General conditions of sales & delivery

Hilarius Haarlem Holland BV, established in Haarlem, the Netherlands at the address Emrikweg 7, 2031 BT Haarlem.
Registered at the district Chamber of Commerce & Industry in Amsterdam under number 34.06.2390. HILCO is the registered trademark for products exclusively sold by Hilarius Haarlem Holland BV.

1.1 These General conditions of sales & delivery shall apply to all offers, quotations and contracts - including long term contracts for serial deliveries - made by us in which we undertake to deliver goods and services to the customer. All reciprocal statements must be made in writing. The applicability of customers trading conditions or any other general conditions or deviant counter confirmations is expressly rejected. Specific customer regulations require a specific written recognition from us.

1.2 In the event of any conflicts between the substance of the contract concluded between the customer and us on the one hand and these General Conditions on the other, the provisions set out in the contract have precedence.

1.3 Wherever these General Conditions use the term in writing, this shall mean by document signed by parties, or by letter, fax, electronic mail and by such other means as are agreed by the parties.

1.4 Insofar as these General Conditions are also drawn up in a language other than English, in the event of any conflict the English text shall always prevail.

2.1 No obligations are attached to any offers, even if they contain an acceptance period.

2.2 An agreement shall come into effect once we have confirmed the order in writing.

2.3 Any offer made or undertaking given by a representative of us shall only be binding insofar as we confirm this in writing.

2.4 All prices are net prices, stated in EURO currency or US Dollar, are based on EXW / FCA, Haarlem, Netherlands (Incoterms® 2020), including packaging and excluding dispatch costs and any alloying surcharges, unless otherwise agreed in writing.

2.5 Any price cited by us shall be based on the prices of primary products and raw materials, wages, taxes, freight rates, insurance rates, currency exchange rates, duties and other levies, subsidies and the like prevailing at the time the agreement concerned is concluded. In the event that one or more of these cost price components increase after conclusion of the agreement but before the relevant good(s) have been delivered, we shall be entitled to pass on any reasonable price increase to the customer.

2.6 The terms and conditions of delivery shall be agreed per transaction. All terms and conditions of delivery shall apply in accordance with Incoterms® 2020.

2.7 If we offer freight paid (as per Incoterms® 2020) all goods offered are meant to be shipped at the risk of customers, even if the stipulations in shipping documents are stating to the contrary. In such cases booking of freight and / or insurance are effected to the best of our knowledge but our liability is confined to the delivery of clean documents.

3.1 We shall at all times have the right to demand full or partial payment in advance. As to all other sales, payment must be made by the customer within 30 days after the relevant invoice date in the currency of the order confirmation unless other terms are mutually agreed upon. The payment has to be carried out in net in cash or transfer free of costs via a banking institute in the Netherlands without any discount or suspension or claim of compensation. Bills of exchange or cheques are only accepted on expressive agreement. Discount and collection fees are charged to the customer. In the event of an overdue amount the customer shall be deemed to be in default without the need for any notice of default or judicial intervention, and we calculate delay charges at an interest rate of at least 7% higher than the tender-rate of the European Central Bank. All costs involved in collecting the amount due, both judicial and extrajudicial, shall be for the account of the customer. The extrajudicial costs owed will never be less than 15% of the sum to be collected subject to a minimum of € 250,-. If we can prove that we have incurred higher costs, that were necessary in all fairness, then these, too, shall be eligible for compensation.

3.2 Payment made by the customer will first be applied to settle all interest and costs payable and subsequently for those invoices that have been outstanding for the longest periods. This will also be the case if the customer states that the payment relates to a later invoice.

3.3 Subject to any other rights we may have pursuant to the law or the agreement, in the absence of timely payment we shall be entitled either to suspend further delivery or to terminate all or part of the relevant agreement without the need for a notice of default or judicial intervention, such at our own discretion and subject to our right to seek compensation for any harm we have suffered.

3.4 If the customer should become wholly or partly in arrears with a payment, if a bill of exchange or cheque is not submitted or in case we receive information to the effect that the guarantee of a credit would seem doubtful, or if an application is submitted for the opening of insolvency proceedings or if the customer makes an offer of extrajudicial settlement to his creditors or if he goes bankrupt, his possessions are attached or in the event that the customer’s business is liquidated or dissolved, then we have the right to demand the immediate payment of all bills which are not yet due or have been delayed, and to demand cash in advance for all outstanding deliveries and services. We can also forbid the further disposal and processing of the delivered goods as well as demand the return at the customer's expense.

3.5 Upon or after entering into the agreement and before its implementation, we will be entitled to demand a guarantee from the customer that both the payment obligations and any other obligations arising from this agreement will be fulfilled. Refusal by the customer to provide the required security gives us the right to suspend our obligations and ultimately, without any notice of default or legal intervention, the right to dissolve the agreement wholly or partially, without prejudice to our right to compensation for any damages suffered by us.

4.1 Our written confirmation of order alone is reference for content and range of our liabilities. In other cases our packing list or invoice are applicable. We reserve the right to make changes in the composition of our goods as well as changes that can reasonably be made.

