General Terms and Conditions for Sale, Lease, Testing and Delivery
AP STACKING B.V.
2. Applicability and voidability
3. Offer and acceptance
6. Delivery terms
10. Cooperation by the Client
11. Retention of Title
12. Intellectual Property
15. Force majeure
19. Applicable law
20. Settlement of disputes
1.1. These General Terms and Conditions for sale, lease testing and delivery (hereinafter referred to as ‘Terms and Conditions’) have been lodged with the Chamber of Commerce register under number 65497376 and can be sent to the Client free of charge upon request.
1.2. The following definitions are understood to be assigned the following meanings in these Terms and Conditions:
(a) AP STACKING: the private limited company AP STACKING B.V. with its registered office at Hurksestraat 29-51, 5652 AH Eindhoven, listed in the Commercial Register under number 65497376, and its legal successors by universal or particular title.
(b) Service: the performance of work to remedy and/or repair the Products at the request of the Client;
(c) Defect: any deviation in the Products from the Specification and any other improper functioning of the Products;
(d) Client: any natural or legal person who orders Products from AP STACKING and/or with whom they enter into discussions and negotiations about a Contract where the natural person is acting in a professional commercial capacity;
(e) Order: any order placed by Client with AP STACKING for the supply of Products or Services;
(f) Contract: any contract concluded between AP STACKING and a Client with respect to the supply or lease of Products will Services, any amendment or addition thereto, and any acts (or legal acts) in preparation for and/or implementation of such a contract;
(g) Product: The product developed by and-/or for AP STACKING in different variations, including, but not limited to the FlexMax and Multi-FlexMax, being a stackable system; Specification: the description drafted and/or expressly approved by AP STACKING of Products supplied by AP STACKING that is included or referred to in the Order or the Contract.
2. Applicability and voidability
2.1. These Terms Conditions apply to all AP STACKING offers, contracts and supplies and cover the sale, lease, supply, delivery or provision – under any title whatsoever – of the Product, or the supply of a Service of any nature or under any description whatsoever, to or for the Client.
2.2. The Client’s general terms and conditions (of purchase or otherwise) are rejected expressly at all times by AP STACKING, even if the Client refers to the latter terms and conditions in a request for offer addressed to AP STACKING.
2.3. If any provision of these Terms and Conditions proves inoperative or becomes null and void, the remaining provisions of these Terms and Conditions will remain in full force and effect and AP STACKING and the Client will enter into consultations in order to agree on new provisions to substitute the inoperative or null and void provisions, which will correspond insofar as possible to the objective and tenet of the inoperative and/or null and void provision.
2.4. In the event of a contradiction between the translated version of these Terms of Conditions and the Dutch version, the Dutch version will prevail.
3. Offer and acceptance
3.1. Any offer is subject to contract and must be considered as a whole.
3.2. No contract can be concluded until the offer has been accepted and the order is confirmed in writing by AP STACKING, or until AP STACKING has started on its implementation.
3.3. The confirmation of an order which AP STACKING sends to the Client must be signed for approval and returned to AP STACKING within eight days. If this is not done, the Contract will nevertheless be deemed to be concluded in accordance with the confirmation of order.
3.4. Should circumstances, including the nature, scope and/or urgency of the contract, prevent sending of a confirmation of order, the invoice issued by AP STACKING will be regarded as the confirmation of order.
3.5. All documents relating to the offers made by AP STACKING are and shall remain the property of AP STACKING and cannot be passed on to third parties, provided for inspection, multiplied or copied without its written permission.
4.1. All prices are exclusive of value added tax (VAT) and/or other levies, duties and import taxes but must be paid with value added tax and/or other levies, duties and import taxes.
4.2. Prices are calculated based on delivery of the Product Ex Works (EXW) ICC Incoterms 2010 or performance of the Service at the location designated by the Client, unless it has been explicitly agreed otherwise. Additional costs incurred by AP STACKING at the Client’s site, however they are incurred, will be for the Client’s account and risk.
4.3. Unless agreed otherwise, prices and rates are denominated in Euros.
4.4. Prices and rates that are not denominated in Euros are based on the exchange rates applicable in the Netherlands at the time of the offer. If there is a change in the exchange rate that is detrimental to AP STACKING, AP STACKING may increase the prices or rates agreed with the Client accordingly without any obligation to announce changes to the Client in advance.
