ARTICLE 1. | DEFINITIONS

In these general terms and conditions, the following terms, always capitalized, are used in the following sense.

1. HMD Creations: the user of these general terms and conditions, established at ‘t Hoogvelt 1a, 5721 VW in Asten, registered in the Trade Register under KvK number 62198629.
2. Customer: any natural or legal person with whom HMD Creations has concluded or intends to conclude an Agreement.
3. Consumer: a Customer, natural person, not acting for purposes within his professional or business activity.
4. Parties: HMD Creations and the Customer jointly.
5. Agreement: any agreement between the Parties within the framework of which HMD Creations has undertaken towards the Customer to sell and deliver Products.
6. Distance Agreement: an Agreement concluded between HMD Creations and a Consumer within the framework of an organized system for distance selling without simultaneous personal presence of HMD Creations and the Consumer and where, up to and including the moment of the conclusion of the Agreement, exclusive use is made of one or more means of distance communication, including in any case an Agreement concluded by a Consumer through the web store of HMD Creations (tilt-bridge.com) or a platform of a third party where HMD Creations has declared these general terms and conditions applicable to the Agreement. An Agreement is thus not a Distance Agreement if no organized system for contract conclusion at a distance is used by HMD Creations, for example when the Consumer looks up HMD Creations’ contact details on the Internet and concludes an Agreement by telephone or e-mail.
7. Products: the items to be sold and delivered to the Customer by HMD Creations under an Agreement, which may include, but is not limited to, a variety of tilt bridges, wheels, (coupling) beams and (other) car and boat parts.
8. Written: communication in writing, communication by e-mail or any other means of communication that can be equated with this in view of the state of the art and socially accepted standards.

ARTICLE 2. | GENERAL PROVISIONS

1. These general terms and conditions shall apply to each offer of HMD Creations and each Agreement to which HMD Creations has declared these general terms and conditions applicable, as well as to all legal relationships arising therefrom between the Parties.
2. The applicability of any general terms and conditions of the Customer is expressly rejected.
3. The provisions of these general terms and conditions may only be deviated from expressly and In Writing. If and insofar as that which the Parties have expressly agreed in Writing deviates from the provisions of these general terms and conditions, that which the Parties have expressly agreed in Writing shall apply.
4. Destruction or nullity of one or more of the provisions of these general terms and conditions or the Agreement as such shall not affect the validity of the remaining clauses. In such a case the Parties are obliged to enter into mutual consultation in order to reach a substitute arrangement in respect of the affected clause. The purpose and purport of the original provision will be taken into account as far as possible.

ARTICLE 3. | OFFER AND FORMATION OF THE AGREEMENT

1. Each offer of HMD Creations is without engagement and subject to sufficient availability of the Products offered. HMD Creations can still revoke its offer until immediately, or at least as soon as possible after the acceptance thereof by the Customer. If in such a case payment has already been made by the client, HMD Creations shall take care of reimbursement as soon as possible.
2. Obvious errors, mistakes and slips in an offer of HMD Creations, do not bind HMD Creations.
3. Without prejudice to the provisions of paragraph 1, each Agreement comes into effect at the moment the offer of HMD Creations has been accepted by the Customer in the manner indicated by HMD Creations, if any. Should the Customer’s acceptance deviate from HMD Creations’ offer, the Agreement shall not be concluded in accordance with this deviating acceptance, unless HMD Creations indicates otherwise. If the Agreement has been concluded electronically, the establishment of the Agreement shall, notwithstanding the provisions of paragraph 1, be confirmed by HMD Creations by e-mail as soon as possible.
4. If HMD Creations provides the Customer, as a result of an orally concluded Agreement, with a Written confirmation thereof, such confirmation shall be deemed to reflect the Agreement accurately and completely, unless the Customer has complained in this regard in writing and with reasons within two working days after receipt of the confirmation.
5. If the Customer concludes the Agreement in the name of another natural or legal person, he declares by entering into the Agreement that he is authorized to do so. In addition to this (legal) person, the Customer is jointly and severally liable for the fulfillment of the obligations under that Agreement.

