Article 1 – Scope

Unless explicit and written agreement to the contrary, these General Terms and Conditions of Sales (hereinafter referred to as “GTCS”), replacing all previously existing GTCS, apply to all sales agreements concerning products and/or services (hereinafter referred to as “Agreements” and “Products”), concluded with and by Henkel Nederland B.V. (hereinafter jointly referred to as the “Henkel companies”), and this notwithstanding any other provision on the client’s order, counter-offer or any other forms, letters or any kind of documents.
The legal entity indicated in the order confirmation or confirmed otherwise in writing, is the only contracting party of the client under the Agreement and is hereafter referred to as “Henkel”. All other legal entities shall in no event be considered party to the Agreement nor in any way be jointly liable with Henkel.

These GTCS are intended to be applied exclusively to commercial transactions. They do not apply to transactions with consumers.

Any terms and conditions of the client are hereby expressly excluded, such as but not limited to chosen incoterms. Any terms and conditions of the client, dissenting or not, shall only apply if and to the extent expressly confirmed in writing by Henkel.

The GTCS shall apply to all subsequent Agreements between Henkel and the client without need of express reference thereto or contract thereon at the conclusion of such Agreement.

Article 2 – Conclusion of the Agreement

An offer, price quotation or other proposal by Henkel shall be considered as an invitation to the client to put in an order and can be revoked at any time by Henkel.

Notwithstanding the foregoing, an offer submitted in response to a request for tenders shall, unless otherwise specified in writing by Henkel, be binding but it will expire in case the said offer is not accepted within ninety (90) days of its submission by Henkel to the client by any means.

Henkel may, at its sole discretion, accept all or any part of an order by issuing an order confirmation, but it is under no obligation to accept or acknowledge an order.
The client is bound by his order for a period of at least fourteen (14) days following the receipt of the order, unless the client has specified a longer term of acceptance.

An Agreement shall only enter into effect when Henkel has issued an order confirmation or when Henkel has started the execution of the order, whichever is earlier.

If the client requests and Henkel at its sole discretion accepts an amendment or cancellation of the client’s order, Henkel shall be entitled to charge its losses, costs and expenses suffered or incurred by Henkel as a direct result of the amendment or cancellation which the client shall be obliged to pay.

Article 3 – Price

The price includes possible eco taxes, but is exclusive of value added tax (VAT) and any other duties or levies.

The client shall bear any and all taxes, tariffs, and contributions in connection with the order, the Agreement and the delivery of the Products.

Unless agreed upon otherwise, the price to be paid will be the price on the date of order.
Henkel may from time to time modify its price list. Such price list will be effective as of the day it has been notified by any means to the client. If an order has been based on the price list of Henkel, the prices set forth in Henkel's price list valid on the day of the entry into force of the Agreement pursuant to said order shall apply.

Price quotes by Henkel are based on the currency situation, freight and customs rates, raw material costs, such as but not limited to costs of metals like silver, or other charges applicable at the time of quotation and Henkel reserves the right to make at any time price changes if the costs of such factors should rise, including with respect to Agreements that have already entered into effect in as far as they are impacted by the cost increase.

Article 4 – Payment   

All payments must be made into an account to be designated by Henkel.

Payment shall be made in the currency in which the agreed upon prices are stated.

Any amount which the client owes Henkel under an Agreement shall become immediately due and payable in full if the client has failed to make a timely payment to Henkel, without the need for any notice of default to that effect.

All invoices that remain unpaid on their due date shall entitle Henkel, without need for a notice of default, to an arrears interest charge equal the legal interest rate of the respective country of the Henkel company in question. Every month of delayed payment started shall in good right give right to interest charge for the entire month. Interest for default in payment shall be immediately due.

All judicial and extra-judicial costs incurred as a result of the collection of any claim by Henkel on the client shall be borne by the client.

In the event of late payment, the extra-judicial costs shall be calculated at fifteen (15) percent on the amount outstanding and owing, with a minimum charge of one hundred and fifty (150) EURO applicable, without prejudice to Henkel’s right to demonstrate the existence of and claim the compensation of more important costs.

Agreed discounts shall only apply if and to the extent that the client is not in default of any payments due to Henkel.

