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    General Conditions

    Nipak B.V. General Conditions

     

    Article 1: General

    1.            These General Conditions shall apply to all agreements, quotations, offers or other commitments that Nipak B.V. – listed in the Trade Register under number 30087366 with its registered office at 3e Industrieweg in Lopik (“Nipak”) enters into with a counterparty (“the Buyer”) unless these General Conditions are expressly deviated from in writing.

    2.            Nipak explicitly rejects the applicability of the Buyer’s general or purchasing conditions unless Nipak has expressly accepted the applicability of these conditions in writing.

    3.            If a situation arises between Nipak and the Buyer (“the Parties”) that has not been (expressly) provided for under these General Conditions or if one of these articles, based on mandatory law has been invalidated or declared invalid, this situation shall be assessed in accordance with the spirit of these General Conditions.

    4.            The term “Buyer” shall include any natural or legal persons and their representative(s), authorized agent(s) and assignee(s) issuing Nipak an order for carrying out work or services, the delivery or hiring of items or goods in the widest sense of the word or who wishes to conclude or concludes any other kind of agreement with it.

    5.            The term “Consumer” shall include the Buyer who – at Nipak’s discretion – was not acting in a professional or business capacity when concluding the agreement.

    Article 2: Agreements, offers, quotations

    1.Quotations provided by Nipak shall be non-binding and valid for 30 days unless expressly stated otherwise in writing. Nipak shall be entitled to retract an offer within two working days of receipt of acceptance.

    2.Prices stated in quotations and offers shall be exclusive of VAT unless stated otherwise.  

    3.An agreement shall not be deemed concluded until Nipak has confirmed this in writing or has actually started carrying this out. Invoicing by Nipak shall be considered as the actual order confirmation on the understanding that partial invoicing of an order shall not be considered as confirmation of the remaining part of this order.

    4.The Buyer shall be responsible for the correctness of his details; not having properly received the order confirmation shall be no bar to the existence of the agreement.

    5.Announcements by representatives and other personnel of Nipak may only bind Nipak if Nipak has expressly confirmed such announcements in writing.

    6.Nipak shall be entitled to pass on to the Buyer any price increases occurring after the date of the quotation. Only if the price increase is more than 15% shall the Buyer be entitled to dissolve the agreement without the Buyer being entitled to compensation.

    Article 3: Delivery

    1.The items purchased shall be delivered to the address where the Buyer is actually registered unless agreed otherwise. Incoterms in effect on concluding the agreement shall apply if “Incoterms” have been agreed as delivery conditions. Nipak shall be entitled to deliver the items sold in parts. Nipak shall be entitled – but not obliged to invoice each part separately if the items are delivered in parts. The Buyer shall be obliged to accept the items purchased when offered to him or when made available to him in accordance with the agreement. The items shall be stored at the Buyer’s expense and risk if the Buyer refuses acceptance or is negligent in providing information or instructions necessary for delivery. The Buyer shall in such case be liable to Nipak for all additional costs including storage costs.

    2.The Buyer shall bear the costs of delivery and transport unless expressly agreed otherwise in writing.

    3.Nipak shall be entitled at any time to demand advance payment or a guarantee from the Buyer before proceeding to delivery or further delivery. If this request is not fulfilled on first request, Nipak shall be entitled to dissolve the agreement without prejudice to its right to compensation for loss, costs and interest that it incurs as a result. 

    4.The agreed delivery time shall not be binding unless expressly agreed otherwise in writing. If delivery is not made on time, the Buyer shall place Nipak in default in good time and in writing whereby Nipak shall be given a reasonable period of at least 14 days in which to fulfil its obligations. If Nipak is in default, the Buyer shall only be entitled to dissolve the agreement. Nipak shall never be liable due to any loss of whatever kind to be suffered by the Buyer or third parties. The Buyer shall release Nipak from all third party claims of any kind.

    5.Nipak shall be free to engage third parties for fulfilling its obligations towards the Buyer – delivery included.

     

    Article 4: Reservation of ownership

    1.            Items delivered by Nipak shall remain Nipak’s property until the Buyer has fulfilled all the following obligations under all agreements concluded with Nipak including but not limited to the consideration regarding the actual item(s) delivered or to be delivered and any demands due to the Buyer’s failure under the agreement(s). 

    2.            The items delivered by Nipak as stated in art. 4, para. 1 shall only be sold as part of normal business activity. The Buyer shall not be entitled to pledge the items or to encumber them with any other rights. 

