General terms and conditions
GENERAL TERMS AND CONDITIONS OF SALE - HET ANKER NV
Article 1. Application
1.1. These current general terms and conditions of sale apply to all quotes, orders and agreements between HET ANKER NV (hereinafter referred to as "Het Anker") CBE no. 0400.793.706, with registered office situated at 2800 Mechelen, Guido Gezellelaan 49, and the customer. The customer declares that it has taken note of the general terms and conditions and accepted them in full. The application of these general terms and conditions forms an integral part of the negotiations between the parties. The clauses of these conditions are considered as essential, and the application thereof has been expressly taken into account by Het Anker when determining the pricing of the products to be supplied. Deviation from and/or additions to these terms and conditions can only be agreed in writing and expressly.
1.2. Acceptance of these general terms and conditions also implies that the customer accepts that they will take absolute priority over the application of its own general (purchase) terms and conditions.
1.3. The failure by Het Anker to claim or apply a right, shall under no circumstances imply a waiver of such right.
1.4. The possible nullity of one of the provisions of these general terms and conditions will not result in the nullity of all its provisions, nor of the part of such provision which is enforceable and not contrary to mandatory law. In such a case, the parties will negotiate in good faith to replace the unenforceable or contrary provision with an enforceable and legally valid provision that aligns as closely as possible with the purpose and scope of the original provision. If such a clause cannot be replaced by mutual agreement, the competent Court shall have the power to replace the invalid clause with a legally valid clause which aligns as closely as possible with the purpose and scope of the original provision.
Article 2. Offer, order and prices
2.1. Every offer made by Het Anker is without obligation. An agreement only validly comes into effect valid when the customer receives an order confirmation from Het Anker after electronically submitting the order. Het Anker reserves the right to request a deposit or full advance payment. In the absence of timely payment of the deposit/advance payment, the current order may be suspended or cancelled by Het Anker, without prior notice of default and without compensation for the customer.
2.2. The quotes and supplies by Het Anker are based on the accuracy of the information provided by the customer when placing the order. The customer must provide all the information to Het Anker which is necessary in order to execute the order effectively. The responsibility for the accuracy of the information rests solely with the customer. Het Anker is not required to check the accuracy of the information provided by the customer.
2.3. Unless otherwise expressly agreed in writing, the prices are indicated in euros and the prices do not include VAT. The prices specified are the total price to be paid by the customer or the total rate, excluding any delivery or shipping costs, unless expressly stated otherwise.
2.4. No rights can be derived from apparent typesetting, printing or writing errors in (online) catalogues, price lists or quotations.
2.5. All taxes, fees and/or levies of any kind relating to the goods delivered, including new taxes, fees or levies which may be introduced after the conclusion of the agreement, shall be entirely borne by the customer.
2.6. Any person who, in their own name or in the capacity of the customer's representative, places an order, or any person who pays the order in whole or in part, even on behalf of a third party, stands as guarantor for that third party and undertakes jointly and severally with them, in accordance with Articles 1200 et seq. of the Belgian Civil Code. In any event, the invoicing information of a third party later communicated by the party placing the order, does not affect the liability to pay of the original party placing the order.
Article 3. Invoicing and payment
3.1. The invoices of Het Anker are payable at its registered office and on the due date indicated on the invoice. Het Anker also reserves the right to assign its claims to a third party of its choice, which cannot be refused by the client. In the absence of indication of a due date, Het Anker's invoices are payable with immediate effect. Costs in connection with the payment are solely at the expense of the customer.
3.2. In the event of non-payment of an invoice by the due date at the latest, delayed payment interest of 1% per month on the unpaid invoice amount will be payable from the due date, by virtue of law and without prior notice of default. Further, a fixed penalty at the rate of 10% of the outstanding invoice amount (with a minimum of €150.00), shall also become due, by virtue of law and without prior notice of default, without prejudice to the right of Het Anker to demand higher compensation where evidence is produced that higher actual damage has been suffered.
3.3. In the case of non-payment of one invoice by the due date at the latest, all other claims not yet expired against the customer shall be payable by law and without prior notice of default. Furthermore, in that event, Het Anker reserves the right to suspend the implementation of all pending orders without prior notice of default and without compensation for the customer.
