GENERAL TERMS AND CONDITIONS OF DELIVERY HESTIA

 

Article 1.           DEFINITIONS

1.1     In these general terms and conditions of delivery, the following terms shall have the following meanings:

a.    'Hestia': the private company Hestia Cardiovascular Service Center B.V., statutorily established in Losser registered in the trade register of the Chamber of Commerce under number 76135187, or one or more of her 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 provision of Services by Hestia to the Customer, each amendment or addition thereto, as well as all (legal) acts for preparation and/or implementation of that agreement.

e.    'Services': all services provided and/or to be provided by Hestia and performed and/or to be performed activities, in whatever form and by whatever name, including the (possibly) delivered and/or to be delivered Deliverables.

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

g.    'Quotation': 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 for these, including any change or addition thereto.

h.    'Deliverables': the work products referred to in the Agreement that Hestia under the agreement has delivered and/or must deliver to the customer, in which shape and whatever called, including but not limited to any reports and/or work products.

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

 

Article 2.           APPLICABILITY

2.1     These General Terms and Conditions apply to and form an integral part of all Offers and confirmations from Hestia concerning the purchase and/or delivery of Products and/or Services by Hestia and any 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     Changes to and additions to the General Terms and Conditions apply only if they are expressly stated and have been agreed to in writing between Hestia and the Customer. The change and/or addition only applies to the relevant Agreement.

2.4     If any provision of the Agreement conflicts with any provision of the General Terms and Conditions, the provision of the Agreement takes precedence.

2.5     Natural and legal persons who are directly or indirectly connected to 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 invoke these General Terms and Conditions.

 

Article 3.           ESTABLISHMENT OF AGREEMENTS

3.1     Offers from Hestia, in whatever form, are free of obligation, unless explicitly stated otherwise in writing by Hestia.

3.2     Agreements, as well as amendments and supplements thereto, will only come into effect if and insofar as they have been accepted or confirmed in writing by Hestia through a person who is authorised to represent Hestia legally in this matter according to the Chamber of Commerce, or after a start has been made by Hestia on fulfilling the Agreement.

3.3     Shown and/or provided samples, models, proofs, images, materials, and information relating to the Products and/or Services in Quotations, offers, brochures, and the like, including but not limited to images, dimensions, weights, colors, technical specifications, prices, etc. are only informative and not binding.

3.4     With regard to the agreed specifications, minor deviations in quantities, sizes, weights and colors or deviations therefrom that fall within a tolerance that is reasonable according to the usual trade practices in the sector shall be permissible and shall never constitute grounds for complaints.

 

Article 4.           Obligations of the Customer

4.1     The Customer will, both of its own accord and following a request to do so by Hestia, provide all cooperation to Hestia and make all information, data and documents available to Hestia 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 good time and in the desired form and manner.

4.2     The Customer is also obliged to inform Hestia immediately and of its own accord in writing of all facts and circumstances, including changes thereto, which may be of importance to Hestia in connection with the performance of the Agreement.

4.3     The Customer is responsible for the accuracy, reliability, completeness and legitimacy of the information, data and documents provided or made available to Hestia, also if they originate from third parties, and including the timely provision thereof. Any consequences of the information, data and documents not being made available, not being made available in good time or not being made available properly, or failure to cooperate, are for the account of the Customer, including but not limited to delays and (additional) costs.

 

Article 5.           IMPLEMENTATION 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 on behalf of the Customer that is applied by third parties.

5.5     Only Hestia is deemed to be the contracting party vis-à-vis the Customer. This also applies if it is the Customer's explicit or tacit intention that the Agreement and/or the Services be performed by a specific person. The applicability of Sections 7:404, 7:407(2) and 7:409 of the Dutch Civil Code is 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 on this in writing in the Agreement and the Customer has fully and timely fulfilled its payment obligations.

 

Article 6.           DELIVERY

6.1     All (delivery) dates, deadlines and dates of completion stated or agreed by Hestia are approximate only and are merely indicative. Nevertheless, Hestia will make reasonable efforts to observe the deadlines it has estimated.

6.2     The mere fact that a (delivery) period, (completion) date or deadline stated by Hestia or agreed between the parties, whether final or not, is exceeded does not constitute default on the part of Hestia. In the event of late delivery, the customer is never entitled to compensation, suspension, cancellation or dissolution. In all cases - therefore also in the event that the parties have explicitly agreed in writing on a latest (delivery) date or deadline - Hestia will only be in default due to failure to meet the deadline after the Customer has given Hestia written notice of default and has failed to meet the deadline within a reasonable period of time, such that the failure 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 a (delivery) period, (completion) date or deadline which can no longer be met due to circumstances beyond its control which have arisen after the Agreement was concluded. Nor is Hestia bound by a (delivery) period, (completion) date or deadline, if the parties have agreed to a change in the content or scope of the Agreement (additional work, change in specifications, etc.) or a change in the approach to the performance of the Agreement.

