1.1. These General Terms and Conditions are applicable to all offers, agreements and deliveries of and with Vita Plastics BV, referred to below as Vita Plastics, and any affiliated companies.
1.2. Other agreements, conditions or arrangements with agents or employees of Vita Plastics and/or which are laid down in purchase orders or letters, as well as the buyer’s general terms and conditions, are applicable only to the extent that they have been accepted or confirmed in writing by Vita Plastics.
2.1. All quotations are non-binding, unless the contrary has been stated in writing. Agreements are deemed to have been concluded at the time at which Vita Plastics sends the written (sent by post, email or fax) order confirmation. If payment security is required, whether or not in the form of a letter of credit, the agreement will not be concluded until such time as the payment security has been received.
2.2. If, following acceptance of the order, the client introduces amendments or cancels the order in full or in part, all costs already incurred and the amount of our loss of profit and downtime losses will be for our client’s account. The client will be authorised to cancel with our written consent.
3. Weight and quantity
3.1. Vita Plastics undertakes to deliver the agreed quantities to the best of its ability.
3.2. Vita Plastics will be deemed to have fully met its obligations regarding the deliverable quantity of product, even if up to 20% more or less than the ordered quantity has been delivered. The actual weight or quantity will be invoiced at the agreed price.
4.1. Unless otherwise agreed, deliveries shall be carriage paid to carrier (FCA). All the delivery conditions are in accordance with the most recent Incoterms.
4.2. The time of delivery is the time when the goods leave the factory or are made available to the buyer and are also ready for shipment. The goods will be at our client’s expense and risk from the time at which they leave the factory, which risk must be properly insured by the client.
4.3. If the goods are delivered in batches, each delivery will be regarded as a separate transaction, with all of the associated legal implications.
4.4. The buyer is obliged to provide the necessary shipping instructions in a timely manner, in the absence of which he will be liable for the damages and costs caused by his non-compliance.
4.5. If the buyer has reserved the right to further specify the batch deliveries and the time of delivery on entering into the agreement, he must inform us of his decision on these deliveries within four weeks of our request to that effect or within a period of time agreed with us. Our obligation to deliver will not come about until we have accepted the terms of delivery in writing.
4.6. If the buyer refuses to accept the goods or some of them, Vita Plastics will have the right to terminate the agreement without legal intervention and without notice of default being required, without prejudice to our right to full compensation for damages.
4.7. The terms of delivery shall be approximate, unless otherwise expressly agreed. The term of delivery commences at the time at which the order has been received by Vita Plastics and has been confirmed in accordance with Article 2.1, and all the information required for execution has been received by Vita Plastics from the buyer.
4.8. Vita Plastics undertakes to observe the terms of delivery to the best of its ability. In the event of Vita Plastics exceeding the delivery term, this will not entitle the buyer to terminate the agreement or to any compensation for damages. However if the agreed delivery term is exceeded by more than three months, either party will be authorised to terminate the agreement to the extent that it has not yet been executed.
4.9 Vita Plastics cannot under any circumstances be held liable for the consequences of a late delivery.
The copy of the waybill, transport document or other form of confirmation of receipt signed by or on behalf of the transporter will constitute evidence that the goods stated therein have been delivered complete and (outwardly) in good condition unless a note has been made in the transport document.
6. Quality of the products
6.1. Vita Plastics undertakes to deliver products that comply with the specifications agreed in writing. If no other agreement has been made, Vita Plastics will deliver products that comply with the standard requirements for such products.
6.2. Since recycled materials are used, any deviations in MFI, composition, packaging, colour, etc. must be accepted by the buyer, while the buyer shall not be able to derive any rights and/or price reductions from such deviations.
6.3. Although Vita Plastics provides its advice and information about the products to the best of its knowledge, Vita Plastics does not accept any liability for direct or indirect losses caused by any usage whatsoever or for any personal injury or material damage.
7. Packaging materials
7.1. The products are delivered in packaging that is suitable for the agreed transport. If Vita Plastics is obliged by law to take back the packaging, the buyer may return the packaging at his own expense.
