TERMS AND CONDITIONS
1.1 Berlin Packaging Netherlands B.V. will hereinafter be referred to as: “the Company”.
1.2 The contracting partner of the Company will hereinafter be referred to as: “the Other Party”.
2.1 These General Conditions shall as per 1 July 2021 apply to all legal acts, including the implementation thereof, with regard to packagings belonging to the delivery program of the Company, performed by the Company, wherever established in the Netherlands, save as expressly agreed otherwise in writing and confirmed by the Company.
2.2 The General Conditions of the Company shall to the exclusion of any general conditions of the Other Party apply to the agreement between the parties, unless otherwise agreed by the parties in writing.
2.3 Deviations from and/or supplements to these General Conditions shall only bind the Company in so far as these have expressly been agreed in writing. Save for such deviations and/or supplements these General Conditions shall otherwise continue to be in full force and effect.
2.4 If one or more provisions from these conditions in full or in part appear to be invalid, the other provisions shall remain in full force and effect in their entirety. Any invalid provision shall be replaced by a suitable replacement provision that approaches the intent of the Company and the economic result pursued by it in a legally fictitious manner as closely as possible.
- OFFER AND ACCEPTANCE
3.1 All requested and offered quotations and offers shall be without engagement, unless expressly provided otherwise by the Company in writing.
3.2 An order that is to be carried out by the Company shall not be deemed to have been accepted by the Company until after the Company has sent a written confirmation, or after the Company has begun implementing the order.
3.3 The Other Party shall be deemed to have agreed with an order confirmation of the Company if it within 4 working days after the date of the order confirmation has not protested against the content thereof in writing, or so much earlier as it has performed one or more activities in accordance with the order confirmation.
3.4 Documentation and information provided by or on behalf of the Company shall be without engagement, unless expressly stated otherwise. That which has been stated as aforesaid shall therefore never be considered to be a guarantee.
3.5 If the Other Party places an order with the Company, the Other Party shall be deemed to have accepted the General Conditions of the Company.
4.1 The price stated in quotations, offers and invoices of the Company shall consist of the purchase price of the goods, exclusive of transportation costs, VAT, duties, and other government levies, except as otherwise agreed in the quote.
4.2 The packaging expenses shall be excluded in the price referred to in Clause 4.1 (unless agreed otherwise in writing). The Company shall not take back the packaging, except as otherwise agreed in the quote.
4.3 The prices shall be based on cost factors, such as materials prices, salaries, social charges, transport costs, taxes, etc., applicable at the time of the order confirmation of the Company. If, after acceptance of the quotation or after acceptance of the order and before the moment of actual delivery, the prices of raw materials, energy, wages and freight or the rate of (environmental) levies are/is increased by at least 5% (or as otherwise agreed in the quote), the Company is entitled to pass on said increases to the Other Party. The increases referred to in this article shall be announced by the Company in writing and shall be deemed to have been accepted if no objection is filed within 7 days. In the event of any objection, the parties shall strive to still reach agreement within 7 days after filing of the objection. If no agreement is reached on this matter, both parties will be authorised to dissolve the agreement without being held to payment of costs and/or compensation to the other party.
5.1 Unless the parties have expressly agreed otherwise and without prejudice to the right to demand payment in advance or security for payment as referred to in clause 5.2 if the Company sees reasons to do so, payment of the purchase price shall take place within 30 days after the invoice date.
5.2 Unless the parties have expressly agreed otherwise in writing, payment shall be made without any reduction or set-off. The Company is entitled to demand advance payment or security for payment at all times, even if deliveries were previously made with a payment credit.
5.3 In case of late payment, the Other Party will be in default by operation of law (without any notification of default or reminder being required). The Other Party shall as then on the invoice amount stated on the invoice be due an immediately due and payable agreed late-payment interest of 2% of the invoice amount as from the moment that the Other Party is in default. A part of a month shall in that be counted as a full month. The Company may, in so far as it is held to perform an obligation under any agreement concluded with the Other Party, suspend the performance thereof until full payment of the amount that is due has been received, or dissolve the agreement at its choice in full or in part by means a written notification, this without prejudice to its right to claim damages.
5.4 In case of full or partial non-payment of the invoice, the Other Party shall by force of law be due the statutory commercial interest as from the thirtieth day after the invoice date.
5.5 All payments shall first be used for payment of interests and costs, and subsequently each time for payment of the oldest outstanding invoice.