Client shall have no right of set-off against any payment due by Henkel. At Henkel’s first request, Client will provide security to secure its payment obligations to Henkel. To the extent parties have agreed that payment is to be backed by a security in personam and/or security in rem, client shall provide such security before the agreed date of delivery. If the client refuses to provide security within a reasonable period granted to him, Henkel may entirely or partially cancel the order and or rescind the agreement by written notice. Any rights of Henkel remain reserved.

Article 5 – Delivery

Delivery dates referred to in the Agreement are estimated only, unless agreed differently. In the event that the announced delivery date should be exceeded, the client shall not as a consequence be entitled to any compensation. Nor shall the client in that case be entitled to terminate the Agreement.

Unless specifically agreed otherwise, the client shall not be entitled to return the Products.
Henkel has the right to make the delivery dependable on a minimum order quantity that is to be agreed upon in the Agreement.

Henkel shall be entitled to make partial deliveries to the extent that this is reasonably acceptable for the client.    

Without prejudice to any other rights or remedies of Henkel pursuant to these GTCS or applicable law, Henkel may, without liability to the client, suspend delivery or cancel an order if in the reasonable opinion of Henkel delivery would not comply with Henkel’s safety, health and environmental policies or relevant laws and regulations.

Client shall pay all Henkel‘s costs associated with the client‘s failure to take possession of the Products, including without limitation, costs of return transport, demurrage, storage redelivery or disposal.

Without prejudice to any other rights or remedies, Henkel may suspend all deliveries if (a) payment is overdue or (b) upon the happening of any event described in clause 9.2 until Henkel receives or is satisfied that it will receive any outstanding payments.

Henkel is not responsible for any delay or other suspension or deviation in the performance of Henkel’s obligations under the Agreement which is (in whole or in part) caused by (i) fire, flooding or other natural disasters, (ii) strikes or industrial actions or disputes, (iii) acts or omissions of governmental agencies (including customs agencies in the country of origin or destination), (iv) default of suppliers or sub-contractors (including but not limited to carriers), (v) shortages on the market of required materials or labour, (vi) theft from warehouses of Henkel or its suppliers, (vii) any change in currency laws or regulations or other adverse economic or financial developments in or relating to the client’s place of business, or (viii) any circumstances outside Henkel’s reasonable control, (each hereafter referred to as a “Force Majeure” event or condition).

Henkel must inform the client about any events of Force Majeure and any equated events. Should the obstruction take longer than three (3) months, both parties shall be entitled to cancel the Agreement. If partial delivery has already been made, the client shall only be entitled to partially cancel the Agreement under the aforementioned conditions with respect to such part of the delivery that has not been executed. On the grounds of an unexecuted part of the delivery the client may not refuse the payment of a partial delivery which has already been executed.

Article 6 – Transfer of risk

Unless agreed upon otherwise, deliveries will be made CPT (Incoterms 2010). However, the risk of loss, damage and any additional delivery cost will be deemed to have transferred to the client from the moment Henkel has passed the Products on to the (first) carrier.

Article 7 – Rights due to defects/liability

Henkel shall only be held liable for any damage resulting from defects in the design and manufacturing of the Products and their components. Unless and to the extend to be established in accordance to applicable mandatory provisions of law, Henkel shall not be held liable for any damage resulting from the incorrect application and/or wrong usage of its Products.

Nonetheless, should there be question of Henkel’s conceivable liability on whatever legal grounds, the indemnity, case pertaining, shall never exceed the value of the price for the Products delivered, increased with taxes, import duties and transport costs paid for by the client. In any event, Henkel shall not be liable to the client for, including but not limited to, loss of profit, loss of agreement, loss of goodwill, decreased turnover or property damage or any indirect or consequential losses arising out of or in connection with the Agreement.

Recommendations or suggestions as to the use, application storage handling or disposal of the Products given (whether before or after delivery) in sales or technical literature or in response to an enquiry or in any other form are given in good faith but ultimate reliance is for the client’s sole assessment (by trial processing if necessary) and Henkel accepts no liability for such recommendations or suggestion. No warranty is given as to the Products quality or fitness for any particular purpose.

