Terms and Conditions of Delivery and Payment

Terms and conditions of delivery and payment of BERDAL RUBBER & PLASTICS BV located and with registered offices at Bedrijvenpark Twente 193, 7602 KG Almelo

Article 1 Applicability

These conditions apply to all offers and to all sales and delivery agreements of Berdal Rubber & Plastics BV, located in Almelo, hereinafter named the user. The user’s contracting party (client, buyer, etc.) shall be referred to in the following as the counterparty. Any other conditions are only part of the agreement concluded between the parties if and insofar as both parties have explicitly agreed to this in writing. The counterparty accepting and securing an offer or order confirmation – in which referred is made to these conditions – without comment, applies as consenting to these being applied. The possible inapplicability of one provision (or a part thereof) of these terms and conditions does not infringe on the applicability of the other provisions.

Article 2 Offers

  1. All of the user’s offers, quotations, price lists, delivery times, etc. are provided subject to the accuracy of the administrative information it uses.
  2. All quotations/offers are non-binding, unless they include an acceptance period. If a quotation/offer includes a non-binding offer and this is accepted by the counterparty, the user is entitled to revoke the offer within two days following receipt of the acceptance.
  3. Sizes and weights are approximate and provided without obligation on our part.
  4. The user is authorised to engage third parties for implementing that which has been agreed.
  5. The user is authorised to charge the counterparty for all costs it had to incur in order to be able to provide the offer, if it is not awarded the assignment.

Article 3 Agreements

  1. Agreements are only binding for the user following written confirmation to the counterparty.
  2. Arrangements with the user’s members of staff not legally authorised to represent are only binding for the user if there is written confirmation on its part.

Article 4 Prices

  1. Prices apply excluding VAT and costs, including those for packaging.
  2. If, between the date of concluding the agreement and the delivery, the cost price of the items ordered/materials used increases, and/or amendments are introduced to wages, employment conditions or social provisions by the government and/or trade associations, the user is entitled to charge this increase on to the counterparty. Should a new price list be issued by the user and/or suppliers and take effect between the aforementioned dates, the user is entitled to charge the prices stated therein to the counterparty, or to apply the provisions in the previous sentence.

Article 5 Specification/Call-Off Order

Unless agreed otherwise, the specification or call-off order must occur within 8 days following the purchase confirmation by the counterparty to the user.

Article 6 Orders

  1. If certain packaging units are prescribed in the user’s price lists, orders deviating from this are adjusted by the user to full packaging units. Returns in other units are not accepted.
  2. The risk for the items ordered – if purchased by size, weight or number – is borne by the counterparty from the moment the user measures, weighs or counts.

Article 7 Delivery

  1. Delivery occurs “ex warehouse”. Delivery times stated can in no instance be deemed deadlines, unless explicitly agreed otherwise. In the event of non-prompt delivery, the user must therefore be notified of default in writing.
  2. Orders with an invoice value greater than €1150.00 are delivered free of charge in the Netherlands, in accordance with article 8.
  3. Should delivering the items to the counterparty prove impossible, the user reserves the right – after having issued the counterparty notice of default, and the period cited in the notice of default has expired – to store the items/materials on account of and at the risk of the counterparty. The above does not infringe on the counterparty’s obligation to pay the purchase price.
  4. Delivery is free of charge if an insofar as explicitly agreed in writing, and to one address stated by the counterparty, even if items ordered by the counterparty are intended to be distributed to various addresses. The counterparty in that case ensures the destination/unloading site is properly accessible, and is responsible for unloading.
  5. Concerning observance of the counterparty’s financial obligations, the user is authorised to require a security before proceeding to deliver.

Article 8 Shipment

  1. Items ordered are dispatched in a manner to be determined by the user, although on account of and at the risk of the counterparty even if free delivery has been agreed.
  2. The user is not liable for damage, of any nature whatsoever, in connection with the shipment, whether or not applicable to the items.
  3. The counterparty must insure itself adequately against the aforementioned risks.
  4. Orders not accepted, on account of and at the risk of the counterparty, are stored by the user in accordance with the provisions in article 7.

