GENERAL CONDITIONS of HKliving B.V.
Article 1. Definitions
In these general conditions, the terms below are defined as follows:
a. Contractor/Seller: HKliving B.V., with its registered office at De Dieze 2, 8253 PS Dronten (Chamber of Commerce no.: 53793560), also referred to below as ‘HKliving’.
b. Client: any natural person or legal entity acting in the capacity of a business operator to whom/which HKliving supplies or provides products, for whom/which HKliving performs services, with whom/which HKliving enters into a purchase agreement, sales agreement or agreement for services, or with whom/which HKliving is in discussions or negotiations to conclude a purchase agreement, sales agreement or agreement for services.
c. Agreement: any purchase agreement, sales agreement or agreement for services between HKliving and the Client, any amendment or addition to that agreement, and all legal acts to prepare for and perform that agreement.
d. Products: all goods that HKliving offers to the Client under a purchase agreement, for the purpose of providing services or otherwise.
e. Services: all activities, in whatever form and however named, performed by or on behalf of HKliving in connection with the Products or otherwise;
f. Order: any assignment from the Client, in whatever form.
Article 2. Applicability
2.1. These general conditions apply to all HKliving’s offers (and other legal acts) and to all agreements that HKliving will conclude with the Client.
2.2. HKliving expressly rejects the applicability of any general conditions of the Client.
2.3. Amendments and additions to any provision of the agreement and/or these general conditions can only be agreed in writing, in which case the other provisions will remain fully in effect.
2.4. If an amendment and/or addition as referred to in the previous paragraph is agreed, this amendment and/or addition will apply only to the agreement in question, unless expressly agreed otherwise.
2.5. Accepting an offer or placing an order implies that the Client fully and unreservedly accepts the applicability of these general conditions.
Article 3. Offer, information and concluding the agreement
3.1. All offers are without obligation. HKliving is bound only once it has accepted an assignment/order in writing or otherwise confirmed its agreement. Unless expressly agreed otherwise, HKliving may refuse orders and/or assignments, or set certain conditions for the delivery (and/or assignment).
3.2. If the Client’s acceptance differs from the proposal included in the offer, even on apparently minor points, HKliving is not bound by that acceptance. The agreement is then not concluded in accordance with this different acceptance, unless HKliving states otherwise.
3.3. A combined offer/quotation does not oblige HKliving to perform part of the assignment (or make a partial delivery) for a corresponding part of the price stated in the offer.
3.4. If an order (and/or assignment) has not been accepted beforehand in writing, for example when sales are made from stock, the purchase agreement is concluded by HKliving fully or partially complying with a Client’s request for delivery or by sending an invoice to a Client that has requested delivery. The invoice is then deemed to correctly reflect the agreed order or Services.
3.5. Although HKliving specifies all numbers, measurements, weight and/or other details of the Products and/or Services carefully, it cannot warrant that variations will not occur. Drawings or designs that HKliving shows or provides are only indicative of the Products and/or Services in question. If the Client demonstrates that the Products and/or Services delivered (and/or contracting work) vary from HKliving’s specifications, or from the drawings or designs, such that they can no longer reasonably be required to purchase them, the Client may terminate the agreement in so far as that termination is reasonably necessary.
3.6. The images, drawings and similar items that HKliving provides remain its property and may not be copied or reproduced without its express permission or made available to third parties.
Article 4. Client’s obligations
4.1. The Client must promptly provide HKliving with all information that HKliving believes it requires to perform the agreement properly. The offer is based on the information that the Client provides for that purpose, which HKliving may trust is accurate and complete. The information provided by the Client will serve as a starting point for concluding the agreement. The Client warrants the accuracy, completeness and reliability of the information provided to HKliving, even if it comes from third parties.
4.2. The Client may not sell HKliving’s Products through third parties and/or platforms (online or otherwise).
4.3. The Client may sell HKliving’s Products only as part of their own, normal business operations, online through their own website, clearly stating in the domain name and on the website that the Client is offering the products for sale.
4.4. Article 4.3 does not apply to Clients classified as project customers, such as architects, interior stylists, project developers, or to Clients that are end customers, such as hotel, hospitality or care organisations. In those cases, the Client may not sell HKliving’s Products through its own webshop or another physical or online sales channel.
