Terms of service
GENERAL TERMS AND CONDITIONS OF B2C BERLIN PACKAGING NETHERLANDS B.V.
- version October 2024 -
DEFINITIONS
In these terms and conditions, the following terms are defined as stated below:
1. Supplementary Agreement: an agreement under which the consumer acquires products and/or services related to a distance agreement and these products and/or services are supplied by the trader or by a third party on the basis of an agreement between that third party and the trader;
2. Cooling-off Period: the period during which the consumer may exercise their right of withdrawal;
3. Consumer: the natural person who is not acting for purposes related to their trade, business, craft or profession;
4. Day: calendar day;
5. Durable Data Carrier: every tool - including email - that enables the consumer or trader to store information that is addressed to them personally, in a manner that makes future consultation or use possible for a period that is adequate for the purpose for which the information is intended, and which enables the unaltered reproduction of the stored information;
6. Right of Withdrawal: the option of the consumer to withdraw from the Distance Agreement within the Cooling-Off Period;
7. Trader: the natural or legal person who offers products to consumers at a distance;
8. Distance Agreement: an agreement concluded between the trader and the consumer within the scope of an organised distance sale scheme of products, digital content and/or services, whereby one or more means of distance communication are used, exclusively or partially, until the conclusion of the agreement;
9. Model form for withdrawal: the European model form for withdrawal included in Annex I to these Terms and Conditions.
1. IDENTITY OF THE TRADER
Berlin Packaging Netherlands B.V.
Bijsterhuizen 2401
6604 LK Wijchen
Telephone number:
+31 0 24 34 42 360
Email address: help.nl@thepackstock.com
Chamber of Commerce number: 39087032
VAT identification number: NL813756285B01
2. APPLICABILITY
2.1. These General Terms and Conditions shall apply to every offer made by the trader and to every distance agreement concluded between the trader and the consumer.
2.2. Before the distance agreement is concluded, the consumer shall be provided with a copy of these General Terms and Conditions.
2.3. If the distance agreement is concluded electronically, in derogation from the previous paragraph and before the distance agreement is concluded, the text of these General Terms and Conditions may be provided to the consumer in electronic form in such a manner that the consumer can easily store them on a durable data carrier.
2.4. In the event that specific product or service conditions apply in addition to these General Terms and Conditions, the second and third paragraphs shall apply by analogy and, in the event of conflicting conditions, the consumer may at all times invoke the applicable provision that is most favourable to them.
3. OFFER
3.1. If an offer has a limited period of validity or is made subject to conditions, this shall be explicitly stated in the offer.
3.2. The offer shall contain a complete and accurate description of the products offered. The description shall be sufficiently detailed to allow the consumer to make a proper assessment of the offer. If the trader uses images, these will be a true representation of the products offered. Obvious mistakes or obvious errors in the offer shall not be binding on the trader.
3.3. Each offer shall include all necessary information clearly setting forth the consumer’s rights and obligations related to accepting the offer.
4. AGREEMENT
4.1. The agreement shall enter into force, subject to the provisions of paragraph 4, once the consumer accepts the offer and fulfils the associated conditions.
4.2. If the consumer has accepted the offer electronically, the trader shall immediately and electronically confirm the receipt of acceptance of the offer. As long as receipt of this acceptance has not been confirmed by the trader, the consumer may dissolve the agreement.
4.3. If the agreement is concluded electronically, the trader shall implement appropriate technical and organisational measures to secure the electronic transfer of data and shall ensure a secure online environment. If the consumer is able to pay electronically, the trader shall observe appropriate safety measures.
4.4. The trader may, within legal frameworks, make inquiries as to whether the consumer is able to fulfil their payment obligations, as well as inquire after all facts and factors that are material for duly concluding the distance agreement. If, on the basis of this inquiry, the trader has good reasons not to enter into the agreement, it shall have the right to justifiably refuse an order or request, or to attach special conditions to the performance thereof.
4.5. No later than upon delivery of the product, the trader shall send the consumer the following information in writing or in such a manner allowing the consumer to store it in an accessible manner on a durable data carrier:
a. the address of the trader's business establishment;
b. the conditions subject to which and the manner in which the consumer may exercise their right of withdrawal, or a clear statement regarding the exclusion of the right of withdrawal;
c. information on warranties and existing after-sales service;
d. the price, including all taxes, of the product; where applicable, the costs of delivery; and the method of payment, delivery or performance of the distance agreement;
e. if the consumer has a right of withdrawal, the model form for withdrawal.
5. RIGHT OF WITHDRAWAL
5.1. The consumer may dissolve an agreement regarding the purchase of a product during a cooling-off period of 14 days without stating reasons. The trader may ask the consumer about the reason for withdrawal.
5.2. The cooling-off period referred to in paragraph 1 commences on the day after the consumer, or a third party other than the carrier designated by the consumer in advance, has received the product, or:
a. if the consumer has ordered several products in the same order: the day on which the consumer, or a third party they have designated, has received the last product. The trader may refuse an order for multiple products with a different delivery time, provided it has clearly informed the consumer thereof prior to the order process.
b. if delivery of a product consists of several shipments or parts: the day on which the consumer, or a third party they have designated, has received the last shipment or the last part;
c. in the case of agreements for regular deliveries of products during a certain period: the day on which the consumer, or a third party they have designated, has received the first product.
5.3. If the trader has not provided the consumer with the legally required information regarding the right of withdrawal or the model form for withdrawal, the cooling-off period shall expire twelve months after the end of the original cooling-off period determined in accordance with the previous paragraphs of this article.
