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General terms and conditions of Berdal Rubber en Plastics B.V.

Article 1 Definitions

For the purpose of these General Terms and Conditions, hereinafter referred to as: the “terms and conditions”, the following is understood as:

Berdal: the private company with limited liability Berdal  Rubber en Plastics B.V., having its registered office in Wierden, i.e. the user of these terms and conditions.

Other party: each and every legal person or natural person who concluded an agreement with Berdal or who received a relevant offer from Berdal.

Product: any and all products marketed by Berdal, including but not limited to buckets, tubs, building foil, roof and wall foil, other foil products, knee protectors, rubber products and safety products.

Article 2 Offer and agreement 

  1. These general terms and conditions are applicable to any and all offers, orders, order confirmations and agreements of Berdal, whether or not established in writing.
  2. Stipulations that deviate from the stipulations included in these terms and conditions, e.g. purchasing or other terms and conditions of the other party, are not applicable between the parties, unless they were realised in consultation with Berdal and were expressly accepted as such by Berdal in writing.
  3. The terms and conditions of the other party are only valid if they are not at odds with the terms and conditions of Berdal. In case of doubt or discussion the terms and conditions of Berdal prevail. Changes of and/or additions to the terms and conditions are confirmed to the other party in writing.
  4. The other party who has already concluded agreements with Berdal before is deemed to automatically agree with the applicability of the terms and conditions to later agreements with Berdal.
  5. If the court established that one or more provisions of these terms and conditions is or are unreasonably burdensome then the relevant provision shall need to be interpreted in the light of the other provisions of this agreement and in such manner that the provision can within reason be relied on by Berdal vis-à-vis its other party. The circumstance that the court established that one or more provisions of these terms and conditions is or are unreasonably burdensome shall not affect the legal effect of the other provisions.

Article 3 Offers 

  1. Any and all offers and proposals made by Berdal are subject to contract unless the offer or proposal expressly indicates otherwise; they can yet be revoked by Berdal within two working days after acceptance by the other party. 
  2. Offers are based on the data potentially supplied by the other party with the request.
  3. If the offer consists of several amounts then Berdal shall not be held to deliver a part of the offer at a corresponding part of the price mentioned in the offer.
  4. Without prejudice to the above the offers and proposals of Berdal are valid for a period of 30 days, calculated from the day of despatch of the offer or proposal or as much shorter as indicated in the offer or proposal.
  5. If Berdal had to incur costs for the submission of the offer then Berdal shall be authorised to charge the costs that it had to incur for the preparation of the offer to the other party.

Article 4 The agreement: commencement / term / suspension / end

  1. The agreement is concluded at the moment that the other party declares in writing to agree with the order confirmation of Berdal or Berdal declared in writing to agree with the order confirmation of the other party. The evidence of the conclusion of an agreement can also be produced differently by the parties.
  2. A change of and/or an addition to an agreement only takes effect after it has expressly been accepted by Berdal in writing. Changes must be communicated to Berdal in a timely fashion and in writing.
  3. If the other party does not comply with its obligation or if Berdal has good reason to fear that it shall not comply with its obligation then Berdal shall be authorised to suspend compliance with its counter obligations as well as those that derive from the same legal relationship or business that the parties regularly did together, without prejudice to the rights vested in Berdal by law or these terms and conditions.
  4. If the credit insurer of Berdal revokes the credit limit issued for the benefit of the other party or limits the said credit limit then Berdal shall be entitled to suspend compliance with its counter obligations as well as those deriving from the same legal relationship or business that the parties regularly did together. 
  5. Without prejudice to the other rights vested in Berdal and the provisions set forth elsewhere in these terms and conditions and without prejudice to the right to compensation Berdal can, without judicial intervention by means of a written extrajudicial notice, rescind the agreement if:
    1. the other party fails to comply with its payment obligations;
    2. the other party applies for suspension of payment;
    3. the other party is declared bankrupt;
    4. the Dutch Debt Management (Natural Persons) Acts is declared applicable to the other party;
    5. the other party loses the right to either fully or partly freely dispose of its assets or income;
    6. an attachment is imposed on a considerable part of the assets or capital of the other party and the said attachment is not lifted within a reasonable period of time;
    7. the other party sells or liquidates its business;
    8. the credit insurer of Berdal revokes the credit limit issued for the benefit of the other party or limits the said credit limit. 
  1. Berdal is not entitled to rescission if the shortcoming of the other party, considering its special nature or inferior meaning does not justify the rescission and its consequences.
  2. The other party is held to, following a corresponding request of Berdal, provide security for compliance with its obligations vis-à-vis Berdal.
  3.  Berdal reserves the right to implement the agreement in instalments and to invoice the agreement in instalments, such in consideration of the principles of reasonableness and fairness.
  4. If the other party can only terminate an agreement in consideration of a notice period then the said termination must take place in consideration of the said notice period by means of a registered letter with confirmation of receipt.
  5. Arrangements with members of staff of Berdal who do not dispose of legally valid representative authority shall only have binding effect on Berdal if written confirmation of the latter took place.

