GENERAL TERMS AND CONDITIONS of FRAPAK Packaging B.V., having its registered office in Zeewolde, Werktuigweg 20.
1.1 All of our offers, agreements and the implementation thereof shall be governed exclusively by these Terms and Conditions. Deviations must be expressly agreed upon with us in writing.
1.2 In these Terms and Conditions “the counter party” shall be taken to mean all (legal) persons who have concluded an agreement with our company, or wish to do so.
1.3 General terms and conditions used by the counter party shall not be affected to the extent that they do not conflict with these Terms and Conditions.
2.1 Our offers shall always be without obligation.
2.2 The dispatch of offers and/or (other) documentation shall not oblige us to deliver or to accept the order, unless there is a question of an irrevocable offer and the counter party makes it known that it accepts that offer. Our standard documentation such as, among other things, factory drawings, descriptions, instructions and test certificates shall be sent free of charge unless the contrary is stated.
3.1 The statements of the measurements, weight, contents and colour of our products are based on averages. Deviations from customary and/or reasonable tolerances upon delivery shall not give the counter party the right to make a claim, to replacement, compensation of damage or any other right.
3.2 Deviations up to 5 (five) % in numbers upon delivery must be accepted by the counter party. These deviations shall be reported (if known) with the order confirmation.
4.1 Without prejudice to the provisions given below, an agreement with us shall only be formed after we have expressly confirmed an order in writing. The order confirmation shall be deemed to represent the agreement correctly and in full.
4.2 Any additional agreements or changes which may be made later and also (oral) agreements and/or promises shall only be binding upon us if we have confirmed them in writing.
4.3 In the event of any changes in the order and/or (partial) cancellation thereof by the counter party, we shall be entitled to charge the (extra) costs connected therewith and to lay down the delivery term anew. All this subject to our prior written permission and payment for the work which we have already carried out.
5.1 Unless the contrary is stated, all quotations of prices shall be given subject to price changes.
5.2 Unless the contrary is stated our prices shall be:
- per 1000 items, unless the contrary is indicated;
- based on the amount of the purchase prices, wages, wage costs, social and governmental costs, freight, insurance premiums and other costs which apply during the offer or on the order date;
- based on delivery free domicile to the counter party for deliveries over 1,000.- Euro’s in Holland.
- exclusive of VAT and – unless otherwise is agreed upon - inclusive of import duties, other taxes, levies and charges. Increase of import duties by more than 0.5% shall be charged on.
- inclusive of the costs of packaging, loading and unloading, transport and insurance;
- stated in Euros. Exchange rate increases between the time of the order confirmation and delivery of more than 5% may be charged on.
5.3 We shall be entitled to charge on price increases. If the price increase is more than 10%, the counter party shall have the right to dissolve the agreement.
6. DELIVERY, DELIVERY TIME, TRANSPORT, RISK, PACKAGING.
6.1 Unless agreement to the contrary has been made, delivery will be free domicile to the delivery address stated by the counter party. The time of delivery shall be the time of delivery to the counter party. Delivery times shall always apply as approximations. Exceedence of the delivery time, provided it is within reasonable limits, shall not be a reason for the counter party to cancel order(s) or for compensation of costs or losses incurred as a result of the exceedence.
6.2 The counter party shall be obliged to check the goods which have been delivered and/or the packaging immediately upon delivery for any shortages or visible damage. Any shortages of or damage to the goods which have been delivered and/or the packaging which are present upon delivery must be stated by the counter party (or it must have this done) on the delivery note, the invoice and/or the transport documents, failing which the counter party shall be deemed to have approved the delivery which has been made. Without prejudice to the provisions in article 10, claims in this respect will no longer be dealt with.
6.3 Any claims in respect of incorrect deliveries which have been made by us must be brought to our attention in writing within 8 days after receipt of the goods. Claims made later or not in writing will not be dealt with.
