GENERAL TERMS OF SALE AND DELIVERY
PONT PACKAGING B.V.
Article 1 – Definitions
Agreement: the agreement between Pont and a Buyer for the sale and delivery of Products;
Business Day: a day (other than a Saturday, Sunday or public holiday) on which banks are generally open in the Netherlands for normal banking business;
Buyer: any (legal) person, limited company or business to whom Pont offers Products or with whom Pont enters into, has entered into or is negotiating an Agreement;
Confidential Information: any information disclosed in connection with the Agreement which is by its nature confidential, has been designated as confidential or is related to the commercial activities or operations of the parties to the Agreement;
Force Majeure: all circumstances beyond the reasonable control of a party concerned, including earthquake, flood, storm, lightning, fire, explosion, war, terrorism, riot, civil disturbance, sabotage, strike, lockout, slowdown, labour disturbances, accident, epidemic, difficulties to obtain required raw materials or labour, lack of or failing transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown of public utilities, changes of law, statutes, regulations or any other legislative measures, acts of governments, supranational organizations or other administrative or public agencies, orders or decrees of any court, acts of third parties, delay in delivery or defects in goods or materials supplied by suppliers or subcontractors or an inability to obtain or retain necessary authorizations or permits;
IPR: all copyrights, as well as rights of intellectual and industrial property that are connected and related to the Products, including but not limited to patents, know-how, data, designs, drawings, advice, catalogues and software;
Pont: Pont packaging B.V., a private limited company incorporated under Dutch law with its registered office at Rondebeltweg 22 (1329 AB) Almere, The Netherlands and registered with the Dutch Chamber of Commerce with number 39047256;
Products: all goods and services delivered under an Agreement;
Product Specifications: the information relating to the design, development and/or manufacturing of the Products including any technical specifications, size, weight, capacity, images, drawings, designs, prototypes, models, calculations and computations dimensions, tolerances, test results, certifications and mouldings;
Terms and Conditions: these general terms of sale and delivery.
Article 2 – Applicability
1. These Terms and Conditions apply to all offers, orders, order confirmations and Agreements made by Pont and the execution thereof. The Buyer accepts the exclusive applicability of these Terms and Conditions. Any deviations must be agreed in writing for each Agreement.
2. The applicability of the Buyer’s general terms and conditions is hereby explicitly excluded.
3. These Terms and Conditions also apply to deliveries made by Pont at the request of third parties.
4. In so far as the parties have concluded an Agreement on the basis of the Terms and Conditions, it is agreed that these Terms and Conditions shall also be applicable to any and all subsequent Agreements concluded between them.
5. In the event of conflict between these Terms and Conditions and the provisions of an Agreement, the latter shall prevail.
6. In the event of a conflict between the English and Dutch version of these Terms and Conditions, the Dutch version shall prevail.
Article 3 – Offers
1. An offer should be regarded as an invitation to the Buyer to place an order. All offers by Pont are without obligation and while stocks last and are not binding on Pont.
2. All offers are valid for 30 days unless otherwise stated in the offer.
3. If an order is placed electronically, Pont is not obliged to provide an acknowledgement of receipt. Messages via email or via another electronic method are deemed to have been received on the send date unless there is proof to the contrary.
4. An Agreement is formed after a written confirmation by Pont, or after the execution of the Agreement has commenced.
5. Delivery periods, price (quotations), quantities, sizes, weights, catalogues, advertisements and other conditions as stated in order confirmations are for information purposes and never binding on Pont. An offer without obligation included in a quotation or proposal may be withdrawn by Pont within 2 working days after acceptance by the Buyer without being obliged to pay compensation for any damages.
6. Orders from the Buyer and acceptances of quotations by the Buyer are irrevocable. Any changes or cancellations of orders require written permission by Pont, to which permission Pont may attach conditions.
Article 4 – Delivery
1. Unless agreed otherwise, Pont delivers Products DAP (Delivered At Place, Incoterms 2010) in respect of deliveries in the Benelux.
2. Pont is entitled to deliver an order in its entirety or in parts as the Products become gradually available. If Pont delivers in parts, Pont is entitled to demand payment for the separate deliveries.
3. Stated delivery times shall never be considered to be strict deadlines. The delivery period commences on the date the Agreement was formed, or in so far as the following is later, on the date an agreed advance payment has been made in full and/or the agreed security was provided and the information relevant for the execution of the Agreement to be provided by the Buyer has been received.
