General terms and conditions of VDS Packaging B.V.

1. Parties

  1. VDS: VDS Packaging B.V., registered with the Chamber of Commerce under number 94073783, established at Verlengde Kampdijklaan 2 (5263 BA) in Vught, user of these general terms and conditions.
  2. Further details from VDS:
    Website: www.vdspackaging.nl
    Email address: info@vdspackaging.nl
    Phone number: 085 - 8007 787
  3. The Customer: the (potential) buyer of goods offered by VDS.

 

2. Applicability

  1. VDS declares these General Terms and Conditions applicable to every offer by VDS and, whether or not resulting therefrom, agreements entered into by the parties with each other. Insofar as their content has not been changed, these General Terms and Conditions shall also apply to future contractual relationships between the parties.
  2. Deviations from these terms and conditions shall only apply insofar as they have been expressly agreed by the parties in writing.
  3. General (purchase) conditions of The Customer are expressly rejected.
  4. Third parties engaged by VDS in the performance of the contract may also rely on this terms and conditions professions.
  5. If one or more (part(s) of the provisions of these general terms and conditions are null and void or annulled, the other provisions of these general terms and conditions shall remain applicable. The parties will then consult to agree new rules to replace the void or voided provisions, which will reflect the purpose and meaning of the void or voided provisions as much as possible.

3. Supply and agreement

  1. Any offer, whether in the form of an offer or otherwise, shall be in its entirety unconditional, non-binding and revocable and shall be valid for 14 days, unless otherwise stated in writing by VDS.
  2. Each offer is valid only while stocks last.
  3. The prices stated in an offer are, unless stated otherwise, in Euros and exclusive of VAT, shipping costs and subject to levies, surcharges and other factors.
  4. All statements by VDS of numbers, sizes, weights and colour of the goods in the designs, drawings, illustrations, photos or models shown or provided shall be indications only. A slight deviation from these in the delivered goods shall not constitute a breach of contract on the part of VDS.
  5. An offer does not automatically apply to repeat orders.
  6. Obvious clerical errors and abusive mistakes in the offer shall not be binding on VDS.
  7. The contract shall be concluded after both parties have signed a written offer, after VDS has confirmed a written acceptance or after VDS, or a third party on its behalf, has commenced performance.
  8. The agreement is expressly entered into under the suspensive condition of sufficient availability of the ordered products.

 

4. Execution and delivery

  1. The Client shall give VDS the opportunity to perform the contract. The Client undertakes to provide the necessary cooperation for the performance of the contract by VDS.
  2. VDS shall try to fulfil the contract within the stated/estimated time limit. This deadline shall not be fatal, which means that The Customer shall always give VDS first give notice of default, whereby a long and reasonable period of at least 30 days must be given before any remedy can be implemented. The expiry of this period does not allow the Customer to dissolve the agreement and does not entitle him to damages. The parties shall endeavour to execute the agreement within a reasonable period after the expiry of this period.
  3. If VDS takes care of delivery/delivery, The Customer shall provide a delivery address where VDS can deliver/deliver the goods to be delivered on the date indicated. If The Client is not present on the indicated date when goods are delivered, the costs of offering the goods at a subsequent time shall be borne by The Client. The Client shall then be notified that the order can be picked up at a location specified by VDS after payment of the additional costs, which shall also include the logistics (planning) costs at the storage location due to unexpected additional storage.
  4. If delivery takes place at the premises of VDS and The Customer therefore collects the goods there, The Customer shall comply with the agreed delivery date. If The Customer does not collect the goods on the agreed date, VDS shall be entitled to recover the reasonable costs for storage of the goods from The Customer.
  5. VDS shall be free to have the order and/or delivery carried out by third parties. Section 7:404 of the Civil Code is expressly excluded in the agreement.
  6. Delivery of goods shall take place only after conclusion of the agreement. The risk of loss or depreciation of the goods to be delivered shall pass to The Customer from the moment they are or would be made available to him. This irrespective of whether the transfer of ownership has already taken place.
    7. VDS shall be entitled to perform the Agreement in different phases and to invoice the part thus performed separately. If the Agreement is performed in phases, VDS may suspend the performance of those parts belonging to a subsequent phase until The Client has approved the results of the preceding phase in writing. Approval means that VDS can no longer be held liable or for defects that could reasonably have been known at the time of approval.
  7. 8. Without being in default, VDS may refuse a request to change the contract if this could have qualitative and/or quantitative consequences, for example for the goods to be delivered in that context.
  8. In the case of cross-border delivery, delivery is expressly made under the latest IncotermsÒ EXW (EX Works/Factory), unless otherwise agreed.

