GENERAL TERMS AND CONDITIONS OF SALE

 KUBO SUPPLY NV

(the “General Terms and Conditions”)

Article 1 – Applicability of the General Terms and Conditions

Unless expressly agreed otherwise and in writing, only these General Terms and Conditions apply to all sales, deliveries and services, as well as to all offers by KUBO SUPPLY, a public limited company incorporated under Belgian law, registered with the Crossroads Bank for Enterprises under number 0894.942.982(“KUBO”), to the purchaser of such goods and/or services (“Purchaser”). These General Terms and Conditions expressly exclude all other general terms and conditions and always take precedence over any other general terms and conditions.

Article 2 – Offers and orders

2.1 KUBO’s offers shall be valid for the duration and under the conditions specified therein in writing.

2.2 Any order shall be valid and binding on the Purchaser once KUBO has sent a confirmation thereof and/or executed the order. Subject to any cancellation or modification fees, the order may only be subsequently modified or cancelled with the express prior written consent of KUBO.

2.3 Each order shall be valid and binding on KUBO once it has sent a confirmation thereof and/or executed the order, it being understood that any confirmation of an order by KUBO shall always be made by KUBO subject to possible price corrections and other deviations if KUBO has a valid/objective reason to do so, which in such case shall be communicated to the Purchaser in advance. Failure of the Purchaser to respect the credit limit and/or the payment term (as defined in Article 7.2 of the General Terms and Conditions) as well as if KUBO cannot deliver the ordered quantities to the Purchaser at that moment, shall in any case be considered a valid/objective reason in the sense of this Article justifying a price correction or other deviation from the order.

2.4 The Purchaser is always obliged, at the latest when placing an order, to inform KUBO whether additional or different documents are required for the respective order, other than the packing list, the invoice and the customs documents.

2.5 If an order cannot be delivered in whole or in part by KUBO due to circumstances, the Purchaser will be informed thereof by KUBO. KUBO does not work with a list of backorders, so undelivered goods of a previous order are not kept. In such case, the Purchaser will therefore have to place a new order with KUBO, and this according to the procedure described above, unless explicitly agreed otherwise, in advance and in writing.

Article 3 – Obligations of the Purchaser

3.1 The Purchaser undertakes to comply with the legislation of the countries in which it operates, in particular but not limited to the obligations of national, European and international regulations, the obligations concerning packaging and labelling as well as the associated health warnings where relevant. If different and/or special labelling is required, the Purchaser is solely responsible for this.

3.2 The Purchaser further undertakes to comply with any applicable national and European customs legislation and in particular but not limited to the discharge of customs documents accompanying the shipment according to the agreed Incoterm 2020.

3.3 The Purchaser undertakes to notify KUBO in advance of any change in its UBO, governing body, shareholder structure or any other change of control within the meaning of Article 1:14 of the Companies and Associations Code. An extract of the UBO register shall be communicated to KUBO upon its first request.

Article 4 – Resale of the goods purchased by the Purchaser

4.1 In case of resale of the goods purchased by the Purchaser from KUBO, the Purchaser is obliged to ensure that its customers also comply with the Purchaser’s obligations towards KUBO as described in Article 3 and Article 10 of these General Terms and Conditions.

4.2 The Purchaser is responsible for complying with international, supranational or national laws to which its customers must comply pursuant to the resale of goods purchased by the Purchaser from KUBO. Nor the Purchaser and/or its customers nor any other party can address KUBO on any ground in this regard.

4.3 If the resale of the goods is found to be subject to any conditions, including but not limited to quotas, it is the sole responsibility of the Purchaser to know and comply with these conditions in the context of the resale. In case of non-compliance thereof, neither the Purchaser and/or its customers nor any other party can address KUBO in this regard.

4.4 The provisions of this article apply without prejudice to the Purchaser’s obligations under Article 10 of these General Terms and Conditions.

Article 5 – Delivery of the goods

5.1 Delivery times are only approximative and informative and are therefore not binding, unless expressly agreed otherwise, in advance and in writing. A delay in delivery and/or execution can under no circumstances give rise to any fine, penalty, compensation, dissolution of any agreement or liability of KUBO.

5.2 An order is completed as soon as a first delivery has been made. Partial deliveries are only possible if expressly agreed in advance in writing. Late and/or partial deliveries cannot constitute grounds for refusal of the goods and/or non-payment thereof by the Purchaser.

5.3 Goods are delivered FCA – Free Carrier (Incoterms 2020), unless otherwise agreed in writing.

The Purchaser bears the full risk as well as full responsibility for the goods according to Incoterm 2020 FCA and, if applicable, the customs documents must be discharged fully and conformably by the Purchaser without objection.

