Terms & Conditions

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF:

HANKO HANDELMAATSCHAPPIJ B.V., ESTABLISHED AT CHARLES PETITWEG 39, (4827 HJ) BREDA, THE NETHERLANDS, REGISTERED IN THE COMMERCIAL REGISTER UNDER CHAMBER OF COMMERCE NUMBER 20059105

ARTICLE 1: APPLICABILITY OF THESE CONDITIONS

The conditions set out below apply to all agreements – including future agreements – in the context of which HANKO Handelmaatschappij B.V., hereinafter referred to as "HANKO", delivers goods and/or performs services under whatever title, as well as to statements to be made in that context, such as quotations and order confirmations.

These general terms and conditions may be invoked by anyone who is engaged by HANKO in the context of the performance of the agreement.

The counterparty of HANKO is hereinafter referred to as "the Buyer". The general terms and conditions which the Buyer presents to HANKO at any time are hereby expressly rejected. The notices referred to in these general terms and conditions may, unless indicated otherwise or unless the written form applies by law, be sent in writing, as well as by e-mail, as well as by fax.

ARTICLE 2: FORMATION OF AGREEMENTS, DEFAULT BY THE BUYER AND CONTENT OF THE AGREEMENT

1. HANKO's offers are without obligation and are valid for 30 days after their date, unless stated otherwise, and are always entered into subject to the condition that the credit insurance company grants a sufficient limit in respect of the Buyer. Furthermore, it applies that if HANKO's credit insurance company withdraws the limit on good grounds, HANKO may dissolve an agreement that has been concluded in respect of the part not performed, without becoming liable to pay any damages. HANKO has the right to revoke an offer made without obligation up to and including the third working day after receipt of the acceptance. In the event that HANKO does not send a quotation or order confirmation, the delivery note or, if this is not drawn up either, the invoice shall serve as such. The Buyer bears the risk of incorrect transmission of data in the event that such transmission takes place orally.
2. If HANKO receives a request to prepare a quotation for the delivery of goods or the performance of a service and it has to incur internal and/or external costs for that purpose, it has the right to charge those costs, as well as the time spent by it, to the (prospective) Buyer in accordance with the rates customarily applied by it.
3. In the event that the Buyer is in attributable default, HANKO has, in addition to the right to dissolve the agreement concerned, also the right to dissolve by written statement the other agreements existing between HANKO and the Buyer which have not yet been settled, or to suspend the performance thereof. In that case HANKO also has the right to demand from the Buyer, in one single payment, everything he owes it and/or to make future deliveries only cash on delivery or against advance payment. The rights described in this paragraph are without prejudice to HANKO's other rights formulated in the law. HANKO may also exercise these rights if the Buyer obtains a (provisional) suspension of payment or the application of the statutory debt restructuring, or is declared bankrupt.
4. If HANKO has provided the Buyer with a sample, this is done merely by way of indication, without the goods having to correspond thereto, except if and insofar as the parties have agreed otherwise.
5. If the Buyer wishes to cancel an agreement once concluded, and HANKO agrees thereto, this always takes place subject to the condition that the Buyer compensates the loss suffered and to be suffered by HANKO. This loss amounts to at least a sum equal to 50% of the agreed price. HANKO has the right to prove that it has suffered a greater loss, in which case the Buyer owes that greater loss.