 

5. Undertakings of The Customer

  1. The Client shall give VDS the opportunity to perform the contract. The Client undertakes to provide the necessary cooperation for the performance of the Agreement by VDS. This includes, inter alia:
  2. a) Be present at the delivery address provided by The Customer on the agreed delivery date;
  3. b) Ensure that VDS has timely access to the approvals required for the order (such as consents, etc.) and the data to be provided for the order;
  4. c) Ensuring that work and/or deliveries to be carried out by third parties, which are not part of VDS's order, are carried out in such a way and in such a timely manner that the execution of the order is not delayed.
  5. If the obligations in paragraph 1 are not fulfilled (on time), The Customer shall inform VDS about this in good time. VDS shall be entitled to charge the Customer for the additional costs involved, such as storage, travel or labour costs, as a result.
  6. If the obligations in paragraph 1 are not fulfilled (on time), VDS shall not be obliged to compensate the Customer for the damage resulting from a delay in delivery or completion.
  7. The Client shall ensure that all data, which VDS indicates are necessary or which the Client should reasonably understand are necessary for the performance of the contract, shall be provided to VDS in good time. The Customer himself shall bear the risk and responsibility of correct and timely delivery of the required information and its content, irrespective of how The Customer provides it. If the necessary information is not provided to VDS in time, VDS shall be entitled to suspend the performance of the contract and/or charge the additional costs resulting from the delay to The Client at the usual rates.
  8. Prior to the performance, The Client shall provide VDS with the agreed and required items and information, such as address and contact details. VDS shall assess these to the best of its knowledge. However, VDS shall not be liable for damage resulting from work nevertheless performed on the basis of incorrectly provided items and information by The Customer.
  9. The Customer expressly bears the risk for damage caused by:
  10. a) Inaccuracies in the constructions and working methods required by The Customer;
  11. b) Defects to/by the (un)movable property on which or in which the assignment is performed;
  12. (c) Defects in materials or resources provided by The Customer.
  13. The Client guarantees that digitally supplied material is safe and does not contain any viruses or other harmful content, which could in any way cause damage to the computer systems, computer programmes of VDS and/or third parties.
  14. Art. 7:408 and 7:764 BW are excluded in the agreement. The Client shall have no option to terminate the contract prematurely, unless otherwise provided in the contract. In the event that The Client wishes to terminate the contract prematurely, The Client shall still owe the entire (quoted) fee and VDS shall be released from its obligation to perform further services, regardless of whether or not the services agreed for that purpose have been performed (in full).

6. Retention of title

  1. Ownership of the goods to be delivered, contrary to the actual provision of power, shall not pass to The Client until all that The Client owes or will owe to VDS in respect of the contract has been paid in full. This shall therefore include not only the purchase price, but also, among other things, any further penalties, additional costs or extrajudicial collection costs due.
  2. Pursuant to this retention of title, The Customer is therefore not entitled to alienate or encumber the goods with, for example, a pledge.
  3. In connection with the effectiveness of the retention of title, the Customer undertakes to inform VDS promptly and adequately in case of imminent bankruptcy, suspension of payments, debt restructuring or if third parties threaten to seize any of the goods delivered subject to retention of title. The Customer shall also be obliged to adequately insure the retained-title goods against damage and theft.
  4. If The Client is in default of any obligation under the contract, The Client shall be obliged at VDS's request to provide all necessary cooperation so that VDS can again dispose of the delivered goods unencumbered. This shall include the possible obligation to return the goods at his own expense at VDS' request.