    3.            If Buyer fails to fulfil his obligations or if Nipak is justified in assuming that the Buyer shall fail to do so, Nipak shall be entitled to collect or to arrange for the collection of items subject to reservation of ownership from the Buyer or a third party holding them for the Buyer. The Buyer shall be obliged to provide every assistance subject to a penalty of 10% of the amount payable by him per day up to a maximum of 150%. If any third party wishes to apply or assert any rights to items delivered under reservation of ownership, the Buyer shall be obliged to inform Nipak of this as soon as can be reasonably expected.

    4.            The Buyer shall on first request from Nipak be obliged: - to insure and keep insured the items delivered under reservation of ownership against fire and theft and to provide the policy for inspection; to pledge to Nipak all claims from the Buyer against insurers regarding the items delivered under reservation of ownership in the manner provided for under art. 3:239 of the Civil Code; to mark the items delivered under reservation of ownership as Nipak’s property; to otherwise provide assistance in all reasonable measures that Nipak wishes to take to protect its right of ownership relating to the items and that do not unreasonably hinder the Buyer in the normal carrying out of its business. Without prejudice to this article, Nipak shall be entitled to suspend its obligations under the agreement or to dissolve the agreement without judicial intervention. Nipak shall also reserve the right to full compensation for loss, costs, interest and loss of profits.

    Article 5: Complaints, guarantees and force majeure

    1.The items delivered shall be checked for visible discrepancies directly on delivery. Complaints relating to visible defects shall be reported to Nipak immediately in writing. The Buyer shall submit any complaints relating to other defects within eight days of delivery to Nipak in writing. No complaint from the Buyer shall lead to any obligation for Nipak following expiry of this period. The Buyer shall provide the evidence that the items delivered and their packaging showed defects at the time of delivery. The Buyer shall bear the burden of proof that the items on which the complaint is based are the same as those delivered by Nipak. The Buyer shall still be obliged to pay for and to accept orders placed even if he complains on time. Items may only be returned to Nipak following prior written approval.

    2.Only the guarantee provided by the manufacturer or the importer shall apply to the items delivered. The Buyer may not derive any rights to a guarantee if he is in default towards Nipak in fulfilling his obligations under the agreement.

    3.Force majeure shall involve circumstances hindering the fulfilment of obligations and that are not attributed to Nipak. This shall include but not exclude other situations: strikes in other enterprises than Nipak, wildcat strikes or political strikes at Nipak, a general lack of the required materials and others necessary for providing the agreed items or services, unforeseen stagnation with suppliers or other third parties on whom Nipak depends, (un)natural disasters with consequences for the infrastructure that Nipak uses, (threat of) declared or undeclared war (threat of) terrorism and general transport problems in the widest sense of the word. Nipak shall be entitled to claim force majeure if the circumstances preventing (further) fulfilment arise after Nipak should have fulfilled its commitment. Deliveries and Nipak’s other obligations shall be suspended during the period of force majeure. 

    4.If the period of force majeure during which it shall be impossible for Nipak to fulfil its obligations lasts longer than 30 days, both Nipak and the Buyer shall be entitled to dissolve the agreement in writing without Nipak being liable for compensation in such case. If Nipak has already partially fulfilled its obligations when the force majeure occurs or is only able to fulfil some of its obligations, it shall be entitled to invoice separately for the items or services already delivered or deliverable and the Buyer shall be obliged to pay this invoice as if this were a separate agreement. 

    5.Except in the case of unconditional intent or conscious recklessness by Nipak or if these General Conditions or mandatory law state the contrary, Nipak shall not be liable for any loss expressly including consequential loss due to a culpable shortcoming by Nipak regarding the obligations under this agreement or following an unlawful act by Nipak or persons for whom Nipak can be held liable. The Buyer shall indemnify Nipak accordingly for any loss that Nipak may incur as a result of third party claims (government authorities included) in connection with Nipak carrying out the agreement. 

    6.If Nipak is liable, it shall only be liable for direct loss. 

    7.Direct loss shall be understood exclusively as the reasonable costs of assessing the cause and the scope of the loss as far as this assessment relates to loss within the meaning of these General Conditions, any reasonable costs incurred in order to bring Nipak’s defective performance in line with the agreement as far as can be reasonably expected of Nipak and reasonable costs incurred to prevent or limit loss as far as the Buyer can show that these costs led to a limitation of direct loss pursuant to these General Conditions. Nipak shall never be liable for indirect loss including consequential loss, loss of profits, missed savings and loss due to business stagnation. 