ARTICLE 3: DELIVERY

1. The Buyer is obliged towards HANKO to take immediate receipt of the purchased goods or of the performance offered as soon as these are delivered or offered to him. If the Buyer does not cooperate in taking delivery, HANKO has the right, after it has served the Buyer with a notice of default, to dissolve the contract of sale in whole or in part by written statement. In that situation HANKO also has the right to store the goods for the account and risk of the Buyer and to demand performance of the agreement. Costs of storage and the like will be charged to the Buyer at the rates applicable at HANKO. In the event of storage, HANKO is not obliged to insure the goods.
2. Unless otherwise agreed, it applies that if the purchase price of the goods to be delivered amounts to at least € 850,-, delivery is made carriage free to the delivery location agreed between the parties, whereas if a purchase price applies to the goods to be delivered which is lower than € 850,-, delivery is made from HANKO's warehouse in Breda or Hazeldonk. Unloading takes place in all cases for the account and risk of the Buyer. From delivery onwards the goods are for the account and risk of the Buyer, without prejudice to the retention of title stipulated in Article 5. In the case of delivery carriage free to the agreed delivery location, the prices offered include normal transport costs to the agreed delivery location. Cost increases as a result of exceptional changes in fuel prices, the heavy goods vehicle levy, road tolls or other statutorily imposed distance-related transport levies may be charged on separately, without the Buyer being entitled to the right of dissolution referred to in Article 6, paragraph 1.
3. Agreed delivery periods are approximate and are not strict deadlines, unless the contrary has been expressly agreed. In the event of failure to deliver in time at the envisaged moment, HANKO must be served with a written notice of default, whereby HANKO must be allowed a reasonable period, to be determined after consultation with it, in which to perform after all.
4. HANKO has the right to deliver the goods to be delivered in parts, on condition that this takes place within the agreed period or within the period extended pursuant to the previous or the following paragraph. Unless the contrary has been expressly agreed, HANKO always has the right to make deliveries cash on delivery.
5. Extension of the delivery period likewise takes place in the event of a temporary impediment of up to two weeks as referred to in Article 8, paragraph 5. In that case – without the Buyer being permitted to dissolve the agreement – the period referred to in the previous sentence is extended by the period during which the impediment continues, increased by a period within which HANKO can reasonably proceed to delivery.
6. Insofar as the parties agree, in a quotation, order confirmation or otherwise, upon a delivery clause which is described in the Incoterms®, the meaning thereof shall, without prejudice to the provisions of this article, be interpreted on the basis of the 2020 edition of the Incoterms of the International Chamber of Commerce, or on the basis of a later edition if the parties expressly agree so in writing.
7. Normal transport costs as referred to in paragraph 2 are understood to mean: carriage by road with customary equipment, delivery at ground level on working days during the regular opening hours of the Buyer, without special unloading or timing arrangements. Costs of special delivery arrangements are not included in the price, are for the account of the Buyer and are charged separately. These include in any event: unloading by crane or tail lift, delivery outside regular working hours, express consignments, delivery within a time window prescribed by the Buyer, waiting times upon unloading of more than thirty minutes, futile delivery runs because the Buyer or a third party designated by him does not take receipt of the goods, as well as costs arising from delivery, site or safety regulations prescribed by the Buyer.
8. The amounts mentioned in paragraph 2 are based on consignments with a customary ratio between weight and volume. In the case of consignments in which the volume is exceptionally large in relation to the weight, HANKO is entitled to calculate the transport costs on the basis of loading metres or volumetric weight, provided that it notifies the Buyer thereof prior to dispatch. In that case the Buyer is entitled to cancel the order concerned in writing within two working days after that notification, by way of derogation from the provisions of Article 2, paragraph 5, without the parties owing each other any damages.
9. The Buyer warrants that the delivery location has a paved access which is readily accessible for customary transport equipment, and that at the agreed time sufficient opportunity exists and, insofar as this can reasonably be required of him, personnel and equipment are present to take receipt of and to unload the goods. Damage and costs resulting from the failure to comply with this obligation are for the account of the Buyer, without prejudice to the rights accruing to HANKO under paragraph 1.
10. If it has been agreed that delivery takes place on a call-off basis, the Buyer must call off the goods within the agreed period or, in the absence of such a period, within three months after the date of the order confirmation. After the expiry of that period, HANKO has the right to deliver and invoice the goods after all, or to act in accordance with paragraph 1.

ARTICLE 4: SECURITY

HANKO has the right, upon entering into the agreement, to require that security be provided. Furthermore, HANKO may, during the performance of the agreement, require (additional) security if it obtains indications of such a reduced creditworthiness of the Buyer that it may reasonably doubt the perfect performance of his obligations. This is in any event the case if the Buyer, despite a notice of default, fails to fulfil his obligations. If the Buyer, despite a notice of default, fails to provide security, HANKO may exercise against him the powers described in Article 2, paragraph 3.

