Article 1 (Definitions)
- The Seller: Gerbri Plastics B.V., the user of the general conditions, the seller;
- The Buyer: the other party of the Seller, the client;
- Agreement: the agreement between the Seller and the Buyer.
Article 2 (General)
- The provisions of these general conditions will apply to every offer and every agreement between the Seller and the Buyer to which the Seller has declared these general conditions applicable, in so far as these conditions have not been deviated from expressly by the parties in writing.
- The current general conditions will likewise apply to all agreements with the Seller, for the performance of which the services of third parties are used by the Seller.
- The applicability of the Buyer’s general conditions will be expressly excluded, unless the parties have agreed otherwise in writing. If the general conditions of the parties are both applicable, and should the provisions in the general conditions of the Seller and the Buyer be contradictory, the provisions in the Seller’s general conditions will have preference.
- If one or more provisions in these general conditions are annulled or become invalid, the remaining provisions of these general conditions will continue to apply.
Article 3 (Offers/quotations/prices)
- All offers, in whatever form, will be free of obligation, unless a term for acceptance is stated in the offer.
- Quotations made by the Seller will be free of obligation, unless stated otherwise. The Seller will only be bound to quotations if the acceptance hereof is confirmed by the Buyer in writing within 30 days and on condition that the items offered in the quotation are still available or can still be supplied.
- If the acceptance deviates from the offer included in the quotation, the Seller will not be bound to that acceptance. In that case, the agreement will not be concluded in accordance with that deviating acceptance, unless the Seller states otherwise.
- A composite quotation will not oblige the Seller to supply part of the items included in the offer or quotation for a corresponding part of the stated price.
- Offers or quotations will not apply to follow-up orders.
- Agreements to which the Seller is party will be considered as valid only after the Seller has accepted an order from the Buyer in writing or following the actual ex warehouse delivery of the items sold by the Seller to the Buyer.
- The prices in the offers/quotations will apply to deliveries ex warehouse, will be in euros and exclusive of Dutch VAT and other government levies, as well as exclusive of dispatch, administration costs, waiting times and packaging costs, unless expressly agreed otherwise.
- The Seller may pass on price increases if between the time of offer/acceptance and delivery price changes of more than 10 % have occurred with respect to, for instance, exchange rates, wages, raw materials, semi-manufactured goods or packaging materials.
- If the Seller concludes agreements with the Buyer on more than one occasion, the current general conditions will apply to all following agreements, irrespective of whether these have been declared expressly applicable or otherwise.
Article 4 (Delivery)
- The Buyer will be obliged to take possession of the items at the time that the Seller delivers such to the Buyer or instructs others to do so, or at the time at which the items are made available to the Buyer in accordance with the agreement.
- If the Buyer refuses to take possession or fails to provide information or instructions that are necessary for the delivery, the Seller will be entitled to store the items at the expense and risk of the buyer.
- If the user has stated a delivery period, this delivery period will be indicative. A stated delivery time is therefore never a deadline. If a period is exceeded, the Buyer must issue the Seller with a written notice of default.
- If the Seller requires data from the Buyer in the context of the performance of the agreement, the delivery time will commence after the Buyer has made this data available to the Seller.
- The Seller will be entitled to deliver the items in parts. The Seller will be entitled to invoice partial deliveries separately.
Article 5 (Packaging)
- If the Seller provides sustainable packaging, the Buyer should return the packaging empty, cleaned and undamaged within 30 days.
- All costs of repair, replacement and cleaning will be charged to the Buyer in full.
- The Seller will charge the Buyer an amount of EUR 25 for every week that the Buyer returns the packaging too late.
- The parties may also agree that a returnable deposit of EUR xx will be due to the Buyer on the returned packaging. The returnable deposit will be charged on delivery. After the Seller has established that the packaging was returned on time and that the returned packaging is in good condition, the Buyer will receive a credit note from the Seller. The Buyer will not be permitted to settle the returnable deposit with outstanding invoices.
Article 6 (Inspection and complaints)
- The Buyer will be obliged to inspect the delivered items, or instruct others to do so, at the time of delivery, but in any event within 2 days. In this context, the Buyer should check whether the quality and quantity of the delivered items correspond with what was agreed.
- If the Buyer has been shown a model or illustration, that model or illustration will be assumed to have been shown only as an indication without the items having to correspond to such, unless it has been expressly agreed that the items will correspond. Deviations in colour may never give rise to any complaint.
- Any visible defects should be reported to the Seller in writing within two working days of delivery and non-visible defects should be reported to the Seller in writing within two working days of discovery, but in any event within three months of delivery.