Article 5 Implementation

  1. The other party is familiar with the fact that Berdal, in order to implement the agreement as optimally as possible, relies on (services of) third parties. Berdal reserves the right to always have activities performed by third parties.
  2. The agreement is implemented in joint consultation between Berdal and the other party, however the manner that the agreement is implemented is determined by Berdal.
  3. Berdal shall make an effort to implement the agreement to the best of its ability. It can, however, never be held to implement an agreement that infringes a right, is in breach of a statutory duty or is in conflict with what is generally accepted according to unwritten law.  
  4. Berdal reserves the right to make minor changes in the agreement (as indicated in the offer or proposal) without, as a consequence thereof, being liable to pay compensation and/or without the other party thus being entitled to cancel the agreement or have it rescinded. 
  5. Minor deviations in colour print as well as in colour, thickness, weight and other dimensions and measurements, quality and finishing of the delivered material shall not entitle the other party to reject the products, to rescind (have rescinded) the agreement and/or to claim compensation from Berdal.  
  6. If Berdal offers and/or offered a product by means of a sample then the sample shall only be indicative of the product to be delivered by Berdal. Berdal reserves the right to make minor changes to the product compared to the relevant sample without as a consequence thereof being liable to pay compensation and/or without the other party thus being entitled to cancel the agreement or have it rescinded.
  7. Any and all costs that are the result of official measures, including but not limited to safety regulations, are at the expense of the other party.
  8. The other party is held to make any and all documents that Berdal required in order to properly perform the contract available and to provide any and all information required by the same. And to lend its cooperation if and when requested by Berdal.
  9. The other party guarantees the correctness, completeness and reliability of the data and information made available to Berdal by or on behalf of the same.

Article 6 Prices

  1. Any and all stipulated prices are binding and excluding the turnover tax payable on the same and excluding other costs, including but not limited to packaging materials. 
  2. If the cost prices incur an increase due to, including but not limited to, official measures, salaries or import duties during the period between the date of the offer or proposal and that of delivery or, if there is question of instalments, the cost prices during the said instalments then Berdal shall be authorised to increase the price to be charged to the other party accordingly.
  3. Berdal is entitled to stipulate that before the product(s) is (are) delivered the other party pays an advance. The level hereof is determined by Berdal within reason.
  4. If Berdal made clear calculation errors then they can at all times be corrected by the same.
  5. Any and all prices applied by Berdal are in euros, unless stipulated otherwise in writing.

