Delivery and payment terms
General conditions of delivery and payment of:
Faes Cases BV
KvK Eindhoven : 61705063
VAT : NL8544.54.512.B01
5541 RA Reusel
Phone number : +31 (0)497 381165
Article 1: DEFINITIONS
In these general terms and conditions the following terms are used in the following sense, unless expressly stated otherwise:
Faes Cases BV: the user of the general conditions, the seller, the producer, the contractor;
Other party: the other party of Faes, the buyer, the customer;
Article 2: GENERAL
1. These conditions apply to every assignment, offer and agreement between Faes and the other party, insofar as these conditions have not been deviated from by Faes in writing;
2. The present conditions are also applicable to all agreements with Faes, for the execution of which Faes makes use of the services of third parties;
3. The applicability of possible conditions of the other party is expressly excluded;
4. If one or more stipulations in these conditions are or become null and void, the other stipulations of these conditions remain applicable.
Article 3: OFFERS, PRODUCERS AND AGREEMENTS
1. Faes’ offer is without engagement, unless expressly agreed upon otherwise;
2. Agreements are only concluded by written order confirmation, in whichever form, or by acceptance of an offer, or by execution of the agreement by Faes;
3. At oral agreements the invoice is considered to reflect the agreement correctly and completely, except for a claim within 30 days after invoice date;
4. If Faes receives a verbal assignment for more work from the other party or an employee or representative of the other party during the production or the activities and the other party has accepted this work after the execution of the more work, or at least has not protested against the more work, Faes may assume that the more work has been done at the express request of the other party at the prices and rates Faes applies;
5. If a natural person concludes a contract on behalf of or for the account of another natural person, he declares – by signing the contract – to be authorized to do so. This person is severally liable next to the other natural person for all obligations ensuing from the contract;
6. Faes reserves the right to refuse an order/mission without stating reasons;
7. If the acceptance by the other party deviates from the offer included in the quotation, Faes is not bound to it. The agreement does then not come about in accordance with this deviating acceptance, unless Faes indicates otherwise;
8. The prices in the quotations are in Euros, exclusive of VAT and other government levies such as dues and taxes, as well as exclusive of storage, export, shipment and any transport costs, unless expressly agreed upon otherwise;
9. If Faes takes care of the shipment/transport of the purchased goods, this occurs at the risk and expense of the other party;
10. If delivery is effected C.O.D., Faes always charges C.O.D. costs to other party;
11. A composite quotation does not oblige Faes to execute a part of the order against a corresponding part of the quoted price;
12. Offers or quotations do not apply for follow-up orders.
Article 4: MODELS/PICTURES
1. The models, illustrations, specifications, numbers, measurements, weights or descriptions included in the catalogues/offers/advertisements are shown only as an indication.
2. Written and oral approval of typesetting, printing, photographic and film proofs and other kinds of tests by the other party apply as an acknowledgement that Faes has correctly carried out the activities preceding the tests;
3. Every typesetting, printing, photographic and film proofs and other types of tests that have been made at the request of other party shall be charged in addition to the agreed price, unless it has been expressly agreed upon that the costs of these tests are included in the price.
Article 5: PRICE AND COSTS
1. Faes is allowed to charge on price increases after 3 months, if between the time of the offer or quotation and the execution of the agreement/delivery price changes of more than 5% have occurred with regard to, for instance, social security charges, turnover tax, exchange rates, wages, raw materials, semi-finished products or packaging materials;
2. Faes will inform the other party of the intention to increase the price or rate in writing. In this Faes will state the extent of the increase and the date on which it comes into effect.
