General Terms and Conditions
For the supply and delivery of goods by the IBC Store – a Bag in Box Group B.V company.
1. General – Scope of validity
1.1 These General Terms and Conditions of Sale (“Conditions”) govern the offering, sale and delivery of all goods and/or services (separately and jointly referred to as “the Goods”) from or on behalf of Bag in Box Group B.V. (“Seller”) to customer/s (“Customer”). Pursuant to these Conditions, Customer refers to, among others, the natural or legal person with whom BiB Group has reached an agreement or to whom BiB Group has made an offer in relation to the sale and delivery of the Goods.
1.2 These Conditions supersede and shall apply in preference to any and all prior oral and written quotations, communications, agreements and understandings of the Parties in respect of the sale and delivery of the Goods. These Conditions may only be varied or waived by a duly executed written agreement between Seller and Customer. Failure of Seller to object to terms and conditions set by Customer shall in no event be construed as an acceptance of any terms and conditions of Customer. The applicability of the Customer’s general conditions is hereby dismissed explicitly. Any communication or conduct of Customer which confirms an agreement for the delivery of Goods by Seller, as well as acceptance by Customer of any delivery of Goods from Seller shall constitute an unqualified acceptance by Customer of these Conditions.
1.3 By contracting on the basis of these Conditions, Customer agrees to the applicability thereof in respect of future dealings as described in Paragraph 1.1, even in the event that it is not expressly stated. Seller shall be entitled to update and/or amend these Conditions regularly and by and as of the moment of notifying Customer of such update or amendment or by sending Customer the updated or amended Conditions, these revised Conditions shall apply to all dealings between Seller and Customer. Seller and Customer agree that enforceable and binding obligations, and their amendment, may result from electronic means of communication.
2. Quotations, Orders and Confirmations
2.1 Offers and quotations, made by Seller in whatever form, are not binding upon Seller and merely constitute an invitation to Customer to place an order, being these offers and quotations revocable and subject to change without notice. Orders are not binding until accepted by a duly authorized representative of the Seller in writing (“Seller’s Confirmation”). Seller is always entitled to refuse an order without indication of its reasons.
2.2 Price quotations based on estimated or projected quantities are subject to increase in the event that actual quantities purchased during the specified period are less than the estimated or projected quantities.
2.3 Any samples supplied to Customer are supplied solely for information purposes and in no way imply any express or implied conditions or warranties of any kind, including as to quality, description, merchantability, suitability or fitness for any purpose.
2.4 Each delivery shall stand as a separate transaction and any failure to deliver shall have no consequences for other deliveries.
3.1 Prices and currencies of Seller’s Goods are as set out in Seller’s Confirmation. Unless agreed otherwise, Seller’s prices include standard packaging but do not include Value Added Tax (VAT) or any other similar applicable taxes, duties, levies or charges in any jurisdiction levied in relation to the Goods or the delivery thereof (“Taxes”). The amount of any Taxes levied in connection with the sale of the Goods to Customer shall be for Customer’s account and shall be added to each invoice or separately invoiced by Seller to Customer.
3.2 If Seller grants a discount, this discount only relates to the delivery specifically mentioned in Seller’s Confirmation.
3.3 Unless the prices have been indicated as firm by Seller in Seller’s Confirmation, Seller is entitled to increase the price of the Goods still to be delivered if the cost price determining factors have been subject of an increase.
4.1 Unless expressly stated otherwise in writing by the Seller, payment shall be made on the basis of net cash in Euro, to be received by Seller within thirty (30) days following the date of Seller’s invoice for the Goods, by means of transfer into the bank account mentioned on the invoice. All payments shall be made without any deduction on account of any Taxes and free of counterclaim.