Article 7 Payment

  1. Any and all payments must, unless expressly stipulated otherwise between the parties in writing, be made within thirty (30) days after the date of the invoice without any right of the other party to discount, suspension or setoff.
  2. The payment must be made directly to Berdal through remittance to the bank account number indicated by Berdal, unless stipulated otherwise. The date of the credit entry on the bank account of Berdal qualifies as the date of payment. 
  3. If the other party does not comply with its payment obligations vis-à-vis Berdal or not properly, all as outlined above in paragraph 1, then the other party shall be in default without any further demand or notice of default being required. As the occasion arises Berdal shall be entitled to charge the statutory commercial interest plus 4 per cent points to the other party on the outstanding amount on a monthly basis, calculated from the due date up to the date of satisfaction in full. In this respect a part of a calendar month qualifies as a full calendar month. 
  4. Any and all costs of judicial and extrajudicial collection of the claim(s) are at the expense of the other party. They are set at 15% of the invoice amount, without prejudice to the right of Berdal to claim the additional damages from the other party. The said extrajudicial costs and interest are first paid from the incoming payments of the defaulting other party after which the oldest outstanding invoices are paid from the remaining amount.
  5. If the other party tries to agree on a composition with its creditors, applies for suspension of payment or applicability of the Dutch Debt Management (Natural Persons) Act, in case of an attachment and/or liquidation of the business as also in case of death and/or a guardianship order and/or revocation of a credit limit issued for the benefit of the other party by the credit insurer of Berdal everything that Berdal can claim from the other party immediately falls due, without prejudice to the right to claim the additional damages.

Article 8 Reservation of title

  1. Berdal reserves the title of any and all products delivered or yet to be delivered to the other party until the purchase price for the said product(s) was paid to Berdal in full. It is moreover noted that the reservation of title applies to any and all obligations deriving from the agreement that Berdal may acquire in respect of the other party.
  2. The other party is held to store the product(s) delivered subject to reservation of title with due care and as recognisable property of Berdal.
  3. If the other party fails to comply with its payment obligations vis-à-vis Berdal and/or Berdal has good ground to fear that it shall fail to comply with the said obligations and/or in the instances as intended in article 5 of these terms and conditions Berdal shall be entitled to take possession of the product(s) delivered subject to reservation of title without the intervention of a third party, including but not limited to a court. As the occasion arises the other party hereby already authorises Berdal to take possession of the relevant product(s) as also to enter the areas where the relevant product(s) is (are) located as well as those that provide access to the same. 
  4. The other party is held to forthwith inform Berdal in writing of the fact that third parties are enforcing rights in respect of the product(s) in respect of which Berdal reserved the title. 
  5. The other party is held to take out insurance for the product(s) against fire, explosion and water damage as also against theft during the period of the reservation of title and on demand the policies of the said insurances must be made available to Berdal for inspection.
  6. As long as the title of the delivered product(s) has not been transferred to the other party the latter shall not be permitted to transfer the title of the delivered product(s) to third parties or to pledge or otherwise encumber or release use of the same, on any account whatsoever, unless stipulated otherwise in writing.
  7. If Berdal takes back a product (products) in pursuance of this article then it shall prepare a credit note. The product(s) is (are) credited at the market value of the product(s) calculated at the moment of the return.
  8. If the other party resells the product(s) to a third party and the purchase price for the said product(s) has not been paid (in full) yet then the other party is held to pledge the claim vis-à-vis the said third party to Berdal.

Article 9 Delivery

  1. Any and all deliveries of Berdal take place ex warehouse / works, unless the parties stipulated otherwise in writing, in accordance with a further to be stipulated delivery period, applicable on the date of the offer and/or the agreement. 
  2. If delivery takes place at the address of the other party or at an address specified by the other party then Berdal can consider the address specified by the other party as such until the other party communicated a new address.
  3. The product(s) is (are) carried at the risk and expense of the other party, unless the parties stipulated otherwise. The other party must take out insurance for the product(s) during the carriage.  
  4. Unless the parties stipulated otherwise in writing, the delivery is deemed to have taken place at the moment of actual release by Berdal of the product(s) to the carrier. 
  5. The delivery period is based on the circumstances applicable at the time of conclusion of the agreement. If through no fault of Berdal a delay occurs as a result of a change in the aforementioned circumstances or because products ordered for the implementation of the agreement in a timely fashion are not delivered to Berdal then the delivery period is, if so required, extended. As the occasion arises the delivery period is in any case extended by four (4) weeks without Berdal or the other party being entitled to rescind the agreement (partly) and without Berdal being held to pay any amount by way of compensation. 
  6. Berdal is entitled to deliver the product(s) in parts, unless the agreement deviates from this or if the partial delivery has no individual value. Berdal is entitled to invoice the delivered product(s) separately, unless this would be in breach of the principles of reasonableness and fairness.

