Terms & Conditions
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF:
HANKO HANDELMAATSCHAPPIJ B.V., A PRIVATE LIMITED COMPANY INCORPORATED UNDER THE LAWS OF THE NETHERLANDS, HAVING ITS REGISTERED OFFICE IN (4827 HJ) BREDA, THE NETHERLANDS, AT CHARLES PETITWEG 39, LISTED IN THE COMMERCIAL REGISTER UNDER NUMBER 200591050000
ARTICLE 1: APPLICABILITY OF THESE TERMS AND CONDITIONS
The terms and conditions below apply to all contracts - including future contracts - in the context of which Hanko Handelmaatschappij B.V., hereinafter referred to as "Hanko", supplies goods and/or services on whatever ground, as well as to the statements to be made in that context, such as quotations and order confirmations. Anyone engaged by Hanko in the context of the execution of the contract may invoke these general terms conditions. The other party to the contract is hereinafter referred to as the "buyer". The general terms and conditions that the buyer submits to Hanko at any time are hereby expressly rejected. Unless indicated otherwise or unless the law prescribes the written form, the notices mentioned in these general terms and conditions may be sent in writing, by e-mail or by fax.
ARTICLE 2: FORMATION OF CONTRACTS, FAILURE IN THE PERFORMANCE BY THE BUYER AND CONTENTS OF THE CONTRACT
1. The offers made by Hanko are subject to contract and will be valid for 30 days from the date they are made, unless stated otherwise; contracts will be concluded on condition that the credit insurance company provides a sufficient limit with regard to the buyer.
Furthermore, if Hanko's credit insurance company withdraws the limit on proper grounds, Hanko will be entitled to terminate a contract that has been formed, as far as the part not yet performed is concerned, without being liable to pay compensation.
Hanko is entitled to withdraw an offer subject to contract up to the third working day after receipt of the acceptance. In the event Hanko does not send a quotation or order confirmation, the delivery note or, if no delivery note is drawn up, the invoice will be deemed as such. When data are transferred verbally, the buyer bears the risk of an incorrect data transfer
2. If Hanko receives the request to issue a quotation for the supply of a good or the performance of a service and it has to incur internal and/or external costs, it is entitled to charge the (prospective) buyer for these costs as well as the time it has spent, at its usual rates.
3. In the event of a breach of contract on the part of the buyer, apart from being entitled to terminate the contract in question, Hanko is also entitled to terminate or suspend the performance of all contracts that exist between Hanko and the buyer and that have not been completed yet by giving notice in writing. In that case, Hanko is also entitled to demand the buyer to pay the total amount due to Hanko and/or to make future deliveries only cash on delivery or against payment in advance. The rights described in this paragraph do not affect Hanko's other rights under the law. Hanko can also exercise these rights if the buyer is granted a (provisional) suspension of payments, is declared bankrupt or if a statutory debt adjustment becomes applicable to the buyer.
4.If Hanko provides the buyer with a sample, this is only done by way of indication without the good having to conform to it, unless the parties have agreed otherwise.
5.If the buyer wants to cancel a contract once it has been formed, and Hanko agrees to the cancellation, this is done on the condition that the buyer will compensate Hanko for all damage or loss suffered or to be suffered. The damage or loss will be at the very least an amount equal to 50% of the agreed price. Hanko is entitled to provide evidence that the damage or loss it has suffered is higher, in which case the buyer will be liable to pay this higher damage or loss.
ARTICLE 3: DELIVERY
1. The buyer is obliged towards Hanko to take immediate delivery of the good sold or, as the case may be, the completed service as soon as it is delivered to it. If the buyer does not cooperate in taking delivery, Hanko is entitled to terminate the purchase contract wholly or in part by giving notice of termination in writing, after having given the buyer notice of default. In that case, Hanko is also entitled to store the good at the expense and risk of the buyer and to claim specific performance of the contract. Hanko will charge the buyer for the costs of storage and the like at its usual rates. Hanko is not obliged to insure the good in the event of storage.