4. Failure to meet a stated delivery time – provided this is within reasonable limits – will not entitle Buyer to cancel orders or dissolve the Agreement, to reimburse costs or damages arising from such a failure to meet the delivery time. In case of a late delivery, the Buyer must give Pont written notice of default and allow a reasonable period to remedy the default.
5. Pont is entitled to extend the delivery period as long as Buyer is in default vis-à-vis its obligations under the Agreement, without prejudice to any other rights of Pont by virtue of Buyer’s default.
Article 5 – On-call delivery and cancellation
1. Where on-call delivery has been agreed, parties shall agree on the time period between manufacturing and the shipment of the Products. Pont reserves the right to set a deadline stating the period within Buyer is required to acquire the Products that have been manufactured.
2. If the Buyer fails to acquire the Products within the agreed period or within the deadline referred to in the previous paragraph, Pont will be entitled to invoice the Products ready for shipment and to demand payment, without prejudice to Pont’s right to claim that Buyer shall acquire these Products.
3. If without Pont’s prior approval, the Buyer cancels an order, Pont will be relieved of the obligation to deliver the Products, however the Buyer is required to compensate Pont for all damages resulting from the cancellation as well as loss of profit.
Article 6 – Quality and compliance with requirements
1. Any orders under the Agreement are exclusively accepted and carried out by Pont (or its contractors) with due observance of the Product Specifications including the tolerances with regard to dimensions and contents as standardized by Pont.
2. On request of the Buyer, Pont shall provide the Buyer with all information relating to the Product Specifications.
3. By concluding an Agreement, the Buyer accepts the Product Specifications ‘as is’ including the tolerances, dimensions, size and weight, unless parties have explicitly and in writing agreed otherwise.
4. Based on the Product Specifications, the Buyer is responsible at all times to assess whether the Product is suitable for its intended use and application as well as other conditions affecting the Products. The Buyer undertakes to test the suitability of the Products for the intended use.
5. Pont does not accept any liability for the intended use and application of the Products and Buyer shall indemnify Pont in this regard.
6. The risk of breakage, theft, loss or other damage to packaging, samples and/or other objects temporarily provided to Pont by the Buyer shall be borne by the Buyer.
Article 7 – Inspection and acceptance
1. The Buyer is obliged to take receipt of the Products as soon as these have been made available to him by Pont. If the Buyer fails to take receipt of the Products, for whatever reason, the Buyer will be obliged to compensate Pont for any resulting storage and other costs.
2. On delivery of the Products, the Buyer is obliged to carefully inspect, or have a third party carefully inspect, the Products. A variation of no more than 5% in quantity between the delivered Products and the relevant order shall be deemed acceptable for the Buyer.
3. After discovering a defect, the Buyer is obliged to cease the use or processing of the relevant Products with immediate effect and shall keep the defect Products available for inspection by Pont.
4. Any complaints in respect of incorrect execution of an order must be received by Pont in writing no later than 14 days after receipt of the Products, subject to forfeiture of rights. The Buyer shall cooperate with Pont in order to validate (or have a third party validate) a claim, which validity check will be within 30 days carried out by Pont. The Buyer shall immediately inform Pont of any alleged defects to the Products in writing. Any complaints shall include a detailed description of the defect, the relevant batch number(s) of the product order that included the defect Product(s) as well as sufficient samples of the defect Products in order to enable Pont to assess the complaint.
5. Complaints will not be processed, if it is found that the Buyer and/or third parties have made modifications to the Products, or that these have been adapted or repaired without prior permission from Pont.
6. If, between the moment of ordering and delivery of those Products, Pont implements generally introduced changes with regard to the fabrication and/or features of those Products, this cannot be a ground for complaints, provided Pont offers replacement Products at the same time, which can be deemed to be at least equal with regard to functionality, (technical) characteristics and design.
7. Complaints regarded by Pont as justified, only give the Buyer the right to remedy of the delivered Product, delivery of what is missing, free replacement (unless the variation is too minor to justify this) or refund by Pont of the price the Buyer paid for the delivered Product, such at the discretion of Pont.
8. Return shipment of delivered Products is only possible if these are unused and undamaged, are in the original packaging and the relevant prior written permission has been obtained from Pont, failing which the Buyer will pay all costs to Pont that are incurred in connection with the return shipment.