Article 10 Late receipt

  1. If the other party does not take receipt of the product(s) before the expiry of the final stipulated delivery period and/or if the other party rejects the product(s) then Berdal can store the product(s) at the expense of the other party, including the risk of loss of quality, including but not limited to deviations in the colour of the product(s) and the quality of the product(s). During the storage the other party can only remedy its default by accepting the stored goods. The other party must forthwith be informed in writing of the said storage.
  2. Any and all costs incurred by Berdal for the storage of the product(s) are at the expense of the other party.

Article 11 Complaints

  1. The other party is held to inspect the delivered product(s) at the moment of delivery. 
  2. Complaints / objections on account of deficits, defects, deviations from the indicated specifications or externally visible damages must be reported accurately by the other party on the consignment notes signed by the same. 
  3. Complaints / objections must be submitted to Berdal by registered post with confirmation of receipt within eight (8) days after delivery of the product(s).
  4. Invisible defects or deficits must be submitted to Berdal by registered post with confirmation of receipt within eight (8) days after the discovery, however within three months after the date of delivery. Complaints must be described accurately by the other party. 
  5. Complaints shall not entitle the other party to suspend payment of the amounts payable to Berdal by the same.
  6. If the complaint is, in the opinion of Berdal, justified then Berdal shall, at its sole discretion, repair the delivered product(s), make a subsequent delivery, replace the delivered product(s) free of charge upon return of the originally delivered product(s) or pay equitable compensation up to at most the invoice value of the delivered product(s) that the complaint is related to. Berdal shall not be held to pay any additional compensation or compensation for indirect damages.
  7. The other party is not entitled to reject receipt of the product(s) or to return the product(s), unless Berdal agreed with this in writing. If the other party is of the opinion that the product(s) delivered by Berdal does (do) not correspond with what was sold to the other party then it shall give Berdal the opportunity to inspect the delivered product(s). 
  8. Complaints regarding the invoice amount must be submitted to Berdal by registered post with confirmation of receipt within ten days after despatch of the relevant invoice to the other party. 

Article 12 Liability

  1. The liability of Berdal for any and all direct damages and costs that are caused by or are the direct result of a shortcoming in the implementation of the agreement shall at all times be limited to the net invoice amount.
  2. Berdal shall never be liable for (any and all) indirect damages and costs that are caused by or are the direct result of a defect of the delivered product(s).
  3. Berdal shall not be liable for damages caused by its staff or by suppliers or third parties relied on by Berdal during the delivery of the product(s), required for the implementation of the agreement, including (the consequences of) an overstepping of the date that the agreement must have been completed respectively samples must have been delivered. 
  4. Berdal shall make an effort to deliver in accordance with the agreement. Minor deviations regarding stipulated quantities, dimensions, colours, prints and/or other implementation references and/or thickness, quality and finishing of the delivered material shall not entitle the other party to reject the delivery, unless the said deviations are of such nature that they do, within reason, not have to be accepted by the other party. 
  5. Berdal shall not be liable for damages that are the result of incorrect information supplied by the other party.
  6. Berdal shall not be liable for printing or typographical errors in images, brochures.
  7. Berdal shall not be liable for damages that were inflicted on the product(s) during the carriage.
  8. If it is agreed between the parties that Berdal shall supply labels with the product(s) then Berdal shall never be liable for potential mistakes in the labels.
  9. Berdal shall not be liable if the other party and/or a contracting party of the other party does not observe the directions for use of the product(s), including but not limited to the safety regulations and storage recommendations.
  10. The other party is held to indemnify respectively hold Berdal harmless against and for any and all claims of third parties for compensation for damages, including the liability of Berdal in these terms and conditions excluded in the relationship with the other party, unless the said damages are also the result of gross negligence on the part of Berdal.
  11. If the other party, in consideration of the provisions set forth in article 11, complains about (the quality of) a product and the complaint is, in the opinion of Berdal, justified then Berdal shall, in consideration of the provisions set forth in article 11, provide for a new corresponding product, however with the exception of finishing, e.g. logos, prints, etc. Berdal shall never be liable for the costs of the said finishing (logos, prints, etc.).  

