1.1 These terms and conditions shall apply to all offers issued by Q Plastics BV, having its registered office in Amsterdam, hereinafter referred to as Q Plastics, and to all agreements that it concludes with an other party that is acting in the course of a profession or the operation of a business.
1.2 The present terms and conditions shall also apply to agreements entered into with the purchaser where the purchaser is to involve third parties in relation to performance of the said agreements.
1.3 The applicability of any purchase conditions or other conditions by the purchaser shall explicitly be rejected.
1.4 Where one or more provisions of these general terms and conditions are null and void, whether wholly or in part, or are declared void at any time, the other provisions of these general terms and conditions shall continue to apply in full. Where this situation arises, Q Plastics and the purchaser shall enter into consultation with each other with the object of agreeing on new provisions to replace the null or void provisions, which replacement provisions shall comply with the object and the essence of the original provisions as much as possible.
2.1 All offers and/or tenders shall be free of obligation, except where explicitly stated otherwise.
2.2 Information in printed matter issued by Q Plastics, such as catalogues and brochures, may be subject to change without prior notification. They shall not bind Q Plastics.
3.2 Each agreement shall be entered into by Q Plastics subject to the suspensive condition that the creditworthiness of the purchaser has been established to the satisfaction of Q Plastics, or where the purchaser has provided sufficient security for the performance of its obligations, this at the discretion of Q Plastics.
3.3 Approximate information that Q Plastics offers in relation to the goods offered, such as properties, sizes, colours, etc., as well as information in printed matter, drawings, illustrations, etc., shall not bind Q Plastics, given the nature of the goods.
4.1 All agreements shall be entered into on the basis of the prices applicable at the time applicable for the conclusion of an agreement. The prices indicated shall apply for delivery ex works or ex warehouse by Q Plastics and shall be exclusive of Dutch VAT.
4.2 Where more than four weeks have expired between the conclusion of the agreement and delivery and where the prices of materials, raw materials or semi-finished goods, pay, premiums of whatever nature, freight, taxes, exchange rates and/or other costing factors applicable for Q Plastics have increased such in this period that the cost price for Q Plastics has increased by more than 2%, Q Plastics shall be entitled to charge a higher sales price consistent with the cost price increase in question, without the purchaser having the right to dissolve the agreement.
4.3 In the unlikely event that the cost price stated in Article 4.2 above has increased by more than 5%, the purchaser shall be entitled to dissolve the agreement should Q Plastics pass on the cost price increase.
6.1 The delivery periods specified shall only be approximate.
6.2 Delivery periods have been determined in the expectation that there will not be any impediment to the delivery of goods by Q Plastics.
6.3 Where the purchaser has not taken delivery of goods that it has ordered before the delivery period expires, these goods shall be stored at the expense and risk of the purchaser, without prejudice to the obligation on the part of the purchaser to pay the purchase price agreed on.
7.1 Goods shall be dispatched in the manner agreed on with Q Plastics, in consultation with the purchaser. Except where the parties have explicitly agreed otherwise, goods shall be dispatched at the expense of the purchaser.
8.1 Where necessary, the cost of packaging shall be calculated on the basis of the cost price and shall not be taken back. Q Plastics shall assess the need to use packaging.
9.1 Cost increases further to changes to the agreement, of whatever nature, written or verbal, and required by or on behalf of the purchaser, shall be passed on to the purchaser.
9.2 The purchaser shall promptly notify Q Plastics in writing of any changes that the purchaser requires to performance of the agreement following conclusion of the agreement. Where Q Plastics is notified of these changes verbally or by telephone, all risk in relation to the implementation of the changes shall be borne by the purchaser.
9.3 Changes made to an agreement may cause the delivery period agreed on to be exceeded. Any failure to deliver goods within the delivery period agreed on shall be at the expense and risk of the purchaser.
