GENERAL TERMS AND CONDITIONS
Article 1 – SCOPE
PACKAS' current general terms and conditions of sale (hereinafter 'GTC') apply to all our offers, order confirmations and deliveries. When placing an order, the customer acknowledges to have read and accepted our offer and the GTC. When the customer accepts our offer and does not express any specific reservations within 8 (eight) calendar days of the date of the order confirmation, the customer is deemed to have waived any existing own terms and conditions. The GTC shall also apply to future deliveries or services, even if the general terms and conditions are not expressly repeated. Deviating and/or additional provisions of the GTC shall only apply if confirmed in writing by PACKAS, even if they do not contradict the GTC, and then only for the agreement for which they were authorised. The remainder of the GTC shall remain in full force and effect in such cases. PACKAS reserves the right to amend the GTC unilaterally. Should any provision of the GTC be rendered invalid, the remaining provisions shall remain in full force and effect, and the parties shall replace the invalid provision with another provision that is as similar to the purpose and intent of the invalid provision as possible.
Article 2 – OFFERS AND ORDER CONFIRMATIONS
Unless expressly stipulated otherwise, the information and offers provided by PACKAS are purely indicative. Each placed order is binding to the customer, but shall only be binding to PACKAS after it has been confirmed in writing. Possible or alleged inaccuracies in the order confirmation must be reported in writing within 8 (eight) calendar days of the date of our order confirmation under penalty of forfeiture. Signatories who place orders in their own name or in a mandatory capacity make a solid and several commitment on behalf of the third party they are representing in accordance with Articles 1120 et seq. and Articles 1200 et seq. of the Belgian Civil Code.
Article 3 – PRICES
Orders are invoiced at the prices and conditions in force on the date of the orders’ acceptance. Any discounts granted to the customer shall apply only to the individual order for which they were granted. The order is subject to the prices on the latest price list communicated by PACKAS. All prices may be increased unilaterally at any time, in the event of (i) a demonstrable increase in raw material prices of more than 10% (ten percent) or (ii) an increase in government levies on the ordered products.
Article 4 – DELIVERY TIMES
Unless expressly stipulated otherwise in writing, the delivery times specified by PACKAS are always approximations. A longer delivery time for whatever reason shall never entitle the customer to any compensation or non-compliance with customer obligations arising from the agreement or any other agreement concluded with PACKAS.
Article 5 – DELIVERIES
PACKAS is always entitled to require sufficient security of payment prior to delivery: if this security cannot be given, PACKAS is entitled to refuse any further deliveries and to consider any agreement, which may or may not have been partially executed already, as terminated ipso jure and without prejudice to its right to compensation for all damages. Delivery shall be deemed to have taken place:
- Upon receipt of the goods, if the goods are collected by or on behalf of the customer
- When the goods are handed over to the carrier, if the shipment is made on behalf of the buyer with or without the buyer’s own means of transport
- Upon delivery at the customer's warehouse or home address, if the shipment is made on behalf of the seller or manufacturer
The customer must sign the delivery note for receipt upon delivery. The customer must state any visible defects on the delivery note or must report these in detail to PACKAS in writing within 3 (three) working days. The customer’s use of the delivered goods implies their irrevocable acceptance. Unless otherwise agreed, shipping is always Delivered At Place – DAP, cf. Incoterms® 2010.
PACKAS reserves the right to:
- Deliver products that for technical reasons show minor deviations in quality, size, colour, thickness or execution. The permitted tolerance is 10% above and below the nominal thickness value, unless otherwise stated.
- Deliver 10% more or less than originally agreed for each quantity, and to invoice the quantity actually delivered without entitling the customer to any compensation, postponement, or refusal of payment, order cancellation or agreement dissolution unless otherwise agreed.
Printing proofs, designs, printing films, plates, cylinders, tools and moulds shall always remain the property of PACKAS, regardless of the costs charged to the customer for these items. These items must not be reproduced in whole or in part, made available to any third parties or made public in any way without prior written permission. PACKAS reserves the right to make partial deliveries, which shall constitute an equal number of partial sales. The partial delivery of an order shall under no circumstances justify the refusal to pay for the delivered goods.
Each cancellation on behalf of or by the customer shall entitle PACKAS to fixed compensation equal to 20% of the purchase price subject to higher proven damages, such as storage and transport costs. If the customer fails to accept the delivery of the ordered goods on time, even in the event of a call-off order, the customer shall be given prior notice of default to take delivery of the goods. After this, PACKAS reserves the right to pass on all freight costs, storage costs, etc. to the customer and to make a price adjustment if necessary.
Article 6 – FORCE MAJEURE
Force majeure relates to all circumstances that are not caused by an error on PACKAS’ part and that are making the execution of the agreement absolutely impossible. Some examples of this are fire, strikes, lock-outs, import or export restrictions or other government measures and exceptional climate conditions, such as snow and flooding. The incalculable and unavoidable nature of such circumstances is always deemed to have been acquired. In case of force majeure, the party affected by the force majeure shall notify the other party in writing immediately (and in any case within a period of 3 (three) days after the occurrence of the force majeure). This notification shall contain all the necessary facts to enable the other party to establish the existence of force majeure. From that moment on, the execution of the obligations affected by the force majeure shall be suspended for the duration of the force majeure. The party affected by the force majeure shall make every effort to minimise any delay and shall notify the other party of the measures taken to that end. If the force majeure persists or it is established that the force majeure will persist for a period of at least 90 (ninety) days, PACKAS has the option to terminate the agreement without any compensation.
