Hacon is the private limited company Hacon Containers B.V.,
These Conditions are written in both Dutch and English. In the event of doubt, the Dutch version takes precedence.
A. General provisions
Article 1. Definitions
Client every second party that concludes an agreement with Hacon.
Services are all work activities and/or services in the broadest sense to which the Agreement relates. Products are all goods, including containers, that are supplied by Hacon.
Contract sum is the agreed (financial) consideration of the Client for the Products and/or Services.
Rental agreement the agreement to which these terms and conditions apply.
Rental form the form that is created concerning the state of the object after the rental period.
Article 2. Choice of law and forum
All commitments and agreements between Hacon and the Client are governed by Dutch law.
All disputes will be, in the first instance, exclusively referred to the District Court of Rotterdam.
Article 3. Applicability of the Conditions
The Conditions apply to all offers and agreements made by Hacon (or its affiliated subsidiary) and the Client, as well as to the commitments arising from this. The conditions also apply to any changes or extensions to the Agreement.
Any deviations from the Conditions must be agreed to in writing.
Any conditions, which the Client wishes to declare applicable, do not bind Hacon. This is unless these have been expressly accepted in writing by Hacon.
The fact that Hacon does not invoke a certain right from the Conditions for a longer period of time, does not imply that Hacon has waived this right.
If any provision from the Conditions no longer applies, for any reason whatsoever, the remaining provisions of the Conditions will continue to apply.
If during the performance of the Agreement Hacon purchases goods or services from third parties, these third parties may also invoke the Conditions with respect to the Client.
Article 4. Offers and agreements
Offers on the part of Hacon are always without obligation. An agreement will only be concluded once Hacon has confirmed an assignment or order of the Client in writing or after Hacon has started carrying out the assignment.
The aforesaid confirmation is considered to represent the agreement correctly and in full, unless the Client objects to this within 5 working days.
If an assignment or order to commence the performance is accepted by Hacon, the order is considered to represent the agreement correctly and in full.
Hacon has its own design facilities. The Client is responsible for each design, unless agreed otherwise. If the Client provides Hacon with drawings and/or other data, these will be deemed to be correct.
If Hacon has legitimate doubts about the creditworthiness of the Client, he will be entitled to information from the Client to assess that creditworthiness. The Client is obliged to provide security, on first request by Hacon, for the performance of the contractual obligations. Hacon is entitled to suspend the performance of the agreement until such request has been satisfactorily met.
Article 5. Prices and delivery times
The prices quoted by Hacon are ex VAT and are for delivery ex works (Incoterms 2010). They exclude the costs of any inspection, all freight, terminal, storage, security and clearance charges, taxes, import and export duties or other levies, also if they are introduced or increased after the purchase agreement has been concluded. The aforesaid costs, as well as transport costs, will be at the expense of the Client.
Hacon will at all times be entitled to pass on any cost prices, which increased outside Hacon’s control, to the Client. Hacon will notify the Client of these price increases as soon as possible, together with a specification. The Client will be entitled to terminate the agreement if the price increase is higher than 10%.
With rental agreements, Hacon will be entitled to raise the rent annually at market rates.
An agreed delivery time is not a strict deadline. In the event of late delivery, the Client is obliged to provide Hacon of written notice of default before the default occurs.
If the agreed delivery date is likely to be exceeded and Hacon does not expect to fulfil its obligations on account of circumstances beyond its control, Hacon will be entitled to terminate the agreement with the Client without being obliged to pay any compensation, or to agree a new delivery date with the Client, without prejudice to any other provisions in this agreement relating to force majeure.
Article 6. Delivery
All Products are delivered ex works (Incoterms 2010) to a location indicated by Hacon.
If the parties have agreed that Hacon will take care of the transport of the Products, this will be at the expense and risk of the Client. Hacon will not take out any relevant insurance. If the Client wants the Products to be insured, he must take care of this himself. If the Client has not taken delivery of the goods after the delivery date, they will be stored at the expense and risk of the Client. In this case, too, Hacon does not need to take out an insurance policy.
Inspections of the Delivered Good will always be the responsibility of the Client, unless agreed otherwise in writing.
Hacon is entitled to make part deliveries if the Delivered Goods can be delivered in parts.
Article 7. Payment
The Client must pay invoices within 30 days after the invoice date, unless other wise agreed to. Failing that he will automatically be in default.