Article 5. Performing the agreement in phases and cancellation
5.1. If it is agreed that the agreement will be performed in phases, HKliving may – if applicable – suspend performing those parts belonging to a subsequent phase, or making partial deliveries, until the Client has fulfilled their total payment obligation towards HKliving.
5.2. If the Client does not give notice and make the request referred to in Article 6.12 in due time, HKliving may cancel (give notice of termination of) the order and charge the costs incurred to the Client.
5.3. If the Client wishes to cancel (give notice of termination of) the delivery of Products or Services, this can be done by email, subject to the costs below unless HKliving waives them:
a. for cancellation up to thirty (30) days before delivery starts: forty-five per cent (45%) of the invoice amount;
b. for cancellation from thirty (30) to twenty-one (21) days before delivery starts: sixty per cent (60%) of the invoice amount;
c. for cancellation from twenty-one (21) to fourteen (14) days before delivery starts: eighty-five per cent (85%) of the invoice amount;
d. for cancellation from fourteen (14) to seven (7) days before delivery starts: ninety per cent (90%) of the total invoice amount;
e. for cancellation in the last seven (7) days before delivery starts: one hundred per cent (100%) of the invoice amount.
5.4. By way of exception to Article 5.3, the Client may not cancel the delivery of customised Products or Services, such as Products or Services made especially for the Client in numbers or otherwise, which determination is at HKliving’s sole discretion.
Article 6. Deadlines, delivery and delivery periods
6.1. The deadlines or delivery periods that HKliving gives to the Client for performing the agreement are indicative only and not to be regarded as strict deadlines, even if they are final dates.
6.2. If HKliving cannot perform the agreement within the agreed period, other than in the case referred to in Article 5.1, it must notify the Client as soon as possible of the period within which the agreement can be performed.
6.3. If any period specified by HKliving is exceeded, HKliving is in default only after the Client has given it a written notice of default and a reasonable period in which to still fulfil its obligations towards the Client.
6.4. If Products can be delivered from stock, they will be shipped as soon as possible after the order is placed. HKliving may charge shipping costs for sending ordered Products. Ordered Products are delivered to the delivery address known to HKliving, which is not of a temporary nature.
6.5. If the Products cannot be delivered on the agreed delivery date for a reason attributable to the Client, the Client is responsible for the additional costs incurred. If the Client wishes to change the delivery date, this can be done free of charge up to one (1) day in advance, after which HKliving can charge costs.
6.6. The Client must sign for receipt of the Products.
6.7. If the Client refuses to accept delivery or fails to provide proper information or instructions needed for delivery, the Products will be stored at the Client’s expense and risk.
6.8. If the Client observes visible damage during or immediately after the delivery of the Products that has been, or probably has been, caused by or during the transport of the Products, they must report this damage to HKliving within forty-eight (48) hours of delivery, by both email and registered post. Given the nature of this damage, HKliving will not deal with reports of visible damage caused by or during transport more than forty-eight (48) hours after the Products have been delivered. The Client then cannot recover this damage from HKliving and no other action can be taken against the Contractor/Seller.
6.9. Unless the contrary is proved, HKliving’s delivery obligation will be met as soon as it has offered delivery of the Products to the Client once. The carrier’s report, containing the refusal of acceptance, serves as conclusive evidence that delivery has been offered in the absence of evidence to the contrary.
6.10. If the Client refuses the Products offered, return freight and storage charges, and the risk of damage or loss of the refused Products, are entirely at the Client’s expense, unless the Client invokes the right to terminate the purchase or to replace the Product on valid grounds.
6.11. A desired delivery date specified by the Client is only a desired (indicative) delivery date. The actual delivery date may vary and is final only once HKliving confirms it.
6.12. If a 15-metre articulated lorry cannot access the delivery address, the Client must report this to HKliving within a reasonable period before the delivery date, taking into account the transport time from HKliving to the delivery address, and request special transport. The Client is responsible for the additional costs. The cargo will be unloaded alongside the articulated lorry, as close as possible to the desired delivery address, if this is feasible and responsible.
Article 7. Prices, costs and rates
7.1. HKliving’s quoted prices, costs and rates exclude turnover tax and any other government levies. The prices and rates apply to the agreement mentioned in the order confirmation/offer in accordance with the stated specifications and the specified period(s).
