General terms and conditions of ALTRIMEX PACKAGING EQUIPMENT B.V.
Deposited with the Chamber of Commerce for East Brabant under number: 170 797 340 000
A) General
Article 1 – Applicability
1.1 These terms and conditions apply to all offers of Altrimex Packaging Equipment B.V. (hereinafter “Altrimex”), to all agreements with Altrimex and also to their execution, in respect of services to be provided or goods to be sold and supplied by Altrimex.
1.2 The applicability of terms and conditions of the other party (hereinafter “the customer”) is expressly excluded. Different conditions and any general terms and conditions of the Customer shall only apply if and in so far as they have been accepted separately by Altrimex in writing for each individual case.
Article 2 – Offers, orders and agreements
2.1 All Altrimex’s offers are without any obligation. An agreement comes about when Altrimex has confirmed the order in writing or when a start has been made on its execution. Altrimex is also only bound as it has accepted.
2.2 The Customer shall notify Altrimex of any or alleged inaccuracies in the order confirmation by Altrimex in writing on penalty of cancellation within five days of the date of confirmation.
2.3 Verbal promises by and/or agreements with its staff shall not bind Altrimex until and in so far as it has confirmed them in writing.
Article 3 – Conformity
3.1 Illustrations, descriptions, designs, catalogs, advertising material and offers are not binding on Altrimex. All quotations by Altrimex of figures, dimensions, weights or other designations shall be made with all due care. However, Altrimex cannot guarantee that no differences will occur. The Customer shall as far as possible check the conformity with figures, dimensions, weights or other designations quoted by Altimex or agreed with Altrimex on receipt of the goods.
3.2 The Customer shall satisfy himself that the goods and works to be ordered and/or ordered by him, and also the associated documentation, packaging and/or other information, meet all the relevant statutory regulations laid down in the country of destination.
Article 4 – Prices
4.1 Prices quoted by Altrimex or agreed with Altrimex are net, consequently exclusive of, for example, VAT, packaging costs, transport costs and transport insurance and also, unless otherwise stated, exclusive of import and export duties, excise duties and other taxes or levies.
4.2 If Altrimex provides additional services without a price expressly being agreed for them in writing, it is entitled to charge the Customer for them at the rates prevailing at Altrimex.
4.3 If factors determining cost, including taxes, excise duties, import duties, exchange rates, wages and salaries, the prices of goods and/or services (whether or not procured by Altrimex from third parties) change after the offer or an agreement has come about, Altrimex is entitled to adjust the prices accordingly.
4.4 If a portion of the agreed goods has already been supplied, the provisions of article 4.3 are applicable in full in respect of the goods yet to be supplied by Altrimex.
Article 5 – Packaging and shipment
5.1 Altrimex shall determine the method of shipment and packaging, unless the Customer otherwise instructs Altrimex in writing in good time.
5.2 Packaging shall not be taken back by Altrimex, unless otherwise agreed by the parties in writing.
Article 6 – Delivery time
6.1 A delivery time quoted by Altrimex in its offer or a delivery time agreed between the parties shall always apply by approximation, unless Altrimex expressly states in writing that it is a deadline or the parties expressly agree this deadline in writing.
6.2 Exceeding the delivery time does not oblige Altrimex to make any compensation and does not give the Customer the right to dissolve the agreement and/or otherwise to suspend its obligations arising from the agreement.
6.3 The delivery time is based on the working conditions prevailing at the time of the conclusion of the agreement and on delivery on time of the goods ordered by Altrimex for the fulfillment of the agreement. If through no fault of Altrimex delay occurs as a consequence of a change in the said working coditions and/or because goods ordered for the fulfilment of the agreement are not supplied on time, the delivery time shall be extended as necessary.
6.4 As regards the delivery time the goods count as supplied when they are ready for shipment, all once the Customer has been notified accordingly in writing.
6.5 Without prejudice to the provisions elsewhere in these terms and conditions regarding extension of the delivery time, the delivery time shall be extendend by the duration of the delay that arises on the part of Altrimex as a consequence of the failure by the Customer to discharge any obligation arising from the agreement or cooperation to be required of him with regard to the fulfilment of the agreement.
