General Delivery Terms for Emceepack B.V. and its related companies (Emceepack HK Ltd and Zibo Emceepack Co. Ltd.)
Article 1 General
The following definitions apply in these general delivery terms:
Emceepack B.V., established in Lisse, is hereinafter referred to in these general delivery terms as the ‘supplier’;
In these general delivery terms, ‘the other party’ refers to any person or legal entity requesting that the supplier render a service or deliver goods.
Unless explicitly agreed otherwise in writing, the following terms apply for all offers by the supplier and obligations between the supplier and the other party. After this agreement, the applicability of general terms used by the other party will be expressly rejected.
Article 2 Offers
All offers must be confirmed in writing and will remain valid for a period to be indicated by the supplier. In the absence of such a period, the supplier’s offers will be without obligation.
Article 3 Agreement
Except as set out otherwise in these general terms, an agreement will arise in any event after the supplier has, in writing, accepted, confirmed or carried out an order. The order confirmation will be deemed to present the agreement correctly and in full.
Article 4 Cancellation
The other party is entitled to cancel an agreement before the supplier has begun to carry out the agreement and only if it compensates the damage incurred by the supplier as a result.
Article 5 Ownership of means of production
All means of production such as plates, moulds, printing plates, cylinders, lithos, negatives, positives, slides, press knives, stamping plates, data carriers, programmes and other graphic material are part of the printing press inventory and as such are the property of the supplier, even if charged.
The client cannot request that these parts be surrendered to it, unless the supplier has agreed otherwise in advance.
The supplier is not obliged to retain such parts.
The etching for intaglio will be removed from the form cylinder after the completion of the printing job, unless an arrangement has been made with the client to retain the cylinder.
Parts 1 and 2 of this article do not apply to means of production provided by the client. These will remain the property of the client.
If the supplier uses means of production of supplier companies, it will be in a client-supplier relationship with them (and vice versa).
Article 6 Typesetting, printing or other proofs
The other party is required to examine the typesetting, printing or other proofs received from the supplier, whether at its request or not, for errors and faults and to return them, corrected or approved, to the supplier with due haste. No claim may be made for any delay arising from negligence in terms of the returning of such approval by the other party. Approval by the other party constitutes acknowledgement that the supplier has carried out the work preceding the proofs correctly, or had it carried out correctly. The supplier is not liable for discrepancies, errors or faults that go unnoticed in proofs approved or corrected by the other party.
Article 7 Copyright, industrial property rights and rights to reproduction
By giving an order to reproduce objects protected by the Copyright Act or any industrial property rights, the client declares that the copyright or industrial property right of third parties is not being violated. The client holds the supplier harmless, in and out of court, for all consequences, both financial and otherwise, arising from reproduction.
Copyright on etchings, drawings, lithos, photos, programmes, models and similar, designed or created by the supplier, will remain with the supplier, even if the client has placed an order on them.
If an order does not follow a design that has been ordered, as indicated in b, it will be charged after one month, whereas the right to reproduction will remain with the supplier.
Copyright is not included in the cost of the designs.
Article 8 Discrepancies
In terms of discrepancies in quantity between the order and the delivery, there are limits of tolerance, whereby the supplier has performed appropriately if the deliveries occur within the limits stated below:
1. for foil products
a. 30% discrepancy between order and delivery for deliveries up to and including a net weight of 250 kilogrammes,
b. 20% discrepancy between order and delivery for deliveries with a net weight between 250 and 5000 kilogrammes,
c. 10% discrepancy between order and delivery with a net weight of 5000 kilogrammes or more.
2. for all other products:
a. 25% discrepancy between order and delivery for deliveries with a net weight of up to 500 kilogrammes,
b. 20% discrepancy between order and delivery for deliveries with a net weight of 500 up to and including 1000 kilogrammes,
c. 15% discrepancy between order and delivery for deliveries with a net weight of 1000 up to and including 5000 kilogrammes,
d. 10% discrepancy between order and delivery for deliveries with a net weight over 5000 kilogrammes.
Discrepancies may be positive or negative in terms of the delivery relative to the order. In the event of discrepancy, the supplier will assume the quantity ordered; invoicing will at all times be based on the quantity delivered. For the supplier, ‘order’ refers to a single batch in a single size and quality.
Discrepancies between samples and deliveries cannot result in a refusal of the delivery, dissolution of the agreement, refusal to pay or compensate damage if the discrepancy is of minor significance, in which the supplier defines minor significance as a quality that does not detract from the essence of the goods delivered and their useful value.
Article 9 Delivery
Delivery occurs ‘ex warehouse’ of the supplier, standard, unless agreed otherwise. Goods count as delivered at the moment that the items are ready for shipment at the supplier, available to the other party and the supplier has informed the other party thereof.
Article 10 Risk
From the moment of delivery by the supplier, the items delivered are at the other party’s risk. The supplier will endeavour to observe the delivery time indicated but accepts no liability if the agreed delivery time is not achieved because of unforeseen circumstances.