Article 6: CANCELLATION
1. If the other party wishes to cancel the agreement after it has been established and before Faes starts with the production of the item, 10% of the order price (exclusive of VAT) shall be charged as cancellation costs, without prejudice to Faes’ right to full damages including lost profit;
2. If at the time of cancellation the other party refuses to take delivery of the goods that have already been produced by Faes especially for the other party, the other party is also obliged to pay Faes all costs ensuing from this;
3. If a good is (temporarily) not available, the other party will receive notice of this from Faes at the latest one month after receipt of the order. In that case customer can cancel the order free of charge. In case customer has already paid Faes for the item, reimbursement is effected to customer or settlement takes place;
4. Cancellation must occur in writing.
Article 7: CANCELLATION AND DISSOLUTION
1. Faes is authorized to suspend the observance of the obligations or to dissolve the agreement, if: other party does not observe the obligations arising from the agreement, not in time or not completely; after the conclusion of the agreement circumstances come to the knowledge of Faes give good ground to fear that other party will not observe the obligations, not in time or not completely. In case there is a good ground to fear that the other party will only partly or not properly observe the agreement, the suspension is only allowed insofar the shortcoming justifies it; at the conclusion of the agreement other party has been requested to give security for the observance of his obligations arising from the agreement and this security is not present or is insufficient;
2. Furthermore Faes is authorized to (have) the agreement dissolved, if circumstances arise which are of such a nature that observance of the agreement is impossible or can no longer be demanded in accordance with the standards of reasonableness and fairness, or if other circumstances arise which are of such a nature that unaltered maintaining of the agreement may not reasonably be expected;
3. If the agreement is dissolved, the claims of Faes against the other party are immediately claimable. In case Faes suspends the observance of the obligations, it retains its claims pursuant to the law and the agreement. Faes always retains the right to claim damages.
Article 8: IMPLEMENTATION OF THE AGREEMENT
1. Faes shall execute the contract to the best insight and ability and in accordance with the demands of good craftsmanship. All this based on the specifications agreed upon by parties;
2. Faes determines the manner of execution of the agreement, insofar as parties have not expressly agreed upon otherwise in writing;
3. Faes is not liable for any damage, of whichever nature, because Faes has assumed incorrect and/or incomplete data and specifications provided by the other party;
4. Other party must always inform Faes of the purpose for which the item is being purchased, in default of which Faes cannot be held liable for any damage ensuing from the unusability;
5. If and insofar a proper execution requires it, Faes has the right to have work carried out by third parties;
6. If the other party has reserved the execution of certain parts of the work for itself, the other party is liable for non-timely delivery or non-timely execution of it;
7. Other party sees to it that all data and approvals, of which Faes indicates that they are necessary or of which other party should reasonably understand that they are necessary for the execution of the agreement, are timely provided to Faes. If the data and approvals necessary for the execution of the agreement have not been timely provided to Faes, Faes has the right to suspend the execution of the agreement and/or to charge the other party for the extra costs resulting from the delay according to the usual rates;
8. If the commencement or the progress of the work is delayed by factors for which other party is responsible, the damage and costs ensuing from this for Faes must be compensated by other party;
9. Other party indemnifies Faes against any claims of third parties, who suffer damage in connection with the execution of the agreement and which damage is attributable to other party.
10. If it has been agreed upon that the agreement will be executed in phases, Faes can suspend the execution of those parts belonging to a next phase until the other party has approved the results of the preceding phase in writing.
Article 9: DELIVERY
1. Delivery of goods occurs FCA, unless parties expressly agree otherwise;
2. If Faes delivers the goods, this is always done to the delivery address the other party last knows;
3. Other party must take the goods away or receive them immediately after completion, unless it has been agreed upon otherwise. When the goods are available for other party or are offered for delivery at other party’s place, but are not taken by other party for whatever reason, delivery takes place by a written notification of Faes to other party;
4. In case other party refuses to take delivery or is negligent with the provision of information or instructions necessary for the delivery, Faes shall be authorized to store the goods for the account and risk of other party. If customer does not take delivery within two months, Faes is authorized to sell the item to another party. When the good is no longer saleable, Faes is authorized to destroy the good. All damages ensuing from sale or destruction are at the expense of other party;
5. Call-off orders must be taken within the agreed terms, in default of which Faes is authorized to deliver the part of the order that has not yet been delivered at once and to charge price increases to other party;
6. If other party refuses to take possession of the goods, the claims of Faes, including costs of transport and storage, are immediately claimable on other party;
7. In case Faes requires information from the other party in the framework of the execution of the agreement, the term of delivery commences after the other party has made these available to Faes;
8. In case Faes has indicated a term of delivery, this is indicative. A term of delivery stated is therefore never a fatal term. At exceeding of a term the other party must give Faes notice of default in writing and grant him a reasonable term;
9. Faes is authorized to charge a deposit amount. After payment of the advance amount, delivery to Faes or execution shall take place, unless parties have agreed upon otherwise.