4.2 Seller may, without prejudice to any other rights of Seller, charge interest on any overdue payment at the higher rate of either fifteen percent (15%) per annum, or one and a half times the prevailing legal interest rate under applicable law, but not to exceed the maximum interest rate permitted under applicable law, from the due date computed on a daily basis until all amounts outstanding are paid in full. All costs and expenses incurred by Seller with respect to collection of overdue payments (including, without limitation, extra judicial collection charges, attorney’s fees, expert fees, court costs and other expenses of litigation) shall be for Customer’s account. Extra judicial collection charges shall consist of at least fifteen percent (15 %) of the overdue payment sum, based on a minimum of 500 Euros. Every payment by Customer shall in the first place serve to pay the judicial and extra-judicial costs and the interest owed by it and afterwards shall be deducted from the eldest outstanding claim.
4.3 Any Complaint concerning invoices shall be submitted in writing by the Customer to the Seller within five (5) working days after the date of the invoice. Thereafter the Customer shall be deemed to have approved the invoice.
4.4 The Seller is authorized to demand payments or guarantees in advance.
5.1 Unless expressly stated otherwise in Seller’s Confirmation, all deliveries of Goods shall be Ex Works Seller’s production facility, as the term Ex Works shall have the meaning assigned to same in the latest version of Incoterms published by the International Chamber of Commerce at Paris, France, at the time of Seller’s Confirmation.
5.2 Any times or dates for delivery by Seller are estimates and shall not be of the essence. In no event shall Seller be liable for any kind of indirect or consequential damages caused by any delay in delivery. Delay in delivery of any Goods shall not relieve Customer of its obligation to accept delivery and execute proper payment thereof. Seller is entitled to deliver the Goods as stated in Seller’s Confirmation in parts and to invoice separately. Deviations in quantity of Goods delivered from that stated in Seller’s Confirmation shall not give Customer the right not to accept the Goods and the Customer shall remain obliged to pay the rate specified in Seller’s Confirmation for the quantity of Goods delivered.
6 Customer’s wrongful non-acceptance or rejection of Goods or cancellation or repudiation of Seller’s Confirmation shall entitle Seller to recover, in addition to any other damages caused by such action: (a) in the case of Goods which reasonably cannot be resold by Seller to a third party, the price of such Goods; or (b) in the case of Goods which can be resold by Seller or where an action for the price is not otherwise permitted by law, damages equal to forty percent (40%) of the price for the Goods as liquidated damages.
7. Examination and conformity to specifications
7.1 On delivery and during the handling, use, transportation, storage and sale of the Goods (hereinafter referred to as the “Use”), Customer shall examine the Goods and satisfy itself that the Goods delivered meet all contractual requirements. At delivery of the Goods, the Customer shall be obliged to inspect the supply on incompleteness, damage due to transport, visible deficiencies and the like, and if such cases, to mention this on the receipt of delivery.
7.2 Complaints about the Goods shall be made in writing and must reach Seller not later than two (2) working days from the date of delivery in respect of any defect, default or shortage which would be apparent from an inspection on delivery. Complaints about the Goods concerning deficiencies, defects, default or shortage which could not be apparent from an inspection on delivery shall be made in writing in no event later than eight (8) working days from the date of delivery of the Goods, under penalty of loss of all the rights of the Customer to submit the relevant Complaint. Complaints as mentioned shall be submitted in writing under precise and explicit specification of the nature of the Complaints. Use of the Goods shall be deemed to be an unconditional acceptance of the Goods and a waiver of all claims in respect of the Goods.
7.3 Goods that Seller consents or directs in writing to be returned shall be returned to Seller at the risk of Customer, unless otherwise agreed in writing by the Seller and the Customer, to the destination directed by Seller.
7.4 Defects in parts of the Goods stated in Seller’s Confirmation do not entitle Customer to reject the entire delivery of the Goods. Complaints, if any, do not affect Customer’s obligation to pay as defined in these Conditions. Upon receipt of a Notice of Defect, Seller is entitled to suspend all further deliveries until the Complaints are established to be unfounded and/or refuted or until the defect has been totally cured. Delivered Goods shall not be returned to the Seller unless request of the Seller.