5.4 KUBO shall have the right to suspend delivery (i) in case of full or partial payment delays on the due dates in accordance with the payment conditions, (ii) if the Purchaser no longer has the valid licences to receive the goods or (iii) if the Purchaser does not (no longer) fulfil any of its obligations in accordance with article 3 of the General Terms and Conditions. The Purchaser must ensure that deliveries can be made on the specified delivery date and agreed hour. If delivery at the agreed hour and/or on the agreed date at the delivery address provided by the Purchaser is not possible, without a valid reason, the goods shall be temporarily stored in a warehouse of KUBO at the Purchaser’s expense and risk, unless explicitly agreed otherwise between parties. All additional costs related thereto, including but not limited to KUBO’s waiting hours, storage costs, etc. are always for the Purchaser’s account..

5.5 The goods are sold and delivered to the Purchaser in accordance with the chosen Incoterm 2020 in the condition they are in. Visible deficiencies and/or defects and/or discrepancies (shortage or excess) to the goods must be reported in writing by the Purchaser to KUBO immediately upon delivery thereof in accordance with the definition of the chosen Incoterm 2020, together with photographs and other documents supporting the alleged deficiencies and/or defects and/or discrepancies (shortage or excess). If the goods are delivered FCA in accordance with article 5.3 of these General Terms and Conditions, this means that the visible deficiencies and/or defects and/or discrepancies must be reported in writing by the Purchaser to KUBO immediately at the time of their loading. In any case, KUBO and the Purchaser shall consult with each other to reach a reasonable and fair solution for this. Notifications regarding such deficiencies and/or defects and/or discrepancies may only be indicated on the relevant customs documents after prior notification to and consultation with KUBO in this respect. The Purchaser is responsible for all costs resulting from incorrect and/or incomplete notifications on the customs documents as well as non-compliant discharges.

5.6 Non-visible deficiencies, defects and/or discrepancies in the goods must be reported by the Purchaser to KUBO in writing within a period of 48h after their discovery, together with photographs and other documents supporting the alleged defects and/or faults, and at the latest within a period of 6 months after their delivery.

5.7 The Purchaser’s notification of the condition in which the goods were delivered within the meaning of article 5.5 and article 5.6 of these General Terms and Conditions does not affect the Purchaser’s other obligations, in particular its payment obligation in accordance with article 7.2 of these General Terms and Conditions.  

5.8 The Purchaser is responsible for the timely, correct and complete discharge of customs documents prepared by KUBO and, in case of non-compliant discharge, is responsible for all costs and risks arising therefrom.

5.9 If the Purchaser is confronted with a claim regarding defective products regardless of whether this claim has a contractual or extra-contractual basis, the Purchaser undertakes to turn in the first instance to the actual producer of the goods and/or the producers under whose name, trademark or identifying mark the goods are offered. The Purchaser shall have no claim against KUBO in respect of any defect to the extent the Purchaser is able to assert its rights in respect of that defect directly against the producer.

5.10 After the goods have been delivered, the goods cannot be returned by the Purchaser unless expressly agreed otherwise in advance and in writing.

Article 6 – Ownership of the goods

6.1 All goods delivered or to be delivered shall remain the sole property of KUBO until full payment of the agreed purchase price by the Purchaser, plus any eventual costs and/or interest.

6.2 KUBO has a right of retention on the goods to be delivered by it if the Purchaser has not complied with the payment term of article 7.2.

Article 7 – Price and payment

7.1 All prices are exclusive of VAT, taxes, levies and customs duties, unless otherwise specified in the customs status.

7.2 Unless expressly agreed otherwise in writing, payment must be made no later than the time when shipment commences. Payment shall always be made by the entity to which the invoice is addressed.

7.3 In the event of a dispute, the invoice must be protested in a substantiated manner by registered letter within 8 working days of the sending the relevant invoice. In case of no timely protest, the invoice shall be deemed accepted.

7.4 In the event of failure to pay (on time or in full), the outstanding invoice amount will be increased, automatically and without prior notice of default, by a late payment interest that will be calculated in accordance with article 5 of the Law of 2 August 2002 on combating late payment in commercial transactions as well as by a fixed compensation of 10% of the invoice amount due. In the event of late payment, all invoices shall become immediately due and payable.

7.5 If delivery is hindered by causes not attributable to KUBO, such as, for example, a force majeure situation as described in article 8.3 of these General Terms and Conditions, the Purchaser cannot invoke this to not proceed to payment within the period prescribed by article 7.2.

7.6 Any amounts owed by KUBO to the Purchaser, on any grounds whatsoever, cannot be compensated by the invoices payable by the Purchaser to KUBO unless otherwise agreed in writing.

Article 8 – Liability

8.1 Except in cases of fraud, intent or gross negligence of KUBO and/or its appointees, its liability per order shall be limited to the value of the goods of the order that gave rise to KUBO’s liability.