5.1. An invoice will be drawn up and sent for every delivery or partial delivery.
5.2. Unless specifically agreed otherwise, the Client will pay, upon acceptance of the Order by AP STACKING, 50% (or any other percentage stipulated by AP STACKING) of the purchase price for the Products in advance by transferring such payment to a bank account designated by AP STACKING.
5.3. Unless specifically agreed otherwise, the Client will provide to AP STACKING upon demand, in addition to the advance payment provided for in the foregoing paragraph, an irrevocable first demand bank guarantee, letter of credit or other security, the value of which is equal to 50% (or any other percentage stipulated by AP STACKING) of the purchase price for the Products.
5.4. The Client will pay the outstanding part of the purchase price for the Products to AP STACKING, in accordance with Article 7, on or before the date of delivery. Upon receipt of the said outstanding amount, AP STACKING will return the bank guarantee to the Client by registered post.
5.5. Unless specifically agreed otherwise, the Client will transfer the net amount to a bank account designated by AP STACKING in Euros, within 15 days of invoice date.
5.6. The Client is not entitled to suspend payments it owes to AP STACKING and/or to offset such payments against any claims it has on AP STACKING.
5.7. In the event of breach of any provisions of these terms and conditions and/or exceeding any deadline stipulated therein, the Client will be in default, ipso jure and without any further notice. In that case, AP STACKING is authorised to proceed to debt collection without any further notice of default, in which case the Client will also owe statutory commercial interest as provided for in Article 6:119a of the Dutch Civil Code.
5.8. In addition to the principal sum and default interest, the Client will also owe all judicial and extrajudicial costs incurred by AP STACKING in collecting its claim or protecting its rights. Judicial costs will in any event be understood to include the fees of lawyers, bailiffs, experts and any other persons engaged by AP STACKING to assist in the collection of its claim or any persons instructed by AP STACKING to conduct proceedings connected there with, even if the fees charged are higher than the sum that fixed by the Court for the costs of the unsuccessful party. Extrajudicial costs will in any event be understood to include the fees and invoices of consultants, legal consultants, collection agencies, bailiffs and any other persons engaged by AP STACKING to assist it in out-of-court collection of its claim. Extrajudicial costs will be at least 15% of the principal sum plus turnover tax, with an absolute minimum of €250.00.
5.9. AP STACKING reserves the right, where appropriate, to suspend implementation of the Contract until payment has been received. Any and all costs of storage incurred in this context will be borne by the Client.
5.10. AP STACKING is also entitled to require the Client, after the Contract is concluded, to provide additional security for compliance with its financial obligations to AP STACKING, if AP STACKING – at its own discretion – has reason to fear that the Client will not meet its payment obligations to AP STACKING properly or punctually. If and insofar as the Client refuses or is unable to provide security in such circumstances, AP STACKING will be entitled to suspend performance of its obligations or terminate the Contract.
5.11. The Client is obliged to notify AP STACKING immediately of any attachment of its movable and/or immovable property, filing for bankruptcy, bankruptcy, a moratorium or application for debt rescheduling and any other circumstances events which might have an adverse effect on the normal implementation of the Contract for the Client and/or AP STACKING.
5.12. AP STACKING is entitled at all times to offset any claims against the Client that can be expressed in money against any claims the Client may have on AP STACKING and/or any of its affiliates.
5.13. If the Client forms part of a group in any way, the Client will be understood, within the meaning of paragraph 10, to include all companies that form part of that group in any way.
6. Delivery terms
6.1. Delivery terms are terms as defined in the Contract within which the Products must be delivered.
6.2. Delivery terms are approximate and provided only as an indication. The period for delivery commences after AP STACKING has confirmed the order to the Client and in any other event not before receipt by AP STACKING of all information required for implementation of the Contract and payment by the Client of the purchase price or provision by the Client of the agreed terms or bank guarantee.
6.3. In the event of failure to comply or late compliance by the Client with any obligation resulting from this or any other contract connected with the Order, AP STACKING will be entitled, after giving the Client written notice of default, to suspend performance without any obligation upon AP STACKING to pay compensation. The delivery period will be extended by the period for which the Contract is suspended.