10.1 The purchaser shall only be permitted to cancel the agreement with the explicit permission of Q Plastics. In this situation, the purchaser shall be obliged to compensate Q Plastics for the loss that it has sustained and for the costs already incurred.
10.2 Without prejudice to the provisions of the previous paragraph of this article, Q Plastics shall reserve all right to full performance of the agreement and/or to claim full compensation.
11.1 The purchaser shall be obliged to thoroughly inspect goods for faults immediately after delivery and, where faults are observed, to immediately notify Q Plastics of them in writing. Where the purchaser fails to notify Q Plastics in writing of faults that are observed during a thorough inspection within eight days of the date of delivery, the purchaser shall be deemed to be in agreement with the condition in which the goods were delivered and any right to complain shall lapse.
11.2 Q Plastics shall be given the opportunity to check all complaints submitted. Where agreement is reached, a written declaration shall be prepared, which declaration shall be signed by both parties.
11.3 Where the parties are not able to reach agreement, an independent expert shall be brought in. The cost of this expert shall be borne by the unsuccessful party, except where agreed otherwise.
11.4 Where a complaint is justified in the opinion of Q Plastics or the independent expert, a discount to be agreed on at a later date shall be given on the purchase price, or the goods delivered shall be replaced free of charge, once the original goods have been returned in their original condition. Q Plastics shall not be obliged to pay any further compensation of whatever nature.
12.1 As regards the goods delivered, Q Plastics shall solely be liable with due observance of the provisions below:In the event of an intentional act or omission or negligence on the part of directors at Q Plastics or management employees and an intentional act or omission or gross negligence on the part of other subordinates, Q Plastics shall accept liability where the aforementioned has resulted in a loss for the purchaser.
A. The liability applicable for Q Plastics shall always be limited to an amount equal to 100% of the invoice amount.
B. In situations involving partial deliveries and partial invoices, calculation of the limitation of liability shall be based on the partial invoice relating to the delivery from which the liability in question arises.
12.2 Liability on the part of Q Plastics shall be lifted in the event of force majeure, in which case Q Plastics shall have the right, pursuant to a permanent or temporary inability to perform the obligations arising for it, to dissolve the agreement, whether wholly or in part, without being obliged to pay any form of compensation.
12.3 The purchaser shall indemnify Q Plastics against any claim from third parties for compensation of any nature and relating to the delivery or use of the goods delivered by Q Plastics.
12.4 Q Plastics shall only be liable for direct loss.
12.5 Direct loss shall solely be understood to mean the reasonable costs incurred in order to determine the cause and the extent of the loss, insofar as this determination relates to loss in the sense of these terms and conditions, any reasonable costs incurred in order to ensure that the inadequate performance delivered by Q Plastics ultimately conforms with the agreement, insofar as the said costs can be attributed to Q Plastics, and reasonable costs incurred in order to prevent or limit loss, provided the purchaser demonstrates that these costs have led to the limitation of direct loss as referred to in these general terms and conditions.
12.6 Q Plastics shall never be liable for indirect loss, including consequential loss, lost profits, lost savings or any loss sustained as a result of business interruption.
13.1 The purchaser shall indemnify Q Plastics against any claims from third parties that sustain a loss in connection with performance of the agreement and the cause of which is attributable to a party other than Q Plastics.
13.2 Should Q Plastics receive a claim for compensation from third parties in this respect, the purchaser shall be obliged to assist Q Plastics both at law and otherwise and to immediately do all that which may be expected of it in this situation. Should the purchaser fail to put effective measures in place, Q Plastics shall be entitled to proceed to do so itself, without notice of default. All costs and loss sustained on the part of Q Plastics and third parties as a result shall be entirely at the expense and risk of the purchaser.
14.1 Where it is found, following conclusion of the agreement, that performance will be inconvenient or impossible for Q Plastics as a result of a force majeure situation, Q Plastics shall be entitled to dissolve the agreement or to suspend performance thereof where the agreement is still to be performed, in which case the purchaser shall be notified of this as soon as possible, having regard to the circumstances of the case.
