Of Polyfluor Plastics bv, having its registered office in Breda, the Netherlands, registered with the Chamber of Commerce Zuid-West Nederland in Breda, the Netherlands, under number 20122697, deposited with the Chamber of Commerce Zuidwest Nederland in Breda on May 14th 2018.
1.1. Contractor: Polyfluor Plastics B.V. and its affiliated companies, unless these companies have declared these terms and conditions to be inapplicable.
1.2. Customer: each (legal) person who has instructed the contractor to provide services and/or supply goods, has made known his intention to do so or has invited the contractor to submit an offer to that end.
1.3. Goods: goods (to be) supplied by the contractor.
1.4. Services: services (to be) provided by the contractor, such as installation, assembly and maintenance work, advice and inspection, rent, etc., all in the broadest sense.
2.1. These terms and conditions apply to all legal acts between the contractor and the customer, including all offers of the contractor, all contracts between the contractor and the customer and the performance thereof. If with regard to any transaction between the customer and the contractor the applicability of these terms and conditions is established, this condition is deemed to have been complied with in all subsequent transactions with the customer in question. Any general terms and conditions of the customer, including conditions of purchase, do not apply and the applicability of such terms and conditions is specifically rejected unless and insofar as the contractor explicitly agrees to their applicability in writing.
2.2. Additions to or deviations from these general terms and conditions only apply if and insofar as they have been confirmed in writing by the contractor to the customer, only refer to the specific transaction with regard to which they are agreed and cannot be invoked with regard to other transactions.
2.3. If a provision of these terms and conditions proves to be void or voidable, the other provisions of these terms and conditions will remain in full force, while the contractor in that case will be entitled to replace the void or voidable provision with another provision that reflects the purport of the void or voidable provision.
3.1. All offers, quotations, images, catalogues, measures, weights and other information provided by the contractor are free of obligation and can only be regarded as an invitation to the customer to make a further offer. Without prejudice to the above, all offers will be valid for a period of 14 days unless stated explicitly otherwise.
3.2. A contract is formed between the contractor and the customer only after an order has been confirmed in writing by the contractor or after the contractor has actually started, wholly or in part, with the performance of the order.
3.3. Verbal promises by and agreements with employees of the contractor will only be binding on the contractor after and in as far as the contractor has confirmed them in writing.
3.4. If the customer does not agree with the order confirmation, he must notify the contractor thereof in writing within three working days, failing which the order confirmation becomes irrevocable and any additional costs as the result of a modification desired by the customer afterwards will be at the expense of the customer.
3.5. If after the formation of the contract the customer cancels the order for any reason whatsoever, or the contract is terminated by the contractor because of an attributable failure to perform by the customer, all costs already incurred by the contractor as well as the lost profits and other loss will be at the expense of the customer.
3.6. If the order is given on behalf of a legal person, the person who places the order will be personally jointly and severally liable for the performance of the obligations towards the contractor entered into on behalf of the legal person in question.
3.7. The customer and his personnel are under an obligation to keep confidential all information of the contractor that is of a confidential nature (including drawings, models, constructions, diagrams and other corporate information and knowhow), all in the broadest sense, and that has been made available or known to him by the contractor, not disclosing it to third parties that are not involved in the performance of the order.
4.1. The agreed delivery period starts on the following dates, whichever is the latest:
a. the date of formation of the contract;
b. the date of receipt by the contractor of the documents, data, permits, etc. that are necessary for the performance of the order;
c. the date of fulfilment of the formalities that are necessary to start with the work;
d. the date of receipt by the contractor of the amount that in accordance with the contract must be paid in advance prior to the commencement of the work.
4.2. Delivery times set by the contractor are approximate only and can therefore never be regarded as a strict deadline, which means that exceeding the delivery period will never automatically result in an attributable failure to perform by the contractor. Apart from intent or gross negligence on the part of the contractor, the fact that a delivery time is exceeded does not entitle the customer to terminate the contract wholly or in part.
4.3. The contractor is entitled to make partial deliveries and to send a separate invoice for each partial delivery.
4.4. Unless otherwise expressly agreed, the Incoterms (latest version) wholly apply to all deliveries. Goods shall be delivered FCA as referred to in the Incoterms.
4.5. Goods ready for dispatch must be collected immediately following the notification of the contractor or within a period of time set by the contractor for that purpose, failing which the contractor is entitled, at his discretion:
a. to have the goods moved, in the name and at the expense and risk of the customer, to a place of delivery agreed on, if any, or to store them in the warehouses of the contractor or of third parties,
b. to regard the contract as terminated without legal intervention, without prejudice to the right to compensation and the contractual interest on that compensation as of the date of termination.
