Article 1 Definitions
As used herein, the following terms have the meanings indicated:
(a) Seller: Naber Plastics B.V. and/or a company or enterprise belonging to the Naber Group, as well as their successors in law.
(b) Customer: any entity with which Seller has concluded a Contract or with which Seller is in the process of discussing or negotiating the possible conclusion of a Contract or to which Seller has made an offer.
(c) Conditions: these General Terms and Conditions of Sale and Supply.
(d) Contract: each and every agreement regarding the supply of Products between Seller and Customer, as well as each change therein or addition thereto, as well as any (legal) transaction in preparation or execution of such agreement.
(e) Products: the assortment of Seller’s plastic injection moulding products and multimedia packaging. Products here includes services performed by Seller.
Article 2 Scope of application
- Except in the event that parties deviate from the Conditions in writing, these Conditions shall be applicable to all offers, quotations or proposals, order confirmations, Contracts and to all (other) actions and legal transactions between Seller and Customer.
- Customer accepts the applicability of the Conditions through the sole fact of enquiring and/or ordering.
- The applicability of any general terms and conditions used by Customer is expressly rejected by Seller, unless these are accepted in writing by Seller in respect of any specific transaction.
Article 3 Offers, effectuation of Contracts and specifications of Products
- All offers, quotations or proposals issued by Seller shall be without engagement to Seller, unless stated otherwise in writing.
- An offer, even if it is irrevocable, may be withdrawn by Seller, if the withdrawal reaches Customer before or at the same time as the acceptance of the offer.
- A Contract, as well as modifications and additions thereto, is concluded at the moment when accepted or confirmed in writing by Seller or after Seller started to perform the Contract.
- A reply to an offer, quotation or proposal of Seller which purports to be an acceptance, but contains additions, limitations or other modifications is a rejection of the offer, quotation or proposal and constitutes a counter offer.
- Documentation materials in or accompanying any offer, quotation or proposal in any form, are, unless stipulated otherwise in writing, for information purposes only and shall not be binding to Seller. Seller will observe the utmost care in providing any statements of prices, numbers, sizes, weight, colours, pictures and/or other (technical) specifications of the Products. Documentation, samples, drawings or models shown or provided are only indications of the Products concerned, and Customer cannot derive any rights therefrom. Seller does not guarantee the absence of any deviations. Seller makes a reservation with regard to in the branch usual margins.
- If Customer provides or must provide any data, information or specifications for the execution of the Contract, Customer will be fully responsible for these data, information or specifications, and the timely supply thereof. Seller accepts no liability with regard to such data, information or specifications.
- Any technical requirements by Customer with regard to the Products to be supplied that deviate from the normally applicable requirements shall be made known by Customer to Seller in writing prior to the conclusion of the Contract.
Article 4 Terms of delivery
- Seller will deliver the Products, hand over any documents relating to the Products and transfer the ownership of the Products as required by the Contract and these Conditions. In case of delivery of food packaging products the DOC (declaration of compliance) will be handed over, from which, among others, the composition, quality and competence of the delivered Product according to the Contract is shown. Customer shall at all times remain responsible for the communication of user data/manual to its customer or as the case may be end consumer.
- Seller will deliver the Products free from any right or claim of a third party, unless Customer agreed to take the Products subject to that right or claim, with the exception of a reservation of title in the normal course of business.
- The delivery time (lead time) provided by Seller shall always be estimated terms and shall never be final. In case of late delivery or late completion of the order, Seller shall only be in default upon notification of default in writing, providing Seller with the opportunity to perform within a reasonable period, and Seller remains in default of its obligations after the aforesaid period.
- For exceeding of any delivery time by Seller, Customer shall not be entitled to any damages, nor will Customer be entitled to suspend, rescind or terminate the Contract.