6.1 Unless agreed otherwise between the parties in writing, deliveries shall be made by EXW.
6.2 Delivery of the goods by the Company shall take place at the address of the Other Party on the date agreed between the parties, stated on the order confirmation, unless the parties have expressly agreed any other place of delivery.
6.3 As from the moment of delivery the delivered goods shall be for the risk and account of the Other Party, and if the Other Party does not assist in the delivery, as from the moment that the delivery has been refused. Any storage at the Other Party’s request, other than at the address of the Other Party as referred to in clause 6.2, shall take place at the Other Party’s risk.
6.4 Delivery times shall always be estimates and shall not be considered final deadlines. Any excess of the delivery time, provided within reasonable limits, shall be no reason for the Other Party to cancel any order(s) or to compensate costs or losses created by the excess.
6.5 The Other Party shall be held to provide its full collaboration to the delivery of the products that are to be delivered by the Company pursuant to the agreement. The Other Party shall also without having been demanded to do so be in default if it after the first request of the Company to that effect fails to pick up the products that are to be delivered or, if delivery at its address was agreed, if it refuses to accept delivery of the products that are to be delivered.
- QUANTITY AND CAPACITY
In case of quantities of up to 5,000 items, a deviation shall be possible of 20% from the ordered quantity, and in case of quantities above 5,000 items a deviation shall be possible of 10% from the ordered quantity; the Other Party shall be held to accept the excess up to that maximum, or to accept the shortage.
8.1 The Company may, at its option, fully or partly suspend the performance of the agreement or dissolve the agreement in full or in part by written notice without recourse to the courts (with immediate effect and without the Company being liable for payment of any compensation), in the event that:
the Other Party fails to perform its obligations under the agreement or these General Conditions properly, in a timely manner or at all;
the Other Party applies for or is granted a suspension of payments, or applies for or is declared bankrupt;
the Other Party is placed under legal guardianship or administration;
the Other Party’s enterprise is sold or discontinued;
an attachment is levied on a significant part of the Other Party’s operating assets.
The Other Party shall as then be liable for all damage suffered by the Company, inter alia consisting of loss of profits, suffered losses, product damage, costs and interests, transport charges, commission fees, judicial and extra-judicial costs, as well as all further direct and indirect costs connected with the agreement.
8.2 All costs – including the costs of collection, bailiff and lawyer expenses, as well as a reasonable compensation for any time spent by the Company or its staff on the collection, both judicial and extra-judicial, incurred by the Company in order to bring about the performance of the obligations of the Other Party, the dissolution of agreements or a claim for damages, shall be for the charge of the Other Party and shall be immediately due and payable in full; the extra-judicial costs (of collection) shall in any case amount to 15% of the invoice amount increased with the late-payment interest referred to in Clause 5.3 of these General Conditions and the statutory interest, unless the actually incurred costs are higher, in which case the actually incurred costs shall be for the charge of the Other Party.
- RETURN SHIPMENTS
9.1 The shipments that have been ordered by the Other Party but of which delivery has not been accepted or that have been returned shall be charged to the Other Party. All damage arising for the Company from the nonacceptance or the return shipments shall be paid by the Other Party, unless the Other Party demonstrates that the delivered goods do not meet the agreement.
9.2 The Company shall without its prior written permission not be held to accept goods that have been returned to the Company by the Other Party, except as otherwise agreed in the quote. The acceptance of the goods returned by the Other Party shall not imply an acceptance by the Company of the reason of the return.
10.1 The Other Party is obliged to check the quantity and quality of the delivered goods for visible defects within two working days after delivery. After expiry of this period or after full or partial processing of the goods delivered, the goods shall be considered to have been delivered according to the agreed on quantity and the agreed on specifications and/or (legally) required quality.
10.2 Complaints have to be submitted to the Company in writing within 8 days after delivery. Any complaints that are submitted later or not in writing shall not be handled.
10.3 After expiry of the period of 8 days referred to in Clause 10.2 the right to submit complaints shall lapse.
10.4 If the delivered goods have been processed or used, the Other Party shall be deemed to have accepted the goods without reservation, and submitting any complaints therefore shall no longer be possible.
10.5 If the parties have agreed upon a payment plan, the terms of payment shall not be suspended by submitting a complaint.