14.2 Force majeure shall be understood to mean any situation in which Q Plastics is unable to fulfil all or some of the obligations arising for it as a result of circumstances that have arisen through no fault of Q Plastics and which circumstances equally cannot be attributed to Q Plastics under the law, further to a guarantee issued by Q Plastics or pursuant to common opinion.
14.3 The following circumstances amongst others shall be regarded as force majeure situations:
15.1 Q Plastics shall retain the title to all goods that it supplies to the purchaser until the purchase price for all of the said goods has been paid in full. The retention of title shall also apply in relation to any claims that Q Plastics may gain against the purchaser where the purchaser fails to fulfil one or more of the obligations arising for it towards Q Plastics or where a claim of this nature arises from compensation to be paid to Q Plastics by the other party.
15.2 Goods to which Q Plastics has retained the title may only be resold in the context of the normal course of business on the part of the purchaser.
15.3 Where the purchaser fails to fulfil the obligations arising for it towards Q Plastics or there is a well-founded fear that the purchaser will not do so, Q Plastics shall be entitled to remove or arrange the removal of the goods to which the retention of title applies, and shall remove the said goods from the purchaser or from third parties that are keeping the goods in question for the purchaser. The purchaser shall render Q Plastics its full cooperation in this respect, in the absence of which the purchaser shall forfeit to Q Plastics a penalty equal to 10% of the amount due from the purchaser, for each day – including part of a day – that the purchaser is in default towards Q Plastics, without prejudice to the obligation to surrender the goods in question.
15.4 In situations where third parties wish to establish a right to the goods to which the retention of title on the part of Q Plastics applies, or wish to assert the said rights, the purchaser shall undertake to notify Q Plastics of this immediately and to inform the third parties in question of the retention of title applicable on the part of Q Plastics.
15.5 The purchaser shall undertake to Q Plastics to render its cooperation, within reasonable limits, in relation to all measures that Q Plastics wishes to put in place in order to protect its right of ownership of the goods.
15.6 While the purchaser still has any payment obligation towards Q Plastics, all goods held by the purchaser and that have originated from Q Plastics shall be the property of Q Plastics, pursuant to the retention of title laid down in this article.
15. 7 Where the purchaser goes into liquidation, this shall not be detrimental to the right that Q Plastics has to exercise its retention of title.
16.1 Where the purchaser fails to perform the obligations arising for it from the agreement, it shall be in default by operation of law, without the need for any notice of default.
16.2 In the event of attributable non-performance, Q Plastics shall have the right, notwithstanding the provisions of the Netherlands Civil Code [Burgerlijk Wetboek], to suspend performance of the agreement, to dissolve the agreement, whether fully or in part, or to demand performance, without prejudice to the right that Q Plastics has to compensation.
16.3 Dissolution as referred to above in Article 16.2 shall be effected by registered letter.
16.4 The rights referred to in Article 16.shall also due to Q Plastics in the following cases:
17.1 Except where agreed otherwise, payment to Q Plastics shall be effected to a bank or giro account to be specified by the latter pursuant to the delivery of goods and shall be effected without any discount or setoff, within 14 days of the invoice date.
17.2 Where non-standard goods are sold, Q Plastics shall be entitled to require an advance payment from the purchaser, in which case the other party shall be notified of this.
17.3 It shall only be possible for the purchaser to buy on account with the written permission of Q Plastics.
17.4 Where the purchaser has failed to fulfil its payment obligation, it shall be required to pay Q Plastics statutory interest on the invoice amount still outstanding, or a part thereof, whereby part of a month shall be calculated as a whole month, commencing 14 days after the invoice date. In this situation, the purchaser shall also be required to pay Q Plastics all reasonable costs necessary in order to achieve payment out of court, which costs shall be calculated on the basis of 15% of the invoice value – subject to a minimum of EUR 150.00.
