Algemeen Pallet Centrum B.V., having its registered office in Terborg, as filed with the Chamber of Commerce (Kamer van Koophandel) in Arnhem.
The following General Terms and Conditions of Sale, Delivery and Payment shall apply to and form an indissoluble whole with all agreements on the sale and delivery (including the provision of services) of Packaging and Pallets, in the broadest sense of the word.
Unless explicitly agreed otherwise, the Buyer’s general terms and conditions do not apply, not even in addition to the present general sales, delivery and payment terms and conditions. These general terms and conditions of sale, delivery and payment may only be deviated from with explicit mutual consent.
All quotations, where the contrary is not explicitly mentioned, are entirely without obligation and revocable until the agreement has been effected. A firm quotation is valid only until 24.00 hours on the fifth working day after that on which it is issued; in the case of written quotations, the day of dispatch is deemed to be the day of issue.
Acceptance shall only be binding on the vendor if the relevant message reaches him before 24.00 hours on the last day.
Orders, including orders accepted by agents, representatives, travellers and other intermediaries and/or resellers, shall not be binding on the seller until such orders have been confirmed by him in writing. If an order is confirmed in writing by the seller, the contents of the order confirmation shall be deemed to be the contents of the contract.
The buyer must notify the seller in writing of any special requirements to be imposed on the material and/or the goods before the contract is concluded. Unless special requirements have been made of the material and/or the goods in the orders and these have been expressly accepted by the seller, the seller’s sorting must be accepted. With regard to dimensions, the seller always reserves the right to make minor allowances for differences in the thickness of sawn timber and for elongation and shrinkage in similar cases. Unless expressly stipulated otherwise, samples serve only to represent the dimensions. Special conditions, which deviate from the conditions in this article, are only binding if they have been agreed in writing and only apply to the orders to which they relate.
All deliveries are, unless otherwise agreed, “ex works”. Delivery “ex works” shall be deemed to have taken place when the goods are received by the seller on behalf of the buyer or, if the buyer fails to take receipt of the goods on time, at the time when this should have taken place.
If delivery is not ex works and no particular method of shipment has been agreed, Seller shall determine the method of shipment.
If delivery is not ex works, delivery shall be deemed to have taken place:
a.. in the case of dispatch by a carrier acting in the course of professional business: on transfer of the goods to the carrier:
b. in the event of dispatch by a means of transport belonging to the seller: by delivery or offer for delivery to the purchaser’s home or warehouse or to the receipt address indicated in writing by the purchaser in advance.
In all cases the transport risk shall be borne by the Buyer, even if the transport is carried out by or at the expense of the Seller or by the Seller itself. However, with due observance of the foregoing and except for goods collected by or for the buyer, the seller shall insure the transport up to the amount of the selling price of the goods and shall bear the costs thereof;
the goods are insured against the normal risk of transport, i.e. not against molestation or other extraordinary risks; in the event of damage, the seller will settle the claim with the insurers. Damage or loss must be reported by purchaser to the carrier and to vendor within 24 hours after delivery in accordance with this article and confirmed in writing without delay.
The risk of damage to and loss of the goods and of any consequential damage shall, without prejudice to the provisions of article 4 concerning the risk of transport, pass to the purchaser after delivery of the goods. Without prejudice to the provisions of the previous article, the buyer is obliged to insure the goods against fire, explosion and water damage, as well as against theft, from the moment of delivery and for the duration of the retention of title, and to submit the policies of these insurances to the seller for inspection at the latter’s request. All claims of the buyer against the insurers of the goods on account of the said insurances will, as soon as the vendor so desires, be transferred to him without delay.
Unless otherwise agreed, delivery times are approximate.
If the Buyer is required to make an advance payment or to provide information, instructions and/or materials necessary for the execution of the agreement, the delivery period shall not commence before the payment has been received in full or the information, instructions and/or materials have been provided in full, respectively. An agreement cannot be dissolved by the buyer on account of exceeding the delivery period, unless the seller also fails to perform the agreement, or fails to perform it in full, within a reasonable period notified to him in writing after expiry of the delivery period. Dissolution shall then only be permitted insofar as the Buyer can reasonably be required to maintain the agreement.