6.6 Altrimex is entitled to fulfill the agreement by means of partial deliveries unless otherwise expressly agreed in writing and/or the nature of the agreement prevents it. In the case of partial deliveries each individual batch of goods counts as supplied in itself and Altrimex is entitled to invoice in respect of these partial deliveries.
6.7 If the Customer places an order on call, this order shall be called and taken off by the Customer not later than on the day of the call date.
Article 7 – Force majeure
7.1 If Altrimex is prevented from fulfilling the agreement by force majeure, Altrimex is entitled to suspend the execution of the agreement.
7.2 A force majeure situation shall include: war, risk of war, mobilisation, riot, martial law, strike action, lightning strikes or working to rule and lockout, fire, accident or illness of staff, business interruption, traffic congestion, interfering statutory regulations, customs delays, import/export restrictions or other restrictions by the authorities, shortage of raw materials, problems in production or transport unforeseen by Altrimex, and also any circumstance that is not dependent exclusively on the will of Altrimex, such as the failure to deliver goods or services or failure to deliver them on time by third parties brought in by Altrimex.
7.3 In the event of a force majeure situation Altrimex is entitled to dissolve the agreement for the portion that cannot be executed by notification in writing. If the force majeure situation lasts for more than two months, then the Customer is also entitled to dissolve the agreement for the portion that cannot be executed by notification in writing.
7.4 If at the commencement of the force majeure situation Altrimex has already partially discharged its obligations or can only partially discharge its obligations, it is entitled to invoice seperately the part already supplied or the part that can be supplied and the Customer is obliged to pay this invoice as if it were a seperate contract.
Article 8 – Warranty
8.1 Without prejudice to the limitations laid down below, Altrimex guarantees both the soundness of the good supplied by it and the quality of the material used and/or supplied for it for a period of six months from the date of invoice or six months from the date of delivery if this date precedes the date of invoice.
8.2 The defects covered under the warranty referred to in article 8.1 shall be rectified by Altrimex by repair or replacement of the defective goods, whether or not on the premises of Altrimex, orby means of the dispatch of replacement goods, entirely as Altrimex sees fit.
8.3 All costs in excess of those referred to in article 8.2, including transport costs and travel expenses, are payable by the Customer.
8.4 Defects that occur in or that are wholly or partially the consequence of:
A) Failure to comply with instructions that Altrimex attaches to the use of the goods supplied, or anticipated normal use;
B) normal wear and tear;
C) the applicability of any statutory regulation in respect of the nature or the quality of the materials used;
D) materials and goods respectively used in consultation with the Customer;
E) materials, goods, procedures and constructions, where used on the express instructions of the Customer, and also of materials or goods supplied by or on behalf of the Customer in any event, fall outside the warranty referred to in article 8.1
8.5 If the Customer fails to discharge any obligation arisingfor him from the agreement concluded with Altrimex, or from an associated agreement, or fails to do so properly or promptly, Altrimex shall not be held to any warranty – however called – in relation to any of these agreements.
8.6 If the Customer proceeds with repairs or other work in respect of the goods supplied or has such work done without the prior consent of Altrimex in writing, any liability of Altrimex under the warranty shall lapse.
8.7 No warranty is given in respect of inspections, consultancy and similar activities undertaken by Altrimex.
8.8 The alleged failure by Altrimex to discharge its warranty obligations does not discharge the Customer from the obligations that arise for him from any agreement concluded with Altrimex.
8.9 The warranty referred to in article 8.1 et seq does not apply to agreements concerning secondhand goods or materials, unless expressly agreed in writing, on the understanding that Altrimex accepts liability in respect of these secondhand goods as referred to in article 10.2 to 10.4.
Article 9 – Complaints
9.1 Complaints relating to defects shall be submitted to Altrimex by registered letter within the warranty period, any liability of Altrimex in this regard lapsing outside this period, without prejudice to the provisions of article 9.2.
9.2 Complaints relating to visible defects, dimensional variations and/or quantities of the goods supplied compared with the agreed dimensions and/or quantities shall be submitted to Altrimex by registered letter within eight days of delivery of the goods, failing which any liability of Altrimex in this regard shall lapse.