4.2 Delivery times do not commence until the relevant agreement is concluded in accordance with the provisions of Article 2.2 and any agreed prepayment or instalment or any agreed security for payment has been received/accepted by us or a sufficient credit insurance is received by us.

4.3 We have the right to carry out partial deliveries. Each partial delivery shall be deemed to represent a separate agreement. We shall be entitled to demand payment for each partial delivery before proceeding with any other.

4.4 Unless otherwise agreed, a specified delivery time shall under no circumstances be deemed to constitute a fatal date. We shall not be in default in respect of such delivery time until the customer notifies us in writing that we are in default, in doing so stipulates a reasonable period of time within which we have the opportunity to effect delivery, and we still fail to do so.

4.5We shall not be liable for any harm due to late delivery if and insofar as this is attributable to circumstances beyond our control and sphere of risk, which is deemed to include late or non-compliance on the part of our suppliers or the transport company we engage.

4.6 If the time for delivery is exceeded, the customer shall not be entitled to cancel or terminate the agreement, unless the time for delivery is exceeded with more than 8 weeks, without the customer being entitled to any compensation.

4.7 In addition to what the law considers to be Force majeure, Force majeure should be understood to mean (including but not limited to) warfare, civil or military unrest, accidents or disasters having a natural cause, traffic delays, lack of shipping space, energy shortages, operational delays to any kind, strikes and lock-outs in our own works or those of works involved in the fulfilment of the agreement or legal impediments through the intervention of official authorities or sanctions by international authorities release us from compliance with the agreed delivery dates. Furthermore we will be entitled to terminate the relevant agreement without judicial intervention, without the customer having any recourse to claim.

4.8 In the event that we rely on Force majeure, we shall immediately notify the customer thereof in writing, and also of the cessation thereof.

4.9 Where we have already executed part of an agreement, the customer shall pay the purchase price for any goods that have been delivered.

4.10 Should circumstances have changed to such an extent since closure to the agreement that, under the new circumstances the agreement would either not have been closed or under completely different conditions, we reserve the rights to refuse the fulfilment of the agreement or to demand an alteration of the agreement or of specific clauses of it in keeping with the changed circumstances, for example payment in another currency, payment under application of an escalator clause, change of the mode of delivery etc. The changes in circumstances can also be based on changes in the relationship to the customer.

5.1 If the customer should refuse acceptance of goods at the time that these are delivered to him, then without prejudice to his payment obligations he has to bear all transport costs and costs of storage. In the event of refusal to acceptance, the purchase price will become due immediately. Instead of this, we have the rights to cancel the contract without a prior grant of a period of termination and to claim payment for damages for no fulfilment. Minor faults do not give the customer the right to refuse acceptance.

5.2 If the delivery is delayed at the request to the customer or for any other reason beyond our control, then responsibility and risk passes over to the customer when we are ready to deliver the goods. We will determine the type of packaging. With orders for goods to be delivered on demand, the last day of the month following the advice of preparedness for delivery is regarded as the final date of request.

5.3 The customer is entitled to a quality check of the goods prior to shipment, provided a written notice is given in advance. Following accomplishment of a possibly agreed quality control of goods prior to shipment the claiming of faults which would have been discernible is ruled out. This also applies where the customer has received our works certificate of compliance of delivery on relinquishing quality control. When quality control is not accomplished, or not accomplished on time, or not completely, following advice of our preparedness for acceptance, then the customer is in default of acceptance.

6.1 The supplied goods remain our property until payment of the purchase price (plus Value Added Tax, if charged) including, where necessary, all interest on arrears, reminder and collection charges, process costs as well as any amount payable due to the customer’s failure to comply with his obligations pursuant to this agreement or any other have been received by us in full. The customer is only permitted to distribute the reserved goods in the normal conduct of his business. He is not authorized to transfer title to them to a third party, to tender them by way of security, to encumber or to pledge them, or to place them at the disposal of a third party in any other way. On interference by third parties with our rights as provisional owner, then he must take the necessary steps to guarantee our rights.

6.2 The customer hereby relinquishes all claims against his customers resulting from the assigned goods for the safeguarding of our claims against him. On our permissible request the customer has to announce the assignment of claims to his customer, and thus provide all information required and hand over necessary documents for the assertion of our claims. The customer is only authorized to collect outstanding debts resulting from resale when we do not claim the right to collect the debts ourselves.

6.3 The customer is entitled to process the sold goods. We remain joint owner of the goods in the ratio of the value of the assigned goods to the final product. When the customer does not pay the purchase price or does not fulfil other agreed commitments, we have the right to take back the sold goods without this being considered as withdrawal from the agreement. The customer shall at all times help us exercise our right of ownership. As long as retention of title applies, the customer shall have a duty to grant us access to his buildings and premises. In this case we are only obliged to return the goods to the customer when the fulfilment of his agreed obligations is confirmed.

6.4 The customer is obliged to stipulate a retention of title from his buyers on the basis of the provisions of this article.

6.5 The customer has a duty of care with regard to the goods covered by the retention of title and must insure them and keep them insured against all of the risks customary in the sector.