ARTICLE 4. | RIGHT OF WITHDRAWAL FOR DISTANCE CONTRACTS

1. Subject to the provisions of the following paragraph, the Consumer may revoke a Distance Contract up to 14 days after receipt of the Products by or on behalf of the Consumer, without giving reasons.
2. The Consumer has no right of withdrawal in case of:
3. the delivery of Products customized to Consumer specifications or otherwise processed to Consumer specifications;
4. an Agreement in respect of which the right of withdrawal is otherwise excluded or does not apply according to Section 6.5.2B of the Civil Code. These grounds for exclusion are not relevant to HMD Creations’ current product offerings, but if they do apply in future cases, the relevant ground for exclusion will be expressly stated in the offer accompanying the Product in question.
5. The Consumer may revoke the Distance Contract by submitting a request to that effect to HMD Creations by e-mail or by using the model form for revocation offered by HMD Creations. As soon as possible after HMD Creations has been notified of the Consumer’s intention to revoke the Distance Contract and if the conditions of this article have been met, HMD Creations will confirm the revocation of the Distance Contract by e-mail.
6. The Consumer must handle the Products to be returned and their packaging with care during the period referred to in paragraph 1. The Consumer may only handle and inspect the Products to be returned to the extent necessary to assess the nature and characteristics of the Products. The basic principle here is that the Consumer may only handle and inspect the Products as he would be permitted to do in a physical store.
7. If the Consumer exercises the right of withdrawal, he shall return the Products to HMD Creations undamaged, with all delivered accessories and in the original condition and packaging.
8. The Consumer is liable for diminution in value of returned Products resulting from a manner of handling the Products beyond that permitted under paragraph 4. HMD Creations is entitled to charge this diminution in value to the Consumer, whether or not by setting it off against any payment already received from the Consumer. If the decrease in value is such that the Products cannot reasonably be made ready for resale, the Consumer shall remain liable for the full purchase price.
9. Return of the Products to be returned must take place within 14 days after the Consumer has revoked the Distance Contract in accordance with the provisions of paragraph 3.
10. If the Consumer exercises the right of withdrawal, the cost of returning the Products shall be borne by the Consumer.
11. HMD Creations shall refund to the Consumer any payment already received from the Consumer, minus any depreciation in value, as soon as possible, but at the latest within 14 days after revocation of the Distance Contract, provided that the Products have been received back by HMD Creations, or it has been demonstrated by the Consumer that the Products have actually been returned. If the right of withdrawal is only applied in respect of part of the order, any delivery costs initially paid by the Consumer shall not be eligible for refund.
12. Refund will be made by the same payment method used by the Consumer when purchasing the Products.

ARTICLE 5. | CANCELLATION AND EXCHANGE OTHER THAN PURSUANT TO ARTICLE 4

1. If the Customer cancels the Agreement after its conclusion other than pursuant to Article 4, the Customer shall remain liable for the full agreed price and any delivery costs already incurred.
2. Contrary to the provisions of the preceding paragraph, HMD Creations may determine that the Customer may exchange a Product. However, HMD Creations can never be obliged to do so. If HMD Creations accepts an exchange, the costs of returning the Product to be exchanged, the possible extra price of the replacement Product and the possible shipping costs in this respect shall be for the account of the Customer. Upon return of the Product to be exchanged, HMD Creations is entitled to refuse the exchange if the Product has not been returned in its original state. All additional costs involved may in that case be charged to the Customer.

ARTICLE 6. | DELIVERY AND DELIVERY TERMS

1. Delivery of the Products shall take place at the place and in the manner agreed upon for that purpose. In the event of delivery, delivery shall be made to the delivery address provided by the Customer, in the absence of which the billing address shall serve as the delivery address.
2. HMD Creations reserves the right to deliver the order in parts. In that case, the Consumer’s cooling-off period in connection with the right of withdrawal as referred to in Article 4 shall not commence until the last partial delivery from the order has been received by or on behalf of the Customer.
3. The risk of loss and damage to the Products shall pass to the Customer upon receipt of the Products by or on behalf of the Customer.
4. If the Customer is a Consumer and a delivery period has not been expressly agreed upon, HMD Creations is legally obliged to deliver within thirty days of the conclusion of the Agreement. If the Client is not a Consumer, delivery must be made within a reasonable period. The terms referred to, as well as any expressly agreed term of delivery, are indicative, non-fatal terms only. If HMD Creations fails to deliver within thirty days or the reasonable or agreed term of delivery respectively, HMD Creations shall only be in default when the Customer has sent HMD Creations a Written notice of default stating a reasonable period within which HMD Creations should still proceed to deliver and delivery has not taken place even after the expiry of this period.
5. Default of HMD Creations entitles the Client to terminate that part of the Agreement to which the default relates, but never to substitute or additional damages.
6. If HMD Creations incurs additional costs as a result of a circumstance attributable to the Customer, for example in connection with multiple delivery attempts, these costs shall be additionally borne by the Customer.