Article 8 – Limitation period

Client shall examine the Products immediately upon delivery and, upon penalty of forfaiting its rights of recourse, notify Henkel in writing within twenty-four (24) hours of delivery of any defect or non-conformity that is reasonably apparent from such examination. The Products will be deemed to conform to the Agreement despite minor discrepancies which are usual in the particular trade or through course of dealing between Henkel and the client. Any hidden defects or non-conformity which could not be reasonably discovered at delivery, shall, upon penalty of forfaiting the right of recourse, be notified in writing within eight (8) days of discovery.

Immediately after a hidden defect or non-conformity is discovered, client shall stop using the Products and shall, if so demanded, return the Products in accordance with Henkel‘s instructions, any Products and containers still available and in any event provide all necessary assistance to allow Henkel to investigate. Client must in all cases notify in writing a hidden defect or non-conformity within six (6) months of delivery or during the course of the shelf life, whichever is the longest; after that period the guarantee for hidden defects or non-conformity shall be expired. If these conditions are satisfied, Henkel will replace a defect or non-confirming Product (or, if that is not reasonably practicable, refund the price (or an appropriate proportion)) and refund all reasonable return costs. This undertaking is Henkel‘s sole liability for non-conforming or defect Products.

It will not be allowed to alter the delivered Products in their nature and/or composition, either wholly or in part are to re-package them. In the event that this were to happen, complaints shall no longer be accepted or considered.

Such a notification of a defect shall at no time release the client from his payment obligations.

Article 9 – Retention of title

The Products remain property of Henkel until Henkel has received full payment of their principal sales price, interests and any compensation. In the event Henkel invokes the clause concerning retention of ownership or termination of the agreement, the client grants Henkel the right to repossess its Products at the expense and risk of the client and to that effect Henkel may enter the client’s premises, case pertaining.

The client’s right to use the unpaid Products or resell the unpaid Products to its clients shall cease and any sums due to Henkel under the agreement shall become immediately due and payable if the client becomes subject to any form of receivership, administrative receivership or administration (whether out of court or otherwise); liquidation (other than for a bona fide and solvent amalgamation or reconstruction); bankruptcy; any form of composition with creditors any of the foregoing under any analogous foreign provisions or proceedings affecting the client or if the client proposes any of the foregoing or where Henkel believes that any of the foregoing is about the occur.

Henkel may also withdraw the client’s use and sale right upon written notice if the client is in breach of any obligation to Henkel, including but not limited hereto, if the client is in payment default.

The client further hereby assigns to Henkel all claims arising from the resale of the Products delivered under retention of title.

In the event of any third party action against the Products delivered under retention of title or any receivables assigned to Henkel, the client shall notify such party of Henkel’s rights and immediately inform Henkel about such action.

If pursuant to the applicable law an extended clause of reservation of title is not valid, the reservation of title of Henkel is limited to a simple retention of title until full payment of the Products.

Article 10 – Obligations of the client

The client shall only resell the Products under the following conditions:
-    To sell the Products bought from Henkel and to introduce them into the market exclusively in their original Henkel packaging, without any damage or alterations to it, unless agreed otherwise or when alterations are necessary to obey the legal requirements;
-    Not to resell any of the Products bought from Henkel to any party which he knows, or may reasonably suspect, will not, or cannot, abide by the present conditions;
-    Not to resell any Products whose minimum shelf-life date has expired.
On their resale the client shall impose the abovementioned conditions to each and every successive client/reseller.

The client shall be prohibited to use, or to have others use, any packaging material supplied in conjunction with Henkel Products, whether or not affixed with any brand name, logo, or identification, for commercial purposes and, in particular, for what concerns the re-packaging of any Product.

In the event of a breach by the client of any obligation under the Agreement, Henkel shall, and without the need for a notice of default, be entitled to suspend further execution of her obligations under all of her agreements with the client or, conversely, terminate said agreements with immediate effect and without court intervention, by simple written notification to that effect.

Article 11 – Foreign trade and customs requirements, export control regulations

Henkel’s obligation to fulfil the Agreement shall be subject to the proviso that the fulfilment is not prevented by any impediments arising out of national and international foreign trade obligations, customs requirements, any embargos, environmental or safety requirements or other sanctions.