ARTICLE 5: RETENTION OF TITLE

1. All deliveries are made subject to retention of title. HANKO retains title to the goods delivered and to be delivered to the Buyer pursuant to any agreement until the Buyer:
2. has paid in full the purchase price of all those goods, increased by the interest and costs owed, and
3. has paid all claims in respect of work which HANKO performs or will perform for his benefit in the context of the agreement(s) concerned, and
4. has paid the claims which HANKO acquires against him if the Buyer fails to perform the obligations referred to above. The Buyer may not in any way allow the goods subject to retention of title to serve as security for claims other than those of HANKO. If he holds the goods through a third party, he is obliged, if he is in default towards HANKO, to communicate the name and address of that third party to HANKO, and HANKO may notify that third party that it must henceforth hold the goods for HANKO.
5. HANKO may also exercise the right of retention accruing to it for the payment of everything which the Buyer owes it, on whatever grounds.

ARTICLE 6: PAYMENT AND COSTS

1. HANKO's prices do not include, unless otherwise notified, turnover tax, import and export duties and/or other government levies. If these levies and/or costs which affect the cost price of the products – such as purchase prices owed by HANKO and salaries paid – are increased after the conclusion of the agreement, HANKO has the right to adjust the agreed price to that increase (or those increases). If a price change thus takes place within three months after the conclusion of the agreement, the Buyer is entitled to dissolve the agreement by written notification, in which case HANKO is for its part entitled to notify, immediately after receipt of that notification, that it wishes to honour the agreement at the original price, in which case the dissolution is deemed not to have taken place. The arrangement laid down above also applies if HANKO delivers on a call-off basis or in parts, and this for each partial delivery separately. In the event that government levies – including turnover tax – are increased, HANKO may pass on that increase with immediate effect, without the Buyer being entitled to a right of dissolution. Nor does the right of dissolution granted to the Buyer in this paragraph accrue to him in respect of the transport levies referred to in Article 3, paragraph 2 and the costs referred to in Article 3, paragraphs 7 and 8.
2. Unless otherwise agreed, payment must be made within thirty days after the invoice date. The Buyer may never exercise any right of set-off or suspension. If HANKO sends the Buyer a specified statement of what he owes HANKO and of what HANKO owes him, that statement also serves as a set-off declaration. As soon as the payment period expires, the Buyer is in default without a notice of default being necessary, and from the due date he owes interest on the final amount of the invoice at a rate equal to the statutory commercial interest as referred to in Section 6:119a of the Dutch Civil Code until payment. Each time after the expiry of one year, the amount over which the interest is calculated is increased by the interest owed over that year. The place of payment is at all times HANKO's office in Breda.
3. The Buyer owes HANKO all extrajudicial and judicial costs if he fails to pay a due and payable claim despite a reminder and HANKO places its claim in the hands of a third party. Both the extrajudicial and the judicial costs are calculated on the basis of the rate per unit of time which is normally charged by HANKO's legal counsel for the handling of similar matters, insofar as reasonable, increased by costs to be paid by the legal counsel to third parties. The reimbursement of costs relates to all work to be performed by HANKO's legal counsel.
4. The payments to be made by the Buyer or by third parties are always first deducted from those claims in respect of which HANKO cannot assert the retention of title set out in the previous article. With due observance thereof, payments are first deducted from all costs owed, thereafter from all interest owed and, finally, from the (in each case oldest) principal sum.
5. If the Buyer fails to perform any obligation towards HANKO, or fails to perform it properly or in time, as well as in the event that its Buyer is declared bankrupt, obtains a (whether or not provisional) suspension of payment, or the statutory debt restructuring is pronounced in respect of him, or he is placed under guardianship, or the Buyer's business is shut down or liquidated, he is deemed to have fallen into default by operation of law with regard to all obligations not performed, and HANKO has, at its option, the right, without any obligation to pay damages, and without prejudice to the further rights accruing to HANKO under the law, and without a notice of default being required, to dissolve the agreement(s) concerned in whole or in part by means of a written statement, or to suspend the (further) performance of the agreement(s). In those cases HANKO also has the right to demand immediate payment of everything which the Buyer owes it.
6. If HANKO concludes an agreement with two or more (legal) persons, each of them is jointly and severally liable for the full performance of the agreement concerned.