Article 10: DELIVERY, RESEARCH AND CLAIMS
1. Other party is obliged to investigate (or have investigated) the purchased item or the executed assignment at the moment of delivery. Other party must report complaints about the delivered goods to Faes in writing within 7 days. The notice of default should contain a description of the shortcoming that is as detailed as possible, so that Faes is able to react adequately;
2. Damages to the packaging or the object must be noted on the packing list/transport note and immediately reported to Faes in writing. After the report Faes will immediately take the complaint into consideration;
3. If customer wishes to return defective goods, this is only done with the preceding written permission of Faes, and in the manner Faes has indicated. Return shipments must be sent carriage paid in an undamaged state and in the original packing.
4. The typesetting, printing errors and writing mistakes mentioned in the catalogues, internet site or offer can never give rise to any claim.
5. In case a complaint is well-founded, Faes will replace or adjust the delivered goods, unless this has by now become demonstrably meaningless for other party. This must be made known by other party in writing. However, in all cases Faes is only liable within the limits of what has been established in the articles “Guarantee” and “Liability”.
6. The handling of claims does not affect the purchase and payment obligation of other party.
Article 11: RISK TRANSFER
1. The risk of loss of or damage to the goods that are the subject of the agreement is transferred to the other party at the moment that these goods are legally and/or actually delivered to the other party and are thus brought under the control of the other party or of a third party designated by the other party or at the moment that the goods are ready for delivery, all this after the other party has been notified in writing;
2. If Faes sees to the transport of the goods that are the subject of the agreement, this occurs entirely at the expense and risk of other party. Other party takes care of a sound transport insurance.
Article 12: FORCE MAJEURE
1. Faes has the right to dissolve the agreement in case of force majeure. If the situation of force majeure is of a temporary nature only, Faes has the right to suspend the execution of the agreement. In case the period of force majeure lasts longer than 2 months, parties are authorized to dissolve the agreement without Faes being held to any form of compensation.
2. In these conditions Force Majeure includes, besides what is understood in the law and jurisprudence, all external causes, foreseen or unforeseen, on which Faes cannot exert any influence but through which Faes is not able to observe the obligations. Strikes in the company of Faes, computer and power failures, fire, theft, traffic jams, export obstructions and delays in the delivery of raw materials/parts by suppliers are included in this;
3. Insofar as Faes has already partly met its obligations arising from the agreement at the time of the entering of the force majeure or will be able to meet them, and insofar as a part that has been met or will still be met has an independent value, Faes is authorized to separately invoice the part that has already been met or will still be met, respectively.