Article 13 Force majeure 

  1. For the purpose of these terms and conditions force majeure is understood as each and every circumstance beyond the control of Berdal – even if it could already be foreseen at the time of conclusion of the agreement – that permanently or temporarily hinders compliance with the agreement as well as, to the extent not already included in the same, (civil) war, threat of war, industrial action, lock-out, transport difficulties, fire and other serious disruptions within the company of Berdal or its suppliers.
  2. If Berdal cannot comply with its obligations or not properly as a result of force majeure – as described in paragraph 1 of this article – then the said obligations are suspended until Berdal is again able to implement the agreement in the stipulated manner.
  3. If Berdal has already partly complied with its obligations or can only partly comply with its obligations upon the occurrence of force majeure then Berdal shall be authorised to invoice the already delivered or deliverable part separately. As the occasion arises the other party shall be held to pay this invoice as if it regards a separate agreement.
  4. If Berdal does not appear to be able to comply with its obligations vis-à-vis the other party within a reasonable period as a result of an event as intended in paragraph 1 of this article then both Berdal and the other party shall be entitled to rescind the existing agreement, without Berdal being liable to pay compensation to the other party for any damages related to the rescission.

Article 14 Intellectual property rights 

  1. The other party is familiar with the fact that intellectual property rights may be established on the products, models, samples, logos, brochures, images and the like delivered in connection with the agreement, belonging both to Berdal and to third parties, which rights the other party shall respect and shall not infringe.
  2. The other party is expressly not allowed to use these documents, materials and/or products as well as promotional material for other purposes or to reproduce, disclose or make these available to third parties or to otherwise surrender use of the same in a manner other than determined in the agreement between Berdal and the other party, unless with the express written consent of Berdal.
  3. If the other party takes note of an infringement of the industrial / intellectual property rights as outlined above then it must report this immediately to Berdal. In case of a breach of the provisions set forth in this article the other party forfeits an immediately claimable penalty, not subject to discount or setoff, to Berdal of € 100,000.00, without prejudice to the right of Berdal to claim additional damages.
  4. The other party guarantees Berdal that it is authorised to use the materials, models, samples, logos, images and the like made available by the same. The other party indemnifies Berdal against any form of liability whatsoever that may derive from the materials made available by the other party.

Article 15 Applicable law and choice of forum 

  1. Dutch law is applicable to these terms and conditions and to any and all agreements to which these terms and conditions are fully or partly applicable or further agreements that derive from the said agreements.
  2. These terms and conditions were drawn up in the Dutch language. In case of a translation of the terms and conditions in a different language the Dutch version shall qualify as authentic and terms used must be read and understood in the context of the Dutch legal system.
  3. Any and all disputes that may arise as a result of these terms and conditions or an agreement to which the present terms and conditions are applicable, or partly applicable, or as a result of further agreements that derive from the said agreements shall basically be settled by the relevantly competent court in the district of Almelo, unless Berdal wishes to, for reasons of its own, institute proceedings against the other party before the relevantly competent court in the place of residence of the other party.