General Conditions for Belgium
GENERAL TERMS OF SALE, DELIVERY AND PAYMENT
of Foresco Packaging Belgium
- The following terms of sale, delivery and payment (hereafter referred to as: the General Conditions) are applicable to and form an inextricable part of all agreements concerning the sale and delivery (also understood as the provision of services) of among other things packaging materials and pallets (hereafter referred to as: the Products) in the broadest sense of the terms, to which one of the Belgian subsidiary companies of Foresco Packaging (Foresco Packaging NV, Arifal NV, Houtindustrie Royer NV, Verhoeven Pallets and Recycling BVBA, Pasec NV or Packaging Partners NV) (hereafter referred to as: the Seller) is party.
- To the extent not explicitly otherwise agreed, the general conditions of the other party (hereafter referred to as: the Purchaser) do not apply, also not in addition to the General Conditions. Variations from the General Conditions are only valid if this has been explicitly established in writing and signed by both parties.
Quotations and agreements
- Quotations from the Seller are without obligation. The Seller has the right to withdraw quotations issued to the extent they have not yet been accepted by the Purchaser.
- An agreement originates between the Seller and the Purchaser at the time of the quotation having reached the Seller signed and approved by the Purchaser, or when the Seller has accepted the order from the Purchaser in writing by means of confirmation of the order sent to the customer.
- If with acceptance of the quotation the Purchaser makes reservations or makes changes to it, also if the reservation or the change concerns subordinate points, the agreement will only originate after the Seller has made known in writing to the Purchaser to be in agreement with the nature and content of these reservations or changes.
- If a number of parties together bind themselves as a customer in an agreement with the Seller, they are severally and indivisibly bound to comply with all obligations in the agreement with the Seller.
- The Seller is entitled at any time to change an agreed price due to important and unexpected increases in raw material prices, legal increases of import duties, excise duties, levies and (other) taxes and in general all government measures, including any resulting from European regulations that also determine the price of the sold goods. The Seller will inform the Purchaser of such a price change as soon as possible.
- Provisions or extra measures that are imposed by the Purchaser or third parties and that were not known at the time of the submission of the quotation are not included in quotations unless specified otherwise.
Production and technical tolerances
- On signing the agreement and the current conditions the Purchaser give its explicit approval for the immediate start of carrying out the agreement, and the Purchaser acknowledges that it in any case loses any right of cancellation.
- Production takes place according to the set process of the Seller and according to its own plans and execution details. The Seller can always adapt the method of production if that is required, without the Purchaser having any right to compensation as a result of the changes.
- Production can only be carried out when the Seller has the necessary and complete information in good time to proceed with production. This technical information is submitted by the Purchaser and/or its appointee in good time, so the Seller has sufficient time to properly prepare for production. If this information is not present on the signing of the agreement, the execution period only starts when this information is supplied to the Seller.
- The Seller can never guarantee 100% mould-free pallets/boxes/crates if they are produced from wet wood or have only undergone high temperature treatment (so no drying treatment).
- As regards the constituent wooden parts of the products, the Purchaser accepts tolerances as stated in NBN 219-04 (1970) and ISO recommendations R.738 (1968). The maximum tolerance for the main dimensions of pallets is +/- 5 mm. These tolerances are only guaranteed at the time of processing and production at the workplace of the Seller.
- The delivery or execution period is agreed between the parties in good faith. With the exception of special agreement to the contrary between the parties, delays in delivery or installation can give no rise to cancelling the order or refusal of delivery. The Seller will immediately inform the Purchaser of any cause of late delivery or installation and/or suspension of the delivery or execution period.
- The Seller has the right to make and invoice deliveries in quantities with a tolerance of 15% more or less with respect to the quantity ordered.
- The delivery of compliant goods cannot be refused.
Delivery elsewhere than at the Seller
- The goods are always transported at the expense and risk of the Purchaser, even if the price includes carriage paid to the destination.
- A delivery is always a full load, unless otherwise agreed in writing. Extra charges may be applicable for deliveries that cannot be made per full load.
- Immediately after arrival of the goods, the Purchaser is bound to provide the necessary assistance and equipment to allow speedy unloading. For each load an unloading time of a maximum of 1.5 hours is included, together with the waiting time. Exceeding this time period will be invoiced at €55.00 euros excl. VAT per hour of delay, plus any costs of missed loads.
- If deliveries are agreed carriage paid by lorry to the site or warehouse of the Purchaser, the Seller is only bound to deliver to these places to the extent they are normally accessible by the means of transport used for full loads. If this is not possible, the Seller is permitted to unload as near as possible to the site or warehouse next to the means of transport. In this case the goods are at the risk of the Purchaser at the place where they were unloaded.
- If measures or circumstances are in force that compound the delivery, the Purchaser will make every possible effort to still enable the delivery to take place.
- Packaging of which the value is separately charged must be sent back carriage paid and in good condition within 30 days following delivery. Packaging returned in poor condition is kept available to the Purchaser for 15 days.
- In principle goods supplied are not taken back. When in certain exceptional cases the Seller allows goods supplied to be returned, this will take place at 80% of the invoiced value. The difference is compensation for the supplementary costs of transport and processing.