9.3 Legal proceedings concerning the defects shall be brought within six months of the complaint in time on penalty of expiry.
9.4 Defects relating to a portion of the goods supplied do not give the Customer thr right to reject or refuse the whole batch of goods supplied.
Article 10 – Liability
10.1 The liability of Altrimex is limited to discharge of the warranty obligation referred to in article 8.
10.2 Subject to the provisions of article 8.1 any liability of Altrimex, including business interruption, other (indirect) loss, and also loss as a consequence of liability in respect of third parties, is excluded, except for intent or gross negligence on the part of Altrimex, and without prejudice to the provisions of article 10.3.
10.3 If the Courts should judge that Altrimex is not entitled to rely on article 10.2, the liability of Altrimex is limited at any time to the invoice value, exclusive of turnover tax, of the good or service supplied by Altrimex to which the liability relates, except in so far as the cover provided by the liability insurers of Altrimex makes a more extreme liability possible.
10.4 The Customer is bound to indemnify and compensate Altrimex in respect of all claims of third parties for payments of damages for which Altrimex’ s liability has been excluded in these terms and conditions in the relationship with the Customer, including liability under article 6:185 of the Civil Code (product liability).
Article 11 – Customer’s responsibility
11.1 The Customer is responsible for and bears the risk of the goods supplied by him or on his behalf. Goods belonging to the Customer that are intended for (the performance of) the work shall be made available to Altrimex in good time. The Customer is liable for the (additional) costs and loss arising from late delivery.
11.2 The transport, loading and unloading and also the packaging and repackaging of the goods referred to in 11.1 are at the expense and risk of the Customer, even if Altrimex assists the Customer in this regard.
11.3 The Customer indemnifies Altrimex for any loss suffered by Altrimex or third-parties as a consequence of a defect in the goods supplied by or on behalf of the Customer.
11.4 The Customer is obliged to treat the work and the goods relating to the work made available by Altrimex or leased with care. The Customer shall notify Altrimex immediately in writing of any loss, theft or damage and is obliged to compensate any damage to the work and the goods made available.
Article 12 – Storage / Safekeeping
12.1 If it is agreed that Altrimex shall look after storage of goods belonging to the Customer, Altrimex shall charge the Customer storage costs. The Customer bears the risk for the goods stored. If the goods stored are to be repaired or modified in connection with reuse by the Customer, the associated costs shall be payable by the Customer.
12.2 The documents and data carriers belonging to the Customer relating to the order left in the possession of Altrimex shall be retained up to a maximum of two years following execution of the order, after which Altrimex shall be entitled to destroy them.
Article 13 – Risk and transfer of ownership
13.1 Once the goods in question have left the Altrimex storage location, or as soon as the goods count as delivered within the meaning of article 6.4, the Customer shall bear the risk for all direct and indirect damage that might be suffered or caused by these goods, with due regard for the provisions of article 10.2 to 10.4.
13.2 The goods travel under all circumstances at the expense and risk of the Customer, even where carriage-paid shipments and/or return shipments are concerned.
13.3 Damage to goods due to destruction of packaging is at the expense and risk of the Customer.
13.4 If the Customer places goods at the disposal of Altrimex for processing, repair, inspection or otherwise, these goods rest with Altrimex at the expense and risk of the Customer. The Customer shall itself be responsible for adequate insurance for these goods.
Article 14 – Retention of title
14.1 Altrimex retains the title for all the goods supplied by it to the Customer until the purchase price for all these goods has been paid in full.
14.2 If Altrimex does work for the Customer under the agreement that is payable by the Customer, the retention of title applies until the Customer has also paid this dept to Altrimex in full. The retention of title also applies to claims that Altrimex might acquire against the Customer on account of the Customer defaulting in respect of one or more of its obligations to Altrimex.
14.3 The Customer is not entitled to sell, to transfer in the title and/or otherwise place at the disposal of and/or to encumber the goods to third parties before the time referred to in article 14.1 and 14.2.
