General Terms and Conditions of Sale and Delivery
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF THE PRIVATE LIMITED COMPANY VOGES VERPAKKING B.V. IN HILLEGOM
Filed with the Leiden Chamber of Commerce under number B773.
Last modified: October 14, 2019
1 General provisions
These General Terms and Conditions apply to all offers drawn up by the private limited liability company Voges Verpakking B.V. ("Voges") and all agreements between it and the client or customer ("the Customer"). Deviating provisions, including those in the form of general terms and conditions declared applicable by the Customer, apply only to the extent that this has been confirmed in writing by Voges separately for each agreement.
2.1 Every offer is without obligation, records the method of payment, and shows what the price will be.
2.2 Documents, information and items forming part of the offer (such as drawings, technical descriptions, models including computer models, designs, moulds, casts, cutting dies, stamps, etc.) will be as precise as possible, nonetheless they will not be binding on Voges and remain its property and intellectual property. They may not be used, copied, made available to third parties or made public in any other way without written permission of Voges. Infringement of this provision carries an immediately due and payable fine of EUR 25,000 owed by the Customer to Voges. This fine is payable without prejudice to Voges’ right to compensation for damages.
2.3 If the Customer chooses not to accept the offer, he/she is obliged to immediately return all the documents, information and items mentioned in the previous paragraph to Voges on pain of an immediately due and payable fine of EUR 25,000. This fine is payable without prejudice to Voges’ right to compensation for damages.
2.4 Voges has the right to charge for the costs of the offer provided it has informed the Customer in advance in writing of these costs and their scope.
3 The agreement
3.1 If Voges' offer is accepted, then the agreement will first arise at the time at which Voges:
– confirms the order within a reasonable period;
– or begins carrying out the work it has been assigned.
3.2 Voges cannot be obliged to begin carrying out the order before, in Voges' opinion, it has all the necessary information in its possession.
The agreed price will be based on price-determining factors, such as the price of material resources, wages, taxes, rights, charges, freight, currency, etc. operative on the day of the offer. If any increases to the price-determining factors take place before delivery, even if the delivery period has been exceeded, then Voges has the right to either charge an equivalent increase in the price or to terminate the agreement, to the extent it has not been carried out, without incurring liability on that account.
5 Delivery period
Delivery deadlines are approximate and will be observed as far as possible; nonetheless, these will never constitute irrevocable deadlines. A breach of such a deadline does not give the Customer the right to dissolve the agreement or to act in noncompliance or postpone any obligation ensuing from the agreement or from any other agreement connected to this agreement.
Unless agreed otherwise in writing, delivery will take place "ex warehouse", which means that the goods will be made available by Voges to the Customer in Voges' factory or warehouse. From that point in time the Customer will bear all costs and be responsible for all risks associated with transferring the goods to the destination of his/her choice.
Claims or complaints must be issued in writing and be in the possession of Voges within fourteen days of the delivery and/or the services performed. The right of recovery will expire if one or both conditions have not been met. No right of recovery is granted for goods that have been resold or re-delivered. If Voges believes that a recovery claim is valid and correct based on substantive reasons, Voges will have the choice of either paying a cash amount as compensation for damages (to be determined in mutual consultation), or proceeding to re-deliver the order while maintaining the agreement, in which case the Customer is then responsible for returning the incorrect or faulty goods delivered at his/her own expense.
8.1 The Customer must make payment of invoices to Voges within 30 days of the invoice date by bank transfer to a bank account designated by Voges, without applying any kind of deduction, suspension or set off. The currency date indicated on Voges' bank statements is decisive for determining the date of payment.
8.2 If the term stated in Article 8.1 is exceeded, the Customer is in default from the day that the term expired and without further notification, and will owe the applicable statutory interest as referred to in Book 6, Article 119 of the Dutch Civil Code, or the commercial interest for late payment as referred to in Book 6, Article 119(a) of the DCC, on the amount due for each ensuing month or portion thereof.
8.3 All extra-legal costs pertaining to claiming the amount payable, including those of legal assistance, will be borne by the Customer. The extra-legal costs are fixed at 15% of the amount payable, subject to a minimum of EUR 125.
8.4 Payments made by the Customer will be applied first to payment of the interest owed to Voges, then to the costs incurred (including those of the claim), and finally as settlement, starting first with the oldest payable invoice.
After concluding the agreement, Voges has the right to require sufficient collateral from the Customer, to be determined solely by Voges, if it has good grounds for anticipating that the Customer will not comply with his/her payment obligations. Article 14 applies mutatis mutandis if the Customer remains in default with respect to providing Voges with the collateral required.
10 Retention of title and pledge
10.1 Voges remains the owner of all goods (including materials and parts) until all claims it has against the Customer are obtained or will be obtained, including in every case that the claims stated in Article 8 are fully paid.