Article 9 Complaints/Returns

  1. The counterparty is obliged to proceed to inspect the items immediately on receipt. If visible defects or incorrect numbers/weights are identified, this must be recorded on the delivery note and/or consignment note and reported to the user within 24 hours, with immediate written confirmation. When assessing the aforementioned complaints, the factory’s weight note or the check count shall apply as the only measure. Discrepancies shall be distributed proportionately over the different items that might constitute shipments. Other complaints must be reported by registered letter within 14 days following receipt of the items by the user.
  2. If the aforementioned complaint has not been reported to the user within the periods intended for the purpose, the items are deemed to have been received in good condition.
  3. Complaints do not suspend the counterparty’s payment obligation. The user must be enabled to investigate the complaint. It is authorised to charge the counterparty for any wage, travel and accommodation costs for any experts.
  4. If a return proves to be necessary, this occurs on account of and at the risk of the user if it has declared its explicit written approval. If the return relates to a complaint as intended above, the return only occurs on account of and at the risk of the user if it declares the complaint substantiated. In this and similar cases, the return occurs in a manner to be determined by the user. It is furthermore authorised to charge the counterparty 10% of the purchase price.
  5. Any right of complaint expires if the nature and/or composition of the items have been altered, they have been wholly or partially processed/treated, damaged or repackaged.
  6. In the case of justified complaints, the damage shall be settled by virtue of the provisions in article 10.

Article 10 Liability/Warranty

  1. If evident material and/or manufacturing faults arise in the products delivered that must already have been present at the time of delivery, the user undertakes to replace those materials free of charge, provided that the counterparty accepts deviations on subordinate points. The user ensures the customary, normal quality and reliability of the items delivered. Their actual lifespan can in no instance be guaranteed. Statements concerning attainable results can only be guaranteed if a trial has been explicitly agreed, conducted and successfully concluded.
    1. The user does not accept any liability for printing or typing errors in images, brochures and suchlike.
    2. If it is agreed between the parties that labels are provided with name, codes and/or prices are delivered with the items delivered by the user for the counterparty, the user is in no instance liable for any errors made by the user in these activities, whatever they are known as.
  2. The user does not accept any liability for damage resulting from or in the broadest sense relating to faults in the items it delivers, such as fire/explosion damage, injury, consequential loss such as trading loss, disruption, loss of profits, increased costs or similar damage, whether or not suffered by third parties. This is unless there is a case of intent, gross negligence or omission.
  3. The user does not accept any liability for actions and/or negligence of the user and/or its staff members and/or third parties the user engages, except insofar as is there is a case of intent, gross negligence or omission on the part of the aforementioned persons.
  4. The user is not liable for damage arising by the delivery times being exceeded.
  5. Without prejudice to that which is stipulated in the other provisions of these terms and conditions, the user’s liability – on any basis whatsoever – is limited to the net sale price of the items delivered, or their replacement. Compliance with this warranty applies as single and complete compensation.
    1. In all cases, the terms within a claim for compensation can be made against the user is limited to six months.
    2. If the counterparty is a natural person not acting in exercising a profession or business, a maximum term of one year applies.
    1. If items delivered by the user are thus provided with a warranty by the manufacturer, that warranty shall apply between the parties in an identical manner.
    2. Warranty is only granted in accordance with that which is set out in the warranty documents and/or separate warranty agreements.
  6. The counterparty loses its rights toward the user, is liable for any damage, and indemnifies the user against any third-party claim concerning damage compensation if and insofar as the aforementioned damage has arisen:
    1. due to injudicious use and/or use contrary to the user’s instructions, and/or the items being stored injudiciously (storage in original packaging) by the counterparty:
    2. because the counterparty has not acted in accordance with the instructions and/or advice provided by the seller concerning, among other things, protecting quality and storage life.
    3. due to violating patents/licences or similar rights, as well as errors/inaccuracies in data, materials, information carriers, etc. that were provided and/or prescribed by the user.
    4. as a result of the counterparty exporting the product delivered by the user, contrary to the provisions in the sales agreement.

Article 11 Intermediary

The counterparty waives its rights toward the user resulting from art. 6.1246 of the Dutch Civil Code.

Article 12 Tolerance

The user delivers its product in accordance with the existing, standard tolerances in the Netherlands, provided that it is authorised to apply a tolerance of at least 10% of the foils produced. The tolerance in length and width amounts at least to 5% with a minimum of 10 mm.