9. Shown or provided samples, designs, photos and drawings and such items are only indications of the relevant Products in question and do not bind Pont, unless they have been explicitly guaranteed in writing by Pont, whereby it is understood that these statements are deemed to have been provided on an approximate basis.
Article 8 – Price and payment
1. Unless agreed otherwise, Pont shall issue invoices after delivery. In case advance payment has been agreed, the Buyer is required to complete payment before delivery. All prices and invoices shall be in Euro unless parties agree otherwise in writing. Pont is entitled to issue invoices electronically. All prices are exclusive of VAT and other levies and taxes which may be imposed by authorities.
2. Pont shall charge Buyer in relation to any cost in relation to special packaging requirements, crates, pallets and other associated materials resulting from Buyer’s specific request.
3. If at any moment between the offer date and the delivery date, the prices of raw materials, energy, labour and transport, taxes, fuel, carriage rates or insurance premiums or parts procured by Pont from third parties, are increased, due to whatever cause, Pont shall be entitled to increase its prices accordingly. Intermediate price increases shall become effective following written notification by Pont to the Buyer.
4. If Buyer rejects a price adjustment, Buyer is entitled to prematurely terminate the Agreement at the end of the calendar month, with due observance of a notice period of 2 months. However, Buyer shall be obliged to pay in full for any Products that have been manufactured before the notice of termination, any Products that are in production and can no longer be cancelled as well as the contribution for the mould costs which will be charged on a pro rata basis (see also article 12 below).
5. Unless otherwise agreed in writing, payment must take place without deduction or set-off not later than 30 days after the invoice date.
6. In the case of the payment term being exceeded, the Buyer shall automatically be in default, without a notice of default being required, and the Buyer shall pay commercial interest (handelsrente) from the expiry date. In addition to the amount payable and the commercial interest, the Buyer must pay Pont all costs and damages sustained by Pont as a result of non-payment or late payment by the Buyer, including any judicial and extrajudicial costs. The extrajudicial costs amount to at least 15% of the outstanding amount.
7. Any claims of the Buyer on Pont are not transferable or pledgeable. This clause has effect under property law (goederenrechtelijke werking).
8. If the Buyer is in default and/or if, in Pont’s opinion, there are good reasons to doubt whether the Buyer will (be able to) meet his payment obligations (including in any case the Buyer’s bankruptcy or suspension of payment, attachments to (a part of) the Buyer’s assets, sale, encumbrance or liquidation of the Buyer’s business), Pont, without being obliged to pay any compensation and without prejudice to any further rights due to Pont, is entitled to:
– demand advance payment or provision of security;
– fully or partially suspend the execution of the Agreement;
– revoke agreed payment terms, whether or not in other Agreements, making all (other) outstanding amounts immediately payable;
– suspend its obligations arising from all other Agreements with the Buyer;
– remove or have third parties remove Products that are subject to retention of title from the Buyer or from any third parties, at the expense and risk of the Buyer. The Buyer hereby grants Pont irrevocable authorisation to enter the areas where the Products are located for Pont to take possession of these;
– terminate the Agreement with immediate effect,
in all of the above cases with compensation for any damage suffered by Pont.
9. Pont is also entitled to terminate the Agreement with immediate effect in writing if the Buyer discontinues his business.
Article 9 – Guarantee and liability
1. Pont does not provide any guarantees with regard to the Products other than the guarantees provided by the manufacturer of the Products and that are in, on or attached to the Products or their packaging, for the duration as set by the manufacturer.
2. If and so far the Products need to comply with specific statutory, safety and quality requirements in the country of destination, i.e. the country (or countries) to which the Buyer intends to distribute the Products, it is Buyer’s responsibility to verify such requirements and inform Pont thereof. The Buyer indemnifies Pont against and fully compensates Pont for claims with regard to statutory, safety and quality requirements, including claims based on product liability, that relate to such Products that are distributed outside the country of destination.
3. Pont’s liability is limited to replacement of faulty or defective Products. The Buyer indemnifies Pont against any liability for damage resulting from the use of the Products supplied by Pont to the Buyer. Pont procures the Products from third parties and will not grant a warranty with respect to these Products in excess of the warranty granted to Pont by its suppliers.