- Even if a timely complaint is made, the Buyer will remain obliged to take possession of and pay for the purchased items. If the Buyer wishes to return defective items, such will only take place following the prior written permission of the Seller and in the manner prescribed by the Seller, undamaged and in the original packaging.
- The Buyer must give the Seller the opportunity to investigate the complaint or instruct others to do so.
Article 7 (Payment)
- Payment must be made cash on delivery or within 14 days of the invoice date in a manner to be indicated by the Seller in euros. Objections to the level of invoices will not suspend the payment obligation.
- The Seller will be entitled to charge advance payments.
- The parties may agree payment in instalments.
- If agreed, the Seller will be entitled to charge a late payment surcharge of 2%, which will not be owed if payment is made within 14 days of the invoice date.
- If the Buyer fails to pay within the 14-day period, the Buyer will be in default by operation of law. In addition, the Buyer will owe default interest of 1.5% per month or a part thereof, unless the statutory interest or the statutory commercial interest (after 30 days) is higher, in which case the highest interest will apply. The interest on the exigible amount will be calculated from the time that the Buyer is in default to the time of settlement in full.
- In the event of liquidation, bankruptcy or filing for bankruptcy, admission of the Buyer to statutory composition by virtue of the Dutch Natural Persons Composition Act [Wet schuldsanering natuurlijke personen], attachment or suspension of payments – provisional or otherwise – on the part of the Buyer, the claims of the Seller against the Buyer will be exigible forthwith.
- Any payments made will first be used to reduce costs, then to reduce any interest due and finally to reduce the principal sum and the accrued interest.
Article 8 (Collection costs)
- If the Buyer is in omission or default in fulfilling its obligations on time, all reasonable costs for obtaining settlement out of court will be payable by the Buyer. The collection costs will be calculated in accordance with the collection rate as advised by the Netherlands Bar Association [Nederlandse Orde van Advocaten] in collection cases, with a minimum of EUR 350.
- If the Seller has incurred higher costs which were reasonably necessary, such costs will also be eligible for reimbursement. Any reasonable judicial and enforcement costs will also be charged to the Buyer.
Article 9 (Retention of title)
- All items delivered by the Seller will remain the property of the Seller until the Buyer has fulfilled all its obligations arising from all agreements concluded with the Seller.
- The Buyer will not be entitled to pledge or encumber in any other way the items covered by the retention of title.
- The Buyer will undertake to insure and keep insured the items supplied under retention of title against fire, explosion and water damage and theft, and to allow inspection of this insurance policy at the Seller’s first request.
- If third parties levy an attachment on the delivered items covered by the retention of title or wish to create or enforce rights thereon, the Buyer will be obliged to inform the Seller thereof as soon as possible.
- Items delivered by the Seller that are subject to retention of title by virtue of paragraph 1 of this article, may only be resold in the context of normal business operations and may never be used as a means of payment.
- Should the Seller wish to exercise its retention of title rights as specified in this article, the Buyer hereby grants unconditional and irrevocable permission to the Seller or any third parties to be designated by the Seller to enter those places where the Seller’s items are located and to recover those items.
Article 10 (Warranty)
- The items delivered by the Seller will meet the technical requirements and specifications required by the plant.
- The warranty with respect to delivered items will not exceed the repair or replacement of the items, all this at the Seller’s discretion.
- The warranty referred to in paragraph 1 of this article will be valid for three months following delivery, or at least during the period granted by the manufacturer, unless the parties have agreed otherwise.
- This guarantee will be limited to:- manufacturing faults and will therefore not include any defects or damage resulting from wear and improper or inexpert use or assembly by the Buyer or a third party;- deliveries to buyers within the Netherlands.
- This warranty will lapse:- in the event of resale of the delivered items, unless the parties have expressly agreed otherwise; - in the event of injudicious or improper use by the Buyer or a third party or following alterations, changes, or repairs to or assembly of the delivered items by the Buyer or a third party.
- As long as the Buyer fails to fulfil its obligations arising from the agreements concluded between the parties, it cannot invoke this warranty provision.
Article 11 (Suspension and dissolution)
- The Seller will be entitled to suspend the fulfilment of its obligations or to dissolve the agreement, if:- the Buyer fails to fulfil the obligations arising from the agreement or fails to fulfil them on time or in full; - following the conclusion of the agreement the Seller learns of circumstances that provide reasonable grounds for fearing that the Buyer will not fulfil its obligations or not fulfil them on time or in full. If reasonable grounds exist for fearing that the Buyer will fulfil its obligations only in part or will not fulfil them properly, the suspension will only be permitted in so far as the failure justifies such; - the Buyer is requested to provide security at the conclusion of the agreement for the fulfilment of its obligations arising from such and this security is not forthcoming or is insufficient. As soon as security is provided, the entitlement to suspend will lapse, unless the fulfilment has been unreasonably delayed as a result.