7.5 Given the market application of our Goods, any Notice of Defects and or Complaints are explicitly rejected by Seller in case the Goods in question are not made available to Seller for examination.
8. Transfer of Property
8.1 The risk of the Goods shall pass to Customer on delivery.
8.2 Goods for which delivery is suspended pending payment by Customer , as well as Goods of which delivery is wrongfully rejected or not accepted by Customer, shall be held and stored by Seller at the risk and expense of Customer.
8.3 The ownership of the Goods shall not pass to Customer and full legal and beneficial ownership of the Goods shall remain with Seller unless and until Seller has received payment in full for the Goods, including all secondary costs and additional damages in relation to the Goods, including, without limitation, interests, charges and expenses set forth in Paragraph 4.
8.4 In the event of termination on the basis of paragraph 16 of these Conditions, Seller shall, without prejudice to any other rights of Seller, be entitled to require immediate re-delivery of the Goods for which it may invoke retention of title.
8.5 As long as title to the Goods remains with Seller pursuant to this Paragraph 8, Customer is entitled to use the Goods solely to the extent required in its ordinary course of business, and, to the extent possible, shall (i) keep the Goods separate and in a clearly identifiable manner, (ii) notify Seller immediately of any claims by third parties which may affect the Goods, and (iii) adequately insure the Goods at Customer’s expense.
9. Limited Warranty
9.1 Seller solely warrants that on the date of delivery the Goods shall conform to the specifications for the Goods as stated in Seller’s Confirmation (the “Specifications”). If and to the extent Goods fail to meet such warranty, as shall be determined in accordance with the provisions of Paragraph 7 of these Conditions, Seller may at its own option within a reasonable time either repair or replace the Goods at no charge to Customer. Accordingly, Seller’s obligation shall be solely limited to repair or replace the Goods in a way determined by the Seller, at its own discretion. At replacing, the Seller shall immediately and automatically become owner of any replaced Good.
9.2 However, Seller’s obligation to repair, replace, or credit shall be contingent upon receipt by Seller of timely notice of any alleged non-conformance of Goods and, if applicable, the return of the Goods, in accordance with Paragraph 7, and more specific Paragraph 7.5 of these Conditions.
9.3 The Limited Warranty as mentioned in Paragraph 9.1 shall not apply in case (a) the Complaints have not been submitted or the deficiencies have not been notified to the Seller within the appropriate terms pursuant to these Conditions, (b) in the event that repairs or changes have been made to the Goods without Seller’s written consent, (c) in case, at the reasonable discretion of the Seller, the Goods have been used (“Use of the Goods”) in an overloaded way and/or injudiciously and/or in an inappropriate manner and/or in a different way from that which is considered normal business practice in the industry and/or detailed in any Handling Instructions or the User’s Manual which are made available to the Customer by the Seller, or (d) in the event that the substances, materials or compositions used by the Customer in connection the Goods are demonstrated to influence, affect or damage the workings and/or functioning of the Goods supplied by the Seller, for example, without limitation, because of chemical reactions, affectation of materials, early wear or tear, stress-crack, durability, affectation of quality barriers and the like. The Seller shall not grant guarantees or accept liability for the Use of the Goods in connection with substances, materials and/or compositions without Seller’s prior written authorization or consent, and Seller’s supervision or influence.
10. Limitation of Liability
10.1 Under no circumstances shall Seller be liable to Customer, any other person, legal or natural, or entity for any kind of special, incidental, direct or indirect, consequential or punitive damage or loss, cost or expense, including without limitation, damage based upon lost goodwill, lost sales or profits, work stoppage, production failure, impairment of other goods, delay or failure of delivery of the Goods, or otherwise, and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise. The Seller shall not liable to Customer, any other person, legal or natural, or entity for any kind of special, incidental, direct or indirect, consequential or punitive damage or loss, cost or expense, when those losses or damages are caused by Force Majeure or upon the Use of the Goods, by the Customer or any other person, in an inappropriate manner or, if applicable, in a different way from that which is detailed in Handling Instructions and/or User’s Manual defined and made available to the Customer by the Seller.