10.6 If and to the extent the Company considers the Other Party’s complaint to be well founded, it will, at its option, either repair or replace the delivered goods, or credit (part of) the purchase price paid by the Other Party in connection with the delivered goods or, and, as the case may be, take back the delivered goods without any further performance of the agreement.
- RESERVATION OF OWNERSHIP
11.1 If the parties agree otherwise than cash payment on delivery of the goods and/or if a payment plan is agreed holding full or partial payment after delivery of the goods, the Company reserves the ownership of the goods delivered by it until the time of full and final payment by the Other Party. The reservation of ownership extends to anything the Company has to claim due to the Other Party’s defaults, including, compensation and fines. If the same goods have been delivered on one or more unpaid invoices, the goods that are present at the Other Party shall be considered to have been delivered on the unpaid invoices. As long as goods have not been paid in full and the Other Party also otherwise fails to perform any of its obligations towards the Company, the Company shall irrevocably continue to have the right and shall irrevocably continue to be authorised to take back any goods delivered by it that are still present at the Other Party, without interference of the courts, irrespective of its further actions towards the Other Party. The Other Party is obliged to grant the Company access to the area(s) in which the goods delivered are located, failing which the Other Party shall forfeit a due and payable fine amounting to EUR 50,000 for every refusal to grant access and EUR 2,500 for every day during when the refusal continues
11.2 The Other Party is obliged to immediately report situations in which any third parties enforce rights, including seizures, to goods delivered by the Company that are still delivered under reservation of ownership. If the Other Company does not fulfil this obligation, the Other Company shall be due a fine amounting to 20% of the principle amount due to the Company, exclusive of VAT, to a minimum of EUR 500.
11.3 As long as the Company has any outstanding claim on the Other Party on any account whatsoever, the Other Party may not dispose of, deliver or pledge the goods delivered by it or perform legal acts, except within the framework of regular corporate activities, until after the Company has granted its prior written approval to do so as well as to the conditions subject to which all this takes place.
11.4 In case of an untimely performance of its financial obligations towards the Company, the Other Party shall, if goods have been delivered through by it to a third party, be held to transfer or to pledge to the Company at the first request to that effect, all of its rights towards that third party in respect thereof to the Company (at the choice of the Company), this pro rata of that which the Company as then may claim from the Other Party. To perform this obligation, the Other Party already now as for then pledges all of its rights arising from the aforesaid delivery towards the aforesaid third party. As soon as the Other Party is in default with the timely performance of its payment obligations towards the Company, the Company shall have the right to inform the aforesaid third parties of the present pledge in order to establish the right of pledge. The Other Party shall be held to provide its full cooperation to that, particularly by at the first request of the Company forthwith stating the names and addresses of all third parties to whom it has supplied the delivered goods that were delivered by the Company, as well as all rights that it has obtained in respect of that onward delivery towards those third parties. If the Other Party after having been reminded by the Company continues to be in default, it shall forfeit an immediately due and payable fine of 25% of the outstanding claim of the Company on the Other Party, as well as an immediately due and payable fine of 5% of the outstanding claim for each following day during which the default of the Other Party continues, this without prejudice to the right of the Company in addition to demand performance.
- GUARANTEE AND LIABILITY
12.1 The Company guarantees the quality offered by it (depending on the nature) of the goods delivered by it and the packaging materials used in that at the time of delivery, in so far as the goods delivered by the Company are or have been used in a judicious manner by the Other Party, with due observance of the normal requirements set or possibilities of the use of the goods. Other guarantees shall not be provided by the Company, unless expressly agreed in writing with the Other Party.
12.2 The Company expressly excludes all damage that either directly or indirectly results from the implementation of this agreement towards the Other Party or third parties, unless there is intent or gross negligence on the part of the Company. Notwithstanding the above, the Company shall never be liable for any damage unless this is determined in court. The Company’s liability is limited to a maximum amount of the invoice amount charged by the Company to the Other Party for the supply of the relevant goods that caused the damage or loss, with a maximum amount of EUR 25,000. Moreover the liability of the Company is in any case limited to the amount distributed by its insurance company under the Company’s liability insurance in that specific case .
12.3 Without prejudice to the provisions set forth in the Clauses 12.1 and 12.2, the Other Party shall indemnify the Company against claims of third parties for product liability for goods that have been delivered by the Other Party to third parties, including goods that have been delivered by the Company to the Other Party, unless and insofar the Other Party can demonstrate that the claim of the third party is in no way related to any circumstance that falls within the Other Party’s scope of risk.
