General conditions for the Netherlands
GENERAL TERMS OF SALE, DELIVERY AND PAYMENT
of Foresco Packaging the Netherlands
Article 1 General
- 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 Dutch group companies of Foresco Packaging N.V. (Foresco Packaging Nederland B.V., Phoenix Pallets Assen B.V., Phoenix Pallets Hasselt B.V. of Smolders Houtindustrie B.V.) (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.
Article 2 Quotations and agreements
- All quotations from the Seller where the contrary is not explicitly specified are fully without obligation and revocable until the agreement has originated. The quotations from the Seller are, unless otherwise agreed, valid for 5 days starting on the quotation date. Acceptance of the quotation only binds the Seller if the relative notification reaches him before 24.00 hours on the last day.
- Orders, including orders accepted through agents, representatives, travellers and other intermediaries and/or resellers, are only binding for the Seller after these orders have been confirmed in writing by the Seller. With written confirmation of an order by the Seller, the content of the order confirmation applies as the content of the agreement.
Article 3 Product properties
The Purchaser must specify any special requirements made of the material or the goods in writing to the Seller before the origination of the agreement. Unless on ordering special requirements are made of the material or the goods and these have been accepted by the Seller in writing, the Seller’s offer must be accepted. With regard to dimensions the Seller always reserves to right to small clearances to the extent these clearances do not affect normal use of the Products. Unless explicitly determined otherwise, samples are only to represent the sizes. To the extent they relate to crates and pallets, quotations are based on acceptance of at least 100 parts of one size. For batches of 50 to 100 parts 5% extra of the agreed selling price is calculated with a minimum surcharge of €25 per order; for batches of 25 to 50 parts 10% extra of the agreed selling price is calculated with a minimum surcharge of €25 per order. A separate quotation is made for batches smaller than 25 parts. Samples are calculated at double the offered price and are not sent carriage paid. For making sample pallets the number of hours spent on the work is charged. Special stipulations, which may differ from the conditions in this article are only binding if they have been agreed in writing and only apply for the orders to which they relate.
Article 4 Delivery
- All deliveries are ‘ex-works’ unless otherwise agreed. If delivery is not ‘ex-works’ and no particular way of sending has been agreed, the Seller determines the method of sending.
- Delivery is considered to have taken place:
- when the goods are collected by or for the Purchaser: by taking receipt of the goods or, if the Purchaser neglects to collect the goods in good time, when such should have taken place;
- on sending with the involvement of a transporter not under point a.: by handing the goods to the transporter;
- when sending by means of transport of the Seller: by delivery or presentation at the home or at the warehouse of the Purchaser or at the receipt address mentioned by the Purchaser beforehand in writing.
- Unless otherwise agreed, transport costs are paid by the Purchaser. The party (the Purchaser or the Seller) who ensures transport will, using a third party or otherwise, conclude appropriate insurance. The transport insurance will cover the amount of the selling price of the goods. Insurance is against the normal transport risk, so not against war risk or other extraordinary risks. Damage or missing goods must be reported by the Purchaser within 24 hours of delivery to the transporter and immediately reported to the Seller in writing. Such is confirmed with clear substantiation, in the absence of which each right of the Seller to submit notice of default or suspend its own obligations is no longer applicable.
All risks with regard to the goods, including such events as the damage and loss of the goods and any associated consequential damage, become a responsibility of the Purchaser after delivery of the goods. Without prejudice to that stipulated in the previous article, the Purchaser must adequately insure the goods from the time of delivery and for the duration of the reservation of ownership as in article 11 of the General Conditions against fire, explosion, water damage and theft, and make the insurance policies available for the perusal of the Seller on first request. All claims of the Purchaser on the insurer(s) of the goods forthcoming from these insurances will be transferred on the first request to the Seller.
- Unless otherwise agreed, delivery periods are approximate, not enforceable nor considered as a strict deadline.
- If the Purchaser is owing a payment in advance, or if it must make necessary information, instructions and/or materials available before execution, the delivery period starts no earlier than after the payment has been fully received or the information, instructions and/or materials have been made fully available.
- An agreement cannot be dissolved by the Purchaser because of the period being exceeded, unless the Seller also does not fully fulfil the agreement within a reasonable period mentioned by it in writing after the course of the delivery period. Dissolution is therefore only permitted to the extent that the Purchaser cannot be required to carry out the agreement in reasonableness.