5.1. Unless the contrary is proved, the goods will be considered to have been delivered, as far as the quantity, weight, type and dimensions are concerned, in accordance with the data on the shipping documents. Deviations and other defects directly visible on delivery must be recorded directly on the receipt documents to be submitted to the carrier and be notified to the contractor by registered letter within eight days after delivery, and if not visible within 30 days after delivery, failing which the deviations and defects can no longer be invoked. Overruns and underruns are considered to be in accordance with the agreed quantities and/or numbers if the deviations in quantities or numbers are not in excess of:
- 30% over or under the specified quantity for orders with a net weight up to 500 kg
- 20% over or under the specified quantity for orders with a net weight up to 1000 kg
- 15% over or under the specified quantity for orders with a net weight of 1001 to 5000 kg
- 10% over or under the specified quantity for orders with a net weight of more than 5000 kg
5.2 Goods that seem faulty to the customer must be returned to the contractor carriage paid and in their original state, after which the contractor may repair or replace the goods in question or, at its discretion, credit the customer for a proportional part of the invoice if the goods prove to be faulty.
5.3. Quality requirements or quality standards of the goods to be delivered by the contractor, whether or not after processing, must have been explicitly agreed in writing. Minor deviations that are customary in the sector or technically unavoidable and differences in quality, colour, dimensions or finishing, hereinafter referred to as "Permissible Deviations", do not result in any liability of the contractor. In the event of the delivery of fluoroplastics, these Permissible Deviations in any case include deviations that fall within the standards of the Gesammtverband Kunststoffverarbeitende Producte (GKV) and in the event of the delivery of hoses or tubing, deviations of less than 10% of the agreed quantity, weight, length, width and thickness. In the event of the delivery of plastic film, the following must be considered as Permissible Deviations:
- for plastic film on rolls and for bags made from plastic film: 5% in respect of the length and/or width
- in respect of the thickness of plastic film up to 20 mµ: 20%
- in respect of the thickness of plastic film from 20 to 50 mµ: 15%
- in respect of the thickness of plastic film more than 50 mµ: 13%
6.1. If the contractor is prevented from performing the contract by force majeure, the contractor is entitled to suspend performance for three months and - if this situation has not disappeared after that period has passed - to terminate the contract without being liable to pay any compensation to the customer or to third parties, other than the restitution of any money already paid by the customer for which no deliveries are made in return. Any goods already delivered or services already provided must be paid by the customer.
6.2. Force majeure as referred to in article 6.1 means any circumstance - with the exception of intent or gross negligence on the part of the contractor - as a result of which the contractor is prevented from performing the contract.
7.1. The contractor is not liable for any loss or damage suffered by the customer or third parties that arise from the fact that the customer fails to perform the contract, or does not perform it properly or in time, unless loss or damage is concerned that is the direct and exclusive consequence of intent or gross negligence on the part of the contractor.
7.2. Any other liability of the contractor for loss or damage, for whatever reason and including the loss or damage suffered by third parties, is expressly excluded.
7.3. Without prejudice to the provisions laid down in 7.1., liability for trading loss, business interruption loss, consequential damage or damage to goods in custody is excluded in any case. 'Damage to goods in custody' means, among other things, damage caused during the execution of the contracted work to goods that are being worked on or to goods in the vicinity of the place where work is done.
7.4. In the event of liability, only the loss or damage for which the contractor is ensured qualifies for compensation or, if the loss or damage is not covered by any insurance of the contractor, the liability will be limited to the amount of the net invoice amount of the contract.
7.5. The customer indemnifies the Contractor against all claims of third parties for product liability arising from a defect in a product supplied by the customer to a third party that consisted, wholly or in part, of products and/or materials supplied by the contractor.
8.1. The prices quoted by the contractor are exclusive of turnover tax and all other government charges payable on the sale and delivery and, unless explicitly otherwise agreed, are exclusive of the costs of packing, insurance and transport.
8.2. If after the formation of the contract circumstances arise that affect the cost price, the contractor is entitled to charge the customer separately for them. The same applies to monetary fluctuations as a result of which the margin calculated in Dutch currency at the time of the formation of the contract is affected by more than 25%.
8.3. Invoicing will take place as of the delivery date. The contractor expressly reserves the right to unilaterally deviate from this.