Risk and transfer of ownership
- The Seller retains ownership of all products delivered or to be delivered to the Purchaser until all amounts receivable or to become receivable have been fully paid to the Seller by the Purchaser, including amounts receivable ensuing from not complying with the conditions mentioned earlier.
- Up to the time of complete payment of the goods, the Seller continues to be the owner, to the extent they have not been processed or supplied to third parties. For as long as the goods have not been paid for, the Purchaser may not transfer ownership of them to third parties, unless while exercising its normal profession or for normal use of the goods. If these conditions are not complied with, the selling price is immediately due.
Invoicing and payment
- Invoicing takes place immediately after delivery. Invoices not disputed within eight days of the invoice date are considered as definitively accepted.
- Unless specified otherwise in the special conditions, invoices are payable to the registered office of the Seller within 30 days of the invoice date. The date of payment is the date of crediting the bank account of the Seller.
- With late payment of invoices, by right and without any prior notice of default late payment interest becomes payable at the rate as specified in article 5 of the Law of 02 August 2002 concerning combating payment arrears with commercial transactions. Fixed damage compensation of 10% of the still due amount with a minimum of €250.00 is also payable to the Seller, without prejudice to any collection costs.
- All costs caused by the absence of or late payment such as dispute costs or the return of bills or receipts are paid by the Purchaser.
- In the event of late payment of an invoice, all other not yet due amounts will also become immediately and fully payable by the Customer by right and without prior notice of default, even if they concern another agreement.
- No claimable sum can be compensated by another, and in particular no complaint whatsoever can give rise to set-off compensation before this has been accepted by the Seller.
- Complaints from the Purchaser do not suspend its payment obligations. In that case the Purchaser remains bound to acceptance and payment for the other products ordered.
- With the dispute of a part of any invoice sum, the Purchaser must in any case pay the undisputed part of the invoice sum.
- If the Purchaser is late making its payments, has Seller the right to suspend the carrying out of the contract, or without any reminder or legal action dissolve the contract for the deliveries still to be carried out, even if the contract provides for an agreement involving further deliveries and even forthcoming from other ongoing agreements. In any case the Seller retains all its rights to damage compensation.
- If the Seller has provided a credit restriction, this is only deductible if payment takes place within the expiry term.
- Payments made by the Purchaser always first settle all due interests and costs and then claimable invoices, with the oldest invoice date first, and this irrespective of whether the Purchaser mentions that the settlement concerns a subsequent invoice.
- The Seller reserves the right, even after the sale is confirmed, to require a guarantee of payment and suspend the further carrying out of the contract
- for as long as this guarantee has not been provided. In this last case it will have the right to end the contract without any legal requirement and without prior reminder, or cancel the contract without any legal action if this guarantee cannot be provided.
Complaints and guarantees
- Any visible shortcomings must be reported on the delivery documents accompanying the goods. If this is not done, the Purchaser is considered to have accepted the supplied products.
- A report of complaints must include a detailed as possible description of the defect so the Seller is able to respond adequately.
- Hidden defects can only give rise to replacement or repair, as decided by the Seller, if they are reported by registered mail within 48 hours after the establishment of the defect. The Purchaser must give the Seller the opportunity to investigate or have each complaint investigated, and its right to the guarantee lapses if this appears impossible.
- In any case of delivery other than carriage paid, the Purchaser has the right at its own expense to proceed with acceptance of the goods before their sending. If it has exercised this right, the goods are assumed to have been accepted on sending.
- Any form of guarantee becomes inapplicable if a defect has originated as a consequence of or resulting from improper or incompetent use, including such cases of incorrect storage or maintenance by the Purchaser and/or by third parties, or when without written permission from the Seller, the Purchaser or third parties have made or tried to make changes to the product, other objects were attached to them that should not have been attached to them or if they have been processed or treated in a way other than prescribed.
- If a complaint is expressed by the Purchaser in good time and the Purchaser has demonstrated that these shortcomings or non-compliances would be a consequence of a fault on the part of the Seller in compliance with the existing obligations to the Purchaser, compensation by the Seller will be limited to replacing or repairing the disputed materials.
- The following are not regarded as defects: slight differences in colour or texture, discolouration of the products or slight differences in the dimensions of the goods to the extent these cannot be avoided from a technical perspective, fall inside the tolerances, or are generally accepted or particular to the materials used.
- A complaint concerning the supplied products can never give rise to the cancellation of an ongoing agreement.
- Untreated pallets and HT pallets are stored in the open air at the Seller and cannot be rejected because of a high moisture content.
- Neither the Seller, nor its employee(s) nor any third party/parties used by the Seller are liable for any damage with whatever cause or of whatever nature, including personal injury, direct damage or indirect damage suffered by the Purchaser or any third party relating to the delivery of products, the use or possession of products, the possession of products or faults in supplied products, including not reasonable compliance with repair or re-delivery obligations, except cases of intent or deliberate recklessness on the part of the Seller.
- The Purchaser indemnifies the Seller against claims from third parties due to damage as referred to above.
