Version November 2009 - Certified Translation from Dutch -
GENERAL TERMS AND CONDITIONS
1. Definitions
1.1 In these General Terms and Conditions (“Conditions”) the following terms shall have the following meanings:
a) The term “seller” shall mean: Ovimo Plastics;
b) The term “buyer” shall mean: any natural or legal person to whose order the seller supplies products or with whom the seller enters into a contract;
c) The term “contract” shall mean: any contract concluded between the seller and the buyer, any amendment or addition thereto, and all (legal) acts performed in the preparation and/or execution of such contract;
d) The term “products” shall mean: all things, including documentation, that are the subject of a contract;
e) The term “order” shall mean: any order or instruction from the buyer in whatever form.
1.2 Insofar as the Conditions have also been drawn up in a language other than the Dutch language, the Dutch version shall always prevail in case of disputes.
2. Applicability
2.1 These Conditions shall form part of every contract and shall apply to all (legal) acts between the seller and the buyer, including in cases where such (legal) acts do not lead or are not related to a contract.
2.2 The applicability of any General Terms and Conditions of the buyer is explicitly excluded by the seller.
3. Offers, formation of a contract
3.1 An offer or quotation from the seller shall be free of engagement and not be binding upon the seller and shall be considered only to be an invitation to the buyer to place an order.
3.2 A contract shall come into existence only if and insofar as the seller has accepted an order from the buyer, in writing, and at the same time a payment security, if agreed, including an irrevocable confirmed letter of credit, has been accepted by the seller in writing. Every contract is entered into by the seller under the resolutory condition that the buyer, at the sole discretion of the seller’s credit insurer, has been found to be sufficiently creditworthy to perform its financial obligations under the contract.
3.3 All statements / specifications made by the seller in respect of weight, melt flow index, colour, density and/or other designations of the products are made with due care, but the seller cannot vouch that there will be no deviations from such statements / specifications. A slight deviation shall not be regarded as a shortcoming. If the buyer can show that the products supplied deviate from the statement made by the seller to such an extent that the buyer can no longer reasonably be obliged to take delivery of the product, the buyer shall have the right to terminate the contract, however only insofar as such termination is reasonably necessary.
3.4 The seller reserves the right to introduce changes in the products and/or the composition of the products to be supplied by it if it is forced to do so by virtue of changes in inter alia legislation and/or regulations. The seller warrants that these changes will not affect the functional properties of the products.
4. Amendments and additions
4.1 An amendment or addition to any clause in a contract and/or the Conditions shall be binding only if explicitly agreed in writing.
5. Prices
5.1 All prices are in Euros, exclusive of Value Added Tax, and are based on ex works, Wilsum or Rheine (Germany) or Haaksbergen (Netherlands) (EXW, Incoterms 2000) unless stated otherwise in writing.
5.2 Special types of packaging or dispatch will be charged separately to the buyer, unless otherwise agreed.
5.3 The prices stated by the seller are based on the cost prices, exchange rates, tax levies, etc. obtaining at the time of the formation of the contract. If one or more of these factors are increased after the concluding of the contract, the seller shall have the right according to criteria of reasonableness to pass such increases on to the buyer.
5.4 The buyer shall indemnify the seller against all costs and loss or damage arising for the seller from the fact:
a) that the buyer is not properly registered for Value Added Tax or a similar tax in the relevant EU Member State, and/or
b) that the buyer has incorrectly or untimely provided information to the seller and/or the authorities in respect of Value Added Tax or a similar tax in a relevant EU Member State.
6. Payment
6.1 Payment must be made without any deduction of discount, bank charges or setoff within 30 days of the invoice date unless it has been explicitly agreed otherwise in writing. All payments will be made by the buyer into a giro or bank account designated by the seller in the agreed currency.
6.2 If the payment term is exceeded, the buyer will be in default by operation of law without any further notice of default being required, as from the date when payment became due and from that time interest will be payable by the buyer at a rate equal to the statutory interest rate for commercial transactions. The amount on which the interest is calculated will be increased each time after the end of a month by the interest payable for that month.
6.3 All judicial and extrajudicial expenses, including reasonable costs for legal assistance in proceedings or otherwise, calculated in conformity with the rates of the Netherlands Bar Association, shall be for the account of the buyer. The extrajudicial expenses are fixed at 15% of the amount due, with a minimum of 200.00 Euro. Payments by the buyer will first go to reduce the judicial or extrajudicial expenses, and subsequently to reduce the interest due and finally to reduce the principal sum and the accrued interest, while the payments will be recognized in anti-chronological order with the first payment being considered as payment of the oldest existing debt.
