GENERAL TERMS AND CONDITIONS OF THE COMPANY XML SPRL/BVBA -(XMP PACKAGING) (hereinafter the “Company”).
1. PREAMBLE
The present General Terms and Conditions apply to all orders, sales of the company’s products, as well as to any commercial relationship. The signature of an order form thus implies the acceptance without any reserve of our present General Terms and Conditions.
Any other document, and in particular information contained in catalogues, notices, price lists, folders, advertising, or other documents, has only an informative and indicative non-contractual value.
Acceptance of our offers also implies the unreserved acceptance of these General Terms and Conditions.
XML SPRL -XMP PACKAGING reserves the possibility to adapt or modify these General Terms and Conditions at any time. In case of modification of these T&C, changes will be applied to each order at the date of the order.
The fact that the company does not make use of any of the clauses of these Terms and Conditions at a given time is not to be considered as a waiver to make use of them on a later date.
2. ORDERS
Ordering: Only signed purchase orders on company letterhead sent by mail, e-mail or fax will be considered.
Each order automatically implies acceptance by the customer of the General Terms and Conditions, possibly supplemented by our special terms and conditions on any other document (e.g. on order forms or invoices). Ordering also implies that the customer does not make use of his own General Terms and Conditions.
If a customer places an order without payment of the previous order(s), the company may, if necessary, suspend the execution of this order until full payment of the outstanding invoices, without any compensation, for any reason whatsoever.
Financial guarantees :
Each initial order must be paid for in cash, accompanied by the customer’s commercial and bank references, so that we can open a customer account. If the company has serious or particular reasons to fear any payment difficulties on behalf of the customer on the order date or thereafter, or if the customer does not offer the same guarantees as on the date of acceptance of the order, in particular a change in his legal situation such as the opening of a collective procedure or a law change, he may accept the order or its execution only through a cash payment procedure or a bank guarantee from the customer in favor of the company.
Modification of orders :
Changes to orders can only be taken into consideration if the order has not yet being executed. In this case, the customer shall compensate the company for all costs, namely research expenses, labor and supply expenses, stock and goods in progress, raw materials, tools, and for all direct and indirect consequences, without prejudice to any compensation that the company may claim to compensate the damage suffered.
Cancellation of orders :
No cancellation of the orders, nor any modification will be accepted, after the date of signature of the order form EXCEPT agreement of the company. If the order is cancelled unilaterally by the buyer/customer, it will be fully due. An order cancellation can only be considered if the order has not yet been carried out. In this case, the customer will compensate XML SPRL -XMP PACKAGING for all costs, including design costs, labor and delivery costs, stock and goods in progress, raw materials, tools, and for all direct and indirect consequences, without prejudice to any compensation that the company may claim for the incurred damages. The customer shall also compensate the company for the amount of the general forecast margin.
Sample printing :
The acceptance of the customer’s print order releases our company from any responsibility for any error that has not been corrected such as text, color, position, which the customer formally acknowledges. The customer acknowledges being informed that significant variations in positioning, color, or appearance may occur between the proof and the order as delivered. These differences can in no way justify a refusal of the order, nor a discount on the price, nor give right to damages.
Proof printing:
The customer’s acceptance of the sample printing release the company of any responsibility for any error that has not been corrected or modified, such as text, color, position. The customer acknowledges to be informed that there may be significant variations in positioning, color or appearance between the sample and the order as delivered. These differences shall under no circumstances justify a refusal of the order, nor price reduction, nor shall they give rise to a right to compensation and/or interest.
3. COMMERCIAL REFERENCE
The customer authorizes the company to use its image for reproduction and for advertising purposes from the time of delivery and this only for promotional and commercial purposes and/or information. The company reserves the right to keep a sample of each order. The copies thus kept may not be resold, but may be presented commercially without compensation of any kind.
4. PRICE – TERMS OF PAYMENT
The applicable price will be the one indicated on our purchase orders, possibly adjusted to the reference indexes of the profession and any price increases of raw materials, outsourcing costs and taxes of any kind that may occur after acceptance of the order.
The price is mentioned tax exclusive.
Our offer also specifies the delivery and packaging conditions: free delivery or additional carriage/transport costs, as well as the additional costs related to specific delivery conditions (e.g. tailgate, forklift, immobilization of the truck during unloading, etc.).
Payment methods :
Our invoices are payable net and without discount at 30 days end of month or 45 days net, EXCEPT other specification on our offer, order form or invoice. Payments must be made by bank transfer unless specifically agreed otherwise. Cheques will not be accepted. Partial delivery, non-delivery or postponement can never be a reason for delaying payment of the delivered part.