Article 13: GUARANTEE
1. The goods produced by Faes meet the technical requirements and specifications Faes has stated;
2. Faes issues a guarantee to the direct other party concerning the quality of the goods produced by it up to 1 year after delivery, unless parties have agreed upon another term in writing;
3. No guarantee is given for services, unless parties have agreed upon another term in writing;
4. An appeal to the guarantee can only be made after presentation of the purchase invoice;
5. 5. The customer is responsible for checking in advance whether the item to be delivered is suitable for the specified purpose;
6. The duration of the guarantee is explicitly mentioned on the sales invoice;
7. This guarantee is limited to manufacturing faults and therefore does not include any damage as a result of improper, careless or incompetent use, assembly or maintenance by the other party or a third party; deliveries to the other party in the EU; to replacement of the purchased item;
8. This guarantee lapses: in the event of resale of the delivered goods, unless the parties have explicitly agreed otherwise; in the event of processing, modification, repair or other
This guarantee expires: in case of resale of the delivered goods, unless parties have expressly agreed otherwise; in case of processing, alterations, changes or repair by a third party to or of the delivered goods; in case of exposure to harmful substances and too high or too low temperatures; in case of overloading by pulling and pressing forces; by using and maintaining the delivered goods not in accordance with the user instructions; in case of use for another purpose than the other party has stated to Faes or for which it is suitable.
9. As long as other party does not meet its obligations ensuing from the agreements concluded by parties, it cannot invoke this guarantee stipulation.
Article 14: LIABILITY AND INDEMNIFICATION
1. In case Faes should be liable, this liability is limited to what has been arranged in this stipulation;
2. Faes is never liable for: deviations, damage, faults and defects that have remained unnoticed in items approved by the other party; deviations, damage, faults and defects due to faulty assembly, maintenance or use by the other party or a third party; for indirect damage, including consequential damage, loss of turnover and profit, missed savings and damage due to business stagnation; unlawful, improper or unprofessional use by the other party or third party of the delivered goods; for damage as a result of use not in accordance with the instructions for use, environmental legislation or product information.
3. In case Faes is liable for any damage, this liability is limited to a maximum of the amount of the payment to be made by the insurer of Faes, at any rate to a maximum of the claim amount, at any rate that part of the claim to which the liability applies;
4. Faes is never liable for damages arising from advice given. Advice is always given on the basis of the facts and circumstances known to Faes and in mutual consultation, in which Faes always takes the intention of the other party as a guideline and starting point;
5. Any claims for damages must be submitted to Faes in writing at once after the occurrence of the damage;
6. Other party must inform its customer in accordance with the user instructions and product information. Other party indemnifies Faes against claims of third parties if Faes is held liable for damage for which other party has failed to do so;
7. Unless agreed upon otherwise, the other party must investigate in advance whether the purchased goods are suitable for the purpose for which he is going to use them. If it appears afterwards that the bought item is not suitable for the purpose, other party can not hold Faes liable for the damages ensuing from it.
8. The restrictions of liability for damage included in these general conditions do not apply if the damage can be attributed to intention or gross negligence of Faes or its subordinates;
9. The other party is obliged to see to it that – prior to the delivery of data, documents, materials and/or products – copies/shadow files are made of the information carriers concerned.
10. In case the other party provides Faes with information carriers, electronic files or software etc., it guarantees that the information carriers, electronic files or software etc. are free of viruses and defects;
Article 15: INTELLECTUAL PROPERTY AND COPYRIGHTNESS
1. Without prejudice to the stipulations in these general conditions, Faes reserves the rights and authorities that accrue to Faes pursuant to the intellectual property law and the Copyright Act;
2. All goods sold and/or produced by Faes, issued designs, sketches, calculations, drawings, models and brochures are exclusively destined to be used by the other party and may not be reproduced, resold, processed, altered, copied, reproduced, made public, or brought to the notice of third parties by him without the preceding permission of Faes, unless the nature of the sold goods c.q. issued documents dictates otherwise;
3. Molds produced by Faes remain the property of Faes and are not handed over to the other party;
4. Other party is not authorized to remove the name or the brand of Faes on the delivered goods.
5. Faes also reserves the right to use the knowledge gained by the execution of the activities for other purposes, insofar as no confidential information is brought to the notice of third parties in this respect.