ARTICLE 7. | EXAMINATION, COMPLAINTS, WARRANTY AND CONFORMITY

1. At the moment of delivery, or at least immediately thereafter, the Customer must examine whether the nature and the quantity of the Products comply with the Agreement. If, in the opinion of the Customer, the nature and/or quantity of the Products do not comply with the Agreement, he shall immediately inform HMD Creations thereof.
2. Complaints relating to defects that were not reasonably visible or otherwise unknowable at the time of delivery shall be submitted in Writing to HMD Creations within five days after the Customer became aware, or at least should reasonably have become aware, of the existence of the defect.
3. Contrary to the provisions of the previous paragraphs of this article, a Consumer may no longer claim that what has been delivered as part of a consumer purchase does not comply with the Agreement, if no complaint has been made to HMD Creations in this regard within two months after the discovery of the defect by the Consumer.
4. If the Customer fails to complain in a timely manner and in accordance with the provisions of the preceding paragraphs, no obligation shall arise for HMD Creations from such complaint by the Customer.
5. Even if the Customer complains in a timely manner, his obligation to pay HMD Creations in a timely manner shall continue to exist, except insofar as the law for the benefit of the Consumer mandatorily precludes it.
6. Warranty on Products shall only apply if expressly agreed in Writing, on the understanding that in the event of defects HMD Creations shall make reasonable efforts to provide a solution, without HMD Creations being held to any particular warranties if such warranty has not been expressly agreed in Writing.
7. The provisions of the previous paragraph apply on the understanding that this does not affect the mandatory statutory rights and claims that Consumers may assert against HMD Creations in the context of a consumer purchase (conformity).
8. HMD Creations shall not be liable (by virtue of any guarantee, non-conformity or otherwise) for defects in the Products arising as a result of an external cause occurring after delivery or any other circumstance not attributable to HMD Creations. This shall include, but not be limited to, defects resulting from external damage, natural wear and tear, incorrect or injudicious treatment, incorrect or injudicious use and the making of changes to the Products, including repairs not carried out with the prior Written consent of HMD Creations.

ARTICLE 8. | FORCE MAJEURE

1. HMD Creations shall not be bound to fulfil any obligation under the Agreement if and as long as he is hindered to do so by a circumstance which cannot be attributed to him by virtue of the law, a juristic act or generally accepted practice (force majeure). In addition to the provisions of the law and jurisprudence, force majeure shall be understood to mean all external causes beyond the control of HMD Creations which make the (further) execution of the Agreement impossible or seriously interfere with it, including epidemics, pandemics, fire, measures taken by any government, transport restrictions, war or threat of war, violent or armed actions, breakdowns in communication links or in equipment or software of HMD Creations or third parties.
2. If and to the extent that the force majeure situation makes compliance with the Agreement permanently impossible, the Parties shall be entitled to dissolve the Agreement with immediate effect.
3. If HMD Creations has already partially fulfilled its obligations to deliver when the force majeure situation arises, or can only partially fulfill its obligations to deliver, HMD Creations shall be entitled to invoice the part already delivered or the part still deliverable under the Agreement separately as if it were an independent Agreement.
4. Without prejudice to the provisions of the previous paragraph, damage arising as a result of force majeure shall never be eligible for compensation.