6.4 If at the time of the concluding of the contract or thereafter circumstances arise on the part of the buyer on the basis of which the seller has good grounds to fear that the buyer will not comply with its (payment) obligations under the contract (of sale), the seller shall have the right, before performing or further performing, to demand that the buyer also for current contracts must provide payment in advance of the purchase price for the products or that the buyer must provide adequate security, for instance in the shape of a bank guarantee, for the proper fulfilment of its obligations. Refusal by the buyer to provide the requested security shall entitle the seller to suspend its obligations and shall ultimately entitle the seller to terminate the contract in whole or in part without any notice of default or judicial intervention being required, without prejudice to the seller’s right to compensation for any loss or damage the seller may have sustained as a result.
7. Delivery period
7.1 The delivery period for products as stated by the seller will be based on the circumstances prevailing at the time of the concluding of the contract. Delivery periods shall be merely indicative and can never be regarded as strict deadlines. The seller shall not be in default in respect of the delivery period until it has been given written notice of default by the buyer and has been given a reasonable period within which to deliver and the seller has failed to do so. Delivery periods shall commence on the date of formation of the contract in accordance with article 3.2.
7.2 In the event of any period being exceeded, the buyer shall not be entitled to compensation (for loss or damage) in that respect. Only in case of excessive (more than 12 weeks) exceeding of the agreed delivery period shall the buyer have the right to terminate the contract, unless such exceeding was caused by force majeure.
7.3 The seller shall at all times have the right to deliver the products in instalments. The seller shall be entitled to demand payment for the partial deliveries before making the remaining partial deliveries.
8. Delivery
8.1 Delivery conditions will be agreed for every transaction separately. All delivery conditions shall apply in conformity with the current Incoterms as in force from time to time.
8.2 In the event that the buyer for a legally invalid reason fails to take delivery or timely take delivery of the products, the buyer shall be in default by operation of law. The seller shall in such event be entitled to place the products in storage at the expense and risk of the buyer or sell the products to a third party. The buyer shall continue to owe the purchase price for the products, plus interest and costs by way of compensation, however, if applicable, after deduction of the net proceeds of the sale to the third party.
8.3 Failure by the buyer to fulfil or timely fulfil any payment obligation shall entitle the seller to suspend the obligation to deliver.
9. Force majeure
9.1 If the seller due to a non-attributable failure is unable to fulfil its obligations towards the buyer, such obligations shall be suspended for the duration of the force majeure situation.
9.2 If the situation of force majeure has continued for a period of three months, both parties shall have the right to terminate the contract or part of the same in writing.
9.3 Force majeure on the seller’s part shall mean any circumstances beyond the control of the seller as a result of which the fulfilment of its obligations (or the part in question of these obligations) towards the buyer, is impeded, delayed or made uneconomical or as a result of which the seller cannot reasonably be expected to fulfil these obligations, such as transport difficulties, non-delivery or late delivery by suppliers of the seller, industrial action and fire. The parties shall inform each other as soon as possible of a (possible) situation of force majeure.
9.4 If the contract has already been partially executed by the seller, the buyer shall pay the price for the products delivered.
10. Retention of title (for products supplied in Germany, a different scheme applies, see article 18)
10.1 Title to the products shall, regardless of the actual delivery, not pass to the buyer until payment in full is made by the buyer of all sums in which the buyer is or will become indebted to the seller in respect of products to be delivered under any contract, including the purchase price and any surcharges, interest, taxes, costs and claims for non-fulfilment of the buyer’s obligations under any contract, that may be owed pursuant to these Conditions or the contract.
10.2 Until the title to the products has passed to the buyer, the buyer shall not be entitled to hire the products out to third parties or give third parties the use of the products, to pledge the products to third parties or otherwise encumber the products for the benefit of third parties. The buyer shall only be entitled to sell, supply or deliver the products that are the property of the seller to third parties insofar as this is necessary in connection with the buyer’s normal business activities.
10.3 The buyer is obliged to keep the products delivered subject to retention of title carefully and as identifiable property of the seller and to insure the same against risks such as fire, explosion, damage and theft, at the buyer’s expense but in the name of the seller. The same applies in respect of those cases where the buyer has the products placed in storage by the seller or at the seller’s premises. The buyer shall on demand by the seller assign to the seller all the rights as against the insurers in question in this regard. If and so long as the seller is the owner of the products, the buyer shall forthwith inform the seller in writing whenever any part of the products is lost or damaged. In case of attachment, (provisional) moratorium, bankruptcy or liquidation, the buyer shall forthwith inform the bailiff levying the attachment, the receiver or the liquidator of the (proprietary) rights of the seller.