    8.Nipak shall never be liable for a higher amount than the (collective) invoice amount to which Nipak shall be entitled towards the Buyer under the agreement.

    9.Should art. 5, para. 7 not apply, Nipak’s liability shall be limited to the amount that its insurer pays out in that case.  

    Article 6: Payment and dissolution

    1.Notwithstanding art. 3, para. 3 and unless expressly agreed otherwise in writing, payment shall take place within 30 days of the invoice date in the manner prescribed by Nipak without the Buyer being entitled to any discount or offsetting of any kind. After expiry of the 30 days after the invoice date, the Buyer shall be in default without this requiring any notice of default; the Buyer shall from the point of default be liable for immediately payable default interest at the statutory level. In the event of liquidation, bankruptcy or suspension of payment with respect to the Buyer, the Buyer’s obligations shall be immediately due. Payments made by the Buyer shall always serve in the first place for settling the invoices due that have been pending longest even if the Buyer states that the payment relates to a later invoice. If the Buyer pays the amount owed in foreign currency, there shall be a possible change in currency parity between the date on which the agreement is concluded and the date of payment at the Buyer’s expense. Discounts linked to a deadline by which payment shall be made shall expire if the amount due has not been received by Nipak within the deadline set. The Buyer shall only be entitled to any reimbursement based on substantial discounts and/or (extra) discounts agreed with the Buyer, sales bonuses, etc. if he has fulfilled all his obligations under agreements concluded with Nipak fully and on time.

    2.If any invoice has not been paid in full after expiry of the deadline provided for in art. 6, para. 1:

    a.     the Buyer shall, without this requiring any further notice of default be liable to Nipak for default interest amounting to 2% per month (or part thereof) to be calculated cumulatively over the principal. Parts of a month shall in this context be considered as full months.

    b.     the Buyer shall, if he has acted as a Consumer following a demand by Nipak by way of notice of default, be liable in this matter for extralegal costs in accordance with the scale as provided for under the Resolution on the Extrajudicial Collection Costs Decree with an absolute minimum of EUR 40.00 without this requiring an actual transfer to an authorized collections agent. 

    c.     the other party shall, if it does however act in a professional or a business capacity without this requiring any further notice of default be liable in this matter for extralegal costs to Nipak in departure from art. 6:96, para. 4 of the Civil Code and in departure from the Extrajudicial Collection Costs Decree – totalling 15% of the amount of the principal with an absolute minimum of EUR 150.00 without this requiring an actual transfer to an authorized collections agent.

    3.Without prejudice to the other articles in these General Conditions, the agreement concluded between the other party and Nipak shall be dissolved without this requiring judicial intervention or any notice of default at the point at which the other party:

    a.     is declared bankrupt;

    b.     requests (temporary) suspension of payment;

    c.     is subject to a seizure under writ of attachment;

    d.     is placed under legal restraint or administration;

    e.     is admitted to statutory debt restructuring for natural persons;

    f.      otherwise loses the power of disposal or legal capacity relating to its assets or part thereof.

    Article 7: Consumers’ right of withdrawal

    1.            The provisions of this article shall only apply if the Buyer is a Consumer. If any provision under this article departs from any provision in the remainder of these General Conditions, the provision of this article shall be deemed to apply.

    2.            The Consumer shall be entitled to dissolve the agreement concluded remotely without stating the grounds for this within 14 days of receiving the goods purchased. 

    3.            The reflection period provided for under art. 7, para. 2 shall commence on the day after which the Consumer or a third party who is not the carrier and designated in advance by the Consumer has received the product or:

    a.            if the Consumer has ordered several products in the same order: the date on which the Consumer or a third party designated by him received the last product. Nipak may refuse an order with several products with varying delivery times.

    b.            if the delivery of a product consists of various consignments or components: the date on which the Consumer or a third party designated by him received the last consignment or the last component.

    c.            in the case of agreements for regular delivery of products over a certain period: the day on which the Consumer or a third party designated by him received the first product. 

