Hammer-IMS.
6.1. Hammer-IMS will not be liable if the Customer does not meet its obligations under the Agreement. In particular this concerns amongst others any and all stipulated specific obligations and conditions for installation and placement, repair, modification, application and handling, including but not limited to: environmental conditions (e.g., exposure to heat, coldness, outdoor air, moisture, humidity, and required temperature), technical requirements, available power source and vibration, as also the limitations on the Customer’s freedom to operate to be agreed, such as e.g., the Customer cannot use the Equipment for another application or in another country than intended and/or agreed.
6.2. Normal consumable or expendable parts (including but not limited to fuses, lamps or lasers) and repairs required during the warranty period because of abnormal use or conditions (including as but not limited to 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, including related services, is twelve (12) months and shall start on the date of commissioning, being the date on which the Equipment is set in operation, provided, however, the warranty period shall not exceed fifteen (15) months after delivery of the Equipment, delivery as set forth in clause 4.3. The warranty period for spare parts is six (6) months after delivery of such spare parts as set forth in clause 4.3.
6.4. Warranty terms regarding the Software, including the warranty period for the Software, are contained in the Software license contained in the Software.
6.5. The foregoing warranties as to the Equipment (including related services) and the Software replace any other warranties, whether express or implied, including without limitation any warranties of merchantability or fitness for intended or particular purposes. Other than the express warranties set forth in this section 6, the Equipment and the Software are delivered to the Customer "AS IS," "WHERE IS," AND WITH ALL FAULTS AND WITHOUT ANY FURTHER REPRESENTATION OR WARRANTY OF ANY NATURE WHATSOEVER, EXPRESS OR IMPLIED, ORAL OR WRITTEN. HAMMER-IMS DISCLAIMS AND BY EXECUTING THE AGREEMENT, INCLUDING THESE TERMS AND CONDITIONS, THE CUSTOMER WAIVES ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR DEMAND IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHERWISE WITH RESPECT TO THE EQUIPMENT AND THE SOFTWARE CONVEYED UNDER THE AGREEMENT. HAMMER-IMS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.1. Hammer-IMS shall not be liable for direct damages of any kind, including amongst others third party intellectual property rights, 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 the event of its own willful misconduct or gross negligence, Hammer-IMS, as regards the Equipment (including related services), 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 the Customer, related services rendered or others exceed the purchase price of the Equipment.
7.4. Limitations of liability regarding the Software are contained in the license contained in the Software.
7.5. Hammer-IMS cannot be liable nor be held liable for any costs related to the further commercialization of Equipment by the Customer.
7.6 In addition to any limitation of liability set forth in the Agreement or in these general terms and conditions, the Customer agrees to indemnify Hammer-IMS, its affiliates and their respective employees, officers, directors, members, managers, agents, representatives, authorized service providers, successors, and assigns (collectively, the "Indemnified Parties") and hold the Indemnified Parties harmless from and against any and all liabilities, claims, causes of action, suits, damages, and expenses (including reasonable attorneys' fees, costs, and expenses) for which the Indemnified Parties may become liable, or which may be incurred or paid in any action or as a result of any claim, suit, or governmental proceeding (whether or not the Indemnified Parties shall be a party thereto) arising out of or in connection with any breach of the Agreement, including these terms and conditions, or any use of the Equipment or Software by the Customer or by any of the Customer's employees, officers, directors, members, managers, agents, representatives, lessee, successors, and assigns. Furthermore, the Customer agrees to indemnify and reimburse the Indemnified Parties for all costs, expenses and any other third party fees or out of pocket disbursements arising out of the Customer's or any of the Customer's employees, officers, directors, members, managers, agents, representatives, lessee, successors, and assigns use of the Equipment or Software. The Customer acknowledges and agrees that for the purpose of this clause and its enforcement, each Indemnified Party, other than Hammer-IMS, is a third party beneficiary of the Agreement.
7.7 All terms regarding limitation of liability shall survive the expiration or earlier termination of the Agreement.
8.1. Hammer-IMS and/or the Customer (to be agreed in the Agreement) 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.