- The delivery time commences on the date the Contract is effectuated. If Seller requires data or auxiliaries for the execution of the Contract that have to be provided by Customer, the delivery time will start to run on the date that all required data or auxiliaries are in the possession of Seller if and when that is later than the date of effectuation of the Contract.
- Seller shall at all times be entitled to deliver the Products in installments. In the event of a delivery in installments, Seller shall be entitled to invoice each partial delivery separately.
- Delivery of the Products shall take place in accordance with the incoterm of the ICC Incoterms 2010 stated in the offer, quotation, proposal, order confirmation or Contract (most recent version of the Incoterms of the International Chamber of Commerce in Paris), in the absence of which the delivery shall be deemed to take place Ex Works (EXW) warehouse of Seller in the Netherlands. All Products shall be transported for account and risk of Customer, even where the dispatch is made carriage paid.
- Seller shall notify Customer as soon as possible of the time and place in question and Customer shall collect the Products as soon as possible, though in any event within 30 days of the notice. Delivery shall be deemed to have taken place at the time when the Products are made available by Seller to Customer.
- Should Customer fail to collect the Products at all or on time, it will be in default without any notice of default being required. Seller shall be entitled to store the Products for the account and risk of Customer or to sell them to a third party. Customer will nevertheless be due the purchase price plus interest and costs by way of damages, increased by the storage costs.
Article 5 Prices
- All prices for the Products are in Euros, net cash, without reduction and exclusive of VAT and any other taxes, duties, levies, costs and charges owed at the time of delivery, unless stated otherwise in writing.
- If a Contract is entered into and no definite price has been agreed upon, the Contract will be executed at the prices for the Products which are valid at the time of the conclusion of the Contract.
- Any changes in factors affecting the price for the Products or Seller’s additional costs, including, but not limited to purchase prices, exchange rates, import and export duties and other levies due upon import or export, insurance rates, freight rates and other levies or taxes after the conclusion of the Contract will be recharged by Seller to Customer. In case the consequence of this provision causes a price increase of more than 10% within three months after the conclusion of the Contract, Customer has the right to cancel the relevant parts of the Contract by registered mail within five days upon notification of the price increase without being entitled to any damage compensation.
- Customer shall indemnify Seller against all damage, loss and/or cost that may ensue for Seller from the fact that Customer is not properly registered for VAT or similar tax purposes and/or that Customer has issued incorrect data or has not on time issued data to Seller.
Article 6 Payment
- Customer shall pay all invoices and the amounts due to Seller in the invoiced currency within the time frame indicated on the invoice without deduction, suspension, set-off or discount to the bank account designated by Seller on the invoice, unless agreed otherwise in writing.
- The agreed-upon term of payment is final. As from that date Customer shall be obliged to pay the statutory commercial interest applicable in the Netherlands at that time (article 6:119a Dutch Civil Code) plus 2% until full payment is received without any further notice of default being required. After the end of each month the amount on which interest is due shall be increased by the interest due for that month.
- All extra-judicial and judicial costs, internal as well as external, incurred by Seller where Seller has become involved in any way in a judicial procedure against Customer, both as plaintiff and defendant, will be borne by Customer. The extra-judicial collection costs will be determined in accordance with the collection rate of the Dutch Bar Association. The judicial costs will be set at the actual amount paid by Seller relating to the proceedings, even where these costs exceed the liquidated legal costs.
- In case of late payment any adverse exchange rate difference shall be for the account of Customer. Reference dates are the due date of the invoice and the date of payment.
- Payments made by Customer, will, notwithstanding the description, be credited with costs, subsequently with interest and thereafter with invoices in the order of their age, also if not yet mature.
- Seller shall at all times be entitled to require Customer to give proper security for the performance of all its obligations under the Contract in a manner as will be deemed sufficient by Seller or to demand that Customer pays the purchase price for the Products in advance. Failing immediate provision of such security or advance payment, Seller will be entitled to suspend further execution of the Contract until such time as Customer will have provided the required security or payment in advance.