12.4 Without prejudice to the provisions set forth in the Clauses 12.1 and 12.2, the Other Party shall indemnify the Company against any liability for product liability, unless the damage has exclusively been caused by the goods delivered by the Company. The Company shall give no guarantees with regard to the performance and durability of its products in combination with the products of the Other Party. The Other Party shall be held to test the products with regard to the possibilities of use of the products of the Company in combination with its own products.
12.5 All claims of the Other Party against the Company in connection with the agreement will lapse after one year as of the date on which the relevant obligation fell due under the agreement or the event occurred that caused the damage.
- FORCE MAJEURE
13.1 The Company shall not be held to perform the agreement if this is made impossible or is hindered by force majeure, which term shall inter alia include any whether or not foreseeable circumstance beyond the control of the Company, such as: war or similar situations, riots, sabotage, boycotts, strikes, occupations, blockages, shortages of raw materials, failures in the operation of factories, transportation problems of whatever nature (among which traffic-jams), machine damage, thefts, such sickness absence of staff of the Company that the implementation of the agreement is seriously obstructed, failures in the performance of subcontractors, transporters and/or other third parties who have been called in by the Company to assist in the implementation of the agreement, obstructed shipping traffic, measures of the government that lead to any obstructions in both the Netherlands and abroad, natural disasters and, in light of the Covid-19 pandemic, epidemics, pandemics and quarantines.
13.2 In case of force majeure on the side of the Company, the Company shall have the right at its own discretion to suspend the implementation of the agreement for the duration of the force majeure situation.
13.3 If in the opinion of the Company the force majeure situation is permanent in nature, the Company shall have the right to dissolve the agreement in full or in part by submitting a written statement to that effect. The parties shall make a reasonable arrangement regarding the consequences of that dissolution.
13.4 If the agreement has already in part been carried out and if the remaining obligation to deliver due to force majeure has been delayed by more than two months, the Other Party shall be free to keep the already delivered goods in its possession and to pay the price that is due for those goods, if that price has not been paid yet, or if the delivered goods as a result of the not being able to deliver the remaining goods are of no value, to consider the agreement as having been dissolved, also for the part that has already been carried out, provided that the Other Party returns the delivered goods to the Company in the state in which the Company has delivered the goods to the Other Party and the Other Party reimburses all expenses that the Company has incurred in respect thereof. The Company obliges itself in that case to pay back to the Other Party the price in so far as it has already been paid, after deduction of the incurred expenses.
13.5 If the Other Party is of the opinion that there is force majeure, it shall be held to inform the Company thereof in writing forthwith.
- COPYRIGHTS, INTELLECTUAL PROPERTY RIGHTS, INDUSTRIAL PROPERTY RIGHTS
14.1 The Other Party guarantees that any orders placed with the Company do not infringe copyrights, intellectual property rights, industrial property rights, or model or drawing rights of third parties. The Other Party shall indemnify the Company against claims of third parties for infringements of copyrights, intellectual property rights, industrial property rights, or model or drawing rights of third parties.
14.2 Unless expressly agreed otherwise in writing, the Company shall at all times be the party entitled to and the holder of any copyrights, intellectual property rights and/or industrial property rights that may arise in respect of the works created by the Company in the performance of the agreement, such as design drawings, models, computer software, databases and photographic recordings.
- GOVERNING LAW AND COMPETENT COURT
15.1 All agreements concluded by the Company and the Other Party and that which results from those agreements, both in the Netherlands and abroad, shall be governed by the laws of the Netherlands to the exclusion of the Vienna Sales Convention.
15.2 All disputes that arise from any agreements concluded by the Company, both in the Netherlands and abroad, shall to the exclusion of any other courts and with application of the Dutch law of civil procedure be submitted to and settled by the District Court of Arnhem, the Netherlands, this with exception of disputes that pursuant to the law have to be submitted to the Subdistrict Division of any District Court in the Netherlands.
15.3 In case of acceptance of the General Conditions referred to in Clause 2, the above choice of law and choice of competent court shall apply.
These General Conditions have been deposited at the Chamber of Commerce for Central Gelderland, and copies thereof are available there. These General Conditions have also been printed at the back of the stationery of the Company and are available on the website www.berlinpackaging.nl.