2. Unless otherwise agreed, if the purchase price of the good to be delivered is €750.-- or more, delivery takes place CPT loading warehouse Hanko in Breda and/or Etten-Leur, the Netherlands, while the delivery of a good to be delivered at a price lower than €750.-- takes place ex works, ex warehouse Hanko in Breda and/or Etten-Leur. The good will be at the expense and risk of the buyer as of the delivery, without prejudice to the retention of title stipulated in article 5.
3.Agreed terms of delivery are approximate only and are not considered to be final, unless the contrary has explicitly been agreed to. In the event of late delivery, Hanko must be given written notice of default, granting Hanko a reasonable period of time to be determined by mutual agreement within which it can remedy the breach.
4. Hanko is entitled to make partial deliveries on condition that this is done within the agreed period or within the period extended on the basis of the preceding or next paragraph. Unless otherwise agreed, Hanko is entitled at all times to make deliveries cash on delivery.
5. The delivery period will also be extended in the event of a temporary impediment, as referred to in article 8, paragraph 5, with up to two weeks. In that case, the period referred to in the preceding sentence will be extended - without the buyer being entitled to terminate the contract - with the period of the impediment, plus a period within which Hanko can reasonably make the delivery.
6.Without prejudice to the provisions laid down in this article, the meaning of delivery clauses will be interpreted on the basis of the latest edition of the Incoterms of the International Chamber of Commerce.
ARTICLE 4: SECURITY
Hanko is entitled to require the provision of security on entering into the agreement. Furthermore, Hanko is entitled to require (additional) security during the execution of the agreement if it obtains evidence that the buyer's creditworthiness has decreased in such a way that Hanko can reasonably doubt a perfect fulfilment by the buyer of its obligations. This is the case in any event if the buyer does not comply with its obligations despite having been given notice of default. If the buyer in spite of having been given notice of default does not provide security, Hanko is entitled to exercise the rights against it that are described in article 2, paragraph 3.
ARTICLE 5: RETENTION OF TITLE
1. 1. All deliveries take place subject to retention of title. Hanko retains ownership of the goods delivered and to be delivered to the buyer under any contract until the buyer:
a. has paid the purchase price of all those goods plus any interest and expenses due in full and
b. has settled all debts in respect of work that Hanko has carries out or will carry out for it within the context of the contract(s) in question, and
c. has paid all claims that Hanko has come to have against it if the buyer fails to perform the obligations referred to above. The buyer cannot have the good subject to retention of title serve as security in any way for other debts than those owed to Hanko. If it is in possession of the good through a third party, it will be obliged, in the event it fails in the performance of its obligations towards Hanko, to inform Hanko of the name and address of that third party and Hanko may inform that third party that from that moment on, it must retain the good for Hanko.
2.Hanko may also exercise its retention right for the payment of all that the buyer owes Hanko, on any account whatsoever.
ARTICLE 6: PAYMENT AND COSTS
1. Unless otherwise indicated, Hanko's prices are exclusive of turnover tax, import and export duties and/or other government levies. If these levies and/or costs that affect the cost price of the products - such as the purchase prices due and wages paid by Hanko - are increased after entering into the contract, Hanko is entitled to adjust the price agreed on in line with this increase (these increases). In the event of such a price change within three months after entering into the contract, the buyer is entitled to terminate the contract by written notice, in which case Hanko is entitled to inform the buyer immediately on receipt of such notice that it wants to perform the contract at the original price in which case the termination will be deemed not to have taken place. The provisions laid down above also apply if Hanko delivers on a call-off basis or makes partial deliveries. In the event government levies - including turnover tax - are increased, Hanko will be entitled to pass on that increase taking effect immediately, without the buyer being entitled to terminate the contract.