Article 7 – COMPLAINTS
Complaints about visible defects and/or the amount of delivered goods shall no longer be accepted if the delivery note has been signed for receipt. If the delivery note has not been signed off, complaints about visible defects and/or number of delivered goods must be reported to PACKAS in writing within 3 (three) working days, in which case the customer must describe the defects in detail. The customer’s use, modification or dispatch of the delivered goods implies their irrevocable acceptance. Any hidden defects concerning the delivered goods must be reported in writing to PACKAS immediately and no later than 3 (three) months after delivery. Any complaints about defects that are not visible at the time of delivery must also be notified in writing less than 3 (three) calendar days after they are detected or should have been detected, under penalty of forfeiture. In the absence of any notification within this period, the parties agree that the goods have been definitively accepted by the customer. If the complaints are deemed admissible and well-founded, PACKAS' obligation shall be limited to the replacement of the damaged or defective goods or the completion of the missing documents, without any other compensation of any kind. Unless expressly agreed otherwise between the parties, PACKAS is not deemed to be aware of or to take into account the customer's specific implementation of the purchased goods. PACKAS shall therefore not be liable for this. Only the customer is liable for the customer’s specific use of the purchased goods and/or the purposes for which the customer uses these goods. Except in the event of fraud or wilful misconduct, PACKAS shall not be liable for or be liable to pay any compensation for any material, immaterial, indirect or consequential damage, including (but not limited to) loss of profit, loss of turnover, loss of income, production limitations, administration or personnel costs, increased overheads, loss of customers or claims by third parties. PACKAS must be notified in writing of any complaints regarding invoices immediately and no later than 8 (eight) calendar days after the invoice send date under penalty of forfeiture.
Article 8 – RETURNS
PACKAS does not accept any returns that were not authorised in advance. Goods are always returned at the customer’s expense and risk, unless stipulated otherwise.
Article 9 – PAYMENTS
Unless otherwise agreed in writing, PACKAS invoices are payable net and without a discount within 30 (thirty) calendar days of the invoice date to the company's head office or to the bank account indicated on the invoice. Complaints, even if they are subsequently found to be well-founded, shall not entitle the customer to suspend all or some payment of due invoices. The customer expressly waives the right to compensation for any claim on his or her part.
Article 10 – FAILURE TO PAY
Failure to pay some or all of an invoice or commercial instrument on the due date shall result in the following:
a. All the customer’s other receivables that are not yet due and payable – including bills of exchange not yet due and payable – shall become due and payable ipso jure and without prior notice of default.
b. All discounts and payment methods granted by PACKAS shall lapse.
c. All amounts due and payable shall be subject to a 1% (one percent) interest on arrears for each month or part thereof, ipso jure and without prior notice of default, starting on the date the amounts become due and payable.
d. In addition to the late payment interest, a fee of 10% (ten percent) of the invoice amount still due shall be payable, without prejudice to the creditor's right to claim higher compensation subject to proof of higher actual damages suffered.
e. PACKAS reserves the right to suspend the execution of all current agreements in whole or in part without prior notice of default and without compensation, or to dissolve the entire agreement or the part of the agreement still to be executed, in accordance with Article 12.
f. PACKAS can charge the customer with the proven costs of the judicial collection from the customer.
Article 11 – RETENTION OF TITLE CLAUSE
The ownership of the sold goods shall not transfer to the customer until the customer has paid all that is due to PACKAS in full for the goods that have been delivered or are still to be delivered by PACKAS. This includes the payment of the agreed price, costs, interest and possible damages. Nevertheless, the customer shall bear in full the risk of the sold goods’ loss or destruction from the moment the sold property is delivered to the customer. Until the ownership of the sold goods has effectively transferred to the customer, (i) the customer must not use the delivered goods as means of payment, pledge the delivered goods or encumber the delivered goods with any other security right, (ii) the customer shall put a sign on the delivered goods to indicate in a clear and legible way that the delivered goods remain the property of PACKAS. This clause shall be deemed to be repeated for each delivery where necessary. The customer shall immediately notify PACKAS by registered letter of any seizure of the sold goods by a third party. The customer shall have a duty of care with respect to the goods subject to the retention of title, and shall store and keep those goods in perfect condition in a suitable and clean place in accordance with the highest standards and the customary safety requirements of the industry. The customer must also insure these goods against all risks that are customary in the sector (including but not limited to decay or any other form of expiry, fire, water damage and theft) up to the time of the actual transfer of ownership. The customer shall immediately submit the relevant insurance policy to PACKAS for inspection upon request. The customer shall notify PACKAS in writing before delivery if the sold goods are to be stored in premises that are not owned by the customer, and shall communicate the identity of the owner at PACKAS' request, unless the address is stated on the CMR freight document. The customer must not make any changes to such stored goods.
Article 12 – TERMINATION OF THE AGREEMENT
PACKAS has the right to terminate the agreement with the customer at any time with immediate effect, without any judicial authorisation, without prior notice of default and without payment of any compensation, in the following cases:
- If the customer remains in default to meet one or more obligations arising from the agreement properly 7 (seven) calendar days after a written notice of default
- In the event of a suspension of payment, declaration of bankruptcy or winding up petition issued on the part of the customer
- In the event of a liquidation or cessation of activities on the part of the customer
- If there is a change of control at the customer organisation
- If (some of) the customer's assets are seized
- If PACKAS has good reason to doubt that the customer will meet its obligations. If the agreement is dissolved, the customer shall owe irreducible fixed compensation equal to 30% (thirty percent) of the invoice amount, regardless of PACKAS’ right to claim higher compensation for the damages actually suffered.
Article 13 – DISPUTES
All agreements to which these general terms and conditions apply and all other resulting agreements shall be governed exclusively by Belgian law. All disputes between the parties regarding agreements subject to these terms and conditions shall be heard only by the courts of the district where the PACKAS registered office is located.