GENERAL SALES AND DELIVERY TERMS AND CONDITIONS Broekhof verpakkingen B.V.
Article 1 Definitions
Supplier: the user of these General Terms and Conditions.
Buyer: the natural or legal person, acting in the performance of a profession or undertaking, or its legal successor(s) who concludes an agreement with the supplier.
Products: goods delivered to the buyer by the supplier.
Agreement: the agreement to deliver products to the buyer by the supplier. These General Terms and Conditions constitute part of the agreement.
Article 2 General provisions
2.1 The buyer has taken note of the content of these General Terms and Conditions and accepts applicability thereof to the agreement.
2.2 These General Terms and Conditions apply to the agreements as well as to all other legal acts preceding the same and to all agreements concluded thereafter by and between the supplier and the buyer.
2.3 In case the buyer also wishes to declare its general terms and conditions applicable, this applicability is hereby explicitly excluded, except in case the explicit approval in writing of the supplier is obtained.
2.4 These General Terms and Conditions can unilaterally be amended by the supplier.
Article 3 Conclusion of the agreement
3.1 The agreement is concluded because
- The proposal provided to the buyer by the supplier is returned to the supplier unchanged either in writing and signed or by email. Following receipt of the proposal the supplier will, within a reasonable period of time, either by email or in writing send the buyer an order confirmation; or
- The buyer indicated, verbally or in writing, which product it wishes to buy or purchase and the supplier has explicitly accepted this proposal to deliver products or services by means of handing or sending either by email or in writing an order confirmation and/or an invoice to the buyer.
3.2 A proposal of the supplier will be provided completely free of engagement. The supplier will be entitled to revoke the agreement within 48 hours following receipt of the acceptance.
3.3 A proposal will be valid as long as stocks last.
3.4 The buyer guarantees the correctness of the provided address and contact information and commits to forthwith communicate any changes.
Article 4 Price
4.1 Unless otherwise agreed upon, the prices indicated by the supplier will be exclusive of turnover taxes, transportation and other national and/or European duties.
4.2 Prices apply ex works of the warehouse of the supplier.
4.3 Estimates will always be provided on the basis of the prices applicable at the time the agreement is concluded. The supplier will be entitled to unilaterally amend the price, in which instance the buyer will be entitled to dissolve the agreement. None of the parties can in such instance claim any compensation of damages. A possibly already manufactured part will then be delivered against the original price.
Article 5 Delivery
5.1 At the request of the buyer the supplier can deliver the ordered products, or have the same delivered, against an additional price.
5.2 The delivery time mentioned by the supplier will be indicative and cannot be considered fatal. Deviation within reasonable limitations will be allowed, without providing ground for compensation of damages and/or dissolution of the agreement.
5.3 The supplier reserves the right to deliver and invoice ordered goods by means of partial deliveries.
5.4 The buyer will bear the risk of the goods as of the moment these are delivered at the indicated location.
5.5 In case the buyer is in default with regard to reception of the purchased goods, the supplier will be entitled to, without further notice of default, dissolve the agreement and claim the incurred damages from the buyer.
Article 6 Transportation
6.1 Unless otherwise agreed upon in writing, the manner of transportation, shipment, packaging and the like will be determined by the supplier.
Article 7 Reservation of title
7.1 All products delivered by the supplier on the basis of a purchase agreement will remain the sole property of the supplier until the buyer has completely fulfilled all the claims of the supplier on the buyer.
7.2 In case of non-timely payment of one or more already expired invoices the supplier will be entitled to immediately take back the delivered products and to dispose of the same at its own discretion. For that purpose the buyer hereby already irrevocably grants a power of attorney to the supplier to access the parcels where the delivered products are located or to have these accessed by those encumbered with the taking back of the products.
Article 8 Payment
8.1 Payment will need to take place by means of a deposit on or a remittance to a bank or giro account to be indicated by the supplier or, if such has been agreed upon, by means of a direct debit or in cash.
8.2 Insofar not otherwise agreed upon by means of the agreement, payment will need to take place within 14 days following the delivery.
8.3 Following expiration of the deadline mentioned in article 8.2 the buyer will automatically be in default.
8.4 In case the buyer is in default towards the supplier, the buyer will be obliged:
a) to completely reimburse the extrajudicial and actually incurred judicial costs to the supplier. The extrajudicial costs to be reimbursed by the buyer will amount to at least 15% of the outstanding amount with a minimum of € 100.00 (excluding VAT) per not (fully) paid invoice;
b) to pay contractual interest on over-due payments to the supplier for a total of the legal interest to be increased by 5%.
8.5 Each and every payment effectuated by or on behalf of the buyer will, in the first place, serve to fulfil possibly payable costs, damages and interests and thereafter to pay the oldest outstanding invoice.
8.6 The buyer may never invoke settlement.
Article 9 Liability
9.1 The total liability of the supplier on account of a reproachable shortcoming in the fulfilment of the agreement will be limited to compensation of the direct damages up to at most the amount of the price agreed upon by means of the agreement or the stipulated price (excluding VAT). In case of an agreement concluded by and between the supplier and the buyer regarding the delivery of several shipments of goods during a specific period of time as, for example, in case of annual agreements, the aforementioned compensation will be limited to at most the amount of the shipment to be delivered or the part thereof to be delivered.