Except for 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. In said art. 5.90 of the (Belgian) Civil Code the law provides the possibility to the parties to terminate, in exceptional circumstances, an agreement prior to its termination date, it says: “In exceptional circumstances, the contract may also be terminated when it is clear that the debtor, after having been reminded to provide sufficient guarantees for the proper performance of his obligations within a reasonable period, will not fulfill his obligations in a timely manner and that the consequences of this non-performance are sufficiently serious for the creditor.” In addition to any remedies that may be provided under these terms and conditions, Hammer-IMS may terminate the Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under the Agreement and such failure continues for 30 days after Customer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these terms and conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
9.1 All prices are expressed in local currency (being the currency that applies in the country from which the invoice is executed, such as f.i. euro/United States Dollars) (exclusive of all VAT, sales, use, customs duties, 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. Customer shall be responsible for all such charges, costs, and taxes; provided, however, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Hammer-IMS’s income, revenues, gross receipts, personnel, or real or personal property or other assets. 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 any 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) any change in VAT, customs duties, excise duties, transportation costs, packaging costs, 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 the sole property of Hammer-IMS as long as the complete purchase price has not been paid, even if the Equipment is modified or converted. As collateral security for the payment of the purchase price for the Equipment, by executing the Agreement, Customer grants to Hammer-IMS a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under the Equipment, wherever located, and whether now existing, arising in the future, or acquired from time to time, and in all accessions regarding the Equipment and replacements of or modifications to the Equipment, as well as all proceeds (including insurance proceeds) related to the Equipment. The security interest granted under this clause 9.4 constitutes a purchase money security interest under the applicable jurisdiction's Uniform Commercial Code (or similar law or regulation).
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%) upon the earlier of (i) a successful Site Acceptance Test (SAT) carried out on or before two (2) months after installation or (ii) three (3) months after delivery.
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 invoices.
10.3. Customer shall pay interest on all late payments at the lesser of the rate of 1% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Hammer-IMS for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. 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. In addition to all other remedies available under these terms and conditions or at law (which Hammer-IMS does not waive by the exercise of any rights hereunder), Hammer-IMS shall be entitled to suspend the delivery of any Equipment or Software if Customer fails to pay any amounts when due hereunder and such failure continues for 7 days following written notice thereof. Notwithstanding the above, Hammer-IMS is at any time when late payment occurs, 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 and via email to invoices@hammer-ims.com within eight (8) calendar days will be considered to be accepted, final and payable.
10.7. In the event of non-payment of an invoice, all outstanding invoices, even those which 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, United States, 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, pandemics 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 by a court of competent jurisdiction, 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 of the Agreement, by negotiation.
14.2. Any claim that is not resolved by negotiation within thirty (30) days of written notification to the party against which such claim is asserted shall exclusively be governed by and interpreted in accordance with Belgian law, excluding its conflict of law provisions. The applicability of the Vienna Sales Convention is expressly excluded. Furthermore, for any Agreement with a Customer in the United States, any claim not resolved within thirty (30) days of written notification to the party against which such claim is asserted shall exclusively be governed by and interpreted in accordance with the law of the State of South Carolina, without giving effect to any choice or conflict of law provision or rule (whether of the State of South Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of South Carolina.
14.3. In case of a dispute between the Parties, arising out of the performance, the validity or the interpretation of the Agreement as described under Clause 14.2 hereof: (i) for any Agreement with a Customer outside of the United States, the Parties agree that these disputes shall be subject to the exclusive jurisdiction of the courts of Antwerp, department Hasselt (Belgium); and (ii) for any Agreement with a Customer in the United States, the Parties agree any legal suit, action, or proceeding arising out of or relating to the Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of South Carolina in each case located in the City of Greenville and County of Greenville, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
14.4. FOR ANY AGREEMENT WITH A CUSTOMER IN THE UNITED STATES, EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THE AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
15.1. Both Hammer-IMS and Customer will comply with all laws applicable to the Agreement.
15.2. All notices, requests, consents, claims, demands, waivers, and other communications under the Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by an internationally recognized overnight courier (receipt requested); or (c) on the date sent by e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. Such communications must be sent to the respective parties at the address provided in the Agreement (or at such other address for a party as shall be specified in a notice given in accordance with this section).
15.3. Changes or amendments to the Agreement must be in writing and must be signed by both parties prior to the effectiveness of such change or amendment.
15.4 No waiver by Hammer-IMS of any of the provisions of these general terms and conditions or the Agreement may be effective unless explicitly set forth in writing and signed by Hammer-IMS. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Agreement, including these general terms and conditions, operates or may be construed, as a waiver of such term, condition, right, remedy, power, or privilege. No single or partial exercise of any right, remedy, power, or privilege under the Agreement or these general terms and conditions precludes any other or further exercise of such right, remedy, power, or privilege, or the exercise of any other right, remedy, power, or privilege.
The Customer acknowledges that it has read the Agreement, including these general terms and conditions, understands the Agreement, including these general terms and conditions, and agrees to be bound by the Agreement, including these general 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.