11. Inspection and verification
11.1 The buyer is obliged to ensure that adequate facilities exist for the reception and storage of the products and warrants that such facilities satisfy the relevant regulations, including health and safety regulations, and that all the necessary permits have been obtained.
11.2 The buyer is obliged to immediately after their arrival at the place of destination or, if earlier, after their receipt by the buyer, carefully inspect the products or cause the same to be carefully inspected, to verify whether they are in conformity with the contract. Any complaints about the products in respect of specification, such as discrepancies in quantity, weight or quality between the products delivered and the description appearing on the order confirmation and/or invoice must be notified to the seller in writing no later than within eight days after delivery of the products. Any defects that could not reasonably have been discovered within the aforementioned period must be reported to the seller in writing immediately upon discovery and no later than within 30 days after delivery of the products.
11.3 Any complaints and objections based on the justifiable fact that the products delivered do not satisfy the contract shall lapse after the expiry of a period of 3 months from the delivery date.
12. Specifications
12.1 The buyer shall render such cooperation as the seller may require for investigating the complaint, among other things by enabling the seller to carry out an investigation in situ or to cause such investigation to be carried out. The buyer must permit the seller to have an inspection of the products in question carried out by an expert or an independent inspection body. If the complaint is declared justified by the expert, the costs of the inspection shall be borne by the seller. If the complaint is declared unjustified, the costs shall be borne by the buyer.
12.2 The buyer shall not have the right to lodge a complaint in respect of products when investigation of the complaint by the seller is impossible.
12.3 The buyer shall not have the right to return the products until the seller has agreed thereto in writing. The costs of returning the products shall be borne by the buyer and the risk in the products shall remain in the buyer.
12.4 Defects in respect of a separate consignment of products forming part of a delivery consisting of several consignments, shall entitle the buyer solely to terminate the entire contract if the buyer cannot reasonably be expected to leave the remainder of the contract intact.
12.5 The buyer can enforce no claims vis-à-vis the seller in respect of complaints about products, as long as the buyer has not complied with any directly corresponding obligation vis-à-vis the seller.
12.6 If the buyer complains timely, correctly and on good grounds in respect of defects in a product, then the seller’s ensuing liability will be limited to the obligations described in article 13, according to the nature of the complaint with due observance of the remaining provisions of article 13.
12.7. The products of the seller contain cadmium and/or other heavy metals unless otherwise stated by the seller in its offers / quotations / order confirmations. The following regulations shall at any rate apply in respect of cadmium-containing substances: the European Cadmium Directive (91/338/EEC of 12 July 1991), the Chemical Substances Act (5 December 1985), the Cadmium Decree (Chemical Substances Act) 1999 (1 July 1999), the Directive on Packaging and Packaging Waste (94/62/EC) and the related Commission Decision (1999/177/EC), the Paper and Cardboard Packaging (Management) Decree (24 March 2005), as well as any directives amending the aforementioned directives.
13. Warranty
13.1 If in the reasonable opinion of the seller it has been satisfactorily shown that the products do not function properly and the buyer has lodged a complaint in conformity with article 11.2, the seller shall at its sole discretion either replace the defective products at no charge for the buyer in exchange for the return of the products found to be defective, or give the buyer a mutually agreed discount on the purchase price, after which the seller shall have fully discharged its warranty obligations and shall not be obliged to pay any further compensation whatsoever.
14. Liability and indemnity
14.1 The seller accepts no liability for the performance of the products during processing. The buyer must verify that all the marks and descriptions on containers or packaging are in conformity with those specified by the seller in the contract and must ascertain whether the products are suitable for such processing and use.
14.2 Save in the case of gross negligence or wilful misconduct of the seller, and save the statutory liability on the basis of mandatory provisions, the seller shall in no circumstances be liable for any loss or damage suffered by the buyer. Furthermore, the liability for indirect damage, consequential damage, nonmaterial damage and trading loss is explicitly excluded.
14.3 If and insofar as, despite the provisions of article 14.2, any liability rests on the seller on whatever ground, such liability shall be limited to the amount equal to the net invoice value of the products in question, with the proviso that the seller shall at most and solely be liable up to a maximum of Eur 300,000.00 per incident. A series of connected incidents shall for the purpose of this article be regarded as one incident.
14.4 Save in the case of gross negligence or wilful misconduct of the seller, the buyer shall indemnify the seller against any claims from third parties on whatever account in respect of payment of damages, costs or interest relating to the products and/or arising from the use of the products.
14.5 If the buyer forms a new product out of the products supplied by the seller, the seller shall not in any way be liable for faults and/or defects in the newly manufactured product.