6.4. If AP STACKING, after receiving written notice of default from the Client allowing a reasonable time for compliance, fails to comply with its obligations properly or punctually, the Client may terminate or suspend the defective part of the Contract but will not have any right to claim compensation for damages.
6.5. Exceeding the delivery time as a result of force majeure will not entitle any party to compensation, nor will it entitle non-compliance with any obligation ensuing from this or any other contract connected with the order or termination of the contract.
6.6. If exceeding the delivery time does not result from force majeure, compensation may be claimed from the party which is at fault or which bears the risk of late delivery, subject to the following rules and restrictions:
– the damages payable by AP STACKING will be set at the value of the loss actually suffered by the Client insofar as it can be satisfactorily demonstrated and;
– the total amount of compensation payable by AP STACKING will in no circumstances exceed 3% of the price agreed for the order in question.
7.1. Products will be deemed to have been delivered when AP STACKING offers them for transport or when they are prepared by AP STACKING Ex Works (EXW) in accordance ICC Incoterms 2010. Unless agreed otherwise in writing, the costs of transport and insurance will be borne by the Client.
7.2. AP STACKING is entitled to deliver Products ordered by the Client in partial deliveries. AP STACKING will notify the Client in writing at the earliest opportunity of its intention to do so.
7.3. Risk will transfer to the Client at the time of delivery in accordance with this Contract.
7.4. Products that not collected by the Client after expiry of the delivery period will remain available to the Client and will be stored by AP STACKING at the expense and risk of the Client. AP STACKING will notify the Client in writing that the Products have been stored and the location of the storage facility within three days of the aforementioned storage. Such notice will be accompanied by proof of storage.
8.1. Client can lease products for a definite and indefinite period of time.
8.2. A renting and letting agreement is concluded pursuant to the provisions of article 3 above. All rents are exclusive of value added tax (VAT) and/or other levies, duties and import taxes but must be paid with value added tax and/or other levies, duties and import taxes. The Products are provided Ex Works (EXW Incoterms 2010). The costs of transport are always for the account of Client, unless it has been specifically agreed otherwise.
8.3. Client will use the Products with due care. The Client will also ensure that the Products are used in accordance with their purpose, specifications and instructions.
8.4. The Client will ensure that the Products are sufficiently insured against damage and loss. In case of loss or damage (with the exception of normal wear and tear), Client will immediately report this to AP STACKING in writing. Upon first request of AP STACKING, Client will pledge any claim against the insurer to AP STACKING, or will transfer the ownership of the claim by means of an assignment.
8.5. The Client is not authorised to provide the Products to third parties during the lease period, or to lease them to third parties without prior written permission of AP STACKING. In case this prohibition is violated, the Client incurs an immediately due and payable penalty of € 5,000 per violation and € 1,000 per day the violation continues.
8.6. The Client is not authorised to apply changes to the Products, or to repair them (or have them repaired), unless AP STACKING gave written permission for this. Client is not authorised to apply markings, including but not limited to labels, stickers or other markings, to the Products. AP STACKING is authorised to charge all costs of cleaning or repair to Client.
8.7. The agreed lease price has to be paid by the Client in advance on the first day of each month, in the absence of which the Client is in default by operation of law and AP STACKING is entitled to compensation of the statutory trade interest, plus a penalty interest of 1% per month.
8.8. If AP STACKING establishes any damage to the Products when those Products are returned or to the Products are not returned, the costs of repair and/or loss are entirely for the account of the Client. AP STACKING is also authorised to charge a penalty for each day the Products are returned to late after Client has been demanded by AP STACKING to return the Products without a period to be set by AP STACKING. The fine amounts to 75% of the lease price per day and will be charged in addition to the lease price. The foregoing is without prejudice to the right of AP STACKING to full compensation in case the Products are returned too late.
8.9. In case of repair as referred to in the previous article, the repair costs are passed on to the Client based on subsequent calculation. If the costs of repair amount to € 1,000 (or less), the repair will take place without permission of the Client. If these costs are higher than € 1,000, consultations will take place with the Client before the repair is commenced.
8.10. In case of lease the guarantee scheme of article 17 does not apply, but in case of a qualitative defect in (a part of) the Product Client is entitled to a replacing (part of) the Product to be delivered by AP STACKING. If AP STACKING subsequently establishes that there is no qualitative defect in the Product but that this defect has another cause, the costs of replacement are for the account of Client.