Article 7 Complaints
- Customer shall (have) the Products immediately inspected as soon as they have reached the destination or, if that is earlier, after receipt by it or any third party acting on its behalf
- In case of food packaging products, Customer is moreover obliged to inspect the quality of the delivered Products once again before putting them into use. In case a defect is discovered Customer shall inform Seller without delay and not put the Products into use. Failing that, all claims of Customer will be lost and Customer shall indemnify and hold Seller harmless from all claims from third parties in accordance with Article 11.7 of these Conditions.
- Seller shall be informed in writing of any complaints concerning the Products, specifying (i) the Products concerned, (ii) the date of purchase and (iii) the nature of the defect (“Field Incident Report (“FIR”)).
- In case of visible deficiencies in the Products and/or failing quantities of the Products, Customer must submit a FIR to Seller in writing within five working days after receipt of the Products and record these deficiencies and/or shortfalls on the relevant transport document.
- For all other complaints with regard to the Products a term of five working days after the date on which the shortcomings and/or shortfalls became known or might reasonably have been expected to become known to Customer applies for a FIR to be submitted to the Seller in writing.
- Customer must notify Seller in writing of any complaints relating to the level of the invoiced amount within five working days after receipt of the invoice, giving a description of the complaints.
- Any failure by Customer to declare default within the time specified in articles 7.3, 7.4 and 7.5 above, shall result in the loss of any claims whatsoever in this respect.
- Complaints of any nature whatsoever will not postpone Customer’s obligations to pay and can only be brought to Seller’s notice in writing within the periods laid down in this article 7.
- In any event, all claims of Customer will become time-barred unless legal proceedings will have been instituted before the Court of competent jurisdiction within twelve months after the date of delivery, or the date that delivery should have been made.
Article 8 Warranty
- Unless it has been expressly agreed otherwise in the Contract, Seller warrants for a period of six months after delivery of the Products that they are of the quantity, quality and description required by the Contract, such as in case of delivery of food packaging products is shown in the DOC (declaration of compliance) regarding, among others, the composition, quality and competence of the delivered Product according to the Contract and are contained or packaged in the manner required by the Contract.
- Except where the parties have agreed otherwise in writing, the Products are not fit for any particular purpose and do not possess any particular qualities, and Seller will accordingly not be liable for any lack of conformity of the Products.
- The warranty does not cover the following causes of damage:
· minor deficiencies or deviations, which fall within the levels of tolerance as accepted in good commercial practice;
· the Products have been used for a purpose other than that for which they are normally or specifically intended or in the opinion of Seller have been used, maintained, stored or transported injudiciously;
· the Products have been repaired or altered by Customer or a third party;
· the damage has been caused by the installation, set-up and/or connection of the Products or the negligence of Customer or a third party;
· the damage has been caused by Customer or a third party having acted contrary to Seller’s instructions, indications and advice;
· the defect is caused by normal wear and tear;
· the defects ensue from any government regulation with regard to the Products or the manufacturing or use thereof.
· Customer has not fulfilled its obligations towards Seller (both financially and otherwise).
- Seller’s warranty obligations with respect to the Products are strictly limited to the terms of warranty as set forth in this Article 8. Customer explicitly relinquishes all its (other) rights and claims it may have under the applicable law. Seller will determine, in its sole and absolute discretion, whether any warranty claim is covered under Seller’s warranty. In the event that Seller deems a warranty claim justified, it shall at its sole discretion, deliver a new Product or new components (after which the replaced Products or components shall become the property of Seller) or repair the Products free of charge within a reasonable period upon receipt of the claim or give a price reduction or send a credit invoice.
- New products or components under warranty will be delivered Delivered Duty Paid (DDP) ICC Incoterms 2010 warehouse of Customer in the Netherlands. Troubleshooting at the spot will be for the account and risk of Customer, including, but not limited to disassemble, assemble, mounting, installation, set-up and/or connection of the Products.