- If and to the extent any liability would exist on the part of the Seller, it is only liable for direct damage. Indirect damage suffered by the customer, including consequential damage consisting of (but not limited to) transport, travelling and accommodation costs, loss of profit, lost turnover or missed income, never come into consideration for compensation from the Seller.
- Liability for direct damage on the part of the Seller is in any event always limited to the obligation to re-deliver, or the obligation to pay the invoice sum relating to the agreement, with a maximum of the amount that the insurers of the Seller pay out in the relative case (increased by the own risk amount) as decided by the Seller.
- There is no case of an (attributable) fault and therefore no liability on the part of the Seller for as long as the Purchaser is itself in default with respect to the Seller, the products have been exposed to abnormal conditions or carelessly or incompetently used, or when the products have been stored for longer than normal and it is plausible that a loss of quality has occurred as a result.
- The Purchaser indemnifies the Seller against all claims from third parties who suffer damage that relates to the carrying out of the agreement and of which the cause is attributable to a party other than the Seller, and against claims from third parties that relate to agreements concluded between the Purchaser and these third parties.
- Without prejudice to that stipulated in titles “Complaints and guarantee” and “Liability”, the limitation period or the expiry period for all claims and defences with respect to the Seller and the third parties involved by the Seller with the carrying out of the agreement amounts one year, or a shorter period if dictated by law.
- Circumstances beyond the control of the Seller and of such a nature that carrying out the contract can no longer reasonably be expected by the Seller, such as war, war danger, mobilisation of the army, prohibition of imports or of exports, measures announced by governments that make deliveries impossible, more difficult or considerably more expensive than was the case at the time of concluding the contract, scarcity, bankruptcy or setback of the suppliers and other cases of Act of God, give the Seller the right to wholly or partly cancel the agreement without any obligation to damage compensation. The Seller also reserves the right to cancel the agreements in the event of changes to the situation of the Purchaser, such as death, removal, confinement or any other restriction of competence, insolvency, application of legal composition or of amicable composition, bankruptcy, notification of objections, dissolution of or changes to the company, etc, The Seller has the right to damage compensation in the cases where the law awards such.
Competence and applicable law
- All disputes ensuing from this agreement will be brought before the Law Courts of the judicial district of Antwerp – Antwerp department. We do, however, reserve the right to summon third parties before other Law Courts if we deem such necessary.
- All agreements with the Seller are only governed by Belgian law.
Approval – prior knowledge – communication between parties
- The Purchaser confirms that it is cognisant of these general conditions and the information contained therein before signing the agreement with the Seller.
- With the signing of the agreement and/or these conditions the Purchaser acknowledges to be sufficiently cognisant of the agreement and/or these conditions and declares to be fully in agreement with them.
- Subject to varying provisions and to the extent that the email address of the Purchaser is known, all communication between parties takes place by email.
Processing of personal data
- The Seller collects and processes the identity and contact details that it receives from the Purchaser and that concerning the Purchaser itself, its personnel, employees, appointed parties and other useful contact persons. The purposes of this processing are the carrying out of this agreement, customer management, accountancy and direct marketing such as sending promotional or commercial information. The legal grounds are the carrying out of the agreement, the fulfilment of legal and regulatory obligations and/or the legitimate interest. The Purchaser gives its explicit and free permission to use these personal data for direct marketing purposes by email (such as a newsletter or invitations to events).
- The personal data will be processed in compliance with the provisions of the General Data Protection Regulation and will only be passed on to processors, receivers and/or third parties to the extent this is required within the context of the abovementioned purposes for processing. The Purchaser bears responsibility for the correctness and keeping up to date of personal data that it supplies and binds itself to strictly comply the provisions of the General Data Protection Regulation with regard to the persons on whom it has transferred the personal data, as well as with respect to all possible personal data that it may receive from the Seller and its personnel, employees and appointed parties.
- The Purchaser confirms that it has been adequately informed about the processing of the personal data and about the rights of access, correction, deletion and objection. The Purchaser confirms that it has informed its personnel, employees, appointed parties and other contact persons of this processing and maintains that they consent to it.
Conditions concerning stocks and storage on the premises of the Seller
- For stock articles the Purchaser must mention its average monthly requirement at the start of the agreement. Each change to the average monthly requirement is immediately reported to the Seller.
- The stock of pallets and wood may include a maximum requirement for 1 month.
- Only dry pallets that have undergone a drying process are stored covered.
- If, for whatever reason, an order cannot be collected at the agreed time, the Purchaser binds itself to collect the ordered products no later than 3 months after production. If this is not the case they are still invoiced. If products are put in stock, the Seller cannot be held responsible for a possible lower surface quality (soiling, discolouration, etc.)
- If the products have not yet been collected 6 months after production they will be destroyed. The price then remains payable, including interest and costs. Any destruction costs are charged to the Purchaser.
- With the termination of an agreement the Purchaser must accept and collect all produced products within a month of the end of the agreement. If the products have not yet been collected 6 months after production they will be destroyed. The already ordered wood must also be taken on the termination of the agreement.
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