ARTICLE 7: INSPECTION, COMPLAINTS AND RETURNS

1. The Buyer is obliged to inspect the goods delivered by HANKO, respectively the services performed by it, immediately after taking receipt respectively after completion, as to quantity and directly visible defects. If the Buyer wishes to complain in this respect, he must make a note on the consignment note and must in any event notify HANKO in writing within 2 working days after delivery/the performance of the service, stating the nature of the defects. If the Buyer does not comply with this, the product/the service is deemed to that extent to have been accepted by him.
2. Furthermore, the Buyer must, within 10 working days after the delivery of the product/the performance of the service, inspect what has been performed as to its soundness and, if a defect manifests itself, complain to HANKO in writing, stating the nature of the defects.
3. It applies at all times that the Buyer is obliged not to process the goods delivered by HANKO before they have been inspected in such a sound manner that it is established that the goods were delivered in accordance with what has been agreed.
4. If the Buyer nevertheless discovers a defect only after the processing of the goods, and he proves that it was impossible to discover the defect prior to that processing, he must complain to HANKO in writing, stating the nature of the defect, within 10 working days after the discovery of the defect, while it further applies that if a period of 10 working days has expired after the Buyer could reasonably have discovered the defect, the right to complain has lapsed. The arrangement described in this paragraph also applies if the goods lack a property which they possess according to a statement made by HANKO, or if the deviation relates to facts which HANKO knew or ought to have known but did not communicate to the Buyer.
5. It applies at all times that the complaint must in any event be made to HANKO before the period of one year after delivery of the goods, respectively the performance of the service, referred to in Article 8, paragraph 1.
6. HANKO is not obliged to deal with complaints which are made after the periods mentioned in this article, and such complaints do not give rise to any liability of its business. If HANKO nevertheless deals with such a complaint, its efforts must, unless expressly agreed otherwise, be regarded as a gesture of goodwill, without any acceptance of liability. If it appears that a complaint has been made wrongfully and HANKO has performed work, respectively delivered goods, in that connection, HANKO has the right to charge all of this to the Buyer at the prices normally applicable at HANKO.
7. HANKO has the right to require the Buyer, on the basis of who is in the wrong, to return to HANKO the goods delivered to him, or a representative part thereof to be determined by HANKO, so as to enable HANKO to verify the correctness of the complaint made. HANKO may also choose to investigate the complaint at the place where the Buyer has stored the consignment, respectively has installed the goods concerned, in which case the Buyer must lend his cooperation thereto.
8. Complaints relating to the invoice must be reported to HANKO in writing and in specified form within ten working days after the dispatch of the invoice, on pain of forfeiture of the right to do so thereafter.
9. Return consignments are only accepted by HANKO after it has given its prior consent thereto. The costs of the return shipment and the costs of storage are borne – if the return shipment takes place in response to a complaint – on the basis of who is in the wrong.
10. Unless otherwise agreed, the factory/supplier warranty, if it has been given, applies for one year for the territory of the Netherlands.