7.2. If Vita Plastics provides return packaging, the packaging conditions of the Vereniging van de Nederlandse Chemische Industrie [Association of the Dutch Chemical Industry] and the Verbond van Handelaren in Chemische Producten [Association of Traders in Chemical Products] shall apply.
8.1. Prices are in euros and are FCA carrier including packaging and excluding VAT, unless other agreement has been expressly made in writing.
8.2. Prices are based on the exchange rate between Dutch and foreign currencies, prices of materials, export subsidies, wages, import duties, taxes and other levies at the time of formation of the agreement.
8.3. Vita Plastics reserves the right to adjust the prices of orders that have already been confirmed if there is a change in the price-determining factors mentioned in Article 8.2 before the products have been dispatched by Vita Plastics.
9.1. All payments must be made according to the payment method agreed between the parties, and in compliance with the agreed terms. Unless other agreements have been made, a payment term of 30 days from the invoice date shall apply. Payments must be made in the agreed currency, without discount or claim for any compensation, to a bank account of Vita Plastics in the Netherlands.
9.2. If payment by means of a letter of credit has been agreed, the letter of credit shall cover the entire contract price, and shall be opened by the buyer at a leading bank within 15 days of formation of the agreement in accordance with Article 2.1. Any confirmation required by Vita Plastics must be issued by a Dutch bank. The letter of credit will be subject to the most recent edition of the “Uniform Customs and Practice for Documentary Creditan, ICC publication”.
9.3. In the event of late payment, the buyer shall be deemed, without any notice of default or court intervention to be in default, and he shall be charged interest over the amount due which equals the lawful interest established by De Nederlandse Bank, increased by 2%. Moreover in the absence of timely payment, Vita Plastics, without prejudice to any other rights it has under the law or the agreement, shall be entitled, at its own discretion, either to suspend any further deliveries or to regard the agreement as dissolved, without court intervention being required.
9.4. As soon as the buyer defaults on any payment all amounts payable by him to Vita Plastics – under any title – will become immediately due and payable.
9.5. Any costs incurred by Vita Plastics as a consequence of overdue payment by the buyer, including the fees of third parties engaged by Vita Plastics for debt collection, shall be payable by the buyer.
9.6. Complaints shall not suspend the payment obligations.
9.7. Complaints against an invoice will be accepted only provided that they are submitted within eight days of the invoice being received.
9.8. Banking costs charged by the buyer’s bank are payable by the buyer; banking costs charged by Vita Plastics’ bank are payable by Vita Plastics.
10. Furnishing of security
10.1. Vita Plastics is entitled to require sufficient security for the buyer’s compliance with his payment obligations prior to delivery or for continuation of delivery.
10.2. The buyer’s refusal to provide the required security will entitle Vita Plastics, without court intervention, to regard the agreement as dissolved, with compensation for any damages suffered by Vita Plastics.
11. Bankruptcy, suspension of payment and so on
11.1. If either party fails to comply with any of its obligations or fails to do so in full or in good time as a consequence of an application for bankruptcy, bankruptcy, liquidation of the company, or the requested or obtained suspension of payment of that party, the other party shall be entitled to dissolve the agreement unilaterally in full or in part, without further notice of default or court intervention being required by means of a registered letter, or to suspend its fulfilment of the agreement in full or in part, without being obliged to pay any compensation, without prejudice to any other rights to which it is entitled.
11.2. If one of the abovementioned circumstances occurs on the part of the buyer, the full amount receivable by Vita Plastics from the buyer shall become immediately due and payable.
12. Retention of title
12.1. All products sold and delivered, either processed or unprocessed, shall remain the property of Vita Plastics until the amounts receivable by Vita Plastics from the buyer have been paid in full, including any collection costs and interest due.
12.2. The buyer is not entitled to transfer ownership of those products, in the same state or treated or processed, whether or not to serve as security, to third parties before ownership has been transferred to him. The buyer is nevertheless entitled to retain the products for treatment or processing for his own purposes, or to deliver them to third parties as part of his normal business processes. The buyer shall cooperate at all times in order that Vita Plastics can exercise its property rights.
12.3. If unpaid deliveries are made by Vita Plastics to the buyer before they have been sold on, the claims that thus originate will substitute the delivered goods and will be transferred to us unconditionally and with precedence.