- The Products must be made available to Seller for examination upon first request, freight prepaid by Customer. Customer shall not be entitled to return any Products without a Material Return Authorization of Seller. The costs of any returns shall be for Customer and the Products will remain at its risk.
- If Seller delivers Products to Customer which Seller has obtained from its supplier(s), Seller shall never be bound by any warranty or liability towards Customer that extends beyond the warranty or liability that Seller can claim of its supplier(s).
Article 9 Retention of title
- Notwithstanding the actual delivery, the title to the Products will pass to Customer only after it has fully paid any amounts in connection with Products delivered or to be delivered due to Seller, including the contract sum, any surcharges, interest, taxes and expenses that may be due in accordance with the Contract or these Conditions as well as any activities that may have been performed or are to be performed by virtue of such Contract. The subject to retention of title delivered Products will be for the account and risk of Customer.
- As long as the title to the Products has not passed to Customer, Customer shall not be entitled to lease, rent out or sell and deliver the Products to third parties or have third parties use them, to pledge them or otherwise encumber them in any way or position them out of control.
- Customer shall preserve the Products delivered to it subject to retention of title carefully and as Seller’s recognizable and identifiable property and have them insured against the risk of normal business risks. Upon Seller’s first request to that effect, Customer shall assign any and all rights towards the insurers involved to Seller.
- If and as long as Seller is the owner of the Products, Customer shall notify Seller without delay in the event that any part of the Products should be lost or damaged, or in the event that the Products should be seized and/or other claims are laid on (any part of) the Products. Furthermore, Customer shall inform Seller upon its first request where the Products in respect of which Seller has retained its title, are located.
- Seller shall at all times be entitled to reclaim the Products delivered to Customer subject to retention of title in case Customer has not fulfilled its obligations or Seller expects that Customer will not fulfil its obligations. Customer hereby unconditionally and irrevocably gives its permission and shall lend every co-operation to Seller or to a third party designated by it, to enter all locations where Seller’s property will be located and to remove said property if and when Seller wishes to exercise its rights of ownership. The costs of such reclaim will be for the account of Customer.
Article 10 Intellectual property and confidentiality
- All (intellectual property) rights, whether existing as of the date of the Contract or in the future, relating to the Products, including, without limitation, all names, trademarks, copyrights, patents, mask works, trade secrets, know-how, technology, data, designs, specifications, materials, processes, computer software and related documentation and source code and other (intellectual property) rights and knowhow, are and shall remain the exclusive property of Seller. Nothing in the Contract or these Conditions shall be deemed to transfer or grant to Customer a license or other right to use this Seller’s intellectual property, except as expressly provided in the Contract.
- Customer undertakes not to infringe or to attack Seller’s (intellectual property) rights in any way, directly or indirectly, by use or otherwise and acknowledges that Seller is the beneficiary with regard to these rights.
- Customer will maintain all of Seller’s confidential information in trust and confidence and will not disclose or disseminate any of this confidential information to any third person or use any of this confidential information for any unauthorized purpose.
Article 11 Liability and indemnity
- Any liability on the part of Seller for an imputable failure to comply with the Contract or on any other grounds is limited to the amount that Seller receives from its insurer under its commercial liability insurance in relation to the damage for which Customer has held Seller liable.
- If no insurance payments are made in relation to the damage in question, the liability of Seller is limited to the warranty settlement provided in Article 8 (direct damages). Customer explicitly waives all other claims it may have against Seller.
- In no circumstances will Seller be liable to Customer for any special, consequential, indirect, criminal or incidental loss, including but not limited to losses caused by delays, lost profits, lost savings, increased operational costs, damages caused by Customer’s customers, loss of customers, loss of goodwill, etc., howsoever caused, regardless of the basis of liability, and regardless of whether it was advised in advance of the possibility of such damages arising in any way from the Contract or otherwise.