Penalties and compensation: In case of late payment on the due date, or partial payment, the sums due will bear interest ipso jure on the amount of the invoice (incl.VAT) with a delay interest of 10% per year and without notice of default.
In addition, a compensation clause of 10% will also be applied to the same amount.
These penalties and/or compensations are payable as from the day after the due date of the unpaid invoice.
Dispute :
A dispute or the determination of a difference in the amount due can only give rise to a credit note or a partial payment by mutual agreement with our accounting services, but under no circumstances to the non-payment of the invoice.
Any invoice for which no duplicate has been requested within one month after delivery shall be deemed to have been received by the customer.
Generally, the non-payment of an invoice on its due date, as well as failure to return a commercial paper within a legal deadline, may lead to the suspension of the execution or delivery of any work in progress.
5. DELIVERY AND QUANTITY
Unless otherwise agreed, any delay in delivery shall not result in the cancellation or modification of the contract or purchase order. Delivery times remain indicative and start from the approval of the sample printing or pre-production sample (PPS) by the customer. Exceeding delivery times shall not give rise to any compensation, withholding or cancellation of current orders.
For manufactured product stored for more than 8 days in the company’s or its supplier’s warehouses, an additional invoice for storage costs will be drawn up so that the customer can organize the transport of his goods as quickly as possible.
The goods travel at the customer’s risk, unless agreed otherwise. The company cannot be held liable for damages that may occur during transport.
Delivery tolerances depending on quantity: Due to unforeseen circumstances in production, our company cannot be held responsible for making the exact quantities ordered available to the customer. The permitted tolerances, which the customer has to accept, are limited to the following percentages:
– From 100,000 pieces: 2-4 %
– Up to 100,000 pieces: 5%.
– Up to 10,000 pieces: 10%.
– Up to 2,000 pieces: 20%.
6. INTELLECTUAL AND INDUSTRIAL PROPERTY
In the event that the company provides the customer with a service for the design and manufacture of the moulds, the company retains the industrial and intellectual property rights to these moulds. This service will be invoiced, unless expressly agreed otherwise.
7. WARRANTY
The company limits its warranty to its sole service and cannot be held liable for any damage to elements inside the packaging.
The warranty only applies only to the replacement of the provided products or services and under no circumstances to the costs related to this replacement.
The products are guaranteed for one (1) month from the date of shipment from our warehouses. It is the customer’s responsibility to ensure proper storage and handling of the products.
8. LIMITATION OF LIABILITY AND FORCE MAJEURE
The company cannot be held liable in the event of non-performance or poor performance of the contract, whether due to the fact of the customer, the insurmountable and unforeseeable fact of a third party to the contract, or force majeure.
Likewise, the company cannot be held liable for the delay or non-performance of one of its obligations under the contract if this delay or non-performance is the direct or indirect consequence of force majeure, in a broader sense than Belgian case law, such as :
The occurrence of a natural disaster: earthquake, storm, flood, etc.; armed conflict, war, attacks, industrial disputes, total or partial strike at the client or company; industrial disputes, total or partial strike at suppliers, supplier, post offices, public services, telecommunication, etc. Government injunctions, epidemics, pandemics, industrial accidents, machine breakdowns, explosion, interruption of supply of raw materials, failure of suppliers, shortage or lack of key components in the production chain.
9. STORAGE OF PACKAGED PRODUCTS
XML SPRL -XMP PACKAGING undertakes to store the packaged products for a maximum of 5 days. After this period the customer must ensure the removal of these products. Failing this, a storage fee of 15€/day and per m³ will be charged.
The company undertakes to store the products according to the classic storage rules (frost-free, water-free, and closed place). Any specific needs must be requested in writing and will be investigated by the company and communicated to the customer.
10. RETENTION OF TITLE AND RISKS
The company remains the owner of the sold goods until full payment of the invoices. In case of non-payment, the company reserves the right to block the sale and distribution of the goods until full payment of the debt. The customer thus acknowledges that the product in its entirety, its packaging and contents, are inseparable. Through this clause, the customer accepts without reservation that the container and its contents are considered as a single product and gives the company the right to exercise its retention on the entire container/content.
As long as the transfer of ownership has not been carried out, the customer undertakes to take all useful precautions for the proper preservation of the goods.
11. COMPLAINTS, JURISDICTION AND GOVERNING LAW
Agreements between XML bvba – XMP Packaging and the customer to which these General Terms and Conditions apply, are exclusively governed by Belgian law. Even if the customer resides abroad. The chosen language is French.
For disputes relating to these General Terms and Conditions and to orders and contracts between the company and the customer, only the courts of the district of Brussels (Belgium) shall have jurisdiction. This clause shall apply even in cases of warranty claims and/or multiple defendants.
Done on …………………………………………..