As from the time of default, the Client must pay the statutory interest on the full outstanding amount as well as possible extrajudicial collection costs equal to the amount that can be determined according to the Extrajudicial Collection Costs Decree (Besluit vergoeding voor buitengerechtelijke incassokosten).
In the event of the Client’s death, or if he is granted a debt rescheduling arrangement, if his business is wound up, declared insolvent or bankrupt, if he has applied for a moratorium, if his business is transferred or has merged, all his obligations towards Hacon will be immediately due and payable, irrespective of any arrangements regarding payment in the agreement that provides
Article 8. Liability and indemnity
Hacon has taken out customary companies’ liability insurances for its company, the policies of which may be inspected on first request by the Client. Notwithstanding the following paragraphs, Hacon’s liability for any damage will in any case be limited to the amount paid by the insurance company or companies in each specific case.
The liability of Hacon is limited to the contract sum of the relevant agreement.
In any case, Hacon is not liable for damage caused or incurred by the incorrect use of the Delivered Good or for its unsuitability for the purpose for which the Client has purchased it.
If the Client uses Products from Hacon for incorporation in his own products, which he supplies to third parties, or if Product from Hacon is supplied (unchanged) to a third party, the Client will ensure that Hacon’s liability towards this third party is limited in a manner equal or comparable to this article 8.
With reference to paragraph 5, the Client indemnifies Hacon against all possible claims by the aforesaid third party which exceeds the liability under this article.
If one or more provisions of this article 8 are deemed to be contrary to the principles of reasonableness and fairness, or are otherwise deemed not to be part of the agreement between the parties, this will not affect the other provisions of this article.
Article 9. Retention of title and right of retention
Products supplied to the Client remain the property of Hacon and any rights granted or to be transferred will be retained by Hacon for as long as the Client has not paid the Contract Sum and all additional costs such as interest and collection costs.
If Hacon invokes its retention of title, the Contract Sum will still be fully due and payable by the Client as a means of compensation for Hacon, without prejudice to Hacon’s right to claim full compensation.
If the Client fails to meet his obligation towards Hacon, or if there is a reasonable fear that he will fail to do so, Hacon will be entitled to remove the goods in which Hacon has retained title, or to have them removed from the Client’s premises or from third parties who are holding the goods for the Client. The Client is obliged to give his full cooperation under penalty of a fine of 10% of the Contract Sum per day.
If a third party lays claim or announces that he intends to lay claim to Products that are still subject to retention of title, the Client is obliged to immediately inform Hacon about this. At the same time, the Client is obliged to immediately inform this third party of Hacon’s retention of title.
As long as Hacon is able to exercise its retention of title, the Client is not entitled to sell Products or to encumber them, for example with a right of pledge.
As long as Hacon is able to exercise its retention of title, a non-possessory pledge will, if the Client processes Products in his own products, automatically be established on these products in favour of Hacon. If the valid establishment of a right of pledge requires additional acts, the Client will cooperate upon first request.
The Client will adequately insure goods which are subject to retention of title against damage and theft.
If Hacon provides services to the Client, such as the improvement, renovation or alteration of an item of the Client, Hacon will at all times be entitled to require full payment of the Contract Sum before providing this service to the Client.
Article 10. Acceptance and complaints
The Client is obliged to fully inspect the Delivered Good immediately upon delivery for damage, defects and/or failures (“Flaws”). Any observable Flaws subsequently found must be mentioned on the consignment note, the delivery note and/or other transport document and immediately reported to Hacon in writing, in the absence whereof the document will be deemed to be correct as far as the contents are concerned and the Delivered Good is free from Flaws, as referred to in this paragraph.
Without prejudice to the provisions in article 10.1, the Client is obliged to inspect the Delivered Good as soon as possible after delivery and as thoroughly as possible for Flaws. Any Flaws detected must be reported to Hacon in writing, not later than within 3 working days after delivery, in the absence whereof the Delivered Goods are considered free from Flaws as referred to in this paragraph.
After the aforementioned period has expired, the Client is deemed to have accepted the Delivered Good in full.
If Hacon considers the complaint to be justified, Hacon is only obliged to repair the defect(s) or to replace the faulty Delivered Good at the discretion of Hacon, without the Client having the right to claim any compensation whatsoever.
The filing of a complaint will never release the Client from his obligation to pay Hacon and will never be a ground for offsetting.