Special provisions for Services
7.2. HKliving and the Client can agree a fixed price when concluding the agreement. If no fixed price is agreed, the price will be determined based on the number of hours actually worked (on a costs-plus basis).
7.3. The price will then be calculated according to HKliving’s usual hourly rates, valid for the period in which the Services are provided, unless a different hourly rate has been agreed.
7.4. If assignments last longer than three (3) months, the costs owing by the Client will be charged on a monthly basis.
7.5. HKliving may always charge the Client all price-increasing factors that arise after it submits its offer or concludes the agreement.
7.6. If a fixed fee or hourly rate increases by more than 10%, the Client may terminate the agreement. The Client may not terminate the agreement if the right to increase the fixed fee or hourly rate arises from legislation.
7.7. HKliving must inform the Client in writing of its intention to increase the fixed fee or hourly rate, stating the extent of the price increase and the date on which it will take effect.
7.8. If the Client does not wish to accept the increase of more than 10% in the fixed fee or hourly rate announced by HKliving, they may terminate the agreement effective from the date specified in the notice as the date on which the price or rate adjustment will take effect within fourteen (14) days of receiving notice of it.
Article 8. Warranty
8.1. HKliving offers no more extensive warranty on delivered Products than the warranty conditions of the manufacturer of these Products, without this affecting the Client’s rights arising from mandatory statutory provisions.
8.2. HKliving is not responsible for the ultimate suitability of the Products for each individual application by the Client or for any advice regarding the use or application of the Products.
8.3. The Client must inspect the delivered Products immediately upon receipt. If it appears that the delivered Product is incorrect, faulty or incomplete, the Client must immediately report these defects in detail and in writing to HKliving before returning it. The Client must report any defects or incorrectly delivered Products in writing to HKliving within eight (8) days of delivery. The Products must be returned in their original packaging (including accessories and accompanying documentation) and in their new condition. If the Products are put to use, damaged, encumbered and/or resold after defects are discovered, this right to complain and return them ceases to apply in full.
8.4. If HKliving finds the Client’s complaints to be valid, it must, at its discretion, either replace the delivered Products free of charge or agree on compensation with the Client in writing, subject to the limitations on its liability under the provisions of Article 14.
8.5. This warranty does not apply:
a. if and as long as the Client is in default towards HKliving;
b. if the Client has repaired and/or modified the delivered Products or has had them repaired and/or modified by third parties;
c. if the delivered Products have been exposed to abnormal conditions or have been handled carelessly or contrary to HKliving’s instructions and/or the instructions for use on the packaging;
d. the defect is wholly or partly the result of regulations that the government has imposed or will impose regarding the nature or the quality of the materials used.
8.6. Once delivered, HKliving does not accept returned Products and the Client cannot return them to HKliving, except in cases in which these general conditions stipulate otherwise, and the Client also cannot claim repayment of the purchase price or other full or partial compensation from HKliving.
Article 9. Force majeure
9.1. For the purpose of these general conditions, and in addition to what is understood by the term in legislation and case law, force majeure means all external causes, foreseeable or unforeseeable, over which HKliving has no control, but which prevent HKliving from fully or partially fulfilling its obligations. These include but are not limited to fires, accidents, illness, epidemics, pandemics, quarantines, strikes, riots, war, government measures, extensive power cuts, transport restrictions and threats of terrorism.
9.2. If the force majeure is permanent, HKliving may terminate the agreement with the Client by means of a written statement without judicial intervention. In that case, HKliving is not liable for damage of any nature and extent suffered by the Client.
9.3. If the force majeure is temporary, HKliving may extend the periods within which the agreement must be performed by the time the temporary force majeure lasts.
9.4. If the force majeure period lasts longer than six (6) months, the Client may fully or partially terminate the agreement without being entitled to compensation and without being released from their payment and other obligations for the part of the agreement that HKliving has already performed.
9.5. If HKliving has already partially fulfilled its obligations or can only partially fulfil its obligations when force majeure starts, it may invoice the part of the agreement it has already performed or will perform separately.