8.2 KUBO’s liability is, and notwithstanding the Purchaser’s ability to formulate any complaints in accordance with article 5.5 and article 5.6 of these General Terms and Conditions, limited to direct damage to the goods, which shall be understood to mean material damage as well as the defective or non-functioning of the goods. In any event, KUBO shall not be liable for indirect damage and/or consequential damage, including but not limited to loss of income and/or profit, loss of reputation or loss of the Purchaser, breach of contract or loss of ability to contract, etc., even if KUBO knew or should have known that such damage or loss might occur.

8.3 KUBO shall not be liable when non-performance or delay in the performance of any order is due to force majeure (such as, for example but not limited to, natural disaster, fire, mobilisation, embargo, coup, war, pandemic, epidemic, illness or strike of KUBO’s staff, telecommunication problems, shortage of raw materials at the producer’s premises, business disturbance and any other event beyond the control of either party). In the event of force majeure, KUBO will always have the right to suspend the performance of the cooperation for as long as the force majeure situation persists, without any compensation being claimable by the Purchaser. If the force majeure situation lasts more than 6 months, parties shall have the right to dissolve the agreement by operation of law without either party being liable for compensation.

8.4 In case KUBO additionally depends on third parties for the fulfilment of its obligations, these provisions shall also apply in case of force majeure with this third party, when the fulfilment of KUBO’s obligations would be delayed or obstructed as a result. KUBO shall inform the Purchaser of such circumstance within a reasonable time. Furthermore, KUBO shall not be liable where any delay is due to late delivery by third parties including, but not limited to, carriers or suppliers, nor shall KUBO be liable for loss by third parties including, but not limited to, carriers or suppliers.

8.5 For the commercial information provided by KUBO regarding the goods it offers, KUBO shall only be liable in case of fraud, gross error or deliberate mistake.

Article 9 – Intellectual property rights

9.1 KUBO does not grant any transfer of intellectual property rights or license to the goods, nor can any act or omission by KUBO be deemed to imply any impairment of any intellectual rights.

9.2 The trademark owner of the goods remains the exclusive owner of all intellectual property rights. The Purchaser can only use these intellectual property rights in the context of the cooperation, and only if necessary for the purposes of this cooperation. Neither the trademark owner nor KUBO grant any transfer of intellectual property rights and except with the written consent of the trademark owner, the Purchaser cannot make any changes to these intellectual property rights.

The Purchaser expressly undertakes not to make any changes that may imply the infringement of any intellectual rights.

Article 10 – Compliance, anti-corruption, anti-money laundering and combating illicit trade

10.1 The Purchaser hereby acknowledges and agrees that the purchase and/or delivery of goods may be subject to trade restrictions pursuant to international, supranational or national laws (“Trade Restrictions”).

10.2 The Purchaser is solely responsible for complying with all applicable Trade Restrictions and shall not do anything that causes, or could cause, KUBO to be in breach of them. The Purchaser warrants that, in respect of the goods, it will at all times comply with the Trade Restrictions, including any restriction on the parties, countries, territories or end-uses to or for which the goods may be sold, resold, exported, transferred or otherwise made available, and that it will obtain and maintain all licences and approvals required thereunder.

10.3 None of the parties, its employee or any other appointee thereof has received or been offered illegal or improper bribes, kickbacks, payments, gifts and/or things of value.

10.4 The Purchaser also declares and warrants that it will not offer, promise or make any payment, or provide anything of value, in any manner whatsoever, to any official or employee of any governmental, legislative or regulatory authority or any other person employed or working in any manner for any of the aforementioned authorities (the “Government Official”) in connection with this cooperation. In particular, the Purchaser shall not provide gifts, gratuities and/or other benefits of any kind to any Government Official, the respective authority for which it works or any other third party.

10.8 None of the payments made as part of the cooperation between KUBO and the Purchaser may be used directly, indirectly or in any other way

a) for any purpose that would violate the laws of the country from which the goods are exported and into which the goods are imported, or any country whose laws apply to either party or their respective affiliates;

b) to obtain any benefit from a Government Official;

c) for illegal, unethical or improper purposes.

The customer further declares that it will not use any of the payments in a manner contrary to this provision.

10.5 The Purchaser acknowledges that KUBO strives to prevent all forms of illegal trade, including misuse or counterfeiting of trademarks, and supports governments and authorities in relevant activities in combating it. The Purchaser agrees that:

a) it shall not, directly or indirectly, resell or distribute the Products outside the territory for which they were delivered, nor place them on any market other than the intended market The Purchaser further undertakes not to alter the packaging, labels, or the Products themselves in any way; and

b) He will cooperate fully, to the extent permitted by law, with investigations by government agencies and authorities regarding contraband or counterfeit products (“Illegal Products”);

10.6 KUBO is subject to the legislation to prevent money laundering and terrorist financing and to restrict the use of cash in accordance with the Belgian Law of 18 September 2017 (the “Anti-Money Laundering Legislation”). Pursuant to the Anti-Money Laundering Legislation, KUBO is obliged to identify the Purchaser, for which the Purchaser shall provide all requested identity and other data (including, such data of its representatives) upon first request.  KUBO reserves the right to terminate the cooperation with the Purchaser without further notice and/or not to deliver the orders if such requested information is not provided to it within two weeks.