The Delivered Good may only be returned after prior permission of Hacon and subject to the conditions set by Hacon. The Client is obliged to return the Delivered Good at his own expense, in the original packaging, and with as little damage as possible to an address indicated by Hacon.
Article 11. Guarantee
Hacon guarantees that on the date of delivery the Delivered Good complies with the description in the agreement.
If Hacon receives a guarantee from a third party on (part of) the Delivered Good, Hacon will pass this guarantee unchanged on to the Client.
Article 12. Force majeure
If Hacon is prevented from performing the agreement (in time) due to force majeure, Hacon will be entitled to suspend the performance of the agreement or to terminate it wholly or partially by means of a written statement to that effect at the discretion of Hacon, without Hacon being obliged to pay any compensation, as far as the situation of force majeure does not last longer than three (3) months without prejudice to the other rights to which Hacon is entitled
Force majeure beyond the control of Hacon in any case includes: late compliance by suppliers of Hacon, strikes (in ports), delays of (sea-going) vessels, war, terrorist attacks or weather conditions.
Article 13. Termination; Cancellation
Without prejudice to the other provisions in these Conditions, Hacon is entitled to terminate the agreement in the cases referred to in article 7.3, without Hacon being obliged to pay any damages or compensation otherwise.
If the Client wishes to terminate the agreement, he requires the prior written permission of Hacon. In the event of cancellation, Hacon charges a fee of 30% of the amount of the invoice as a cancellation charge, while the date of termination cannot commence earlier than 14 days after Hacon has given its permission in writing.
B. Rental agreements
Article 14. Use of the rented item
The Client is obliged to keep and maintain the rented item in good condition and only to use it in accordance with its designated use.
If a new rental agreement is entered into, which contains more detailed rules concerning the use of the rented item, the Client is obliged to comply with these rules.
The Client is not allowed to make any changes to the rented item other than with the prior written permission of Hacon.
Unless otherwise stated in a written document, the Client is deemed to have received the rented item in good condition. If the condition of the rented property is depreciated then the damage is the equivalent of the purchasing price of the rented property.
Defects to the rented item as well as damage or loss must be reported to Hacon immediately stating all details. The Client is obliged to follow the instructions of Hacon promptly. The Client is only allowed to repair any damage of the rented property himself after Hacon has given its written permission.
The Client is liable for loss of the rented item and for any damage, of whatever nature, including damage by fire, caused to the rented item, as well as trading losses incurred by Hacon as a result of this, irrespective of whether the damage is caused by the Client or a third party.
The Client is obliged to provide correct information about the geographical location of the rented item on first request by Hacon.
Article 15. Insurances
The Client takes out an insurance policy for all damage to or caused by the rented item. Hacon will be included on the policy as co-insured. The insurance covers at least fire damage and trading losses.
Article 16. Rental period and Return
Return means the actual delivery of a rented property of Hacon to Hacon on conclusion of a rental period.
The rental period commences after the rented item is either collected by the Client from Hacon or has been delivered by Hacon to the Client or after the Client has otherwise become the (indirect) holder of the rented item.
The rental period ends with the Return of the rented item, unless a longer period has been agreed, in which case the rental period ends on the agreed date, with the exception of paragraph 4.
Barring other arrangements in the agreement, Hacon has the right to request immediate Return in a situation as referred to in article 7.3. If a longer rental period has been agreed, the loss sustained by Hacon will at least be the rent for the remaining time of the agreed rental period, without prejudice to the right of full compensation. If the Client does not immediately comply with the aforesaid request for Return, Hacon will be entitled to claim back the rented item himself at the expense of the Client, in addition to the dissolution of the lease agreement and order the Client to pay the arrears, interest and costs.
When the agreement ends, the Client is obliged to return the rented item to a location indicated by Hacon in the condition it was in at the start of the rental period, apart from the normal signs of use, in the absence whereof Hacon will ensure that it is cleaned and repaired at the expense of the Client.
Upon its Return, the rented item is immediately inspected by Hacon. Shortcomings including damages to the rented item or contamination of the rented item are displayed on the interchange. The Client will be informed by email about the costs of repairing the damage.
The Client has 5 business days to state in writing, with reasons, why it does not agree with the cost statement. If nothing is heard from the Client in the aforementioned period, the interchange is deemed to accurately reflect the shortcomings.