2. Unless otherwise agreed, payment must be made within thirty days after the invoice date. The buyer can never exercise any right to setoff or suspension of performance. If Hanko sends the buyer a specified statement of what the buyer owes Hanko and of what Hanko owes the buyer, this statement will also serve as a notice of setoff. As soon as the term of payment expires, the buyer will be in default without any notice of default being required, and as from the expiry date until the day of settlement, it will have to pay interest on the final invoice amount equal to the statutory interest referred to in article 6:119a of the Civil Code of the Netherlands. After the expiry of each year, the amount on which interest is calculated will be increased with the interest due in respect of that year. The place of payment will be Hanko's offices in Breda.
3. The buyer will be liable to pay Hanko all legal and other costs if despite having received a demand for payment, it fails to pay a debt that is due and payable and Hanko refers the debt to a third party for collection. The legal and other costs will be calculated on the basis of the rate per time unit that is normally charged by Hanko's lawyer for the conduct of similar cases, insofar as reasonable, plus the costs to be paid by that lawyer to third parties. The payment of the costs is related to all work to be performed by Hanko's lawyer.
4. Payments to be made by the buyer or third parties will first go to reduce the claims in respect of which Hanko is not able to exercise the retention of title described in the previous paragraph. Subject to the above, payments first go to reduce all costs due, subsequently to reduce all interest due and finally, to reduce the balance of the (oldest) principal sum.
5. If the buyer fails to perform any obligation or fails to perform it in a prompt or proper manner, and if the buyer is declared bankrupt, is granted a suspension of payments (whether provisionally or not), is granted a statutory debt adjustment ('wettelijke schuldsanering'), is placed under guardianship or if the business of the buyer is shut down or wound up, the buyer is deemed to be in default with regard to all obligations that have not been fulfilled and Hanko will be entitled, at its discretion and without being liable to pay any compensation and without prejudice to the other rights that Hanko has under the law, and without a notice of default being required, to terminate the contract(s) in question wholly or in part by giving notice in writing or to suspend the (further) execution of that (those) contract(s). In that case, Hanko is also entitled to demand immediate payment of all amounts due by the buyer.
6. If Hanko enters into a contract with two or more (legal) persons, each of them will be severally and jointly liable for the performance in full of the contract in question.
ARTICLE 7: INSPECTION, COMPLAINTS AND RETURNS
1. The buyer is obliged to inspect the goods or services supplied by Hanko immediately after acceptance to verify the quantity delivered and the absence of directly visible defects. If the buyer wants to submit a complaint in this respect, he must make a note on the consignment note and inform Hanko in writing in any case within two working days after delivery/provision of the service, stating the nature of the defects. If the buyer does not comply with this, the product/service is deemed to have been accepted by it.
2. Furthermore, within ten working days after the delivery of the product/provision of the service, the buyer must check the sound condition of the performance and, if a defect is found, submit a written complaint to Hanko stating the nature of the defects.
3. The buyer is obliged in each case not to process the goods delivered by Hanko before they have been inspected in such a proper manner that it is established that the goods were delivered in accordance with what had been agreed.
4.If the buyer nevertheless finds a defect only after having processed the goods and it proves that it was impossible to discover the defect prior to such processing, it must submit a written complaint to Hanko within ten working days after having found the defect, stating the nature of the defect; furthermore, if a period of ten working days has expired after the buyer reasonably could have found the defect, the right to submit a complaint will no longer exist. The arrangement described in this paragraph also applies if the good lacks a property that it should have according to a statement made by Hanko or if the deviation is related to facts that Hanko knew or should have known and failed to communicate to the buyer
5. In any case, the complaint must have been submitted to Hanko before expiry of the period of one year after delivery of the good or provision of the service, as mentioned in article 8, paragraph 1.
6. Hanko is not obliged to handle complaints submitted after expiry of the periods of time mentioned in this article, and such complaints will not result in the liability of its business. If Hanko nevertheless decides to handle such complaint, its efforts are to be regarded as leniency without accepting any liability, unless otherwise agreed in writing. If it turns out that a complaint has been wrongly submitted and Hanko has carried out work or, as the case may by, delivered goods within the context of such a complaint, Hanko is entitled to charge the buyer for such work or goods at the prices it normally applies.