- The exceeding of a delivery period does not apply as a fault attributable to the Seller if the fault is the consequence of a circumstance beyond the control of the Seller, whether foreseeable or otherwise; applying as such in any event are war or situations appearing as such, mobilisation, riot, martial law, sabotage, boycott, strike or exclusion, occupancy, blockade, shrinkage of production or shortage of raw materials, operational failures, illness of the Seller or its personnel, supplier and/or transporter faults, measures by the authorities (a foreign authority included) such as transport, import, export, or productive bans, natural disasters, poor weather, lightning strike, fire, explosion, release of hazardous substances or gases; the Seller then has the right to extend all or some delivery periods for the duration of the impedance or cancel or dissolve the agreement to the extent not carried out, without the payment of any compensation to the Purchaser.
Article 7 Acceptance obligation
- The Purchaser has an acceptance obligation.
- If the Purchaser without entitlement granted by the Seller has not taken possession of the purchased goods with an agreed delivery on demand in the set period, or if when no specific period of acceptance is established it has not taken possession of the purchased goods within three months of the sale date, the Seller has the right to simply cancel or dissolve the order not taken possession of (as well as all other current orders or parts of them, unless the Seller has no reasonable grounds) without being bound to pay any damage compensation, without prejudice to the right of the Seller to require damage compensation, being the sale value of the purchased goods plus a surcharge for the storage of goods from the Purchaser. This damage compensation also includes the positive contract interest.
Article 8 Non-compliances
- Without prejudice to that stipulated in the last sentence of article 4, with observed non-compliances the Purchaser must immediately inform the Seller in writing under penalty of nullity of the right to claim for non-compliances that could reasonably have been discovered with a close inspection; minor non-compliances and those considered permissible in the trade or reasonably unavoidable variations in dimensions as a result of differences in for example thickness of the wood or expansion and contraction are not non-compliances. The Seller will remedy this non-compliance free of charge by – as desired by the Seller – repair and/or replacement to the extent possible in conformity with the order. The Seller is however also entitled – as desired by the Seller – instead of wholly or partly remedying the non-compliance to proceed with whole or partial dissolution or refund of the purchase price excluding VAT and other government charges.
- Non-compliances in the goods supplied give no grounds for dissolving the relative agreement, unless this concerns non-compliances as referred to in paragraph 1 and the Seller after being given written notice of default does not succeed in eliminating the non-compliance(s) in an acceptable way. Then the Purchaser is authorised to dissolution, if and to the extent compliance with the relative agreement cannot in reasonableness be required of him.
- Return shipments which are not preceded or accompanied by a written report as referred to in paragraph 1 are not accepted.
- The costs of return shipments that are unfounded and/or not provided with a written report as referred to in paragraph 1 are at the expense of the Purchaser. The Seller may store goods returned by the Purchaser or not taken by the Purchaser itself, or have them stored by third parties at the expense and risk of the Purchaser.
Article 9 Prices and payments
The Seller is entitled to on-charge costs increases occurring in connection with the delivery after the date of the sale and before the date of delivery (such as a rise in VAT or other government charges, purchase prices, salaries, transport costs, insurance premiums, as well as cost increases as a result of government measures which are not considered as normal commercial risks).
- The Seller is entitled to make part deliveries and send part invoices. Settlement by the Purchaser with a counterclaim is only permitted to the extent the counterclaim has been explicitly recognised by the Seller or irrevocably established by law.
- Unless otherwise agreed, and without prejudice to the right to require payment in advance, payment takes place within 30 days of the invoice date.
- If the Purchaser does not pay its due invoice sum on time, the Purchaser becomes in default without notice of default or reminder being needed, and the Purchaser becomes owing interest of 2% of the net invoice sum or – if higher – the legal commercial interest rate for each month (30 days) or part of it, starting on the due date of the invoice sum.
- Should payments still not have been made after an announced more specific period, the Seller is authorised to wholly or partly dissolve the agreement as it desires by means of a written declaration, this without prejudice to its right to damage compensation.
- All costs, both extrajudicial as judicial, including the costs of legal assistance associated with the Seller for the collection of what the Purchaser is owing to the Seller or with the enforcement of other rights of the Seller, are paid by the Purchaser. The extrajudicial costs (including a reasonable payment for the Seller or its personnel at another time to be specified) amount to at least €250.
- That which the Purchaser is owing to the Seller forthcoming from the agreement is fully claimable in the event of: suspension of payments or the bankruptcy of the Purchaser or an application for such, the Purchaser decides to wholly or partly strike or transfer the company, seizure under the Purchaser, late payment by the Purchaser. In the first three (3) cases the Seller is authorised to terminate all agreements with the Purchaser with immediate effect, when within eight calendar days of a request for such in the opinion of the Seller there is no suitable certainty that all that owing by the Purchaser to the Seller has been or will still be paid.