10.2 Notwithstanding anything contained in these Conditions to the contrary, the liability of Seller for any and all claims for damages arising out of or in connection with the Goods and the Use thereof shall under no circumstances exceed the net sum (before any tax or similar) of Customer’s payments for the Goods that are the subject of the claim, up to a maximum sum of 10.000 Euros and as far as it is defined within the scope of the coverage of the relevant Product Liability Insurance entered into by the Seller.
11. Force Majeure
11.1 Neither Party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any failure in performing any obligation towards the other Party caused by laws, statutes, ordinances, regulations, legislative measures, acts of governments or other administrative measures, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labour disturbances, difficulty in obtaining necessary labour or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, or delay in delivery or defects in goods supplied by suppliers or subcontractors (“Force Majeure”).
11.2 Upon the occurrence of any event of Force Majeure, the Party suffering thereby shall promptly inform the other Party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under Seller’s Confirmation.
11.3 In the event of Force Majeure, the obligation to deliver shall be suspended for a period equal to the time loss by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than two (2) months after the agreed delivery date, the Seller shall be entitled to cancel the affected part of Seller’s Confirmation without any liability to the Customer.
11.4 In case the Seller partly meets its obligations, under the Seller’s Confirmation, when Force Majeure sets in, the Seller shall be entitled and authorized to separately charge the Customer for those Goods which may be supplied, and in any case, the Customer shall be obliged to pay the price of those Goods as if they were defined in an independent invoice and/or agreement.
12. Modifications and Information
12.1 Unless the Specifications have been agreed to be firm for a certain period or quantity of Goods, Seller reserves the right to change or modify the Specifications, construction and/or manufacture of Goods and to substitute materials used in the production and/or manufacture of Goods from time to time upon written notice. Customer acknowledges that data in Seller’s catalogues, specification sheets and other descriptive publications distributed or published on its websites by Seller may accordingly be varied from time to time without notice. Any statement or other information of Seller in relation to the Specifications, the Goods and the Use thereof shall be furnished for the accommodation of Customer only.
12.2 Customer must utilise and solely rely on its own expertise and know-how in relation to the Goods and Customer’s Use thereof. Consultation provided by Seller shall not give rise to any additional obligations. Details and information provided with regard to the suitability and Use of the Goods shall not be binding and Seller does not assume any liability based on such consultations. Customer shall indemnify and hold Seller harmless from and against any and all damage, losses, costs, expenses, claims, demands and liabilities arising out of or in connection with the Goods, Customer’s Use thereof and/or Customer’s use or application of any information disclosed or provided by or on behalf of Seller.
13. Compliance with Laws and Standards
13 Seller makes no promise or representation that the Goods shall conform to any law, statute ordinance, regulation or standard (“Laws and Standards”), unless expressly stated in Seller’s Confirmation or in the Specifications. Customer shall be exclusively responsible for (i) ensuring compliance with all Laws and Standards associated with its intended Use of the Goods and (ii) obtaining all necessary approvals, permits or clearances for such Use.
14. Independent Contractors
14 Seller and Customer are independent contractors, and the relationship created hereby shall not be deemed to be that of principal or agent or similar. No sale to or obligation of either Party towards a third party shall in any way bind the other Party.
15 Neither Party may assign any of the rights or obligations under Seller’s Confirmation without the prior written consent of the other Party, provided however, that Seller may assign such rights and obligations, wholly or partly, to any of its parent companies, subsidiaries or affiliates or to a third party acquiring all or a substantial part of Seller’s assets or business relating to the Goods.