6.4     Delivery periods and the like 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 entitled to deliver the Products and/or Services in parts, in which case Hestia has the right to invoice each partial delivery.

6.6     In the event that Hestia, at the request of or with the prior consent of the Customer, has performed or delivered services, products or other performance which fall outside the content or scope of the agreed Products and/or Services, these Products and/or Services will be paid for by the Customer in accordance with the agreed rates and, in the absence thereof, in accordance with Hestia's usual rate Hestia is never obliged to comply with such a request and may require that a separate written agreement be concluded for this purpose. The Customer accepts that 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 from 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 Customer's expense and risk, even if the condition freight has been paid for the 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 after the notification from Hestia. Delivery will be deemed to have taken place when the Products are made available by Hestia to the Customer.

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

 

Article 7.           DURATION AND TERMINATION OF THE AGREEMENT

7.1     The Customer shall never be entitled to terminate an Agreement entered into for a definite period of time prematurely, unless and only if the parties have explicitly agreed so 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, 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 the cancellation.

7.3     Hestia is entitled to fully or partially dissolve the Agreement or to suspend its obligations under the Agreement or any other agreement with the Customer, with immediate effect and without judicial intervention and without prejudice to the other rights Hestia has (to fulfilment and/or compensation), in the event that:

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 pronounced;

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

e.    an attachment has been levied on a substantial part of the business assets of the Customer;

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 for such termination, the Customer will owe Hestia compensation in accordance with the Agreement for the Services performed and costs incurred up to and including the date of termination, and any claim(s) of Hestia against the Customer will become immediately due and payable. Hestia will never be obliged on account of the termination to refund any money already received or to pay any compensation as a result of the termination of the Agreement. This does not affect any right of the Customer to compensation in accordance with these General Terms and Conditions in the event that Hestia has failed imputably in fulfilling 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 that expressly or by their nature or purport must also remain in force after the 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 expressly agreed otherwise in writing, Hestia is entitled to charge the Customer separately for overheads, travel time, travel and accommodation expenses and other costs incurred by Hestia in connection with the Agreement, including the 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 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 dissolution 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. Also, 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.           BILLING 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, in full or on time, the Customer will be in default by operation of law without any further notice of default being required and, without prejudice to Hestia's other rights, the Customer will owe statutory commercial interest as referred to in Article 6:119a of the Dutch Civil Code - and the costs referred to in Article 9.4 - over the outstanding amount from the due date until the date on which payment is made in full.

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

9.4     In the event that two or more persons or legal entities have jointly placed the order with Hestia, then they are jointly and severally liable towards 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 have the right to suspend further performance of the Agreement until the Customer has provided the requested security or payment in advance.

 

Article 10.        RETENTION OF TITLE

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

10.2   In the case of a Product intended for export to Germany, the law of the State of destination shall govern the consequences, under the law of property, of the retention of title to the Product to be exported if, under that law, the right of ownership does not lapse until the price has been paid in full. In the case of a Product intended for export to a country other than the Netherlands or Germany, the law of property consequences of the retention of title to the Product intended for export will be governed by the law of the State of destination, if (i) that law contains more favourable provisions in this respect for Hestia (in Hestia's opinion) and (ii) if on the basis of that law the right of ownership does not lapse until the price has been paid in full. Designation only takes effect if the Product is actually imported into the designated State of destination.

10.3   Until payment of the price has been made in full, the Customer is obliged to look after the Products with the greatest possible care and to keep them properly insured against the usual risks, also for the benefit of Hestia. The Customer must keep the Products in such a way that they cannot be mixed with other goods or that there is no creation of a proprietary right or accession. In the event that mixing, accession or creation of a new object occurs due to the actions of the Customer, all claims of Hestia against the Customer will be immediately due and payable in full.

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 use them, 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 collected back at the expense and risk of the Customer, from where they are located.

10.7   The Customer hereby irrevocably authorises Hestia to collect the Products for that purpose, to remove them from wherever they are located and to enter (or have someone enter) the areas used by the Customer. Furthermore, the Customer shall do or refrain from doing everything that is reasonably necessary to make the retrieval of the Products possible. All costs of reclaiming and retrieving the Products shall be charged to the Customer.

 

Article 11.        COMPLAINTS

11.1   The Customer is obliged to examine, or to have examined, the delivered Products and/or the Services 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 concerning 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 shortcoming. ("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, record these shortcomings and/or missing quantities on the relevant transport document.