14.4 Altrimex hereby reserves the non-possessory right of pledge to the goods supplied for which title has transferred to the Customer through payment and which are still in the hands of the Customer, as additional security for claims, other than as referred to in article 3:92 paragraph 2 of the Civil Code, which Altrimex might for any reason against the Customer.
14.5 The Customer agrees to keep the goods supplied under retention of title with the necessary care and as recognisable property of Altrimex.
14.6 The Customer agrees to insure the goods for the duration of the retention of title against fire, explosion and water damage and also against theft and to make the policies of these insurances available to Altrimex for inspection on demand. All the claims of the Customers on the insurers of the goods under the aforementioned insurance shall, as soon as Altrimex so desires, be tacitly pledged to Altrimex by the Customer, as additional security for the claims of Altrimex against the Customer.
14.7 If a situation occurs as referred to in article 15.6, Altrimex is entitled to take back the goods supplied under retention of title, including any dismantling required. The Customer shall grant Altrimex every cooperation in this regard.
14.8 Having taken back the goods as referred to in article 14.7 the Customer shall be credited for the market value of the goods taken back, which cannot under any circumstances be higher than the original purchase price, less the costs incurred in taking them back.
Article 15 – Payment
15.1 The invoices from Altrimex shall be paid within the credit period stated on the invoice in the currency stated on the invoice and exclusively in the way described on the invoice, unless otherwise agreed in writing. Altrimex has the right to demand full or part payment in advance and/or otherwise to obtain security for payment.
15.2 Altrimex is entitled to invoice partial deliveries separately.
15.3 If payment is not received on time, interest at the rate of 1% of the invoice amount per month shall be payable by the Customer with no further notice of default, calculated from the due date to the date of payment, part of a month being regarded as a whole month.
15.4 All costs relating to the collection, including for example extrajudicial debt collection charges and preprocessual costs, are payable by the Customer. The extrajudicial debt collection charges shall be at least 15% of the sum to be collected with a minimum of € 250.00..
15.5 The Customer waives any right to offsetting of sums owed back and forth. Altrimex is at any time entitled to offset all that it owes to the Customer against that which the Customer and/or companies associated with the Customer, whether or not due and payable, under terms and conditions or stipulation as to time, owes/owe to Altrimex.
15.6 The whole invoice amount is due and payable immediately and in full on failure to pay promptly an agreed instalment on the due date, even if the Customer becomes bankrupt, applies for (temporary) protection from creditors, the statutory debt rescheduling scheme (WSNP) is declared applicable to him or an application is made to place him in receivership if any of the goods and/or debts of the Customer are seized, if the Customer dies, goes into liquidation or is dissolved. If one of the aforementioned situations occurs, the Customer is obliged to notify Altrimex accordingly at once.
15.7 Payments made by the Customer are used first to settle the costs payable, then to settle the interest falling due and finally to settle the due and payable invoices that have been outstanding longest, even if the Customer states that the payment relates to a later invoice.
Article 16 – Industrial / Intellectual property
16.1 All intellectual and industrial property rights relating to the work and relating to goods that Altrimex develops or uses in the execution of the order, including design, photos, drawings, software, models, reports, procedures, etc., belong to Altrimex, in so far as they do not already belong to third parties and unless otherwise agreed in writing.
16.2 The Customer is not allowed to duplicate, to disclose or to exploit products of the mind as referred to in 16.1 or their recording on data carriers, whether or not together with or through the involvement of third parties, expect with the prior consent of Altrimex in writing.
16.3 If it has been agreed that the intellectual or industrial property rights relating to (parts of) the work and/or goods supplied by Altrimex belong to the Customer, Altrimex is entitled to take action against any infringements as agent/authorised representative of the Customer.
16.4 The Customer shall warn Altrimex immediately if third parties infringe or threaten to infringe the industrial or intellectual property rights of Altrimex or if third parties should think that goods of Altrimex infringe their own industrial or intellectual property rights.
16.5 The Customer shall satisfy himself that the goods supplied by Altrimex do not infringe any right of intellectual or industrial property belonging to a third party in the country of destination. The Customer has no right to compensation and/or reimbursement of expenses if he were to be called to account in this regard by third parties.