9.1. The Client is obliged to inspect the delivered Products with regard to possible defects immediately after delivery and to notify AP STACKING of these defects in writing as soon as possible, but no later than within a term of 5 working days after the Products have been delivered.
9.2. The Client must notify AP STACKING of any hidden Defects within 5 working days of the date on which the Defects are discovered or within 10 working days of the date on which the Defect could reasonably have been discovered.
9.3. The burden of timely submission of proof and the accuracy of the complaint rests with the Client. The Client is obliged to provide its cooperation to AP STACKING in respect of any investigation of the Defects.
9.4. In no circumstances may minor discrepancies and/or discrepancies or differences in quality constitute grounds for complaint.
9.5. The Client must prove its claims in relation to Defects and grant AP STACKING the opportunity to report and – where applicable – remedy the Defects.
9.6. If a complaint submitted in accordance with the foregoing is considered justified, AP STACKING will have the sole and exclusive obligation to replace the Products delivered by AP STACKING or to remedy and/or repair the Defects free of charge.
9.7. If the Client fails to submit a complaint within the aforesaid deadlines or if the Products remain available to the Client notwithstanding, the Client will be deemed to have approved the same and to have waived all rights and entitlements pursuant to the law and/or this Contract. A complaint by the Client does not entitle the Client to suspend compliance with its obligations to AP STACKING.
10. Cooperation by the Client
10.1. The Client will provide AP STACKING, in a timely manner, with all data and information and any cooperation required for proper implementation of the Contract.
10.2. If the information required for implementation of the Contract is not provided to AP STACKING properly or punctually or in accordance with what has been agreed or if the Client otherwise fails to comply with its obligations, AP STACKING will in any event be entitled to suspend implementation of the Contract and AP STACKING will have the right to charge any costs thereby incurred in line with the normal rates.
10.3. AP STACKING is entitled to engage third parties in the implementation of the contract. AP STACKING is also entitled to transfer to such third parties any rights and obligations ensuing from the Contract.
11. Retention of Title
11.1. All Products supplied to the Client will remain the property of AP STACKING, but remain the account and risk of the Client, until the Client has paid in full all amounts payable under this Contract or any other contract concluded with the Client with respect to Products delivered now or in the future, and/or with respect to claims on the Client due to its failure to comply with such contract(s), including interest and collection costs.
11.2. Except in case of lease or testing, the Client may sell on or use the Products in the context of its normal business operations but will not be entitled to alienate the Products or otherwise prevent AP STACKING’s right of recourse.
11.3. The Client is obliged to immediately notify AP STACKING in writing if third parties assert rights on Products belonging to AP STACKING.
11.4. If the Client is in default of its payment obligations to AP STACKING or if AP STACKING has good reason to fear that Client will fail to comply with such obligations, AP STACKING is entitled to take back Products delivered under retention of title. All resulting costs will be for the account and risk of the Client.
11.5. If AP STACKING demands the Products as its property, the Client is obliged to inform AP STACKING of the whereabouts of the Products and, should it be necessary, to grant irrevocable permission or ensure that permission is obtained for gaining access to the premises and/or buildings in order to take back the Products.
11.6. If AP STACKING demands the return of its products that were delivered subject to retention of title pursuant to paragraph 5 and removes these Products from the Client or delivers the Products “longa manu” to a third party, AP STACKING’s claim on the Client in the total amount payable by the Claim to AP STACKING will be reduced by 70% of the price invoiced for such Products, deducting the costs incurred in taking back the Products. The Client will receive a credit note from AP STACKING for the aforesaid amount, which the Client may offset against AP STACKING’s claim on the Client.
11.7. If the law of the country of destination of the Products allows broader scope for the retention of title them those set out in this Article, the parties agree that that broader scope will be deemed to have been opted for by AP STACKING, provided that if it is impossible to objectively establish how this provision relates to that broader scope, the foregoing provisions of this Article will continue to apply.
12. Intellectual Property
12.1. All full or partial intellectual property rights or claims thereto on Products supplied or otherwise made available by AP STACKING (including any documentation) are and shall remain the exclusive property of AP STACKING or its suppliers. To the extent that all or part of these Products is protected by any intellectual property right or any equivalent right, the Client will be only granted the user rights and authorities that are expressly granted in this Article. The Client will only have the right to use the relevant Products or parts thereof within its organisation in a manner that can be deemed normal within such an organisation. The Client is not permitted to translate, amend, reproduce, alter or otherwise use manuals or directions for use supplied with the Products in question without the prior written consent of AP STACKING, unless it is permitted on the grounds of mandatory regulations.