Article 16: PROTECTION OF OWNERSHIP
1. All the goods delivered by Faes, whether or not processed or treated, remain the property of Faes until the other party has met all the obligations arising from all the contracts Faes has entered into;
2. Other party is not authorized to pledge the items falling under the retention of title nor to encumber them in any other way;
3. Other party must insure the goods falling under the retention of title for the new value. The damages paid by the insurer shall replace the aforementioned goods and accrue to Faes;
4. In case third parties seize the goods delivered under retention of title or wish to establish or assert rights on them, other party is obliged to inform Faes of this as soon as can be reasonably expected;
5. In case Faes wishes to exercise its retention of title as referred to in this article, the other party now gives unconditional and irrevocable permission to Faes or third parties to be appointed by it to enter all those places where the properties of Faes are located and to take back these goods;
Article 17: EXPORT
1. Unless agreed upon otherwise in writing, payment for export transactions must be effected by means of a confirmed and irrevocable letter of credit issued by a Dutch bank. Based on this letter of credit both transhipment and partial shipments are possible. The letter of credit can be transferred by Faes;
2. Counterparty guarantees that if an import certificate or permit is required for the import of the goods in the country of destination, such an import certificate or permit has been or will be obtained before shipment, in the absence of which the other party will be liable for any damage ensuing from this.
3. The other party shall be responsible for compliance with applicable Dutch and foreign export control regulations.
Article 18: PAYMENT
1. Payment must be effected in cash, or in advance by means of an advance invoice, or within 8 days of the invoice date in a manner to be indicated by Faes in the currency in which has been claimed. Objections against the height of the invoice do not suspend the payment obligation;
2. If customer remains in default of payment within the agreed upon term, customer is legally in default. The other party shall then owe an interest of 1.5% per month or part thereof, unless the statutory interest or the statutory commercial interest is higher, in which case the highest interest shall apply. The interest on the amount due and payable shall be calculated as from the time the other party is in default until the moment of payment of the amount in full;
3. In case of liquidation, (application for) bankruptcy, admission of the other party to the legal debt rescheduling pursuant to the Dutch Natural Persons Debt Rescheduling Act, placement under guardianship, attachment or (provisional) suspension of payment of the other party, the claims of Faes on the other party are immediately claimable;
4. Payments first of all extend to a reduction of the costs, then to a reduction of the interest that has fallen vacant and finally to a reduction of the principal sum and the current interest.
Article 19: INCOME COSTS
1. If the other party is in default or breach of contract in the (timely) fulfilment of its obligations, all reasonable costs incurred in obtaining satisfaction out of court shall be borne by the other party. The other party shall in any case owe collection costs in the event of a monetary claim. The collection costs shall be calculated in accordance with the collection rate recommended by the Netherlands Bar Association in collection cases, with a minimum of € 350.00;
2. If Faes has incurred higher expenses, which were reasonably necessary, these also come under consideration for compensation. Judicial and execution costs are also at the expense of other party.
Article 20: PERSONNEL
1. Other party is not authorized to enter into an employment relationship with an employee or a member of staff of Faes, without the written permission of Faes, during and within a year after the execution of the agreement.
2. If the other party enters into a (direct or indirect) labour relationship with an employee without the permission of Faes, the other party owes Faes a compensation of at least six times the gross monthly salary of the employee, on the basis of 40 working hours a week. In addition to this the other party is obliged to completely fulfil its obligations arising from the agreement existing between parties.
Article 21: TRANSLATIONS OF THESE CONDITIONS
Only the version of these conditions drawn up in the Dutch language is authentic. If a translation deviates in any way, the Dutch text shall prevail.
Article 22: DISPUTES
All disputes arising from the agreement concluded between parties will in the first instance be settled by the competent Dutch court in the place of business of Faes. Nevertheless Faes has the right to submit the dispute to the court that is competent according to the law or to an Arbitration Board.
Article 23: APPLICABLE LAW
Dutch law is applicable to any agreement between Faes and the other party. The Vienna Sales Convention is expressly excluded.
Article 24: DEPOSITION
These conditions have been filed at the office of the Chamber of Commerce and Industry for East Brabant under number 61705063.
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