 

7. Warranty and liability

  1. The Customer accepts that all goods are sold with all known, unknown, visible and invisible factual and legal defects, charges and limitations.
    No other warranties shall be granted, except insofar as the supplier of VDS provides a warranty or otherwise expressly agreed.
  2. The Client shall be obliged to check the delivery and performance for conformity with regard to quantity and quality as soon as possible, but within 24 hours. If the performance does not meet the conformity agreed on the basis of the contract, and therefore there is a defect, The Client shall inform VDS accordingly within 8 days after delivery.
  3. After the provision of information as referred to in the previous paragraph, VDS shall remedy the defect free of charge or replace it reasonably. If neither of the two remedies described above provides a solution to effectively remedy the defect, The Customer shall be entitled to (partially) dissolve the contract in respect of this defect, whereby The Customer shall bear the costs of returning the delivered goods. The foregoing applies without The Customer being entitled to any compensation.
  4. If the defect was caused by a fault attributable to The Client or The Client informed VDS about the defect too late, his right to repair, replacement or possible rescission as described in this article shall lapse. The burden of proof that the fault is not attributable to The Client shall lie with The Client.
  5. The existence of a defect does not suspend The Customer's payment obligation.
  6. The Customer shall never be entitled to any remedy if the item has been used incorrectly or carelessly. The Customer shall be obliged to use the goods in accordance with the appropriate documents, such as an instruction manual and/or instructions on the packaging of the goods from VDS. The Customer undertakes to have the goods used only by persons who have been properly instructed on their use. If the aforementioned is not observed or extras and/or changes, in whatever form, are made by The Client, any warranty shall lapse.
  7. VDS shall only be liable to The Customer for direct damage of The Customer and only in the event of intent or gross negligence.
  8. Should VDS be liable to The Client, this liability shall be limited to the amount paid out under the professional/company liability insurance or other liability insurance taken out by VDS, but at most (in case there is no insurance to which a claim can be made) to the amount of the invoice amount from which the damage arose plus 15%.
  9. Except in cases of intent or deliberate recklessness, VDS' liability shall not extend to consequential damage, indirect damage, immaterial damage, delay damage, property damage, reduced goodwill, lost sales and/or profit, etc.
  10. The Client shall indemnify VDS against third-party damage arising in connection with the contract because VDS has acted, including omitted to act, on the basis of the information, data and documents provided by The Client incorrectly, incompletely or late, or in deviation from these General Terms and Conditions.
  11. In all cases, the period within which VDS can be sued for any remedy, such as compensation for damage, shall be limited to 12 months after delivery.

 

8. Prices and payment

  1. The offer was made by mutual agreement. By entering into the agreement, the parties consider the prices to be reasonable and fair.
  2. Unless otherwise agreed, The Customer shall pay the sum of money due in full prior to delivery by VDS. Invoices shall in any case be paid within 14 days after receipt of the invoice by giro transfer. VDS shall be entitled to invoice immediately after the conclusion of the contract.
  3. If the agreed payment period is exceeded, VDS shall be entitled immediately to charge the Customer default interest of 1% of the principal sum per month as well as an amount for the benefit of the extrajudicial collection costs charge. The latter costs amount to 15% of the principal amount due with a minimum amount of EUR. 100 excluding VAT.
  4. Without VDS' express and written consent, The Client shall not be permitted to apply set-off and/or suspension and/or deduction in respect of its payment obligations.
  5. All prices are based/determined on factors applicable at the time the price was quoted or the contract was concluded, including tax charges, levies, raw material, energy, fuel and material prices, import duties, transport/freight costs and exchange rates to or from the Euro. If changes to one or more of these price-determining factors occur after conclusion of the contract, but before delivery by VDS (in general or in any case calculated by VDS's regular/usual supplier), VDS shall be entitled at any time to adjust the agreed price during the contract in accordance with this increase. This circumstance shall be expressly regarded as unforeseen by the parties.

 

9. Termination of the agreement

  1. VDS shall be entitled to dissolve the contract with The Customer with immediate effect for the future by written notice without (further) prior notice of default if:
  2. (a) The Customer ceases all or part of its business operations or otherwise liquidates it and/or substantially changes or transfers its business to a third party without VDS' prior written consent;
  3. b) The Customer is granted suspension of payment (provisional or otherwise) or The Customer is declared bankrupt, The Customer submits a request for application of a debt rescheduling scheme or The Customer is placed under guardianship or administration;
  4. c) A right accruing to The Customer is seized.
  5. In the event of termination of the contract, all payments owed by The Client to VDS shall be immediately due and payable in full. If the work is not fully completed, The Client shall owe a proportional part of the total sum of money.
  6. In the event of termination of the contract, The Customer shall, at VDS' request, provide all necessary cooperation so that VDS can again dispose of delivered goods unencumbered.
  7. The Customer has no right of withdrawal, as The Customer has declared not to act as a consumer, but in the exercise of a business or profession.