ARTICLE 9. | SUSPENSION AND TERMINATION

1. HMD Creations is authorized to suspend the further execution of the Agreement if and for as long as the Customer fails to fulfill his already due (payment) obligations under the Agreement (including the provisions of these general terms and conditions thus included).
2. HMD Creations is authorized to dissolve the Agreement in whole or in part with immediate effect if the Customer does not, does not timely or does not fully comply with his obligations under the Agreement. If the fulfillment of the Customer’s obligations in respect of which he is in default is not permanently impossible, the authority to terminate only arises after the Customer has been given notice of default In Writing by HMD Creations, in which notice of default a reasonable period is mentioned within which the Customer can (as yet) fulfill his obligations and the fulfillment has still not taken place after the expiry of the last-mentioned period. The provisions of the preceding sentence do not apply if HMD Creations must infer from a communication of the Customer that the Customer will fail in the performance, in which case a notice of default is useless and the dissolution may take place without notice of default.
3. The provisions of the previous two paragraphs apply unless the Customer’s shortcoming, given its special nature or minor importance, does not reasonably justify the suspension or dissolution with its consequences.
4. Unless the Customer has already fulfilled his (future) payment obligations to HMD Creations in full, HMD Creations shall be entitled to dissolve the Agreement in whole or in part with immediate effect, if the Customer is in a state of bankruptcy, any attachment has been levied on his goods or otherwise cannot freely dispose of his assets.
5. Furthermore, HMD Creations is entitled to dissolve the Agreement in whole or in part if circumstances arise which are of such a nature that performance of the Agreement is impossible or unaltered maintenance thereof cannot reasonably be required of it.
6. The Customer shall never claim any form of compensation in connection with the right of suspension and/or dissolution exercised by HMD Creations pursuant to this article.
7. If the ground that led to suspension or dissolution of the Agreement can be attributed to the Customer (which only in the case of paragraph 5 need not always be so), HMD Creations shall make a claim vis-à-vis the Customer for compensation of the damage suffered by HMD Creations as a result.
8. If HMD Creations terminates the Agreement under this Article, any outstanding claims against the Customer shall become immediately due and payable.

ARTICLE 10. | PRICES, DELIVERY COSTS AND PAYMENTS

1. In case of delivery, delivery costs are additionally borne by the Customer, unless expressly agreed otherwise in Writing. Notwithstanding the previous sentence, before entering into an Agreement with a Consumer, the total price shall be stated, including any delivery costs.
2. The prices stated in the offer are exclusive of VAT, unless explicitly stated otherwise or the Customer is a Consumer, in which case the prices stated in the offer (also) include VAT.
3. In case of full or partial advance payment, HMD Creations shall not be obliged to proceed to delivery until after the advance payment has been received by HMD Creations.
4. Payment shall be made in one of the ways indicated by HMD Creations for this purpose, at the time indicated by HMD Creations for this purpose or within the period indicated by him. In case of transfer, HMD Creations uses a standard term of payment of 14 days after invoice date, but may deviate from this in individual cases.
5. Payment must be made without any recourse to suspension or setoff, insofar as the law does not imperatively prevent this for the benefit of the Consumer.
6. HMD Creations is entitled to make any invoice due to the Customer available to the Customer by e-mail only.
7. If the Customer liquidates or transfers its company to a third party, is in a state of bankruptcy, has applied for (provisional) suspension of payments, any attachment has been placed on its goods, as well as in case in which the Customer cannot freely dispose of its assets in any other way, the claims on the Customer shall be immediately due and payable.
8. If payment is not made on time, the Customer shall be in default by operation of law. From the day that the Customer’s default commences, the Customer shall owe interest on the outstanding amount of 2% per month, whereby part of a month shall be regarded as a full month. In deviation from the previous sentence, instead of the contractual interest rate referred to there, the legal interest rate applicable at the time of the payment default shall apply if the Customer is a Consumer.
9. All reasonable costs, such as judicial, extrajudicial and execution costs, incurred to obtain the amounts owed by the Customer shall be borne by the Customer.

ARTICLE 11. | LIABILITY AND INDEMNIFICATION

1. The Customer shall bear the damage caused by inaccuracies or incompleteness in the information provided by him, in particular with regard to the specifications provided by the Customer with regard to custom-made or otherwise processed Products according to specifications of the Consumer. Furthermore, the Customer shall bear the damage caused by any other failure in the performance of the Customer’s obligations arising from the law or the Agreement, as well as any other circumstance which cannot be attributed to HMD Creations. Damage as a result of a circumstance as referred to above shall not entitle the Customer to damages or any other compensation vis-à-vis HMD Creations.
2. HMD Creations is solely responsible for the delivery of the Products. For damages resulting from any advice provided by HMD Creations on the use, placement or installation of the Products, HMD Creations is not liable.
3. Liability of HMD Creations for indirect damage, consequential damage, loss of profit, missed savings, reduced goodwill, damage due to business stagnation, damage as a result of claims of staff or customers of the Client, mutilation or loss of data and all forms of damage other than mentioned in the following paragraph, for whatever reason, is excluded.
4. The limitations of HMD Creations’ liability included in these general conditions shall not apply if the damage is due to intent or conscious recklessness of HMD Creations or its managing subordinates. HMD Creations can only be held liable for direct damage attributable to him. Direct damage is exclusively understood to mean:

• reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these general terms and conditions;
• any reasonable costs necessary to make HMD Creations’ defective performance conform to the Agreement;
• reasonable costs incurred to prevent or limit damage, insofar as the Customer demonstrates that these costs have resulted in limiting the direct damage as referred to in these general terms and conditions.