3.4. If the customer's credit, financial position or payment behaviour gives rise to justification in Het Anker's opinion, Het Anker is entitled to require full prior payment for deliveries yet to be made, or to request (other) security, even if the goods have already been shipped in whole or in part. If the customer refuses to comply with Het Anker's request within 15 days, Het Anker reserves the right to terminate the agreement immediately, unilaterally and without any compensation. In such event, the customer will be liable for fixed-penalty damages of 30% on the total price of the order. However, Het Anker also reserves the right to claim higher compensation where there are grounds for this.
3.5. The customer grants Het Anker a pledge on all its/his/her movable (future) tangible and intangible property. The pledge grants Het Anker the right to be paid with priority over the other creditors of the customer from the proceeds of the realisation of that movable property by the commissioning party. The pledge also extends to all claims that come in the place of the charged property and to profits which the charged property produces. The pledge guarantees all (existing and/or future) claims of Het Anker arising out of this agreement amounting to a maximum of the principal sum and supplementary charges such as interest, damages and costs of enforcement / all related court costs. The customer allows Het Anker to choose how the goods charged with the pledge can be liquidated, namely by private sale, public sale or appropriation of the property. By signing this agreement, the customer authorises Het Anker to make the necessary registration of its right of pledge in the National Register of Pledges.
Article 4. Retention of title
4.1. Ownership of the goods sold by Het Anker will only be transferred to the customer after full satisfaction by the customer of the entire consideration payable to Het Anker, including payment of the agreed price, costs, interest and any damages.
4.2. Notwithstanding the above, the risks of loss or destruction of the goods sold will be borne in full by the customer from the moment that the goods sold have left the premises of Het Anker or of a third party appointed by Het Anker.
4.3. Until the point at which ownership of the goods sold has been effectively transferred to the customer, the customer is expressly prohibited from using the goods supplied as a means of payment or pledging or charging them with any other right of security.
Article 5. Delivery
5.1. Unless agreed to the contrary, deliveries of Het Anker are ex works. Het Anker will deliver the ordered goods at the time, place and in the circumstances specified in the confirmation of the order. Unless expressly stated otherwise, the cost of delivery is not included in the price. If the supply requires the use of special equipment, a specialised firm will be called upon if necessary. These costs are always borne solely by the customer.
5.2. The implementation periods communicated by Het Anker are purely indicative unless they have been deviated from expressly and in writing. Delay in implementation can never give rise to damages of any kind, nor give rise to the termination of the contract. Unless there is written agreement to the contrary, the indicative implementation period shall be determined in working days. This does not include (Saturday, Sunday, public holidays, and annual holidays). If no delivery period was agreed, it will be reasonably determined by Het Anker.
5.3. The risks of transport (including storage, loading and unloading), namely when the goods are damaged or destroyed during transport, are borne solely by the customer.
5.4. The customer declares that it will be available to receive the ordered goods in an appropriate manner, without undue delay, at any time determined by Het Anker. When the customer is not available for receipt or collection, a notification will be left at the delivery address with the necessary instructions for a second attempt at delivery or collection.
5.5. If delivery or collection is delayed by the customer by not accepting the delivery, Het Anker is entitled to charge storage costs and other reasonably incurred costs.
5.6. Het Anker reserves the right to make partial deliveries, which together constitute equivalent performance. The partial delivery of the order cannot under any circumstances justify refusal to pay the goods delivered.
5.7 In the case of duty-free consignments (suspension of excise duties), it must be demonstrated within the legal time limits that the goods were in fact exported. The customer undertakes to do everything necessary to provide the Administrative Accompanying Document (e-AD) to the competent authorities in good time, in the absence of which all costs (levies, excise duties, taxes, fines, etc.) will be fully recovered from the customer. The customer undertakes to submit proof of submission of the Administrative Accompanying Document by return to Het Anker. The customer undertakes to cooperate in general in order to demonstrate the export by Het Anker.
Article 6. Defects
6.1. Any visible defects relating to the goods delivered shall be reported to Het Anker by registered letter without delay and not later than 8 days after delivery. Such complaints are only valid and will only be investigated on condition that the goods sold have not yet been put into use by the customer. Complaints in relation to visible defects submitted after the expiry of this period will not be accepted by Het Anker.