10.7 KUBO reserves the right to conduct screenings of the Purchaser prior to orders and/or deliveries as well as at any time during its cooperation with the Purchaser. The Purchaser shall provide KUBO with all cooperation that KUBO may reasonably require in connection with such screenings.

10.8 KUBO further reserves the right to refuse orders placed by the Purchaser in accordance with article 2 of these General Terms and Conditions if it appears that the Purchaser is in breach of the provisions of this article. This right belongs to KUBO regardless of whether it has already accepted and/or executed the order. Similarly, KUBO reserves the right to immediately terminate its cooperation with the Purchaser upon written notice and without penalty in case of such breach.

10.9 KUBO shall not be obliged to perform any obligation in the context of the collaboration with the Purchaser, and shall have the right to terminate it, without being liable for any damages and/or costs of any kind if, in its sole discretion, it reasonably considers that such performance, in whole or in part, would put it in breach of this Article 10.

10.10 Without prejudice to any other remedy available to KUBO, the Purchaser shall indemnify, keep indemnified and hold harmless KUBO against all direct and indirect liabilities, claims, damages, losses, costs and expenses (including, but not limited to, fees of legal and other professional advisers), interest and penalties suffered or incurred by KUBO arising out of or in connection with any breach by the Purchaser of, or any other consequence arising from, the provisions of this Article 10.

Article 11 – Processing of personal data and confidentiality

11.1 KUBO collects the following personal data from the Purchaser in order to execute the agreement with it: name, e-mail address, telephone number of a contact person of the Purchaser. The collected personal data may be shared with suppliers used by KUBO and, if applicable, also outside the European Economic Area, where the necessary measures and safeguards are taken by KUBO to ensure adequate protection of the personal data. The personal data are never sold or passed on to third parties with commercial intentions. Personal data will be kept as long as this is necessary for the performance of the cooperation with the Purchaser and for 7 years after the termination of the cooperation. The data subject whose personal data are processed has the right to request KUBO to inspect and rectify or erase the personal data or, in certain cases, to restrict the processing on them, as well as the right to object to the processing and the right to data portability. In addition, the data subject may always lodge a complaint with the Data Protection Authority (Rue du Printing Press 35, 1000 Brussels, +32 2 274 48 00, contact@apd-gba.be), but requests however that it always contact KUBO first if, in their opinion, a problem should arise. For more information, reference is made to our privacy policy, which can be found in the banner of our website (kubosupply.be)

11.2 KUBO and the Purchaser shall keep all documents, information, descriptions, price lists, etc. of which they become aware in the context of their cooperation (“Confidential Information”) strictly confidential and shall not under any pretext disclose them to third parties without the other party’s express prior written consent. KUBO and the Purchaser undertake to enforce this undertaking by their respective staff members, appointees and subcontractors involved in the execution of the cooperation between KUBO and the Purchaser.

The price list may only be used for the purposes related to the purchase-sale of the goods. It is not permissible to distribute the price list outside trusted persons within the Purchaser’s organisation.

Not regarded as Confidential Information:

• Information which KUBO or the Purchaser can prove was known to it before its communication by the Purchaser or KUBO respectively;
• Information that KUBO or the Purchaser can demonstrate was already publicly known without KUBO or the Purchaser breaching its confidentiality obligation in light of these General Terms and Conditions;
• Information received by KUBO or the Purchaser from a third party without breaching any confidentiality agreement.

This provision will not prohibit KUBO from disclosing information if required or permitted under legal or professional regulations, including in civil, criminal or anti-money laundering matters.

Article 12 – Purchaser’s obligations regarding resale

The Purchaser undertakes that it will impose the obligations incumbent on it under Articles 9 and 10 equally on its own clients and ensure compliance by its own customers. In case of non-compliance by the Purchaser’s customers, KUBO shall, at its sole choice, be able to hold the Purchaser and/or the Purchaser’s customers liable for this.

Article 13 – Applicable law and competent courts

All disputes concerning the conclusion, interpretation, performance and/or termination of the agreements between the parties and these General Terms and Conditions of sale shall be settled exclusively in accordance with Belgian law, with the exclusion of the 1980 Vienna Sales Convention.

In case of dispute, only the courts and tribunals of the arrondissement of Antwerp, Antwerp division are competent.