If the client transfers the Products in whole or in part to a third party worldwide, the client shall comply with all applicable national and international (re-)export control laws- and regulations. In any event the client shall comply with the (re-)export control regulations of Belgium, the Netherlands and Luxemburg, of the European Union and of the United States of America.

If required to conduct export control checks, the client, upon request by Henkel, shall promptly provide Henkel with all information pertaining to the particular end client, the destination and the intended use of the Products, as well as any export control restrictions existing. Client shall maintain records in accordance with the export regulations and provide to Henkel, upon request, documentation to demonstrate compliance with this article.
The client shall indemnify and hold harmless Henkel from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any non-compliance with export control regulations by the client, and the client shall compensate Henkel for all losses and expenses resulting thereof, unless such non-compliance was not caused by fault of the client. This provision does not imply a change in burden of proof.

Article 12 – Assignability

This Agreement is personal to the client and Henkel and neither party shall assign or transfer any rights and benefits hereunder to any third party without the other party’s prior written consent (such consent not to be unreasonably withheld or delayed) provided that Henkel is permitted (without the need to obtain consent) (i) to assign or transfer the right and benefits under the Agreement in whole or in part to any subsidiary, holding company or subsidiary of such holding company of Henkel and (ii) to assign or transfer to any third party its rights to collect the debts or receivables arising under the Agreement.

Article 13 – Confidentiality and publicity restrictions

1. For the purposes of the GTCS, “Confidential Information” means all information disclosed by a party to the other party, whether orally or in writing, that is designated as confidential or can reasonably be assumed to be confidential given the nature and character of the information and the circumstances of the disclosure. Except as otherwise provided hereunder, Confidential Information communicated by one party to the other shall be kept in confidence and shall be used only for the purpose of the Agreement, except:
(a)    as may be necessary to comply with laws, statutes and regulations; in this case, the receiving party should take all reasonable steps to restrict and maintain the confidentiality of such disclosure and provide reasonable prior written notice to the supplying party of the requirement to disclose such information and the specific disclosure(s) proposed to be made to satisfy such law(s), regulation(s) or legal process(es);
(b)    to the extent such Confidential Information is known to the public otherwise than by a breach of present article;
(c)    to the professional advisers of any party in connection with the interpretation or operation of any agreement or any dispute arising there;
(d)    with prior written consent of the other party.
2. Both parties will take all reasonable measures to ensure safe preservation or storage with respect to the Confidential Information in whatever form, or on whatever kind of data medium.

Article 14 – Personal data protection

Henkel processes personal data regarding the employees, agents and directors of the client (such as name, e-mail address, telephone number, …), or of the client himself if the client is an individual, as the data controller, i.e. the entity accountable for data protection laws. The personal data are processed for purposes relating to the execution of the Agreement. Those individuals have the right to keep control over their personal data according to the General Data Protection Regulation.

Article 15 – Environment and safety

The client shall comply with all his environmental and product safety obligations as well as with every instruction (including but not limited hereto, instructions related to corrective measures) Henkel and/or any competent authority may give with respect to environmental and product safety issues related to the Products.  

The client will, among others, upon first request of Henkel, immediately provide Henkel with all information (including information on the sales chain, the client’s customers, product identification, product incidents, etc.) needed to allow Henkel to comply with its own environmental and product safety obligations and the client will take all and any required measures to gather and keep such information.  

The client will inform Henkel immediately whenever he is informed of any complaints, incidents or accidents concerning environmental or product safety issues related to the Products.

Article 16 – Final provisions

The Agreement including these GTCS sets out the entire agreement between the parties.
Should any individual provision of these GTCS or of the Agreement be or become invalid, the validity of the other provisions shall remain unaffected. Any such provision held invalid, unlawful or unenforceable, shall be substituted by a provision of similar import reflecting the original intent of the provision to the extent permissible under applicable law.

Exclusive place of jurisdiction for any and all disputes arising from or in connection with the delivery shall be Brussels respectively Utrecht depending of the country of origin of the Henkel entity. However, Henkel shall also be entitled to take legal action against the client at the client’s place of general jurisdiction or before any other competent court.

The Agreement shall be governed by the laws of Belgium or the Netherlands, depending of the country in which the Henkel entity concluding the Agreement has its registered seat. The application of the United Nations Convention on the International Sale of Goods (CISG) shall be excluded.