6.2. Any hidden defects relating to the goods delivered shall be reported in writing and in detail to Het Anker without delay and within 8 working days of their discovery. Complaints relating to hidden defects must be reported to Het Anker within no later than 8 days of their discovery or when they should have been discovered. Claims for hidden defects must be made no later than six months after delivery. In the event that this double time-limit is not respected, Het Anker will not accept complaints about hidden defects under any circumstances.
6.3. Except where otherwise expressly agreed between the parties, Het Anker shall not be deemed to have knowledge of, or to have taken into account the specific application that the customer will make of the purchased goods and therefore Het Anker cannot be held liable for this. Only the customer is liable for the specific use it makes of the purchased goods and/or the purposes for which it uses these goods.
6.4. The customer may not, irrespective of time limit, make any claim for indemnity under the head of visible or hidden defects when it has adapted and/or changed the goods and/or has repaired the goods itself or had them repaired by a third party, all without the approval of Het Anker. Likewise, the customer forfeits its right to redress in the event that the damage is due to failure to comply with professional standards and usual instructions or improper use of the goods. The goods must, inter alia, be stored correctly at the appropriate temperature. The customer acknowledges that it is fully aware of these standards.
6.5. The existence of shortcomings or defects does not constitute grounds for suspension of the customer's obligation to pay what is due to Het Anker.
6.6. The goods delivered will be of a normal and conventional quality.
Article 7. Liability
7.1. Het Anker is not liable for any intangible damage (loss of profit, loss of turnover, loss of reputation, loss of customers, administration or personnel costs and/or claims of third parties, etc.) or indirect damages.
7.2. If liability for Het Anker were to be established, Het Anker's liability would be limited to direct and material damage. In any event, liability of Het Anker is limited to the replacement of the delivered goods or to reimbursement of the invoiced amount per delivery or to the liability insurance cover limit, at the election of Het Anker.
7.3. Het Anker shall remain liable for food safety until the expiry of the best before date/best used by date, so long as the goods were not opened, modified or manipulated by the customer and stored correctly.
Article 8. Force majeure
8.1. Het Anker is legally released from and not obliged to comply with any obligation/payment of compensation in the event of force majeure. "Force majeure" means a situation in which the performance of the contract is wholly or partly prevented, whether or not temporarily, by circumstances outside the control of the parties, even if such circumstance was already foreseeable at the time when the contract was entered into. Situations such as pandemics, lockdowns, war, strikes and government measures are considered as force majeure, but such incidences are not exhaustive. Het Anker is not obliged to prove the unattributable and unforeseeable nature of the circumstance that constitutes the force majeure.
8.2. In such a case, het Anker undertakes to make all reasonable efforts to limit the impact on the customer of the force majeure situation. If, when the force majeure occurs, Het Anker has already partially fulfilled its obligations or can only partially fulfil them, Het Anker may invoice the part already delivered separately, or deliver and invoice the part still to be delivered. In any case, Het Anker has the right to charge any costs already incurred when the force majeure occurs.
Article 9. Intellectual property rights
The supply of goods or services by Het Anker does not include any transfer or disposition of its intellectual rights. Any infringement of intellectual rights may be pursued by civil and criminal proceedings in accordance with applicable law. The customer only has the right to use the intellectual rights within the purposes that have been explicitly and in writing provided for between the parties at the time of delivery. This right of use should be interpreted in a strictly limited way.
Article 10. Breach
If the customer fails to fulfil one of its essential obligations, such as, but not limited to, timely and full payment, Het Anker has the right to terminate the contract without judicial authorisation and without prior notice of default. In that event, the customer will be liable to Het Anker for fixed-penalty damages amounting to 30% of the price of the products ordered, without prejudice to Het Anker's right to claim higher compensation where evidence is produced that higher actual damage has been suffered. Article
11. Applicable law & Choice of forum
11.1. This agreement, as well as any other agreement between Het Anker and the customer, are governed solely by Belgian law. The application of the Vienna Sales Convention of 11 April 1980 is expressly excluded.
11.2. All disputes between the parties concerning this agreement, as well as all other agreements resulting from it, are subject to the exclusive jurisdiction of the Belgian courts and, in particular, to that of the courts of the judicial district of Antwerp, Mechelen Section.
Drawn up in Mechelen on 1st January 2021.