- The restrictions and exclusions referred to in paragraphs 1 – 3 above do not apply insofar as the damage in question is caused by an intentional act or gross negligence on the part of the management of Seller.
- Save where compliance by Seller is permanently impossible, Seller’s liability on the grounds of imputable failure to comply with the Contract arises only if Seller receives notice of default in writing from Customer immediately, in which a reasonable period is allowed to remedy the failure, and Seller remains in default of its obligations after the aforesaid period. The notice of default must describe the shortcoming in as much detail as possible and as completely as possible, in order to give Seller the opportunity to respond adequately.
- Customer’s right to any damage compensation is always conditional to the notification thereof to Seller immediately upon occurrence. Any claim for damages against Seller is extinguished automatically twelve months after the inception of the claim.
- Customer indemnifies Seller against any claims and impending claims by third parties against Seller, the costs (including reasonable legal fees) of defense against such claims, and any obligations Seller has to third parties if such claims, costs and obligations are based on, arise from or in connection with any act or omission or any use of the Products by Customer or any third party engaged or employed by Customer and/or any failure to properly perform the terms of the Contract.
Article 12 Force majeure
- Force majeure is defined, in addition to the definitions in the law and case law, as being any external cause foreseen or unforeseen, provided against or not, that is beyond Seller’s control, including, but not limited to the circumstance where suppliers and/or sub-contractors of Seller fail to comply with their obligations at all or on time, weather circumstances, earthquakes, fire, loss or theft of tools, lack of raw materials, the loss of materials to be processed, roadblocks, strikes or stoppages, import or commercial restrictions, legal restrictions, government measures as a result of which Seller is (temporarily) unable to comply with its obligations (whether in full or in part), etc.
- During periods of force majeure the delivery and other obligations of Seller are suspended. If the period during which Seller is unable to comply with its obligations due to force majeure should last longer than three months, the parties shall be authorized to rescind the Contract, without there being any obligation to pay damages.
- In the event that Seller should, upon origination of the force majeure, have fulfilled its obligations in part already, or is able to only fulfill its obligations in part, it shall be authorized to invoice any portion already delivered or, as the case may be, any portion separately deliverable and Customer shall pay this invoice as if it were a separate Contract.
Article 13 Rescission
- Seller shall have the right to rescind the Agreement in full or in part or to suspend the execution, with immediate effect, without judicial intervention, notwithstanding the other rights to which Seller is entitled (claim performance and/or compensation), where:
· Customer acts in contravention of any provision of the Contract or these Conditions;
· Customer applies for suspension of payment or has been granted suspension of payment;
· Customer makes an application for bankruptcy or is declared bankrupt;
· the business of Customer is shut down or liquidated;
· a composition of creditors is offered;
· a considerable part of Customer’s assets have been seized;
· Customer transfers its operations to a third party. 2. In the cases described in paragraph 13.1 above, any claim against Customer shall be immediately payable, without Seller being held to any compensation or guarantee, and Seller shall be entitled to immediately take back the Products concerned. Customer shall take such measures as to enable Seller to exercise its rights.
Article 14 Moulds
- Seller at all times shall remain the owner of the moulds used for the production of the Products, even in case Customer has made a contribution towards the production costs, unless agreed otherwise in writing. Nothing contained in the Contract or these Conditions shall mean or result in any transfer of ownership, unless otherwise is stated in writing.
- In case Seller in writing grants Customer the right to use the moulds, the following will apply:
· Customer shall not use the moulds other than for the purpose agreed upon and on the terms and conditions agreed upon.
· Customer shall not be entitled to modify the moulds or to change the designs without the prior written consent of Seller.
· Customer undertakes not to infringe or to attack the ownership in any way, directly or indirectly, and acknowledges that Seller is the owner of the moulds.
· Seller reserves all rights of (intellectual and industrial) ownership with respect to the moulds.