12.4. Notwithstanding our other rights, for as long as its claims have not been met, Vita Plastics will have the right to repossess the delivered goods, also in the case of non-compliance, bankruptcy or suspension of payment on the part of the buyer. In that case the buyer grants Vita Plastics, now for then, the right to enter its sites and buildings. In the event of non-compliance with the agreement, Vita Plastics will have the right, without any notice of default being required, to repossess the goods, in which case the agreement will also be dissolved without any legal intervention being required, and without prejudice to our right to claim damages, loss of profit, interest and costs.
13.1. Notifications made by or on behalf of Vita Plastics concerning the quality, composition, treatment in the broadest sense, applications, properties, etc. are not binding in the form of a guarantee to Vita Plastics unless they have been explicitly confirmed in writing.
13.2. Our guarantee, if given, does not extend beyond the delivery of a replacement batch of goods (to replace the unsound goods).
13.3. Any right to a guarantee shall be null and void if the products are not kept and/or stored in accordance with the normal, prevailing storage instructions for such products.
14.1. Immediately after receiving the products, the buyer must inspect the products and notify Vita Plastics forthwith in writing of any faulty deliveries and/or non-conformities, precisely stating the nature of the complaints. Complaints not lodged within 8 days of receipt of the products will not be accepted.
14.2. If the goods have been treated or processed in any way or sold on after the buyer discovers or should have discovered a hidden defect, all claims based on hidden defects will be null and void. This will not apply if the buyer has reported the hidden defect to the vendor within the aforementioned term and if he is able to demonstrate that the further treatment and/or processing was necessary to avoiding any further losses.
14.3. In the event of a complaint, Vita Plastics shall do everything in its power to assess the complaint and where necessary rectify the issue in accordance with the provisions of Article 15.2 below.
14.4. The products can be returned at Vita Plastics’ expense and risk only after it has given explicit, written permission to that effect.
14.5. Complaints will not be accepted if our client has failed in any way to meet his obligations to us under any agreement.
14.6. The quantity of raw material or product used by the buyer will also be charged to the buyer at all times in the event of a complaint being made. Vita Plastics cannot under any circumstances be held liable for the purchase of manufactured products or materials from the raw materials supplied by Vita Plastics.
15.1. All liability on the part of Vita Plastics as a consequence of a non-conformity which can be ascribed to Vita Plastics shall be limited at all times to a maximum of the net invoice value of the products.
15.2. If a complaint is well-founded, Vita Plastics must, at its own discretion, make a new or supplementary delivery, or replace the products that are the subject of the complaint with similar products free of charge, or release the buyer from his obligation to pay the invoice value of the products in full or in part. In these cases the goods in question must be returned in their original and undamaged condition. The return shipment costs will be for our account. In the first cases mentioned, the buyer shall not be authorised to suspend compliance with his obligations to Vita Plastics.
15.3. Notwithstanding the provisions of paragraphs 1 and 2 of this article, Vita Plastics cannot be held liable for costs, losses and interest incurred by our client or third parties as a direct or indirect consequence of acts or omissions of persons employed by us or non-conformities in our goods supplied by us to the client, unless and insofar as these losses are covered by our insurers. Under no circumstances can Vita Plastics be held liable for trading losses, expressly including material losses affecting processing machinery. Vita Plastics further rejects all liability for consequential losses caused by the product, raw material or service delivered. Nor will the buyer be entitled to compensation for damages for any additional losses or for losses caused by delays or the inability to provide replacement deliveries.
15.4. In the case of raw materials being processed for third parties, Vita Plastics cannot be held liable for the quality of the end-product if this has been caused by inadequate quality of the raw materials supplied. The client is responsible for the supply of raw materials of the correct quality.
15.5. The quantity of materials lost as a result of the processing of the raw materials cannot under any circumstances constitute a well-founded reason for any compensation. Loss of production and the quantity cannot be estimated in advance and therefore cannot lead to complaints by the client.
15.6. In the case of Vita Plastics processing the client’s raw materials, the client will arrange for the insurance of the raw materials and the end-product at the processing location of Vita Plastics. Vita Plastics cannot under any circumstances be held liable for the loss of raw materials or end-products as a result of theft or fire.