4. In so far as these manufacturer’s guarantees should not be applicable, Pont warrants, for a maximum period of 1 (one)) years from the date the Products have been manufactured, that all Products delivered under the Agreement (unless the Products have been supplied in accordance with designs of the Buyer):
(i) shall conform to the Product Specifications with due observance of the tolerances with regard to dimensions and contents as agreed by the parties;
(ii) be of satisfactory quality meaning that the Products shall be free from material defects in title, materials, workmanship, manufacture and design (to the extent Pont, its employees, agents, contractors and/or vendors are responsible for the design); and
(iii) comply with all statutory, safety and quality requirements in the country in which the Products are to be delivered and/or processed (in so far as the Buyer has informed Pont thereof and such requirements have been included in the Product Specifications).
5. If there is a case of a (partially) faulty Product as a consequence of complying with any mandatory statutory provisions with regard to the nature or characteristics of raw materials and/or materials used in the delivered Products, Pont shall not be liable in this respect. Any modification, change or repair with regard to the Products in respect of statutory, safety and quality requirements, must be carried out by a qualified expert.
6. Pont will never accept responsibility for any further guarantees or undertakings provided by the Buyer to his customers other than is stipulated in this article 9 and the Buyer indemnifies Pont in this respect. In the case of a resale of the Products by the Buyer, the Buyer will agree a similar provision with his customers.
7. Any liability, which shall also apply for any wrongful act caused by Pont, shall be limited to the amount to be paid out by the liability insurer of Pont for the occurrence in question, plus any excess to be borne by Pont under its liability insurance policy.
8. If the liability insurance policy does not proceed to effect payment for any reason whatsoever, the liability of Pont shall in all cases limited to an amount that is equal to the total invoice value of the Products (excl. VAT) in the six months prior to the incident causing the damage.
9. Pont is never liable for consequential damage and indirect damage, including but not limited to loss, lost profit, costs incurred, missed orders, production interruption or standstill and the Buyer shall indemnify Pont in that regard.
10. Pont will be released from any liability and is not obliged to accept complaints regarding faults, if the Buyer fails to fulfil any of its obligations under the Agreement promptly.
Article 10 – Transfer of title
1. Pont shall bear the risk of any loss or damage to the Products until the time the Products are ready to be unloaded at the agreed delivery location. The unloading is carried out at the expense and risk of the Buyer.
2. Title to the Products provided by Pont will transfer to the Buyer upon delivery except in the case where the Products are rejected or subject to a complaint by the Buyer in accordance with article 7.3 and further.
Article 11 – Retention
1. All Products delivered by Pont shall remain property of Pont until such time the Buyer has fully paid what he owes by virtue of the Agreement or any associated agreements, including claims due to failures or defaults on the part of the Buyer.
2. The Buyer is obliged to store the items under retention of title with the necessary care and recognisable as Pont’s property and insure and continue to insure these properly.
3. The retention of title does not impair the transfer of risk as described in these Terms and Conditions.
4. The Buyer may not resell any Products to third parties without prior payment to Pont of all outstanding invoices, except when it concerns its normal business operations. In so far as the Buyer resells the Products to third parties without prior payment to Pont, this will not affect Pont’s retention of title applicable on the basis of article 11.1 and the Buyer will undertake to assign all amounts due by those third parties to Pont until the outstanding amounts due to Pont by the Buyer with regard to the Products have been settled in full.
5. The Buyer is not allowed to encumber any Products as long as the ownership of the Products has not been transferred to the Buyer.
6. The Buyer is obliged to notify Pont immediately when third parties assert rights in respect of Products which haven’t been paid in full and to which Pont still holds the title as well as immediately inform such third parties that the Products were delivered to the Buyer under retention of title. If the Buyer fails to fulfill his obligations properly or a timely manner, Pont is entitled to suspend or dissolve the Agreement in whole or in part, and also to cancel any orders in hand, without prejudice to any other rights Pont has or may have including Pont’s rights to compensation.
7. At Pont’s request the Buyer shall assist Pont in taking any measures necessary to protect Pont’s title to the Products.
Article 12 – Mouldings
1. All drawings, samples, models, dies, casts, mouldings and other material manufactured by or for Pont on the instructions of the Buyer shall remain the property of Pont irrespective whether the Agreement has been terminated or the Buyer has the paid the costs for the mouldings (partial or in full), unless explicitly otherwise agreed in writing.
2. Pont will perform the maintenance of the moulds to ensure that the expected lifespan of the mould will be achieved.
3. Any equipment, drawings or other material provided by the Buyer to Pont required for the performance of the Agreement, shall be retained by Pont for the expense and risk of the Buyer, including any maintenance, adjustment or renovation. No obligation to insure these against damage by fire, theft or other damage is accepted. After two years have lapsed calculated from the most recent order, Pont will be entitled at its own discretion to dispose of these materials without being obliged to pay any remuneration.