7.1 The period of representation and warranty is three months after invoice date. Normal commercial or minor or technically unavoidable deviations in quality, form, colour, weight or style of packaging do not constitute faults and can not be considered as a reason for a complaint. This also applies for deliveries according to specimen or samples.

7.2 Notification of defects must be precisely specified and advised immediately after receipt of the goods, with a maximum of 7 days after receipt. In case the claim is justified we are entitled to choose whether we replace the goods, to repair the goods involved or to withdraw them from the contract. The customer must ensure that the goods are in the same condition as when delivered. In the event of faults in the execution of wage work, we can be held liable only for an amount to the extent of the labour costs invoiced by us.

7.3 No obligations under warranty exist when the defect is due to normal wear and tear, improper treatment, lack of maintenance, unusual environmental influences or transport damage. No warranty is applicable when our goods are used or mixed with other goods which were not acquired from us or recommended by us.

7.4 Claims for damages due to slight faults, also due to negligence or gross negligence of subsidiary contractual obligations, especially consultancy or clarification are excluded. Information concerning the possible processing and application of our goods, technical advice and other specifications concerning suitability and use, weight, dimensions, forms, colours, performances and appearance are not legally binding.

7.5 The customer waives all rights of recourse against us or our suppliers (sub-contractors) which he would be entitled to in accordance with Directive 2001/95/EC of the European Parliament and of the Council on general product safety or any (future) council regulation on this subject, except for: (a) damage caused by death or by personal injuries; (b) damage to, or destruction of, any item of property other than the defective product itself, with a lower threshold of 500 Euro, provided that the item of property: (i) is of a type ordinarily intended for private use or consumption, and (ii) was used by the injured person mainly for his own private use or consumption. In the event of the passing-on of our goods or of parts of our goods by the customer, then he is obliged to commit his client in full to this waiver, and in fact pass on this obligation to waive the rights of recourse to all further purchasers. The latter obligation also applies, if the purchaser or a further client uses our goods for the manufacture of further products and offers these products to the market. The agreements between our customer and his purchaser containing the waiver of recourse have to be drafted in such a way that we and our suppliers (sub-contractors) acquire directly the rights to be non-liable for a claim in accordance with the mentioned directive.

8.1 Except in the case of legal liability pursuant to provisions of mandatory law and a deliberate act or omission, or gross negligence on our part, any liability of us for any damage is excluded. Liability for any indirect or consequential damage including lost profits or loss ensuing from late delivery, is expressly excluded.

8.2 In all cases where we are obliged to pay compensation for damages, our aggregate liability to customer under any theory or ground shall at all times be confined to the net invoice value of the goods concerned or to that part of the net invoice value to which a claim for compensation is directly or indirectly related. Total compensation for damages payable by us shall in no event exceed € 50.000,- per event, whereby a series of related events will be considered as a single event.

8.3The customer shall indemnify us against any claim made by a third party in respect of which we are not liable under these terms and conditions.

8.4 All claims against us other than those which have been acknowledged by us shall lapse by the mere expiry of 12 months following the origin of that claim.

9.1 We retain all intellectual property rights related to delivered goods.

9.2 The customer is not permitted to modify all or part of any goods supplied. The customer shall not affix any other trademark to the goods, to use the relevant mark in any other way, or to register it in his own name.

9.3 The customer will immediately alert us if a third party infringes or threatens to infringe our intellectual property rights or if third parties adopt the position that our goods infringe their own intellectual property rights.

10.1 In the event that the customer fails to comply with his obligations pursuant to an agreement into which he has entered, or fails to do so properly or on time, if there are grounds to fear that this will occur, or in the event that the customer applies for a suspension of payments, files for bankruptcy or liquidates his business, we shall be entitled to suspend or terminate the agreement concerned without the need to give notice of default or for judicial intervention, and we shall not have a duty to provide any form of compensation.

10.2 Any claim on our part pertaining to a part of the agreement which has already been executed, or harm suffered as a result of its suspension or termination, which shall be deemed to include loss of profit, shall fall due with immediate effect.

11.1 Place of performance of our deliveries and services is the site of our plant. Haarlem, The Netherlands is agreed as the place of performance for payment liabilities on the part of the customer. In case of any dispute the competent court in Haarlem, the Netherlands, will be entitled to deal with the dispute unless we would elect to submit the dispute to competent courts elsewhere.

11.2 These general terms and conditions and any agreements entered into by us shall be solely governed by and construed in accordance with the law of the Netherlands. The application of the United Nations Convention on Contracts for the international Sale of Goods (1980) is ruled out.

11.3 The provisions of Article 11.2 leave intact our right to obtain a settlement by means of arbitration of the International Chamber of Commerce under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrator(s). The place of arbitration will be Haarlem, the Netherlands. The arbitral procedure shall be conducted in the English language.

11.4 In the event of the invalidity of individual terms, the remaining terms shall remain applicable. If it is deemed to be desirable and/or necessary, we are entitled to alter these general conditions of sales & delivery.

© Hilarius Haarlem Holland BV – 2020