· Customer shall handle and take care of the moulds as a good businessman and shall suitably mark, store, preserve, maintain and, if necessary, repair the moulds in accordance with the instructions and guidelines of Seller, taking into account the nature of the moulds. Customer shall treat the moulds as if it were its own. Customer will keep the moulds as Seller’s recognizable and identifiable property.
· Customer will on its account insure the moulds and keep them insured with a first class insurance company against all insurable damages (including but limited to damages caused by fire and/or theft) until the moulds are transferred to Seller and in the possession of Seller.
· During the term the moulds are in the possession of Customer, the moulds are at the risk of Customer. Customer will be liable for any damage to the moulds, regardless of how it is named and regardless of how it is caused, whether the cause can be attributed to Customer or not and whether the damage is caused by a third party or not.
· During the term the moulds are in the possession of Customer, all costs regarding the moulds shall be for the account of Customer.
· Customer shall not encumber or secure the moulds in any way (including, but not limited to pledges, rights of usufruct, liens, security interests and other charges and encumbrances or any other rights including option rights in favor of third parties).
· Customer shall not lease, rent out or sell/deliver the moulds to third parties or have third parties use them or bring the moulds outside its control.
· Customer shall notify Seller without delay in the event that any part of the moulds should be lost or damaged, or in the event that the moulds should be seized and/or other claims are laid on (any part of) the moulds. Furthermore, Customer shall inform Seller upon its first request where the moulds are located.
· Customer hereby unconditionally and irrevocably gives its permission and shall lend every co-operation to Seller or to a third party designated by it, to enter all locations where the moulds will be located to inspect the amount and the state of the moulds or to remove the moulds if and when Seller wishes to exercise its rights of ownership.
· Seller shall have the right to terminate the use of the moulds with immediate effect at any time by notice in writing, without any compensation being due to Customer, however named and on whatever ground.
· After termination of use of the moulds for any reason whatsoever, Customer shall immediately (i) cease any use of the moulds, and (ii) return the moulds to Seller Delivered Duty Paid (DDP) of the ICC Incoterms 2010 warehouse of Seller in the Netherlands.
- In case Seller within the scope of the production of the Products makes use of moulds owned by Customer, Seller shall handle and take care of these moulds as a good businessman and shall suitably mark, store, preserve and maintain these moulds. Customer will on its account insure the moulds and keep them insured with a first class insurance company against all insurable damages (including but limited to damages caused by fire and/or theft). All other costs with regards to the moulds are for the account of Customer.
- Seller shall have a lien on the aforementioned moulds, and therefore the right to withhold these moulds until Customer has fully paid any amounts due to Seller, including, but not limited to the contract sum, any surcharges, interest, taxes and expenses that may be due in accordance with the Contract or these Conditions as well as any activities that may have been performed or are to be performed by virtue of such Contract.
Article 15 Choice of law and forum
- All offers, quotations or proposals issued by Seller, any Contracts and these Conditions shall be governed by the laws of the Netherlands.
- Any and all disputes, including those that are considered disputes only by one of the Parties, ensuing from or relating to the Contract or these Conditions and their interpretation or execution, shall be settled by the competent court at ‘s-Hertogenbosch.
Article 16 Miscellaneous
- Seller shall have the right to transfer any of its rights and obligations under any Contract with Customer to any third party. Customer shall not be entitled to transfer its rights and/or obligations under a Contract to any third party without Seller’s prior written consent.
- The most recently registered version or, as the case may be, the version applicable at the time of effectuation of the Contract in question shall be applicable at any time.
- In the event that particular provisions or requirements of this Conditions are in violation of Dutch law or mandatory rules of the law of the country in which Customer is domiciled, the validity of other provisions or requirements shall not be affected thereby and shall be enforced and remain in full force and effect. In the place of the null or invalid provisions a suitable regulation shall apply which approximates as closely as possible with the intention of the parties and the economic result aimed for by them in a legally effective way.