ARTICLE 8: LIABILITY, FORCE MAJEURE AND LIMITATION

1. If HANKO acknowledges that it has been in attributable default or this is otherwise established, and the Buyer has complied with the requirements laid down in the previous article, HANKO can, with due observance of what is provided in these general terms and conditions, only be held liable in law on account of an attributable failure during a period of one year after the date of delivery, respectively the performance of the service.
2. If HANKO acknowledges that it has been in attributable default, or this is otherwise established, and the Buyer has complied with the requirements laid down in the previous article, HANKO has, without prejudice to the provisions of paragraph 1 of this article, the right to notify the Buyer that it will proceed free of charge to redelivery, respectively delivery of what is missing/to performing the performance again, respectively repair. If HANKO performs within a reasonable period after the said notification, this means that the agreement has been performed correctly, and the Buyer is not entitled to damages. The provision in the previous sentence does not apply if, prior to the said notification, the Buyer has lawfully dissolved the agreement out of court, respectively has instituted a claim for dissolution and this claim is granted.
3. HANKO limits, except in the event of intent or wilful recklessness, its liability, if it should be held that it owes monetary damages in addition to and instead of what is provided in these general terms and conditions concerning its liability, to no more than the price agreed for the goods concerned/the service performed (excluding VAT). The Buyer indemnifies HANKO against all claims of third parties, insofar as these claims exceed the maximum referred to in the previous sentence.
4. In addition to what the law regards as force majeure (Force Majeure), the following are deemed to be such: strike, work stoppage, lock-out and/or illness of HANKO's employees, non-performance and/or force majeure on the part of its suppliers, carriers or other third parties involved in the agreement, scarcity of or the failure to deliver raw materials, semi-finished products or materials, stagnation in traffic or in transport, obstructions on waterways, in ports or at airports, natural violence, extreme weather conditions, epidemics and pandemics as well as measures taken in connection therewith, war, armed conflict, terrorism or mobilisation, import and export restrictions, sanctions, boycotts and other obstructive measures of any government, disruptions or failure of energy supply, telecommunications or ICT systems, cyberattacks, fire and other accidents in its business as well as other circumstances, all of this insofar as, as a result thereof, the (further) performance of the agreement cannot reasonably be required of it, and this if the impediment lasts longer than two weeks after the circumstance which leads to that impediment or if it is established that the impediment renders performance of the agreement wholly or partly definitively impossible. If there is force majeure, each of the parties has the right to dissolve the agreement in whole or – for the part which cannot be performed – in part, in which latter case the parties are obliged to perform the agreement for the part not dissolved. If dissolution takes place pursuant to the provisions of the previous sentence, neither of the parties owes the other any damages.
5. In the event that there is a temporary impediment of up to two weeks after the occurrence of the circumstance/circumstances mentioned in the previous paragraph, there is no force majeure and, without the Buyer being permitted to dissolve the agreement, the period within which HANKO must deliver is extended in accordance with the provisions of Article 3, paragraph 5.
6. In this article, attributable failure must also be understood to include tort.
7. HANKO will notify the Buyer in writing as soon as possible of the occurrence of a force majeure situation, its likely duration and its end. During the force majeure situation, HANKO's obligations are suspended and it is not obliged to compensate the Buyer for any damage or costs.
8. If, at the time force majeure occurs, HANKO has already partly fulfilled its obligations, or can only partly fulfil its obligations, it is entitled to invoice separately the part already delivered, respectively the deliverable part, and the Buyer is obliged to pay this invoice as if it concerned a separate agreement.
9. A circumstance as referred to in paragraph 4 which occurs on the part of the Buyer does not release him from his obligation to take receipt as referred to in Article 3, paragraph 1, nor from his payment obligation. In that case HANKO is entitled to store the goods for the account and risk of the Buyer in accordance with Article 3, paragraph 1.

ARTICLE 9: APPLICABLE LAW AND COMPETENT COURT

1. All legal relationships to which these general terms and conditions apply, including all agreements which HANKO concludes, are governed by Dutch law, to the exclusion, if otherwise applicable, of the United Nations Convention on Contracts for the International Sale of Goods.
2. All disputes which arise between HANKO and the Buyer shall be settled at first instance by the District Court of Zeeland-West-Brabant, the Netherlands, unless a mandatory provision of law should preclude this, and without prejudice to HANKO's right to bring legal proceedings against the Buyer before another court having jurisdiction.

This document is a translation of the Dutch original. In the event of any discrepancy between this translation and the Dutch text, the Dutch text prevails.