15.7. Manufactured materials should normally be collected by the client within 14 days of Vita Plastics reporting that they are ready for collection. In the event of later collection, Vita Plastics may charge a fee for keeping the finished products in storage.
15.8. Unless explicitly agreed otherwise with the client, the contract work carried out by Vita Plastics immediately after reporting that production has been completed will be charged on to the client.
16. Industrial property rights
16.1. Vita Plastics expressly reserves all of its rights of industrial and intellectual property in connection with the products it has delivered.
16.2. Products placed in circulation by Vita Plastics may not be offered or traded under brands with regard to which it is the title holder or with reference to its trade name unless it has given permission for this in writing and under conditions to be imposed by Vita Plastics, and nor does the buyer have permission to modify its products in full or in part without the explicit written consent of Vita Plastics.
16.3. The buyer is obliged to also impose the above provisions of this article on its own clients.
16.4. With regard to any infringement of the provisions of this article or each failure to comply with them promptly as established by Vita Plastics, the buyer, unless he remedies the infringement or complies with the provisions of this article within a reasonable term set by Vita Plastics, shall forfeit a penalty of EUR 100,000 increased by EUR 1,000 per day that the infringement continues, or the amount of the losses actually incurred, such to be decided by Vita Plastics. The penalty shall be due without further notice of default.
17. Force majeure
17.1. In the event that fulfilment of the agreement is impeded as a consequences of circumstances beyond Vita Plastics’ control, Vita Plastics shall be entitled, without legal intervention being required, to either suspend compliance with the agreement, or to dissolve the agreement in full or in part, without being liable for the payment of any compensation for damages.
17.2. Vita Plastics cannot be held liable for direct or indirect losses of any nature suffered by the client or third parties as a result of suspension or cancellation due to force majeure.
17.3. For the purposes of this agreement, force majeure is understood to mean any circumstance which Vita Plastics cannot reasonably take into account, and as a consequence of which normal fulfilment of the agreement cannot be reasonably required by the buyer, as well as, insofar as not yet included therein, any natural and environmental disasters, war, threat of war, civil war, uprising, strike, third parties whose goods or services need to be received and which are fully or partially in default, transport problems, fire and other emergency situations in the company of Vita Plastics and its supplier.
17.4. If Vita Plastics invokes the abovementioned circumstances, it shall notify the buyer of the beginning as well as the end of them forthwith in writing.
17.5. If full or partial suspension as defined in Article 17.1 changes the later performance by Vita Plastics on behalf of the buyer to such an extent that their acceptance by the latter can no longer be reasonably expected, the buyer shall be released from his further purchase acceptance obligations.
18. Conflict with legal provisions
In the event of any provision of these General Terms and Conditions not being applicable or conflicting with public order or the law, only the relevant provision shall be regarded as non-written, but the other provisions of these General Terms and Conditions shall remain in full force.
19. Transfer of rights and obligations
19.1. Neither party shall be entitled to transfer its rights and obligations in full or in part to a third party without the prior approval of the other party.
19.2. If after formation of the agreement the control over all the activities of the buyer or a significant part thereof is transferred directly or indirectly to other parties, the buyer must notify Vita Plastics of this forthwith and in writing. Vita Plastics will in that case reserve the right to terminate the agreement unilaterally without court intervention in full or in part, by means of a registered letter, observing a cancellation period of 1 month, without being obliged to pay any compensation for damages. However, this right shall lapse if Vita Plastics has not exercised its right within 1 month of the buyer notifying Vita Plastics of said transfer in writing.
20. Applicable law
20.1. Any agreement and any commitments arising thereof with regard to which these Terms and Conditions apply in full or in part shall be governed exclusively by Dutch law.
20.2. The Vienna Sales Convention (CISG) is not applicable; nor is any other international regulation the exclusion of which is permissible.
21. Dispute adjudication
All disputes between parties which cannot be resolved in mutual consultation shall be settled by the Dutch Court in the district where Vita Plastics has its registered offices, or by another competent Court, to be decided at the discretion of Vita Plastics.