15. Termination
15.1 In case of (provisional) moratorium, bankruptcy, liquidation, shutdown or the winding-up of the business of the buyer, all contracts with the buyer shall be terminated by operation of law, unless the seller informs the buyer within a reasonable period of time that it wishes the contract(s) in question to be performed, in which case the seller shall be entitled, without any notice of default being required:
a) to suspend performance of the contract(s) in question until payment has been sufficiently secured, and/or
b) to suspend all its obligations, if any, vis-à-vis the buyer; all this without prejudice to any other rights the seller may have under any contract whatsoever with the buyer, and without the seller being liable to pay any compensation.
15.2 In the event of an occurrence as referred to in article 15.1, all debts owing by the buyer to the seller shall be immediately due and payable in full, and the seller shall have the right to repossess the products in question.
16. Transfer of rights and obligations
16.1 The seller may transfer its rights and obligations under a contract with the buyer to third parties.
16.2 The buyer may transfer its rights and/or obligations under such contract to any third party only after having obtained the prior written consent of the seller.
17. Applicable law, competent court
17.1 These Conditions and all contracts will be governed by and construed in accordance with the laws of the Netherlands. The applicability of the Vienna Sales Convention (CISG) is excluded.
17.2 All disputes arising between the seller and the buyer in connection with these Conditions shall be settled by the competent court in Almelo, without prejudice to the power of the seller to submit the dispute to another competent court. Disputes between the seller and buyers based outside the EU shall be finally settled in accordance with the Rules of Arbitration of the International Chamber of Commerce (I.C.C.) by one or more arbitrators to be designated in accordance with the arbitration rules of the I.C.C.. The language used will be the English language. The place of arbitration will be Almelo.
By way of derogation from article 10, the following shall apply in respect of German customers:
18. Eigentumsvorbehalt
18.1 Das Eigentum an den gelieferten Waren bleibt zur Sicherung aller Ansprüche vorbehalten, die uns aus der gegenwärtigen und künftigen Geschäftsverbindung bis zum Ausgleich aller Salden gegen den Käufer und seine Konzerngesellschaften zustehen. Unser Eigentum erstreckt sich auf die durch Verarbeitung der Vorbehaltsware entstehende neue Sache. Der Käufer stellt die neue Sache unter Ausschluss des eigenen Eigentumserwerbs für uns her und verwahrt sie für uns. Hieraus erwachsen ihm keine Ansprüche gegen uns.
18.2 Vorbehaltsware mit Ware anderer Lieferanten, deren Eigentumsrechte sich ebenfalls an der neuen Sache fortsetzen, erwerben wir zusammen mit diesen Lieferanten – unter Ausschluss eines Miteigentumserwerbs des Abnehmers – Miteigentum an der neue Sache, wobei unser Miteigentumsanteil dem Verhältnis des Rechnungswertes unserer Vorbehaltsware zu dem Gesamtrechnungswert aller mitverarbeiteten Vorbehaltswaren.
18.3 Der Käufer tritt bereits jetzt seine Forderungen aus der Veräußerung von Vorbehaltsware aus unseren gegenwärtigen und künftigen Warenlieferungen mit sämtlichen Nebenrechten im Umfang unseres Eigentumsanteils zur Sicherung an uns ab.
18.4 Bei Verarbeitung im Rahmen eines Werksvertrages wird die Werklohnforderung in höhe des anteiligen Betrages unserer Rechnung für die mitverarbeitete Vorbehaltsware schon jetzt an uns abgetreten. Solange der Käufer seinen Verpflichtungen aus der Geschäftsverbindung an uns ordnungsgemäß nachkommt, darf er über die in unserem Eigentum stehende Ware im ordentlichen Geschäftsgang verfügen und die an uns abgetretenen Forderungen selbst einziehen.
18.5 Bei Zahlungsverzug oder begründeten Zweifeln an der Zahlungsfähigkeit oder Kreditwürdigkeit des Käufers sind wir berechtigt, die abgetretenen Forderungen einzuziehen und die Vorbehaltsware zurückzunehmen.
18.6 Scheck-/ Wechselzahlungen gelten erst nach Einlösung durch den Käufer als Erfüllung.
18.7 Der Verkäufer verpflichtet sich seine, unter Eigentumsvorbehalt stehenden Waren frei zu geben, sofern und soweit der Wert dieser Waren die Forderungen des Verkäufers um 150% oder mehr übersteigt.
18.8. Hinsichtlich der Vereinbarung von Eigentumsvorbehaltsrechten gilt ausschließlich deutsches Recht.