Article 10. Retention of title
10.1. Despite physical delivery or handover, ownership of the Products passes to the Client only after they have fully paid all that they owe or will owe HKliving under the agreement and/or these general conditions, including the purchase/contract price, any surcharges, interest, taxes and costs payable under these general conditions or the agreement, and any Services performed or to be performed under such an agreement.
10.2. Any amount received from the Client will first be used to settle those claims that HKliving has against the Client for which it has retained no title in paragraph 1.
10.3. Any further amount received from the Client will first be used to pay any interest and costs as referred to in Article 11, paragraphs 5 and 6.
10.4. Before ownership of the Products passes to the Client, the Client may not rent or give the Products in use to third parties, pledge them to third parties, or otherwise encumber them for the benefit of third parties.
10.5. The Client may sell or deliver Products still owned by HKliving to third parties, only in so far as this is a necessary part of the Client’s normal business operations.
10.6. The Client must keep the Products delivered under retention of title carefully and in their proper condition, independently identifiable and recognisable as HKliving’s property, and insure them against risks such as fire, explosion, damage and theft. Immediately on HKliving’s request, the Client must assign all rights against the insurers in this regard to HKliving.
10.7. If and as long as HKliving owns the Products, the Client must immediately notify HKliving in writing if any part of the Products is lost or damaged, if the Products are attached and/or if any other claim is made against the Products or any part of them.
10.8. The Client must also advise HKliving immediately on request where the Products that HKliving owns are located.
10.9. If the Products are attached or if the Client is granted a full or partial moratorium on the payment of debts, declared bankrupt or put into liquidation, the Client must immediately inform the bailiff levying the attachment, the administrator, receiver or liquidator of HKliving’s ownership and other rights.
Article 11. Payment and security
11.1. Unless agreed otherwise in writing, the Client must pay within thirty (30) days of the invoice date in the manner that HKliving has specified in the offer.
11.2. All payment terms are to be regarded as strict deadlines, unless expressly agreed otherwise in writing.
11.3. Any right to setoff that the Client has for any reason is expressly excluded.
11.4. Objections to the invoices sent by HKliving to the Client do not suspend the Client’s payment obligation.
11.5. If the Client fails to pay, fails to pay on time or fails to pay in full, they will be liable, with no prior notice of default, to pay statutory commercial interest on the outstanding invoice amount. For this purpose, part of a month counts as a whole month.
11.6. If the Client fails to comply with their obligations on time, extrajudicial collection costs will be calculated under the Extrajudicial Collection Costs (Fees) Decree 2012 (Besluit vergoeding voor buitengerechtelijke incassokosten 2012), without prejudice to HKliving’s other rights, such as those to compensation or specific performance.
Article 12. Claims/complaints
12.1. The Client must report complaints about the Services performed or Products delivered within eight (8) days of delivery in writing and by registered post to HKliving. The notice of default must contain as detailed a description as possible of the defect(s) so HKliving can respond adequately.
12.2. Complaints about HKliving’s performance of the agreement do not entitle the Client to suspend their payment obligations towards HKliving.
12.3. If HKliving deems a complaint valid, it can perform the agreement again, alternatively remedy or have a third party remedy the complaints.
12.4. If the Client is or remains of the opinion that HKliving has not performed the agreement punctually, completely or properly, they must notify HKliving immediately, in accordance with the provisions of paragraph 1, in writing and by registered letter, and institute the claims based on their complaints within twelve (12) months of the date of that notice, or within twelve (12) months of when the notice should have been given, by means of a summons, failing which all their rights and claims in this respect will cease to apply upon expiry of this period.
12.5. Once delivered, HKliving does not accept returned Products and the Client cannot return them, except in cases in which these general conditions may stipulate otherwise, and the Client also cannot claim repayment of the purchase price or other full or partial compensation from HKliving.
Article 13. Assembly and commissioning
13.1. Unless agreed otherwise, purchase prices do not include the costs of assembly, commissioning and after-sales service.
13.2. If HKliving has undertaken to assemble and commission the sold and delivered Products, it accepts liability for the operation of those Products only if:
a. assembly and commissioning are done in accordance with its instructions, for which purpose it may entrust a mechanic with managing the Services. Travel expenses and costs for accommodation, food, and so on for the mechanic are payable by the Client;
b. the circumstances (in the broadest sense) at the location where the Products are to be assembled and commissioned do not cause inconvenience and the foundations, walls, partitions, etc. on which and/or to which the Products are to be set up or fitted before the Services start have been correctly fitted, executed and/or repaired. All additional Services, including but not limited to offering the Products to be modified or organising the set up or set-up location, are payable by the Client. The Client must also provide the necessary assistance, in the form of manpower and auxiliary materials, at their expense.