5. In the event that, notwithstanding the provisions of the preceding paragraphs of this Article, any liability of HMD Creations should rest with HMD Creations, such liability shall be limited to the repair or replacement of the Products to which the liability of HMD Creations relates. Should repair or replacement not be possible or demonstrably futile, the liability of HMD Creations shall be limited to once the invoice value of the Agreement, at least that part of the Agreement to which the liability relates, on the understanding that the liability of HMD Creations shall in any case at all times be limited to a maximum of the amount actually paid out under the liability insurance taken out by HMD Creations in the case concerned, increased by HMD Creations’ deductible, if any, which applies according to such insurance.
6. Without prejudice to the limitation periods referred to in Article 7, the limitation period for all legal claims against HMD Creations is one year. Notwithstanding the previous sentence, legal claims due to Consumers that are based on facts that would justify the assertion that a consumer purchase does not comply with the Agreement shall lapse two years.
7. In the case of a consumer purchase, the limitations of this article do not extend beyond what is permitted under Article 7:24 paragraph 2 of the Civil Code.
8. The client indemnifies HMD Creations against possible claims of third parties who suffer damages in connection with the execution of the Agreement and of which the cause is attributable to (a) other(s) than HMD Creations. If HMD Creations should be held liable by third parties for that reason, the client shall be bound to assist HMD Creations both extra-judicially and judicially and to do immediately all that may reasonably be expected of him in that case. Should the client fail to take adequate measures, HMD Creations shall be entitled, without notice of default, to do so itself. All costs and damages incurred on the part of HMD Creations and/or third parties as a result shall be entirely for the account and risk of the Client.

ARTICLE 12. | GENERAL COMPLAINT POLICY

1. Complaints submitted to HMD Creations will be answered within a period of seven days from their receipt. If a complaint requires a longer processing time, a reply with an acknowledgment of receipt and an indication of when the Customer can expect a more detailed response will be provided within the seven-day period.
2. If a complaint from a Consumer, in the context of a Distance Contract, cannot be resolved by mutual agreement, the Consumer may submit the dispute to the Dispute Resolution Committee via the ODR platform(europa.eu/consumers/odr/).

ARTICLE 13. | RETENTION OF TITLE

1. All Products delivered by HMD Creations to the Customer shall remain its property until the Customer has properly fulfilled all its payment obligations under the relevant Agreement.
2. The Customer is prohibited from selling, pledging or otherwise encumbering the Products subject to retention of title.
3. The Customer is bound to keep the Products delivered under retention of title with due care and as recognizable property of HMD Creations.
4. Should third parties seize the Products subject to HMD Creations’ retention of title, or wish to establish or enforce rights thereon, the Customer shall be obliged to inform HMD Creations thereof as soon as possible.
5. Upon violation of the provisions of this article, the amount owed by the Customer to HMD Creations shall become immediately due and payable in full.
6. The Client gives unconditional permission to HMD Creations or third parties appointed by HMD Creations to enter all those places where the Products subject to retention of title are located. The Client shall provide HMD Creations with all information upon first request in order to exercise its property rights. All reasonable costs incurred in connection with the exercise of HMD Creations’ property rights shall be borne by the Client.
7. If the Customer has fulfilled his obligations after the Products have been delivered to him by HMD Creations, the retention of title with respect to these Products shall revive if the Customer fails to fulfill his obligations under a subsequently concluded Agreement.

ARTICLE 14. | FINAL PROVISIONS

1. HMD Creations is entitled to transfer its rights and obligations under the Agreement to a third party, for example in the event of a change in its legal form.
2. Each Agreement and all legal relationships arising therefrom between the Parties shall be governed exclusively by Dutch law.
3. The parties will not resort to the courts until after they have made their best efforts to settle the dispute by mutual agreement.
4. Only the competent court within the district of the District Court of East Brabant shall be designated in first instance to take cognizance of any legal disputes between the Parties, without prejudice to HMD Creations’ right to designate another court competent according to the law. However, a Consumer shall be entitled to choose the court competent according to the law within one month after HMD Creations has announced In Writing that it wishes to litigate before the court designated by it.
5. If these general terms and conditions are available in multiple languages, the Dutch-language version shall always be decisive for the interpretation of the clauses contained therein.