Article 13 – IPR
1. Unless explicitly agreed otherwise, any IPR created under the Agreement and relating to Products is owned by Pont and no IPR shall be transferred from Pont to the Buyer or vice versa in the performance of this Agreement.
2. Pont retains all copyright to the images, drawings, sketches, designs, prototypes, models, calculations and mouldings provided with the Products or on other occasions.
3. The IPR shall remain the property of Pont and shall not be copied or disclosed or provided to any third parties or used in any other way by the counterparty without the explicit prior written consent of Pont.
Article 14 – Confidentiality
1. Both Pont and the Buyer agree not to disclose to any person, any Confidential Information relating to the Agreement or the Products, without the prior written approval of the other party.
2. The Buyer, including but not limited to its employees and agents, are bound to confidentiality with regard to the Agreement and all IPR, technical, business, financial and other information the Buyer obtains regarding Pont and/or the Products and of which the Buyer is aware of should have been aware that this information is confidential, subject to an immediately payable penalty of € 50,000.00, without prejudice to Pont’s right to claim full compensation.
3. The obligations on the parties under this article 14 will not be taken to have been breached to the extent that Confidential Information:
(i) is disclosed by a party to its personnel solely in order to comply with obligations, or to exercise rights, under this Agreement;
(ii) required by law or court order to be disclosed;
(iii) is in the public domain;
(iv) is or has become generally available to the public other than as a result of a disclosure by either party; or
(v) was in the possession of a party prior to disclosure or is developed independent from such Confidential Information, as is shown by competent evidence.
4. Upon the first request of Pont, the Buyer shall without delay (a) return all their copies, samples and extracts of, and all other physical media containing, Pont’s Confidential Information, and (b) delete or destroy (and have deleted or destroyed) all automated data containing Pont’s Confidential Information.
Article 15 – Force Majeure
1. Neither party shall be liable for any failure or delay in performing its obligations under the Agreement to the extent that such failure or delay is caused by a Force majeure event.
2. A party unable to fulfil its obligations duly and timely because of an event of Force Majeure shall inform the other party promptly, specifying the cause of Force Majeure and how it may affect its performance, and shall make best efforts to terminate or avoid as soon as practicable the Force Majeure circumstances. The parties shall consult with each other in order to minimize all damages, costs and possible other negative effects.
3. If, due to Force Majeure, the performance or prompt performance of the Agreement cannot reasonably be demanded of Pont, Pont is entitled at its discretion and solely on written notification either to postpone the performance for the duration of the Force Majeure or to cancel or dissolve the Agreement to the extent that the Agreement has not yet been performed or the Products are not yet ready for shipment, without any liability for compensation to the Buyer.
4. If the Force Majeure situation continues for over ninety (90) days, each party has the right to terminate the Agreement in writing. What has already been performed as a result of the Agreement will then be settled proportionally, without the parties then owing each other anything.
Article 16 – Resale by Buyer
1. The Buyer is prohibited to (re)sell the Products in an empty condition in any market. By entering into the Agreement, the Buyer undertakes to use the Products himself.
2. Only authorized wholesalers are allowed to trade in the Products.
Article 17 – Assignment
1. The Buyer is prohibited from assigning its rights or obligations under this Agreement to any third party, without the explicit and prior written consent of Pont.
2. The Buyer herewith agrees that Pont may assign any of its rights or obligations under this Agreement to its affiliates of subsidiaries.
3. Pont shall be entitled to outsource or use third parties in the context of the execution of this Agreement without the prior consent of the Buyer.
Article 18 – Amendments
1. Pont shall reserve the right to unilaterally amend these Terms and Conditions.
2. Amendments will come into effect 30 days after the Buyer has been notified accordingly.
Article 19 – Privacy
1. Pont and the Buyer will, at all times, observe the rules with regard to the protection of personal data by virtue of current laws and regulations.
2. In so far as required by law, Pont and the Buyer will enter into a data processing agreement.
Article 20 – Disputes
1. These terms and conditions and the Agreements are governed by Dutch law. The applicability of the Vienna Sales Convention is explicitly excluded.
2. All disputes in connection with these general terms and conditions, Agreements or an offer to conclude an Agreement must be submitted to the competent court in Almere, the Netherlands.