10.2 As long as retention of title rests on the delivered goods the Customer may not dispose of them to third parties or encumber them with third-party rights without prior written permission from Voges. After Voges has invoked its retention of title it may pick up the goods again. If these goods have been made into new goods, then the retention of title also applies to these new goods. The Customer will allow Voges access, or make sure Voges is allowed access, to the places where the goods (and/or new goods) are located without any hindrance.
10.3 If Voges does not invoke its retention of title because the goods are mixed up, deformed or altered, then the Customer is obliged to pledge the newly formed goods to Voges upon its first request.
Unless it is agreed otherwise and in writing, the materials, drawings, technical descriptions, designs, moulds, casts, cutting dies, stamps, etc. used by Voges for the Customer's order remain at all times the property – including the intellectual property – of Voges, even if the Customer has contributed a portion of the costs or covered the entire cost. They may not be used, copied, made available to third parties or made public in any other way without Voges' permission. Infringement of this provision carries an immediately due and payable fine of EUR 25,000 owed by the Customer to Voges. This fine is payable without prejudice to Voges’ right to compensation for damages.
12 Force majeure
12.1 Force majeure is understood to mean situations which are not attributable to Voges that prevent Voges permanently or temporarily from fulfilling the agreement. This includes but is not limited to: shortages of personnel experienced by Voges or its suppliers, strikes at Voges or its suppliers, a general scarcity of the necessary material resources, unforeseen stagnation at the sub-suppliers, transportation problems and governmental measures.
12.2 In a case of force majeure there is no question of a shortcoming attributable to Voges, it is not liable vis-à-vis the Customer for any damages, and the agreement between the parties may not be dissolved.
13 Liability and indemnity
13.1 Voges is not liable for damages as a result of an attributable shortcoming or an illegal act, or due to any other ground for damages whatsoever, unless and to the extent that an intentional act or gross negligence can be imputed to Voges.
13.2 More specifically, Voges is not liable vis-à-vis the Customer for damages as the result of any violation of patent rights, copyrights and/or intellection property rights with respect to the work that was carried out in fulfilling the Customer's order. This applies equally to the use of materials, drawings, technical descriptions, designs, moulds, casts, cutting dies, stamps, etc. as prescribed by the Customer to Voges, or application of any kind of working prescribed by the Customer to Voges.
13.3 Furthermore, Voges is not liable for damage to goods that arises from the Customer's own handling or the handling of third parties he/she has employed, such as but not limited to using the goods for something they were not designed for and/or intended to be used for; exposing the goods for too long a time to direct sunlight or high temperatures; and further any kind of handling that is in conflict with instructions given on the packaging.
13.4 Notwithstanding that which is provided in Article 13.1-13.3, Voges’ liability is limited to the magnitude of the invoiced amount with respect to the agreement, or the handling on which liability is based, but not more than the amount that Voges will receive on the grounds of liability insurance coverage taken out for that purpose, following subtraction of the applicable deductible.
13.5 The liability exclusion provided in this article has been partially concluded for the benefit of the board, management and employees of Voges, as well as for third parties hired by Voges for the implementation of the agreement.
13.6 The Customer indemnifies Voges for any liability based on any reason whatsoever for all liabilities that third parties might hold against Voges. If Voges is charged in a matter of claims for which, based on this provision, an indemnity obligation holds for the Customer, the Customer is obliged upon Voges' first request to provide fitting and satisfactory collateral, exclusively according to Voges' judgement.
14 Suspension and termination
14.1 Notwithstanding its other entitlements, Voges has the right, directly and without judicial intervention or notification of default, either to suspend any obligation under the agreement or to terminate the agreement if:
– the legal debt restructuring for natural persons is declared applicable to the Customer or an application thereto has been filed;
− the Customer has applied for suspension of payments or this has been granted to him/her;
− the Customer has been declared bankrupt or has filed for bankruptcy;
− there has been a shortcoming in fulfilment of any of the Customer's obligations to Voges, or it is reasonably foreseeable to Voges that he/she will fall short.
14.2 Claims that Voges might have or has obtained against the Customer as referred to in 14.1 are immediately and fully due and payable.
15.1 If any provision of these General Terms and Conditions is in conflict with any mandatory provision of national or international legislation, it will be deemed not to have been agreed and the other provisions will continue to be binding for the parties. The parties will, in that case, be obliged and undertake toward each other to replace the provision(s) declared void with a provision that corresponds to the intentions of parties and can as such be agreed by them.
15.2 If these Terms and Conditions have been drawn up in multiple languages and the text and/or explanations of the Dutch version do not accord with the version in another language, then the Dutch text and/or explanation shall prevail.
15.3 The legal relations between Voges and the Customer shall be governed by Dutch law. The applicability of the Vienna Sales Convention is excluded.
15.4 All disputes between Voges and the Customer will be adjudicated by the competent court in The Hague, the Netherlands. Additionally, Voges has the right to submit a dispute to the competent court under national and international laws and regulations, such as but not limited to cases where direct disciplinary measures are necessary at the Customer's location.