- In addition, the Seller will be entitled to dissolve the agreement or have it dissolved if circumstances arise of such a nature that fulfilment of the agreement is not possible or can no longer be desired in accordance with standards of reasonableness and fairness, or if any other circumstances arise of such a nature that continued unamended maintenance of the agreement cannot reasonably be expected.
- If the agreement is dissolved, the Seller’s claims against the Buyer will be exigible forthwith. If the Seller suspends fulfilment of its obligations, it will retain its rights by law and pursuant to the Agreement.
- The Seller will retain the right at all times to claim damages.
Article 12 (Cancellatin)
- If, following the conclusion of an agreement, the Buyer wishes to cancel such, 10% of the order price (inclusive of Dutch VAT) will be charged as cancellation costs, without prejudice to the Sellers right to full damages, including loss of profit.
- If, in the event of cancellation, the Buyer refuses to purchase items already acquired by the Seller, whether or not processed or treated, the Buyer will be obliged to pay all resulting costs to the Seller.
- Cancellation must be made by registered letter.
Article 13 (Liability)
- If items supplied by the Seller are defective, the Seller’s liability vis-à-vis the Buyer will be limited to the provisions in these conditions under "Warranty".
- If the Seller is liable for direct damage, that liability will be no more than the amount to be paid by the Seller’s underwriter, or at least to no more than the invoice amount, or at least that part of the agreement to which the liability relates.
- The Seller will never be liable for indirect damage, including consequential damage, loss of profit, loss of savings or any damage due to an interruption in business operations.
- The liability limitations for direct damage included in these general conditions will not apply if the damage is the result of an intentional act or omission or gross negligence on the part of the Seller or its subordinate staff.
Article 14 (Passing of risk)
- The risk of loss or damage to the items that are the subject of the agreement will pass to the Buyer at the time at which these items are legally and/or actually delivered to the Buyer and therefore come under the control of the Buyer or are placed under the control of a third party to be designated by the Buyer.
- If the user handles the transport of the items that are the subject of the agreement from the address of the Seller or from the plant, such will take place entirely at the expense and risk of the client, unless the parties have agreed otherwise.
Article 15 (Force majeure)
- The parties will not be obliged to fulfil any obligation if they are prevented from doing so due to a circumstance which cannot be attributed to gross negligence or an intentional act or omission on the part of the party that is invoking such, nor be for their account by law, a juristic act or generally prevailing opinion.
- In these general conditions, force majeure – in addition to what is understood in this context in law and legal precedents – will be taken to mean, all external causes, foreseen or otherwise, which the Seller cannot influence, but as a result of which it is unable to fulfil its obligations. Such will also include strikes at the Seller’s business, standstills at suppliers, power failures and traffic jams.
- The Seller will also have the right to invoke force majeure if the circumstance preventing fulfilment, or further fulfilment, arises after it should have fulfilled its obligations.
- The parties may suspend the obligations arising from the agreement during the period that the force majeure continues. If this period continues for more than two months, either party will be entitled to dissolve the agreement without being obliged to pay damages to the other party.
- In so far as the Seller has partly fulfilled or will be able to partly fulfil its obligations arising from the agreement at the time when the force majeure occurs, and that fulfilled or to be fulfilled part has independent value, the Seller will be entitled to invoice the fulfilled or to be fulfilled part separately. The Buyer will be obliged to settle this invoice as if it was a separate agreement.
Article 16 (Intellectual property and copyrights)
- Without prejudice to other provisions in these conditions, the Seller will retain the rights and powers due to it on the basis of the Dutch Copyright Act [Auteurswet] and intellectual property law.
- All documents and items issued by the Seller, such as advertising material, documentation, agreements, designs, sketches, drawings, software, etc. are intended for use only by the Buyer, and the Buyer may not multiply, sell, rent, make public or inform third parties of such without the prior permission of the Seller, unless the nature of the documents issued dictates otherwise.
Article 17 (Disputes)
- The court in the place where the Seller has its office will be exclusively competent to take cognisance of any disputes. Nevertheless, the Seller will be entitled to submit the dispute to the competent court in accordance with law or to an arbitration board.
Article 18 (Applicable law)
- All agreements between the Seller and the Buyer will be governed by Dutch law. The applicability of the Vienna Sales Convention [Weens Koopverdrag] will be expressly excluded.
Article 19 (Filing conditions)
- These conditions have been filed at the office of the Chamber of Commerce and Industry for Enschede under number 06076860 date 10 November 2010