Article 17 – Cancellation and compensation
17.1 The Customer is not allowed to cancel an order placed. If the Customer nonetheless does cancel an order placed as a whole or in part, he is obliged to compensate Altrimex for all the costs incurred by Altrimex with a view to the execution of this order (costs of design, preparation, storage, etc,), the work done by Altrimex and the loss of profits of Altrimex, plus VAT.
Article 18 – Representation
18.1 If the Customer acts on behalf of one or more others, he is, without prejudice to the liability of these others, liable to Altrimex as if he were himself the Customer.
Article 19 – Conversion
19.1 If one or more provisions of these general terms and conditions should turn out to be invalid, or no fulfillment of it can be demanded for whatever reason, the other provisions of these general terms and conditions shall remain in full force and the parties shall consult with one another about the invalid provision or the provision whose fulfillment cannot be demanded, about the way in which the scope of the provision in question can best be implemented.
Article 20 – Applicable law and competent court
20.1 All disputes between Altrimex and the Customer shall be adjudicated exclusively by the competent court in ´s Hertogenbosch, all subject to the imperative competence of a Dutch Cantonal Court and unless Altrimex, passing by this article, gives preference to an otherwise competent court.
20.2 All offers of and/or agreements with Altrimex are subject exclusively to the law of the Netherlands.
20.3 The effect of any international treaty in respect of the purchase of moveable physical goods whose effect can be excluded between the parties does not apply and is hereby expressly excluded. More especially the applicability of the Vienna Purchase Treaty 1980 (CISG) is expressly excluded.
20.4 In the event if disagreement about the interpretation of these general terms and conditions the Dutch text is binding,
B) CONTRACTING OF WORK
Article 21 – Applicability
If Altrimex concludes an agreement with the Customer for the contracting of work, section B of these General Terms and Conditions shall apply in addition to section A. Where inconsistencies exist section B shall prevail.
Article 22 – Scope of contracted work
22.1 The agreement concluded with the Customer covers the whole of the work as described in the offer.
22.2 Unless otherwise expressly agreed, the agreed price of contracted work does not include:
A) groundwork, pile driving, cutting work, structural work, foundation work, fastening work, metalwork, carpentry, plastering, painting, repair work or other constructional work, cleaning costs, nor the costs of connection to the gas, air or water supply pipes or to the electricity grid;
B) the relocation of those items that are not to be dealt with by Altrimex, so that Altrimex can do its work on the spot at once;
C) the taking of measures for the prevention of damage to items located on or near the work;
D) the additional costs of disposal associated with the nature of the material to be disposed of, as the case for example with hazardous building materials and/or chemical waste.
22.3 The Customer shall sure that all the necessary licences, exemptions and similar orders that are necessary for the execution of the work have been obtained in good time.
22.4 The Customer shall – if necessary – place tools, such as a fork-lift truck, a crane, etc., and also support staff at Altrimex´s disposal for the execution of the work free of charge.
22.5 The Customer shall place reasonably necessary means of communication at Altrimex´s disposal for the execution of the work free of charge.
Article 23 – Changes in the contracted work
23.1 All changes in the contracted work, either by special order of the Customer, or as a consequence of changes in the design or due to the data supplied not corresponding to the actual execution of the work or because there are departures from estimated quantities, shall, where they lead to additional costs, be regarded as additional work and, in so far as they lead to lower costs for Altrimex, as less work.
23.2 Additional work shall be calculated on the basis of the prices applying at the time that the additional work is done. Less work shall be calculated on the basis of the prices prevailing at the time of conclusion of the agreement.
Article 24 – Transfer
24.1 A work shall be regarded as transferred:
A) when Altrimex has notified the Customer of the completion of the work either in writing or verbally and the Customer has approved the work;
B) eight days after Altrimex has notified the Customer has omitted to accept the work within that time;
C) when the Customer takes the work into use, on the understanding that by taking a part of the work into use that part shall be regarded as transferred.
24.2 Minor defects that can be repaired within 30 days of transfer shall not prevent the transfer.
24.3 On withholding approval of the work that does not prevent the transfer, the Customer is obliged to give Altrimex notice of this in writing, stating the reasons.
Helmond, Januari 2001