12.2. The Client is not permitted to remove or amend any notices on or in the Products relating to copyright, patents rights, trademarks, trade names or other intellectual property rights.
12.3. AP STACKING confirms that to the best of its knowledge the Products do not infringe any intellectual property rights vested in third parties in the Netherlands. The Client will notify AP STACKING in writing immediately in case a notice of liability or legal measure based on the allegation that use of the Products infringes any intellectual property right that is valid in the Netherlands. AP STACKING is entitled (but not obliged) to exclusively conduct a defence or reach a settlement in proceedings based on alleged infringement as described above. Should such a situation arise, AP STACKING is at liberty to replace or amend the Products in question or to acquire the right to continue use thereof or to oblige the Client to cease and desist (temporarily or otherwise) use or exploitation of the allegedly infringing Products.
13.1. The total liability of AP STACKING due to an attributable failure to comply with the Contract is limited to compensation of material and direct damages up to a maximum of the amount of the price stipulated for the Products in question (excluding VAT).
13.2. In any event, AP STACKING accepts no liability for damages against which AP STACKING is not insured and was not required to be insured on the grounds of normal practice in the sector. Furthermore, the total liability of AP STACKING will in no circumstances exceed the total agreed price for the Order in question.
13.3. AP STACKING is solely liable for that direct damage for which it has expressly accepted liability in these Terms Conditions.
13.4. The Client indemnifies AP STACKING against all third-party claims resulting from the improper use of the Products or use of the Products that is in violation of or deviation from the instructions for use supplied by AP STACKING with the Products.
14.1. Each party guarantees that it will maintain confidentiality in respect of information received from the other party prior to and after concluding this Contract. Information will in any event be regarded as confidential if it is defined as such by one of the parties.
14.2. The Client is forbidden to disclose in publications, advertisements or otherwise in writing or orally that the Client is doing or has done business with AP STACKING, or the manner in which that business takes place, without the prior written consent of AP STACKING.
14.3. All data, specifications or other information provided to the Client in the context of implementation of the Contract will be deemed to be confidential.
14.4. Upon request, the Client must immediately provide AP STACKING such confidential information and any copies of reproductions thereof.
15. Force majeure
15.1. Any obligation upon AP STACKING to comply with the Contract will be suspended for the period during which compliance (or proper compliance) is impossible due to force majeure.
15.2. Force majeure affecting AP STACKING is hereby understood to be any independent circumstance beyond the control of AP STACKING, be it foreseeable or unforeseeable, as a result of which the Client can no longer reasonably require AP STACKING to comply with the Contract.
15.3. Force majeure is defined as but not be limited to fire, flood, strikes, epidemics, terrorism, governmental action, non-availability or late availability of permits, trade embargoes, industrial conflict, power failures, breakdowns, breach or delay on the part of AP STACKING’s subcontractors and subcontractors and lack of or late provision of materials, transport, fuel, energy and manpower.
15.4. The defaulting party is obliged to notify the other party immediately if such circumstances occur.
15.5. If compliance is suspended for more than three months or as soon as it is clear that the period of non-compliance will exceed three months, either party may demand, by registered mail, that the Contract be adapted to the circumstances or that the relevant part be terminated immediately, without any obligation on either party to pay compensation.
15.6. If at the start of the force majeure situation AP STACKING as already complied with some of the agreed obligations, AP STACKING will be entitled to send an interim invoice separately for work already performed, which the Client will pay as if it were a separate transaction.
(a) the Client fails to comply, or comply properly or punctually, with its obligations to AP STACKING;
(b) the Client is declared bankrupt or files for bankruptcy or applies for or is granted a moratorium;
(c) attachment, pre-judgment or otherwise, is levied on all or part of the property of the Client;
(d) the Client is wound up or liquidated, or is the subject of a division or merger;
(e) the Client ceases its business operations or transfers its business or significant part thereof, including the absorption of its business into another company;
thereof, including the absorption of its business into another company; and the Client has not already complied with all of its obligations to AP STACKING, AP STACKING will be entitled, by the mere occurrence of any of the aforementioned circumstances and without any requirement of notice of default or judicial intervention, to either terminate the Contract and demand the return of its property in the manner provided for in Article 9 or to demand payment in full of any amount owed by the Client to AP STACKING. Furthermore, AP STACKING will at all times be entitled to claim damages from the Client.