11.4   With regard to all other complaints concerning the Products and/or Services, the Customer must submit a written Complaint 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   Customer must notify Hestia in writing of any complaints regarding (the level of) the invoiced amount within 5 days after 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 a reasonable given 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.

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 should be delivered or should be provided or an invoice has been sent.

11.10 If the complaint is justified and the Customer complained in a timely manner, Hestia is only obliged at its discretion to (i) deliver what is missing, (ii) replace the Products or parts in question (after which the replaced Products/parts will become the property of Hestia), (iii) repair the delivered Product within a reasonable period of time, (iv) improve or perform the Services in question free of charge, (v) adjust the price/rate charged, or (vi) send 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 and suchlike can never be a ground for generating complaints.

 

Article 12.    WARRANTY

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

12.2   Unless Hestia and the Customer have explicitly agreed otherwise in writing, the Products are not suitable for a special purpose and do not have 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) restore 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.           improper use, maintenance, storage, or transport of the Products;

c.           processing, editing, 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 the instructions of the Customer, as well as materials and goods supplied by or on behalf of the Customer;

h.           materials or items used in consultation with the Customer;

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 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 a sterile packaging of the Product and/or proceeds or has a repair or other work in respect of the Product carried out without the prior written approval of 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 out, clearing in, 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 Customer with Products that it has purchased 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 concerning the Products, Services, Deliverables and all (according to and/or in the context of the performance of the Agreement) developed or made available or used data, protocols, training materials, advice, information, databases, analyses, designs, documentation, reports, Quotations, as well as preparatory material thereof and all other materials ("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, by usage 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 Customer 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 INDEMNIFICATION

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 receives under his professional liability insurance from the insurer concerning the damage for which he has been held liable by the Customer.

14.2   If no insurance payment is made concerning 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, reduced goodwill, etc., however caused, regardless of the basis of liability, and regardless of whether or not he was informed in advance 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 upon 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 was 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 attributable 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 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 Customer, or the withholding of information or documentation or the misrepresentation of matters concerning information or documentation by others than Hestia.

14.9   Customer indemnifies Hestia against all claims and imminent claims from third parties against Hestia and indemnifies Hestia against all damage Hestia suffers in connection with such claims, including all costs incurred by Hestia (including reasonable legal costs) for defense against such claims and all obligations of Hestia to third parties, if such damages, claims, costs, and/or obligations are related to or arising 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 willful recklessness on the part of Hestia's management, or (ii) application or use of a Deliverable and/or another outcome of the Services by the Customer or by a third party to whom the Customer provides the Deliverable or any other outcome of the Services has been made available unless the Deliverable and/or outcome concerned is the result of intent or gross negligence on the part of Hestia's management.

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 MAJEURE

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 those circumstances which prevent Hestia from performing all or part of the Agreement, or any agreement related thereto or resulting therefrom, or make it impossible or unreasonably burdensome for it to do so, whether or not those circumstances were foreseeable at the time the Agreement was entered into. Force majeure includes, but is not limited to: fire, flooding, extreme weather conditions, strikes, occupation of the workplace, war (whether declared or not), force majeure of suppliers and/or (other) auxiliary persons of Hestia, failure of suppliers and/or (other) auxiliary persons of Hestia to fulfil their obligations properly or on time, terrorism, electricity failure, system problems, Covid-19, epidemic and pandemic, embargoes, blockades, legal restrictions, government measures and opinions in the broadest sense, failure of the Internet, computer network or telecommunications facilities, business, traffic and/or transport disruptions, transport problems and the unavailability of one or more members of staff.

15.3   In the event of force majeure, the performance of the agreement for Hestia will be suspended for the duration of stated 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 before the force majeure situation or dissolution has arisen, 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 Personal data

16.1   Terms defined in the General Data Protection Regulation (EU) 2016/679 ("GDPR") 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. The Customer and Hestia will consult with each other as far as possible before 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 being processed under the Agreement.

 

Article 17.        CONFIDENTIALITY

17.1   The Customer is obliged to treat all information and data received from or on behalf of Hestia of which the Customer knows or should reasonably know that they are confidential, both during and after the termination of the Agreement and the Services, as confidential and to not disclose them. 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 fulfillment of its obligation under Section 16.1, the Customer undertakes to the other party to exercise at least the same degree of care in the confidentiality of the other's confidential information as they exercise in 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 without further confidentiality by a third party, which third party according to the receiving party has not breached any duty of confidentiality towards the providing party;

c.    which must be disclosed based on the law, statutory regulation or a public-law decision or a judicial or arbitral procedure based on the law;

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 1.    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 in connection with 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.        MISCELLANEOUS

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.