 

10. Force majeure

  1. In addition to its definition in law and jurisprudence, force majeure shall include all external causes, foreseen or unforeseen, over which VDS cannot exercise any control. This shall also include war, strikes, traffic disruptions, unforeseeable stagnation, disruptions in the supply of energy, transport difficulties, fire, loss or damage in transit, import and/or export restrictions, shortcomings of third parties on which VDS depends for the performance of the contract with the Client, epidemics, pandemics and government measures.
    2. During force majeure, obligations of VDS shall be suspended. If fulfilment due to force majeure is impossible for longer than one month or there are other circumstances which make it disproportionately difficult for VDS to fulfil its obligations, VDS shall be entitled to dissolve the contract in whole or in part by giving notice to The Client and without judicial intervention, without any obligation to pay compensation in that case.
    3. If VDS has already partially fulfilled its obligations when force majeure occurs, it shall be entitled to invoice the part already delivered or performed separately, or to credit part of it in the event of advance payments.
  2. In case of (interim) dissolution of the contract, all payments owed by The Client to VDS shall be immediately due and payable in full.

 

11. Intellectual property rights

  1. VDS reserves its rights and powers under the Copyright Act and other intellectual property laws and regulations. VDS shall (only) provide The Client with a licence to use the manufactured finished product/mould, but not to resell/transfer or process it. VDS shall have unlimited right to reuse (part of) the finished product/mould. In all cases, ownership shall remain with VDS.
  2. The trademarks, images, logos and photos used and displayed on the VDS website and goods are registered or unregistered trademarks of VDS or third parties and may not be used commercially without the prior consent of the owner of those trademarks.
  3. The intellectual property arising from the performance of the contract, such as ideas, concepts or (test) designs provided by VDS, shall belong entirely to VDS, unless expressly agreed otherwise in writing. In the latter case, VDS may stipulate a fee for this. In the event of proven breach of said ownership, VDS shall be entitled to charge a self-determined but reasonable fee for this.
  4. Unless expressly agreed in writing, the assignment does not include conducting research into the existence of patent rights, trademark rights, drawing or design rights, copyrights and portrait rights of third parties. The same applies to any investigation into the possibility of such forms of protection for The Client.
  5. Drawings, technical descriptions, moulds, designs and calculations made by VDS for the purpose of the order shall remain the property of VDS. They may not be made available or shown to third parties. Nor may they be copied or otherwise reproduced. If no order is granted, the said documents shall be returned to VDS within 7 days after a request to that effect by VDS, at the expense of the Client.
  6. If The Client provides its own design, VDS assumes that The Client is entitled to start production of the relevant good. It may therefore be the case that The Client, if it provides a design to VDS, must have permission from a company, licensee or other copyright holder. VDS assumes the uploaded/provided design and similar materials are used lawfully. The Client shall be solely responsible for any infringements of intellectual property and shall indemnify VDS both in and out of court against all claims that third parties may assert.

 

12. Forum, choice of law and transfer of rights

  1. VDS shall be entitled to transfer its rights and obligations under this Agreement to a third party. The Customer shall only be entitled to transfer its rights and obligations to a third party with the written consent of VDS.
  2. This - and any other - agreement(s) concluded between the parties is exclusively governed by Dutch law, with the express exception of the Vienna Sales Convention. Should an obligation arise between the parties in the future, other than pursuant to an agreement, that obligation shall also be governed by Dutch law.
  3. In the event that a dispute arises from the agreement between the parties, the exclusively absolutely competent court is the court in the district which the registered office of VDS is located. In the event that a dispute arises between the parties regarding non-contractual obligations, the exclusive absolute court of jurisdiction shall also be the court in the district under which the registered office of VDS falls.

 

Dhese terms and conditions have been prepared by Bleijerveld Legal advice www.bleijerveldjuridischadvies.nl