Article 11 Liability
In the event of attributable shortcoming or wrongful action on its part, the supplier will accept a maximum compensation liability up to the amount of the invoice amount agreed and charged to the other party, excluding VAT. The supplier is not liable for lost profit, consequential damage and intangible damage. The other party will hold the supplier harmless for claims by third parties, including subordinates of the supplier or of the other party, in relation to damage indicated in this article.
Article 12 Force Majeure
Force majeure refers to circumstances preventing fulfilment of the obligation that cannot be attributed to the supplier. If and inasmuch as such circumstances render fulfilment impossible or unreasonably difficult, these will include:
1. Strikes at companies other than that of the supplier or harbours, unofficial strikes or political strikes at the supplier’s company.
2. A general shortage of necessary materials and other items or services required for the agreed performance.
3. Unpredictable general transport problems among supplier companies or other third parties.
4. Drastic changes in currency rates and government measures, including import and export bans.
5. Abnormal price increases in materials and energy.
The supplier is also entitled to claim force majeure if the circumstance preventing (further) fulfilment occurs after the supplier was to fulfil its obligation. During force majeure, the delivery obligation and other obligations of the supplier will be suspended.
If the period in which fulfilment of obligations by the supplier is not possible because of force majeure lasts longer than two months, both parties will be entitled to dissolve the agreement without any obligation to compensate damage. If the supplier has already fulfilled its obligations in part when force majeure arises, or can only partially fulfil its obligations, it will be entitled to invoice separately what has previously been delivered or the part that can be delivered and the buyer will be required to pay such invoice as though it were a separate contract. However, this will not apply if that which has previously been delivered has no independent value.
Article 13 Claims
If the other party cannot agree to the rates, claim or work performed, it must indicate its objections to the supplier in writing within 8 days after receipt, precisely indicating the nature and basis of the complaints. Claims do not suspend the other party’s payment obligation.
Article 14 Retention of ownership and right of pledge
The goods delivered by the supplier will remain the property of the supplier until the other party has fulfilled all resulting obligations from all agreements with the supplier.
Items delivered by the supplier, covered by retention of ownership under part 1, may be resold only in the normal course of business.
The other party is not authorised to pledge the items or attach any other property right to them. If the other party does not fulfil its obligations or if there is justified concern that it will not do so, the supplier will be entitled to remove items delivered to which the retention of ownership as indicated in part 1 applies from the other party or third parties holding the item for the other party, or have them removed. The other party must provide all cooperation therein on penalty of a daily fine of 10% of the amount it owes. If third parties wish to attach or exercise any right on the items delivered under retention of ownership, the other party will be obliged to inform the supplier as soon as possible.
The other party engages to insure the items delivered under retention of ownership at the supplier’s first request, and keep them insured, against fire, explosion and water damage and against theft and to provide the insurance policy for inspection, taking account of the following:
1. All claims of the other party against insurers regarding the items delivered under retention of ownership to be pledged to the supplier as prescribed in article 3.239 of the civil code
2. Claims received by the other party regarding its third parties on resale of items delivered by the supplier under retention of ownership to be pledged to the supplier as prescribed in article 3.239 of the civil code
3. Items delivered under retention of ownership to be marked as property of the supplier.
4. Cooperate in other ways with all reasonable measures that the supplier wishes to take to protect its right of ownership regarding the items and not to obstruct the other party unreasonably in its normal course of business.
Article 15 Payment
Delivery occurs against advance payment. If the decision is made to invoice on account, the invoice must be paid within 14 days after the invoice date, unless otherwise agreed in writing. If payment is not made within the period indicated, the other party will be in default thereafter.
From the date that it is in default, the other party will owe late interest of 2% per month, with a partial month being counted as a full month. The other party will be obliged at all times, regardless of the agreed payment terms, to stand surety for payment of amounts payable to the supplier, at the supplier’s first request. The surety offered must be such that the amount receivable and any interest and expenses thereon is properly covered and that the supplier will be able to collect it without difficulty. Any surety that becomes insufficient later will be increased to a sufficient surety at the supplier’s first request. The supplier reserves the right not to accept as a payment a payment other than in cash or by bank transfer.
Article 16 Expenses
If the supplier has not received payment in time, the other party will be required to pay, in addition to the amount owed and the interest thereon, all collection costs in and out of court, in full, including the cost of lawyers, bailiffs, collection agencies and other legal advisers. Costs out of court are set at least at 15% of the principal sum with a minimum of € 125. Payments by the other party are first deducted from the cost of collection, then from the accrued interest and then on the principal and current interest. If the other party is to pay more than one invoice, payments will be allocated to such invoices in the order that they are due, even if the other party indicates otherwise.
Article 17 Applicable law and choice of forum
Dutch law applies to the agreement between the supplier and the other party and agreements resulting therefrom. Disputes between the supplier and other party will be adjudged by the competent Dutch judge in the place in which the supplier is established, unless the supplier, as applicant, prefers the competent judge for the other party, as respondent.