A failure to meet a delivery time shall not be regarded as a shortcoming attributable to the Seller if such failure is the result of circumstances beyond the Seller’s control, whether or not foreseeable: war or situations resembling war, mobilisation, riots, martial law, sabotage, boycott, strike or exclusion, occupation, blockade, reduction of production or shortage of raw materials, business interruptions, illness of the Seller or his personnel, failure of suppliers and/or transporters, government measures (including foreign government measures) such as transport, import, export or production bans, natural disasters, bad weather, lightning strike, fire, explosion, emission of dangerous substances or gases; The seller shall then be entitled to extend all or some of the delivery periods by the duration of the hindrance or to cancel or dissolve the agreement insofar as it has not been carried out, without being obliged to pay any compensation to the buyer.
The buyer has an obligation to take delivery.
If the Purchaser, without being entitled to do so vis-à-vis the Seller, in the case of an agreed delivery on call, has not taken delivery of the purchased goods within the agreed period, or if, where no specific delivery period has been agreed, the Purchaser has not taken delivery of the purchased goods within three months of the date of sale, the Seller will be entitled to cancel or dissolve the non-accepted orders (as well as all other current orders or parts thereof, unless the Seller has no reasonable grounds for doing so) without being obliged to pay any compensation and without prejudice to the Seller’s right to claim compensation from the Purchaser.
Without prejudice to the provisions of the last sentence of Article 4, the buyer is obliged to carefully inspect any shortcomings in the deliveries within 3 calendar days of their execution and to immediately report any observed shortcomings to the seller in writing, on pain of forfeiting his right to invoke shortcomings that could reasonably have been discovered during a careful inspection; minor deviations in dimensions, considered permissible in the trade or reasonably unavoidable as a result of differences in, for instance, the thickness of wood and as a result of stretching or shrinkage, do not constitute shortcomings.
Shortcomings ascertained during the inspection and furthermore only those shortcomings in the goods delivered which could not be ascertained at the time of delivery but which are discovered within 14 calendar days following the execution of the delivery and have been reported in writing immediately after their discovery shall, in so far as they can be attributed to shortcomings on the part of the Seller, be remedied by the Seller free of charge – at the Seller’s discretion – by means of repair and/or replacement as far as possible in conformity with the order. Seller is, however, also entitled – at Seller’s discretion – to proceed, instead of full or partial annulment, to full or partial refund of the purchase price excluding VAT and other government levies.
Shortcomings in the goods delivered shall not constitute grounds for rescinding the contract in question, unless the shortcomings referred to in paragraph 1 are concerned and the Seller, after repeated attempts to that effect, fails to rectify the shortcomings in an acceptable manner. In that case the buyer is entitled to terminate the agreement concerned if and insofar as he cannot reasonably be required to maintain the agreement in question.
Return shipments not preceded or accompanied by a written notification as referred to in paragraph 1 are not permitted. The costs of unfounded and/or unaccompanied by a written notification as referred to in paragraph 1 shall be borne by the Buyer. The Seller may store goods returned by the Buyer or not taken up by the Buyer under himself or under third parties at the Buyer’s expense and risk.
The Seller shall be entitled to pass on any increases in costs occurring to him in connection with the delivery after the date of sale and before the date of delivery (such as increases in VAT or other government levies, purchase prices, wages, transport costs, insurance premiums, as well as increases in costs resulting from government measures which cannot be regarded as normal commercial risks).
Unless otherwise agreed, all amounts are exclusive of VAT and other government levies. Unless otherwise agreed and without prejudice to the right to demand advance payment, payment in cash or the provision of security, payment shall be made within 30 days of the date of the three cases in question, the vendor shall be entitled to terminate all agreements with the buyer with immediate effect if the buyer has not provided security for all that the buyer owes and will owe the vendor within eight calendar days of a request to that effect.
If the Seller has reasonable grounds for fearing that the Buyer will not or not fully comply with an agreement, the Seller shall be entitled to demand advance payment, payment in cash and/or the provision of security before making any delivery or further delivery. If the buyer fails to do so, the seller shall have fulfilled its obligation to deliver by offering the goods to the buyer against simultaneous payment.
The ownership of delivered goods remains with vendor until purchaser has paid all that he owes to vendor on account of or in connection with deliveries made or to be made, related activities or claims of vendor due to shortcomings in the fulfillment by purchaser.