    4.    The reflection period provided for under art. 7, para. 2 shall commence on the day that follows the conclusion of the agreement. Extended reflection period for products, services and digital content not delivered on a material carrier if information on the right of withdrawal is not provided:

    5.    If Nipak fails to provide the Consumer with the legally-prescribed information on the right of withdrawal, the reflection period shall expire 12 months after the end of the original reflection period in accordance with the previous paragraphs of this article. 

    6.    The Consumer shall handle the product and the packaging with care during the reflection period. He shall only unpack or use the product to the extent necessary to assess the nature, characteristics and the working of the product. The main point here is that the Consumer may only use and inspect the product as would be permitted in a shop. 

    7.    The Consumer shall only be liable due to the depreciation of the product as resulting from a manner of handling the product that exceeds that provided for under art. 7, para. 6.

    8.    If the Consumer uses his right of withdrawal, he shall inform Nipak of this in an unambiguous manner – preferably in writing.

    9.    As soon as possible but within 14 days following the day stated in para. 1, the Consumer shall return the product or hand this over to (an authorized agent of) Nipak. This shall not be necessary if Nipak has offered to come and collect the product itself. The Consumer shall in any case be deemed to have respected the deadline for returns if he returns the product before the reflection period has expired.

    10.  The Consumer shall return the product with all delivered accessories, if reasonably possible in original condition and packaging and in accordance with the reasonable and clear instructions provided by Nipak.

    11.  The Consumer shall bear the risk and the burden of evidence for the correct and timely exercising of the right of withdrawal.

    12.  The Consumer shall bear the direct costs of returning the product. The Consumer shall not be required to bear the costs of returning the product if Nipak has not stated that the Consumer shall bear these costs or if Nipak states that it shall bear these costs itself. 

    13.  All additional agreements shall be legally dissolved if the Consumer uses his right of withdrawal. 

    14.  Nipak shall reimburse the Consumer for all payments including any delivery costs charged by Nipak for the returned product without delay but within 14 days following the date on which the Consumer informs it of his withdrawal. Unless Nipak offers to collect the product itself, repayment may be delayed until the product has been received or until the Consumer shows that he has returned the product, whichever comes first.

    15.  Nipak shall for the repayment use the same means of payment used by the Consumer unless the Consumer agrees to another means. Repayment shall be free of cost to the Consumer.

    16.  If the Consumer has opted for a more expensive method of delivery than the cheapest standard delivery, Nipak shall not be required to refund the additional costs for the more expensive method.

    17.  Nipak may exclude the following products and services from the right of withdrawal:

    a.            Products or services of which the price is linked to fluctuations on the financial market over which Nipak has no influence and that may occur within the withdrawal period

    b.            Agreements concluded during a public auction. Public auctions shall include sales methods whereby Nipak offers products, digital content and/or services to the Consumer attending in person or who has the possibility of attending the auction in person the procedure being managed by an auctioneer and whereby the successful bidder is obliged to purchase the products, digital content and/or services.

    c.            Service agreements following completion of the service but only if its carrying out was commenced with the Consumer’s express prior approval and the Consumer has declared that he shall forfeit his right of withdrawal as soon as Nipak has carried out the agreement.

    d.            In accordance with the Consumer’s specifications, products that have not been pre-manufactured and that are manufactured based on an individual choice or decision by the Consumer or that are clearly intended for a specific person e. Products that perish quickly or have a limited shelf life

    f.  Sealed products, which for reasons of health or hygiene are not suitable for returning and of which the seal was broken following delivery

    g.Products, which following delivery, through their nature have been irrevocably mixed with other products

     

    Article 8: Applicable law, choice of form and other conditions

    1.All legal relations involving Nipak shall be governed exclusively by Dutch law even if obligations are carried out in whole or in part abroad or if the other party to the legal relations is already resident there. 

    2.The Dutch judge in the district where Nipak is established shall be considered competent to adjudicate any dispute between Nipak and the Buyer unless mandatory law does not permit such choice of forum. Nipak shall however remain entitled to summons the Buyer under the law.

    3.The applicability of the Vienna Sales Convention shall be expressly excluded.

    4.Nipak shall be entitled to amend these General Conditions. These amendments shall take effect on the effective date stated. Nipak shall forward the amended General Conditions to the Buyer in good time. If no effective date has been stated, amendments shall take effect with respect to the Buyer as soon as he has been notified of these.

    5.The Buyer shall be obliged to observe absolute secrecy relating to all business matters concerning Nipak of which it becomes aware during the agreement. This obligation to secrecy shall not apply with respect to business matters that are already general knowledge.