16. Suspension and Termination
16 If (a) Customer is in default of performance of its obligations towards Seller; or (b) if Seller has reasonable doubts with respect to Customer’s performance of its obligations to Seller and Customer fails to provide to Seller adequate assurance (such as ongoing credit approval) of Customer’s performance before the date of scheduled delivery and in any case within thirty (30) days of Seller’s demand for such assurance; or (c) if Customer becomes insolvent or unable to pay its debts as they mature, or goes into liquidation or any bankruptcy proceeding shall be instituted by or against Customer; or (d) if Customer enters into a deed of arrangement or makes any assignment for the benefit of its creditors, then, without prejudice to any other rights of Seller, Seller may by notice in writing forthwith: (i) demand re-delivery and take repossession of any delivered Goods which have not been paid for, and all costs relating to the recovery of the Goods shall be for the account of Customer; and/or (ii) suspend its performance or terminate Seller’s Confirmation for outstanding delivery of Goods, unless Customer makes such payment for Goods on a cash in advance basis or provides adequate assurance of such payment for Goods to Seller; without any intervention of courts being required and without liability for Seller of whatsoever kind arising out of or in connection with such suspension or termination.
16.2 In any such event of (i) and/or (ii), all outstanding claims of Seller shall become due and payable instantly in proportion to the quantity of Goods delivered to Customer and not re-possessed by Seller.
17 In the event that any one or more of these Conditions shall, for any reason, be held to be unenforceable, illegal or otherwise invalid in any respect under the law governing these Conditions, such unenforceability, illegality or invalidity shall not affect the remaining provisions of these Conditions, and the pertaining provisions held to be invalid or unenforceable shall be reformed to provisions satisfying the legal and economic intent of the original provisions to the maximum extent permitted by law.
18. Limitation of action
18 No action by Customer shall be brought unless Customer first provides written notice to Seller of any claim alleged against Seller within thirty (30) days after the event complained of first becomes known to Customer and an action is commenced by Customer.
19 Failure by Seller to enforce at any time any provision of these Conditions shall not be construed as a waiver of Seller’s right to act or to enforce any such term or condition and Seller’s rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by Seller of any breach of Customer’s obligations shall constitute a waiver of any other prior or subsequent breach.
20. Applicable Law and Jurisdiction
20 The Parties’ rights and obligations arising out of or in connection with Seller’s Confirmation and/or these Conditions shall be governed, construed, interpreted and enforced according to the laws of The Netherlands. The Parties agree that any suits, actions or proceedings that may be instituted by any Party against the other Party shall be initiated exclusively before the courts of Utrecht, in The Netherlands.
21. Intellectual Property
21.1 The sale of Goods shall not, by implication or otherwise, convey any license to the Customer under any Intellectual Property right relating to the Goods, and Customer expressly assumes all risks of any Intellectual Property infringement by reason of importation, Use of the Goods and modification or copy of the Goods, among other possible actions.
21.2 For the avoidance of doubt, all Intellectual Property rights relating to the Goods are and shall remain the exclusive property and/or control of the Seller, and the Customer shall not, either directly or indirectly, contest nor assist others in contesting or challenging the validity of the Intellectual Property rights relating to the Goods. The Customer shall not, at any time, do or suffer to be done any act which may in any way adversely affect any Intellectual Property right relating to the Goods.
23. Survival of Rights
23 The Parties’ rights and obligations shall be binding upon and inure to the benefit of the Parties and their respective successors, permitted assigns, directors, officers, employees, agents and legal representatives. Termination of one or more of the rights and obligations of the Parties, for whatsoever reason, shall not affect the provisions of these Conditions which are intended to continue to have effect after such termination.
These Conditions have been filed at the Chamber of Commerce of Gooi-, Eem- en Flevoland, the Netherlands.
NOTE: Only the English version of these Conditions shall be authentic and shall prevail, in case of inconsistency, over any translation of these Conditions in another language.