13.3. If the mechanic cannot proceed with the assembly and commissioning correctly because of circumstances beyond HKliving’s control, the Client must pay the resultant costs.
Article 14. Liability
14.1. HKliving is liable for damage that the Client suffers only in so far as such damage is covered by its liability insurance.
14.2. Unless HKliving has acted with intent or equivalent gross negligence, it is not liable for any damage, of any nature and/or extent, that the Client or third parties suffer now or in the future, relating to or arising from performing the agreement, including damage to products owned by the Client or third parties, and indirect damage, including trading losses, consequential damage, lost profits, lost savings and loss due to business interruption.
14.3. HKliving is never liable towards the Client for damage and/or costs, of any nature and/or extent, in any way relating to or arising from acts, omissions, errors and/or the quality of work delivered by third parties whom/which HKliving has hired while performing the agreement, unless such damage has also been caused by HKliving’s intent or equivalent gross negligence.
14.4. If and in so far as HKliving has any liability towards the Client in any capacity and/or for any reason, despite the provisions of the previous paragraphs, this liability is capped at the amount paid by HKliving’s insurance. This applies unless HKliving has acted with intent or equivalent gross negligence. A series of related loss events/incidents is considered as one loss event/incident for this purpose.
14.5. The Client indemnifies HKliving against all third-party claims for damage relating to agreements that HKliving has performed or Products or Services it has delivered, unless it is established by law that these claims are a result of HKliving’s intent or equivalent gross negligence and the Client also demonstrates that they are not at fault.
Article 15. Suspension and termination
15.1. If the Client fails to fulfil one or more of their obligations (including payment obligations) towards HKliving, HKliving may – without prejudice to all its other rights – suspend fulfilling its obligations towards the Client until the Client has fully fulfilled their obligations towards HKliving.
15.2. Besides all its other rights, HKliving may terminate the agreement concluded with the Client, with no prior notice of default, further notice of default or judicial intervention, by means of a written extrajudicial statement of termination, if:
a. there is permanent force majeure as referred to in Article 9 of these general conditions;
b. the Client is granted a full or provisional moratorium on the payment of debts, a creditor petitions for the Client’s bankruptcy or liquidation, the Client petitions for their own bankruptcy or liquidation, the Client offers their creditors a private composition or convenes a meeting of creditors for this purpose, or if application of the Debt Restructuring (Natural Persons) Act (Wet schuldsanering natuurlijke personen) is requested or granted with regard to the Client;
c. the Client’s business is liquidated and/or the Client’s business activities are actually discontinued or moved to a location in another country.
Article 16. Intellectual property rights and confidentiality
16.1. Unless expressly agreed otherwise in writing, the full copyrights and all other intellectual property rights relating to the Products or Services supplied by HKliving, such as copyrights, trademark rights, design rights, patent rights, sui generis database rights, and so on, vest exclusively in HKliving and/or its suppliers.
16.2. HKliving and the Client undertake to adopt appropriate measures to ensure secrecy with respect to each other’s confidential information that they become aware of while performing the agreement.
Article 17. Conversion
17.1. If any provision of these general conditions cannot be used on grounds of reasonableness and fairness or its unreasonably onerous nature, that provision will be given as similar a meaning as possible in terms of content and scope so that it can be used.
Article 18. Partial invalidity
18.1. If any provision of these general conditions is not applicable or is contrary to public order or the law, only that provision will be considered unwritten and the other general conditions will remain fully in effect.
Article 19. Applicable law and competent court
19.1. Only Dutch law applies to all legal relationships between HKliving and the Client, including HKliving’s offers and quotations. HKliving and the Client expressly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (‘the Vienna Sales Convention’).
19.2. All disputes arising from or related to the legal relationship between HKliving and the Client, to which these general conditions apply, will be submitted exclusively to the competent court in the judicial district in which HKliving’s registered office is located, unless mandatory legal provisions dictate otherwise.
Dronten, version April 2022