6.4 Pallets may be charged for or exchanged.
7. NON-ATTRIBUTABLE FAILURE
7.1 In these Terms and Conditions, non-attributable failure shall be taken to mean:
All circumstances which are beyond the control of the parties or which are unforeseen, as a result of which we can no longer reasonably be required by the counter party to perform the agreement.
7.2 If a force majeure situation arises, we shall be entitled to suspend the performance of the agreement or to definitely dissolve the agreement. To this end consultations will be held with the counter party.
8. WARRANTY AND LIABILITY
8.1 The counter party must itself check whether the packaging which it desires is suitable for its product. In order to give the counter party the opportunity of doing so, a trial shipment may be made by us in accordance with the agreed material specifications. If the counter party has established its suitability, delivery will be made in accordance with the aforesaid material specifications.
8.2 We shall accept liability for the damage and/or loss suffered by the counter party as a result of attributable failure in the performance of our obligations, if and to the extent that this liability is covered by our insurance, up to the amount of the payment made by the insurance. For the rest, our counter party shall indemnify us expressly and in full.
8.3 If the insurer does not make a payment for any reason, the liability shall be limited to the invoice amount.
9. RETENTION OF OWNERSHIP
9.1 All goods which we have delivered and which are still on the premises/in the possession of the counter party shall remain our property until the time of payment in full of everything the counter party owes us, also in respect of claims on account of failure in the performance of the agreement(s), including interest and costs.
9.2 The goods may be resold or used by the counter party within the framework of its normal business operations, but may not be pledged, nor may they serve as security for a claim of a third party.
9.3 We shall be entitled at all times to take the goods which have been delivered away (or have this done), from the counter party or persons who hold them on its behalf, on the basis of the provisions given in this article, if the counter party does not comply with its obligations. The counter party undertakes to provide its co-operation to this end.
9.4 If goods have been resold by the counter party which have not (yet) been fully or partially paid for, the counter party now for then assigns the claims arising from this resale against its buyer (the second buyer) to us, and this assignment shall then be considered to be a (partial) payment. The counter party shall be obliged to pass on the details concerned to us upon our first demand, so that we can claim what is owed directly from the second buyer. The payment made by the second buyer to us shall be deducted from the total of what the counter party owes to us. If the counter party resells the goods it shall also be obliged to stipulate the same retention of ownership as is stated in this provision.
10. OWNERSHIP OF MOULDS
10.1 The designs, sketches, models, templates and moulds – preliminary or definitive – made by us shall remain our property at all times, unless otherwise agreed.
10.2 If we have charged the counter party costs for the production of these designs, sketches, models, templates and moulds, this shall only be in the form of a contribution towards the costs of producing the moulds, which shall not affect the ownership rights vested in us. It may be agreed that a mould will be used exclusively by a specific customer. If the packaging to be made from a mould constructed for a specific customer is not purchased for three years, we shall no longer be obliged to retain it.
After these three years have passed, the maintenance shall be discontinued and we shall be entitled to destroy the mould.
11.1 Payment by the counter party must be made within 30 days of the invoice date and without deduction of discount or reliance on set-off, unless the contrary has been expressly agreed upon. If the term of payment is exceeded, the counter party shall be deemed to be in default by operation of law, and we shall have the right to charge statutory interest on the invoice amount. The judicial and extrajudicial costs for the recovery of what is owed to us shall be for account of the counter party, whereby the extrajudicial costs shall amount to 15% of the total of what is owed.
12. CHOICE OF LAW AND DISPUTES
12.1 Agreements concluded by us shall be governed exclusively by Dutch law.
12.2 The Dutch text of these Terms and Conditions shall be binding. In the event of conflict with the law of one or more articles of these Terms and Conditions, the remaining articles of these Terms and Conditions shall remain fully valid.
12.3 In respect of the interpretation of international trade terms, the “Incoterms”, as compiled by the International Chamber of Commerce in Paris (I.C.C.), shall be applicable.
12.4 All disputes, to the extent that they cannot be solved amicably, shall be submitted to the Civil Court which has jurisdiction in the location of our registered office, to the extent that the statutory provisions so permit.