In the event of any failure to pay on time the vendor shall be entitled to repossess the goods owned by him under this clause, wherever they may be. The buyer undertakes in that regard now for then to provide the seller with all the cooperation it may reasonably require.
The Buyer is not entitled to grant third parties a lien or any other security right in the broadest sense of the word on goods to which the Seller has title pursuant to this clause through any agreement or action.
The Buyer is entitled to transfer the ownership of goods to which the Seller has title pursuant to this Article to third parties within the context of its normal business operations. If ownership is transferred to third parties, the Buyer is obliged, at the Seller’s request, to immediately pledge to the Seller its rights of claim against those third parties in connection therewith and to provide all necessary cooperation.
If the ownership of the goods is transferred to the Purchaser as a result of the fact that the Purchaser has paid all that he owes to the Vendor on account of or in connection with deliveries, related work or claims from the Vendor due to the Purchaser’s failure to perform, this shall be done subject to a pledge in favour of the Vendor as security for the fulfilment of all claims, on any account whatsoever, that the Vendor has or will have on the Purchaser. The vendor shall at all times be entitled – and to the extent necessary is hereby authorised to act on the buyer’s behalf – to perform the acts required to establish this reserved pledge (expressly including the establishment of a pledge by authentic instrument or registered private instrument) and the buyer shall undertake to cooperate immediately at the vendor’s request.
If A.P.C. (hereinafter: selling party/service provider) is ordered to provide machines or other objects with packaging, the buying party/client must provide all necessary information and/or instructions in connection with the packaging and transport in advance in writing (e.g. regarding the volume, weight, nature and value of the goods; any special sensitivity of the goods, whether or not in connection with the type and method of packaging or transport; the method of transporting the goods, etc.). Seller/service provider will, within reasonable limits, make every effort to carry out the packaging based on the information and/or instructions provided.
Selling party/service provider will not be liable for damages that could have been avoided if buying party/client had provided more or better information and/or instructions. Without prejudice to the previous sentence, selling party/service provider will only be liable for damage – provided that buying party/client proves that this damage is the immediate result of serious shortcomings on the part of selling party/service provider – to the machine(s) or object(s) itself. Barring the provisions of the previous two sentences, article 13 will be correspondingly applicable.
Without prejudice to the other provisions of these terms and conditions, the following applies to loss arising from or in connection with deliveries and/or services provided by or on behalf of the Seller to or on behalf of the Buyer – all in the broadest sense – for which the Seller can be held legally liable – insofar as mandatory legal provisions do not dictate otherwise.
Only those damages are eligible for compensation for which the Buyer has demonstrated irrefutably that they are the result of a circumstance or event for which the Seller can be held legally liable.
a. Damage consisting of lost profit or reduced proceeds will under no circumstances be eligible for compensation.
b. Damage other than that referred to in 2.a. will be compensated up to a maximum of the net invoice value (i.e. the gross invoice value minus VAT and any other government levies) of the delivery or service to which the damage relates.
The compensation referred to under 2.b shall apply to all cases of damage together arising from a delivery or a service to which the damage relates.
Without prejudice to the provisions in the opening sentences and in the previous paragraphs, only loss or damage suffered within six months of the delivery of the item in question and/or after the end of the service concerned and reported to the Seller in writing within that period within 14 calendar days of its discovery shall be eligible for compensation.
The Buyer shall indemnify the Seller against claims, on any account whatsoever, from third parties who claim to have suffered damage as a result of an item and/or a service supplied by the Seller to or on behalf of the Buyer, except insofar as the Buyer demonstrates that the Seller is to be held liable for such damage in relation to the Buyer and must reimburse the Buyer.
Agreements and any other legal relationships between the Seller and the Purchaser shall be governed by Dutch law, with the exception of the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG).
Disputes between the Seller and the Purchaser shall exclusively be dealt with by the District Court within whose jurisdiction the Seller has its registered office or, in the absence thereof, by the District Court with which the Seller has its place of business, except insofar as, by law, the Subdistrict Court is competent to adjudicate any claim, all this without prejudice to the Seller’s right to summon the Purchaser to appear before the Court in the Purchaser’s place of residence or establishment.
These terms and conditions were filed with the Chamber of Commerce (Kamer van Koophandel) in Arnhem on September 1, 2009 under number 09106506.