- When the Seller has reasonable grounds to fear that the Purchaser will not or not fully comply with an agreement, the Seller is entitled to require payment in advance, payment in cash and/or security before proceeding with delivery or further deliveries. If the Purchaser fails to do this, the Seller has complied with its delivery obligation by offering the goods for simultaneous payment to the Purchaser.
- Ownership of goods supplied remains with the Seller until the Purchaser has paid all that which it owes to the Seller forthcoming from or in connection with deliveries. With any late payment the Seller is entitled to take back goods it has ownership of on its own initiative.
- The Purchaser is not entitled to pledge the goods supplied by the Seller that are not yet under its ownership by any agreement or action with third parties, or provide any other rights to the goods in the broadest sense of the term. The Purchaser is not entitled to transfer goods that it does not yet have ownership of to third parties other than for normal processing according to their use. If the goods are seized while still under the reservation of ownership under the Seller, the Purchaser must immediately inform the Seller of this.
- In the case of ownership being transferred to third parties, the Purchaser is bound to immediately transfer its right of action which it has or will have in connection with the third parties to the Seller on the first request of the Seller and provide all necessary cooperation.
- If the Seller is given the order to provide machines or other objects with packaging materials, the Purchaser must provide all necessary information and/or instructions beforehand in writing on the packaging materials and transport (for example with regard to volume, weight, nature and value of the goods; any special sensitivity of the goods, relating to the type and way of packaging or transport or otherwise; the method of transporting the goods, etc.).
- Within reasonable limits the Seller will make maximum effort to provide the packaging materials based on the information and/or instructions provided. The Seller is not liable for damage which could have been prevented if the Purchaser had provided more or better information and/or instructions.
- Without prejudice to that stipulated in the last sentence, the Seller is only liable for damage – providing that the Purchaser demonstrates that this damage was the direct consequence of a serious non-compliance on the part of the Seller – to the machine(s) or object(s) themselves. Subject to the provisions in the last two sentences, article 13 of is corresponding applicable.
Article 13 restriction of liability
- Without prejudice to the other provisions in these General Conditions, for damage from or in connection with deliveries and/or services by or on behalf of the Seller to or on the part of the Purchaser – in the broadest sense of the words – for which the Seller can be legally held liable – to the extent mandatory legal provisions do not determine otherwise the following applies:
- The Seller can only be bound to compensate for its own damage if this is reported within 14 calendar days by the Purchaser to the Seller in writing, and this report is submitted within six months of delivery of the goods and/or delivery of the services.
- The Seller is not bound to compensate for any damage if the total damage caused to the Purchaser within a period of 12 calendar months amounts to no more than €500.
- Damage is only eligible for compensation when the Purchaser has indisputably demonstrated that this is the consequence of a circumstance or event for which the Seller can be legally held liable.
- Damage to the extent consisting of loss of profit or reduced efficiency is in no circumstances eligible for compensation.
- Other damage than referred to under d. is compensated to a maximum of the net invoice value (being the gross invoice value minus the VAT and any other government charges) of the delivery or the service to which the damage relates.
- The compensation referred to under e. applies for all cases of damage together resulting from a delivery or a service to which the damage relates.
- Paid customer stocks on the premises or under the supervision of the Seller’s premises fall outside our liability and are not insured against loss, theft or other forms of decrease in value or total loss (for example in a fire).
- The Purchaser indemnifies the Seller against any claims whatsoever from third parties who claim to have suffered damage due to a product and/or a service that the Seller has supplied or provided on behalf of the Purchaser, subject to the Purchaser demonstrating that the Seller is liable to pay compensation in proportion to the Purchaser for the damage and the Purchaser is to be compensated for this.
- The Seller can never be held liable for more than the insured amount with transport damage as mentioned in article 4.3 of the General Conditions.
- Dutch law is exclusively applicable to agreements and any other legal relationships between the Seller and the Purchaser. Parties explicitly exclude the terms of the Treaty of the United Nations relating to international purchase agreements on movable goods of 1980 (CISG) (Vienna Sales Convention).
- Should any provision in these General Conditions or in the agreements as concluded by the Seller in the opinion of the authorised lawcourt not be applicable or is in violation of public order or law, only the relative provision will be regarded as unwritten and the parties will replace it with one or more provisions which concur with the disputed provision(s) as closely as possible without them in turn coming into conflict with public order or the law and these General Conditions will remain fully in force.