Article 13 Payment

  1. Payment must occur within 30 days following the invoice date unless agreed otherwise, net and in cash – even if delivery is not possible in accordance with art. 7.
  2. If an invoice has not been paid in full following the expiry of the term intended in paragraph 1:
    1. from that moment, a credit-restriction surcharge amounting to 2% shall be charged to the counterparty, without any further notice of default being required for that purpose.
    2. the counterparty shall owe the user interest amounting to the statutory interest in accordance with art. 6.119/120 of the Dutch Civil Code, plus 4% without any notice of default being required for that purpose. Sections of a month are deemed as full months in this regard.
    3. and the invoicing relates to a partial payment, the entire claim shall be payable immediately.
    4. any payment discount granted will expire, even if this concerns an invoice other than the one for which the discount was granted.
    5. and after having been reminded of this by the user, the counterparty fails to meet its payment obligations for a period to be determined by the user, the costs relating to taking the legal and extra-legal collection and/or execution measures (including the costs of a bankruptcy application) are borne by the counterparty. In this respect, the latter shall as a minimum owe the collection rate of the Dutch Bar Association as applicable at the time of default.
  3. At the user’s discretion, in the above circumstances or those corresponding with these, the agreement may be wholly or partially dissolved without further notice of default or legal intervention, whether or not in combination with a compensation claim.
  4. If the counterparty has failed to meet its payment obligation in a timely fashion, the user is authorised to suspend observance toward the counterparty concerning obligations to deliver/perform activities, until payment has occurred or proper security for this has been provided. The same applies before the moment of default/negligence if the user has the reasonable suspicion that there are causes for doubting the counterparty’s creditworthiness.
  5. Payment made by the counterparty always serve to settle all interest and costs owed and subsequently payable invoices that have been outstanding the longest, even if the counterparty states that the payment relates to a later invoice.

Article 14 Retention of Title

  1. The user retains the ownership of the items delivered and items to be delivered up until the time when the counterparty has met its corresponding payment obligations towards the user. Those payment obligations consists of paying the purchase price, plus claims concerning activities performed relating to that delivery, as well as claims concerning any compensation due to failure in compliance with obligations on the part of the counterparty.
  2. If the user claims retention of title, the agreement concluded in this regard applies as dissolved, without prejudice to the user’s right to claim compensation for damage, loss of profits and interest.
  3. The counterparty is obliged to notify the user immediately in writing of the fact that third parties are asserting rights to items on which a retention of title rests by virtue of this article.

Article 15 Pledge/Warrantage

The counterparty is not authorised to pledge the items delivered to third parties and/or create a non-possessory lien on these, and/or to have the items supplied stored in effective control of one or more financiers (warrantage), as this shall be regarded as attributable non-compliance on its part. In that case, the user may immediately suspend its obligations resulting from the agreement without being obliged to any notice of default, without prejudice to the user’s right to compensation for damage, loss of profit and interest.

Article 16 Failure/Default

  1. If it is not possible for the user to comply with that which it is obliged by virtue of the agreement concluded with the counterparty, and this is cannot be attributed to non-compliance on its part, and/or on the part of third parties/suppliers engaged in order to execute the agreement, the user is entitled to dissolve the agreement concluded between the parties, or to suspend the observance of its obligations toward the counterparty for a reasonable period to be determined by it, without being obliged to any compensation payment. If the aforementioned situation occurs once the agreement has been partly executed, the counterparty is obliged to meet its obligations toward the user up until that moment.
  2. Circumstances that cannot be attributed to non-compliance shall be understood to include, among others: war, revolt, mobilisation, domestic and foreign disturbances, government measures, strike and exclusion by workers or the threat of these and similar circumstances; disruption of exchange rates existing at the time the agreement is entered into; shipment difficulties; business disruption due to fire, accident or other incidents; natural phenomena regardless of whether the user, its suppliers or third parties it engages for executing the commitment comply non-promptly or not at all.

Article 17 Settlement

  1. If the counterparty, for any reason whatsoever, has or shall acquire one or more claims against the user, the counterparty waives the right to settlement in relation to this/these claim(s). This waiver of the right to settlement likewise applies if the counterparty requests suspension of payment, or if declared bankrupt.

Article 18 Bankruptcy, Lack of Power of Disposition D.D.

Without prejudice to the provisions in the other articles of these terms and conditions, the agreement concluded between the counterparty and the user is dissolved without any legal intervention and without any notice of default being required, at the moment when the counterparty is declared bankrupt or requests provisional suspension of payment, or due to seizure, is under receivership or otherwise loses power of disposition and/or legal capacity to its assets or parts thereof, unless the receiver or administrator recognises the obligation resulting from the agreement as estate debt.

Article 19 Sale and Delivery outside The Netherlands

If sale and delivery occurs abroad:

  1. the incoterms apply for any applicable sales conditions;
  2. the provisions of the Vienna Sales Convention (CISG, Trbl. 1981, 184) except insofar as deviations from this in the present terms and conditions apply).

Article 20 Applicable Law/Competent Judge

  1. The agreement concluded between the user and the counterparty is exclusively subject to Dutch law. Disputes resulting from the agreement shall also be settled according to Dutch Law.
  2. Any disputes shall be brought before the competent Dutch Judge, with the user and being assigned the authority to present a case before the competent Judge in the location where the counterparty lives and/or is situated.
  3. If the counterparty is a natural person not acting in exercising a profession or business, within 1 month after the user has notified the counterparty that the case is to be brought before the Judge, the counterparty may announce that it elects to have the dispute settled by the legally competent Judge.