9.2 Liability of the supplier for indirect damages, such to include consequential damages, lost profit, lost savings and damages resulting from business stagnation and the impossibility to deliver on account of force majeure is excluded, except in case of gross culpability or intent on the part of the supplier, such not to include intent and gross culpability of employees of the supplier or of third parties hired by the supplier.
9.3 The buyer indemnifies the supplier against all claims of third parties regarding compensation of any damages incurred by these third parties caused by or connected to the goods delivered by the supplier.
Article 10 Claims
10.1 Possible complaints about a product delivered by the supplier need to forthwith and at the latest 24 hours following the delivery be communicated to the supplier either in writing or by email and need to be motivated. In case this deadline is exceeded the right to put in a claim expires.
10.2 Following expiration of the aforementioned deadline the supplier is deemed to have correctly complied with its obligations and is it assumed that the buyer has received the goods in good order, save evidence to the contrary of the buyer. Claims will never entitle the buyer to suspend its payment obligations.
10.3 With regard to the specifications provided by the agreement, the following deviations will, downwards as well as upwards, be allowed. To assess whether these deviations are exceeded the average of the total of one type, colour quality and edition delivered quantum will count as measuring criterion. With regard to other properties then those in respect of which the allowed deviations are mentioned below, deviations allowed during a previous delivery will apply and, failing such, the common deviations.
The allowed deviations from the agreed quantity amount to:
< 500 kg 25%
500-1000 kg 20%
1000-2500 kg 15%
In case the supplier prescribes a minimum or maximum quantity the aforementioned deviation percentages will be doubled. The allowed deviation with regard to the format for length and width amounts to 3% upwards and downwards. The allowed deviation with regard to the format for thickness amounts to 10% upwards and downwards.
10.4 Minor deviations of the products with respect to each other or with respect to demonstrated samples or with respect to specifications of models whether or not provided by the buyer, for example measurements, colour, quantity, structure and/or form, cannot lead to claims and can never give cause to the buyer to entirely or partially cancel the order or to refuse full or partial payment or to claim compensation of damages.
10.5 Without prejudice to the foregoing the buyer cannot invoke the aforementioned claim provisions: in case the errors are entirely or partially the result of incorrect, inaccurate or injudicious use or storage; in case the errors occurred as a result of lighting, fire or water damages or other external causes or calamities; in case the buyer neglected the goods; in case the buyer acted negligently in any other manner or acted such that the risk should, according to the general opinion, be at the expense of the buyer.
10.6 In case, in accordance with paragraph 1 of this article, a claim of the buyer is honoured by the supplier, the supplier will free of charge proceed with repair of the observed defect without the buyer being entitled to in addition claim any compensation of damages and without being entitled to suspend its payment obligations towards the supplier.
Article 11 Returned shipment
11.1 The supplier will only accept returned shipments if and insofar it agreed to such returned shipment in advance and in writing, by facsimile or by email and yet only in case these goods are delivered at the address indicated by the supplier.
11.2 In case the value of the goods declined during the period between the purchase of the goods and the returned shipment of the goods repayment of the purchase price will take place on the basis of the economic value of the goods applicable at the moment the goods have been returned to the supplier.
11.3 Exempt from returned shipments and repayment of the purchase price are: custom-made products such to include products equipped, at the request of the buyer, with special logos and other custom-made work especially manufactured for the buyer which can, already for that reason as also for other reasons, hardly be taken back by the supplier.
Article 12 Dissolution/Termination
12.1 The buyer is deemed to be in default in case:
- the buyer is not or not timely fulfilling an obligation on account of the agreement;
- the supplier has good reasons to fear that the buyer will fall short in the fulfilment and the latter does not comply with a written summation to declare itself willing to fulfil its obligations within the reasonable deadline provided by the summation;
- the buyer files a petition for bankruptcy or is declared bankrupt;
- suspension of payment is granted to the buyer;
- an attachment is imposed on the whole or a part of the assets of the buyer and this is not lifted within 10 days following the attachment;
- the buyer proceeds with and/or resolves to discontinue or transfer its company or an important part thereof, such to include the participation of its company in a new to be incorporated or already existing company, or proceeds with and/or resolves to amend the objective of its company in the articles of association or to dissolve;
- of the death of the buyer, in case the latter is a natural person.
In case of default on the part of the buyer the supplier will, without any obligation to pay compensation of damages and without prejudice to the rights allocated to the same, be entitled to entirely or partially declare the agreement dissolved by means of a written communication addressed to the buyer.
12.2 In case the agreement is terminated or dissolved in whatever manner the provisions regarding dissolution/termination and regarding disputes and applicable law will, undiminished, remain applicable.
Article 13 Export control
13.1 The buyer commits to comply with all the legislation, rules and regulations applicable to export, such to explicitly include the legislation of the European Union.
Article 14 Disputes and applicable law
14.1 Dutch law will exclusively apply to all disputes about the agreement concluded by and between the parties as well as about these General Terms and Conditions.
14.2 In case a dispute occurs the dispute will be presented to the competent Court of the district in which the registered office of the supplier is located.
14.3 A dispute is deemed present in case one of the parties communicates this to the other party by means of a registered letter.
Copyright Broekhof Verpakkingen B.V. 2006