16.2. For the purpose that AP STACKING is able to enforce the right to take back its Products as described in the foregoing paragraph, the Client hereby grants irrevocable AP STACKING irrevocable permission to access the premises and buildings where the Products are located.
16.3. In case of lease, AP STACKING is authorised to immediately and prematurely terminate the agreement and to request immediate return of the Products if:
a) Client fails to fulfil any obligation from the agreement vis-à-vis AP STACKING,
b) Client neglects any Product or uses it or has it used it for another purpose than its intended purpose, or otherwise acts in violation of its obligations as Client, or any other urgent reason;
c) AP STACKING has to incur costs with regard to any product that is not for the account of Client or an insurer;
d) if Client applies for moratorium of payments or ends up in a state of bankruptcy.
17.1. Unless agreed otherwise in writing, AP STACKING guarantees, subject to the conditions set out below, that the Product supplies, if used and maintained in accordance with the instructions provided, will remain free of defects for a period of 12 months after delivery.
17.2. Liability pursuant to the Guarantee described in paragraph 1 is limited to re-delivery of defect items at the expense of AP STACKING, where the costs involved will not exceed the original invoice value for the Products in question.
17.3. Claims and guarantees are excluded if it cannot be demonstrated to the satisfaction of AP STACKING that the defect identified is the result of:
– construction faults;
– defective finishing;
– use of inadequate materials.
17.4. Claims and guarantees lapse immediately if the Products are not used properly; this includes but is not limited to damage that is the result of:
– improper and/or careless use;
– normal wear and tear;
– improper, inadequate and/or incompetent maintenance;
– improper transport.
– excess loads;
– any government instruction;
– repair work or modifications made without the consent of AP STACKING.
17.5. The Client may not invoke the guarantee if and insofar the Client has not complied with its obligations to AP STACKING.
17.6. Any alleged non-compliance by AP STACKING with its guarantee obligations does not release the Client of its obligations to AP STACKING under this Contract.
17.7. Except as provided for in this guarantee, AP STACKING has no further obligations to repair or replace Products, performed at its discretion. Parts replaced by AP STACKING in compliance with guarantee obligations will remain the property of AP STACKING.
18.1. If the Client has received the Products from AP STACKING in order to test them, the Client will use the Products carefully and will store them in conformity with the instructions and manuals of AP STACKING.
18.2. Articles 8.5 and 8.6 apply in a similar manner in case of a test.
18.3. During the test period, the Client does not owe any compensation, unless agreed otherwise. If Parties have agreed a fixed period wherein the products can be tested by the Client, AP STACKING is authorised to reclaim them at any desired time subject to a term of fourteen (14) days.
18.4. Client will only use the products in conformity with the directions and instructions of or by AP STACKING. AP STACKING is not liable for any damage that has arisen directly or indirectly as a result of an incorrect use of the Products by or on behalf of the Client.
18.5. If damage was caused to the Products of AP STACKING (with the exception of normal wear and tear) AP STACKING is authorised to repair the damage (or have it repaired) at the expense of the Client, unless Client sufficiently proves, in the opinion of AP STACKING, that the Client cannot be blamed for the damage. The invoice with regard to the repair activities will be paid by the Client within (14) fourteen days after the invoice date. If the Products cannot be repaired or if they have been lost, the Client is obliged to compensate the replacement value.
19. Applicable law
19.1. Applicability of the Convention on the Law Applicable to Contracts for the International Sale of Goods (often referred to as the Vienna Sales Convention) is hereby expressly excluded.
19.2. All offers and agreements that are subject to these Terms and Conditions are exclusively governed by the laws of the Netherlands.
20. Settlement of disputes
20.1. All disputes, including disputes which are only deemed to be defined as disputes by one of the parties, and resulting from or connected with an offer, order, contract or undertaking to and/or with AP STACKING will in the first instance be heard exclusively by the competent court at ‘s-Hertogenbosch.