17.5 Q Plastics shall be free to decide to which specific debts payments received from the purchaser shall be allocated. However, payments shall always be allocated to the settlement of interest and extrajudicial collection costs first.
17.6 In any event, where Q Plastics has goods belonging to the purchaser in its possession, it shall be entitled to utilise its right of retention until its total claim against the purchaser has been paid in full.
18.1 All trade descriptions, expressions and abbreviations used in agreements or in correspondence relating to these agreements shall be interpreted in accordance with the meaning given to them in the most recent publication of "Incoterms" by the International Chamber of Commerce in Paris. A copy thereof may be requested from: ICC Nederland, P.O. Box 95309, 2509 CH, The Hague.
19.1 Any disputes, including those that are only regarded as such by one party, that arise from or in connection with the agreement to which these terms and conditions apply, or in relation to these terms and conditions and their interpretation or implementation, whether these disputes are of a factual or legal nature, shall be settled by the competent court in the court district in which Q Plastics has its principal place of business, namely Amsterdam.
19.2 Where, by law, a court other than the court designated in Paragraph 1 of this article is the competent court, the purchaser shall have the right to declare its non-agreement to the invocation of Paragraph 1 of this article within one week of the date on which it is notified of the fact that the dispute shall be submitted to the competent court in the court district in which Q Plastics has its principal place of business.
19.3 Without prejudice to the provisions of Paragraphs 1 and 2 of this article, Q Plastics shall be authorised to submit the disputes referred to in Paragraph 1 of this article to the court competent pursuant to normal rules of competency.
20.1 Dutch law shall apply to all agreements between Q Plastics and the purchaser.
21.1 Where one of the articles stated in these terms and conditions of sale is found to be null or invalid, this shall not affect the existence and validity of the other articles
22.1 In deviation from the statutory limitation periods, the limitation period for all claims and defences against Q Plastics and the third parties involved in the performance of an agreement shall be one year.
22.2 The provisions of Paragraph 1 shall not apply to claims and defences that are based on facts that would justify the assertion that the goods delivered are not in accordance with the agreement. Claims and defences of this nature shall lapse two years after the date on which the purchaser has notified Q Plastics of a non-conformity of this nature.
23.1 The risk of loss, damage or a decrease in value shall be transferred to the purchaser as soon as the purchaser gains control over the goods in question.
24.1 The goods to be delivered by Q Plastics shall comply with all customary requirements and standards that could reasonably be imposed on them at the time of delivery and for which they are intended in relation to normal use in the Netherlands. The guarantee indicated in this article shall apply to goods that are destined for use in the Netherlands. In the event of use outside the Netherlands, the purchaser itself shall verify whether the use thereof is suitable for use in the country in question and whether the goods meet the conditions imposed on them. In this situation, Q Plastics shall be able to impose different guarantee conditions and other conditions in relation to the goods to be delivered or work to be performed.
24. 2 The guarantee referred to in Paragraph 1 of this article shall be valid for a period of 30 days after delivery, except where the period of validity is different pursuant to the nature of the goods delivered or agreed otherwise. Where a guarantee issued by Q Plastics relates to goods that have been produced by a third party, the guarantee in question shall be limited to the guarantee provided by the producer of the goods, except where stated otherwise. Following the expiry of the guarantee period, all costs incurred in relation to the repair or replacement of goods, including administration, dispatch and call-out charges shall be charged to the purchaser.
24.3 Any form of guarantee shall lapse where a fault has arisen as the result of or further to improper use of or misuse of the goods. Any cost shall be borne solely by the purchaser.
25.1 These terms and conditions have been filed with the Chamber of Commerce in Amsterdam.
25.2 The version applicable shall always be the latest version filed or the version applicable at the time at which a legal relationship is entered into with Q Plastics.
25.3 The Dutch text of the general terms and conditions shall always be decisive for the interpretation of these general terms and conditions.
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