8.4. Invoices must be paid within 30 days after the invoice date at the offices of the contractor or into a bank account to be designated by the contractor. The customer is not allowed to apply discounts to the agreed and invoiced prices on his own authority without the express written permission of the contractor.
8.5. The right of the customer to set off any claims on the part of the customer against invoices of the contractor is excluded, unless the contractor goes bankrupt.
8.6. If the customer has not fully paid any invoice in time, he will deemed to be in default by operation of law without any notice of default being required, the contractor will have the right to suspend the performance of any other contracts with the customer in question or to terminate them, and the customer will have to pay an interest of 2% per month on the outstanding amount as of the first day after expiry of the payment term mentioned in 8.4 until the date on which payment is made in full, in which respect part of the month will count as a full month.
8.7. As soon as the customer is in default, the contractor is entitled to charge extrajudicial collection costs. The extrajudicial collection costs are 15% of the first €2,500.- of the outstanding invoice amount with a minimum of €40.-, 5% of the next €5,000.-, 1% of the next €190,000.- and 0.5% of the amount above that with a maximum of €6,775.-.
8.8. The contractor is free to determine the claims to which the (partial) payments of the customer will be allocated; however, in any case payments will firstly be applied to settle the costs of proceedings, if any, then the extrajudicial collection costs, after that the interest due and only in the last instance the principal.
9.1. All goods delivered by the contractor, including the goods with regard to which the invoice related to the delivery thereof has already been paid, remain the property of the contractor until the customer has complied with all financial obligations towards the contractor, on any account whatsoever, including the obligation to pay interest and/or extrajudicial collection costs. In the case of processing or merger of goods subject to the retention of title that are not the property of the contractor, the contractor is deemed to be co-owner of the new goods thus created, in proportion to the total due to the contractor of the value of those new goods or, if this situation arises, those new goods will be deemed to have been pledged to the contractor and the customer is obliged to store these goods on first call of the contractor at a location to be designated and managed by the contractor.
9.2. As long as goods that have been delivered are subject to a retention of title or the contractor is the co-owner of goods or goods are pledged to the contractor, the customer cannot encumber them or dispose of them other than in the normal course of his business and all risks of damages, destruction or loss caused by any reason whatsoever will be at the expense of the customer. The customer is obliged to adequately insure the goods at his own expense, however to the benefit of the contractor, against theft, fire and other perils.
9.3. Immediately after invoking the retention of title, the contractor is irrevocably authorized by the customer to (order to) access the place where the goods in question are located and to (order to) take them. If the contractor is nevertheless prevented from collecting his property despite this authorization, the customer will be liable to pay a penalty immediately due and payable which is not subject to judicial mitigation of €100.- for each day he is prevented to do so, without prejudice to the contractor's right to claim the actual loss if this is higher than the total of the penalties due.
9.4. The contractor is authorized at all times to demand payment in advance or additional security that is satisfactory to the contractor for the fulfilment of the obligations of the customer, including those with regard to the collection costs and interest, even when those obligations have not yet become due and payable. If the customer does not comply with such a demand from the contractor within 14 days, the contractor is authorized to terminate the contract or to immediately suspend or discontinue the supply of goods and provision of services under this contract and any other contract and the customer will be in default without any notice of default being required. Furthermore, on demand of the contractor the customer is obliged in that case to create a right of pledge to the benefit of the contractor on the movable goods the customer is in possession of. The contractor will never be liable for any loss or damage arising from this for the customer or third parties.
10.1. All offers, orders and contracts between the contractor and customer to which these general terms and conditions apply are exclusively governed by Dutch law.
10.2. The Vienna Sales Convention (11 April 1980, Dutch Treaty Series 1981, no. 184) does not apply, nor any other international regulations the exclusion of which is permitted.
10.3. Any dispute that may arise between the parties will be settled by the Dutch Court in the place of business of the contractor unless mandatory statutory provisions designate another competent Dutch Court and subject to the right of the contractor to submit a dispute to the Court that is competent based on the laws of the Netherlands.
10.4. With regard to any proceedings, the contractor hereby formally and irrevocably chooses his address for service at the address notified to the customer when the contract was formed. This implies that official documents and registered mail can always be duly served at that address, unless a different address has been given by registered letter.
These terms and conditions have been drawn up and are available in Dutch and English. In the event of a difference or conflict between the contents of the Dutch text and the English version of these terms and conditions or differences of interpretation, the text and interpretation of the terms and conditions drawn up in Dutch will prevail at all times.