7. Hanko is entitled to require the buyer to return the goods delivered or a part thereof that is representative in the opinion of Hanko, so that Hanko will be able to check the correctness of the complaint submitted; if the buyer fails to do so, it will automatically be found to be in the wrong. Hanko may also choose to investigate the complaint at the place where the buyer has stored the shipment or has assembled the goods in question, in which case the buyer will have to render its assistance.
8. Complaints with regard to the invoice must be notified to Hanko in writing and specified within ten working days after the invoice has been sent, at the risk of forfeiting the right to do so at a later date.
9. Returns will only be accepted by Hanko after it has given its prior consent. If goods are returned based on a complaint, the costs of returns and the costs of storage will be borne by the party found to be in the wrong.
10. Unless otherwise agreed, the manufacturer's/suppliers' warrantee, when issued, will apply to the Dutch territory for one year.
ARTICLE 8: LIABILITY, FORCE MAJEURE AND LIMITATION PERIOD
1. If Hanko acknowledges that it has breached the contract or if this is established otherwise and the buyer has complied with the provisions laid down in the preceding article, Hanko can only be sued for breach of contract, subject to the provisions laid down in these general terms and conditions, for one year after the date of delivery or provision of the service.
2. If Hanko acknowledges that it has breached the contract or this is established otherwise and the buyer has complied with all provisions laid down in the preceding article, Hanko will be entitled, without prejudice to the provisions of paragraph 1 of this article, to inform the buyer that it will proceed, free of charge, to redeliver or deliver what is missing/to deliver the performance again and/or to make repairs. If Hanko performs within a reasonable period of time after such notice, this means that the contract has been fulfilled properly and the buyer will not be entitled to compensation. The provisions laid down in the preceding sentence do not apply if prior to the notice the buyer has already terminated the contract out of court with good reason or has instituted an action for the setting aside of the contract and its claim is allowed.
3. If it is found that in addition to or instead of what is provided in these general terms and conditions regarding its liability, Hanko is liable to pay compensation in cash, Hanko limits its liability at most to the price (exclusive of VAT) agreed for the good/service provided in question, except in the event of intent or wilful recklessness. The buyer indemnifies Hanko against all claims from third parties, insofar as these claims exceed the maximum referred to in the preceding sentence.
4. Apart from the situations that count as force majeure pursuant to the law, the following also constitutes a situation of force majeure: strike and/or illness of employees of Hanko, breach of contract and/or force majeure on the part of its suppliers, carriers or other third parties engaged in the performance of the contract, traffic hold-ups, natural forces, war or mobilisation, obstructive measures of any government, fire and other accidents in its business as well as other circumstances, to the extent that as a result thereof, it cannot reasonably be required to (further) execute the contract and provided that the impediment lasts longer than two weeks following the circumstance that gave rise to that impediment or if it is established that the impediment renders it permanently impossible to perform the contract wholly or in part. If a situation of force majeure exists, each party is entitled to terminate the contract wholly or in part - for the part that cannot be performed -, in which latter case the parties are obliged to fulfil the agreement for the part that is not terminated. If as provided in the preceding sentence the contract is terminated, neither party will be liable to pay compensation to the other party.
5. In the event of a temporary impediment that lasts up to two weeks after the circumstance/circumstances referred to in the preceding paragraph occurred, there will be no situation of force majeure and the period within which Hanko has to deliver will be extended as laid down in article 3, paragraph 5, without the buyer being entitled to terminate the contract.
6. For the purposes of this article, breach of contract also includes wrongful acts.
ARTICLE 9: APPLICABLE LAW AND COMPETENT COURT
1. Dutch law applies to the legal relationships to which these general terms and conditions apply, including all contracts entered into by Hanko, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
2. All disputes that may arise between Hanko and the buyer will be resolved, in the first instance, by the Court of Zeeland-West-Brabant, the Netherlands, unless a mandatory statutory provision opposes this and without prejudice to the right of Hanko to take legal action against the buyer in another competent court.