5.4. If the trader has provided the consumer with the information referred to in the previous paragraph within twelve months after the commencement date of the original cooling-off period, the cooling-off period shall end 14 days after the day the consumer receives such information.
6. OBLIGATIONS OF THE CONSUMER DURING THE COOLING-OFF PERIOD
6.1. During the cooling-off period, the consumer shall make every effort to handle the product and the packaging with care. They shall only unpack or use the product to the extent necessary to determine the nature, characteristics and functioning of the product. The guiding principle is that the consumer may only handle and inspect the product as they would be allowed to do in a shop.
6.2. The consumer shall be liable for impairment of the product that is the consequence of handling the product in a manner that goes beyond what is allowed according to paragraph 1.
6.3. The consumer shall not be liable for impairment of the product if the trader has not provided them with all legally required information about the right of withdrawal prior to or upon concluding the agreement.
7. EXERCISING THE RIGHT OF WITHDRAWAL BY THE CONSUMER AND RELATED COSTS
7.1. If the consumer exercises their right of withdrawal, they shall notify the trader thereof within the cooling-off period by means of the model form for withdrawal or in any other unambiguous manner.
7.2. As soon as possible, but within 14 days from the day following the notification referred to in paragraph 1, the consumer shall return the product or hand it over to (an authorised representative of) the trader. This is not necessary if the trader has offered to collect the product. In any case, the consumer shall have complied with the return period if they return the product before the cooling-off period has expired.
7.3. The consumer shall return the product with all delivered accessories, if reasonably possible in the original condition and packaging, and in accordance with the reasonable and clear instructions provided by the trader.
7.4. The consumer shall bear the risk and burden of proof that the right of withdrawal has been exercised in a correct and timely manner.
7.5. The consumer shall bear the direct costs of returning the product.
7.6. If the consumer exercises their right of withdrawal, all additional agreements shall be dissolved by operation of law.
8. OBLIGATIONS OF THE TRADER IN THE EVENT OF WITHDRAWAL
8.1. If the trader enables electronic withdrawal by the consumer, the former shall send a confirmation of receipt of such withdrawal without delay.
8.2. The trader shall reimburse all payments made by the consumer, including any delivery costs charged by the trader for the returned product, without delay but within 14 days following the day on which the consumer notifies it of the withdrawal. Unless the trader offers to collect the product, it may defer reimbursement until it has received the product or until the consumer proves that they have returned the product, whichever comes first.
8.3. The trader shall use the same method of payment as the consumer has used for reimbursement, unless the consumer agrees to a different method. Reimbursement shall be free of charge for the consumer.
8.4. If the consumer has opted for a method of delivery that is more expensive than the cheapest standard delivery, the trader shall not be required to refund the additional costs associated with the more expensive method.
9. EXCLUSION OF RIGHT OF WITHDRAWAL
9.1. The trader may exclude the following products from the right of withdrawal, but only if the trader clearly states this fact when making the offer, or at least in good time prior to conclusion of the agreement:
a. Products made to the consumer's specifications, which are not prefabricated and are manufactured on the basis of an individual choice or decision by the consumer, or are clearly intended for a specific person;
b. Sealed products not suitable for return due to reasons of health protection or hygiene and of which the seal has been broken after delivery.
10. THE PRICE
10.1. The prices of the products offered shall not be increased during the period of validity stated in the offer, except for price changes due to changes in VAT rates.
10.2. Price increases within 3 months after the conclusion of the agreement shall only be allowed if they are the result of statutory regulations or provisions.
10.3. Price increases from 3 months after the conclusion of the agreement shall only be allowed if stipulated by the trader and:
a. they are the result of statutory regulations or provisions; or
b. the consumer is authorised to terminate the agreement on the day on which the price increase takes effect.
10.4. The prices stated in the offer of products or services are inclusive of VAT.
11. PERFORMANCE OF THE AGREEMENT AND ADDITIONAL WARRANTIES
11.1. The trader warrants that the products comply with the agreement, the specifications stated in the offer, the reasonable requirements of adequacy and/or suitability and the statutory provisions and/or government regulations current on the date of the conclusion of the agreement. If agreed, the trader shall also warrant that the product is suitable for other than normal use.
11.2. An additional warranty provided by the trader, its supplier, manufacturer or importer shall never limit the legal rights and claims the consumer may enforce against the trader on the basis of the agreement if the trader has failed to fulfil its part of the agreement.
11.3. Additional warranty shall be understood to mean any commitment from the trader, its supplier, importer or manufacturer in which the trader grants the consumer certain rights or claims beyond its legal obligation in case it has failed to fulfil its part of the agreement.
12. DELIVERY AND EXECUTION
12.1. The trader shall take the utmost care when receiving and executing orders of products.
12.2. The place of delivery shall be the address the consumer has provided to the trader. The consumer shall be responsible for receiving the products at the address provided.
12.3. With due observance of the provisions in article 4 of these General Terms and Conditions, the trader shall execute accepted orders with appropriate haste. If delivery is delayed or if an order cannot be executed or can only partially be executed, the consumer shall be informed thereof at the latest 30 days after having placed the order. In that case, the consumer shall have the right to dissolve the agreement free of charge.
12.4. After dissolution in accordance with the previous paragraph, the trader shall refund the amount paid by the consumer without delay.
12.5. The risk of damage and/or loss of products shall rest with the trader up to the moment of delivery to the consumer or a representative designated in advance and communicated to the trader, unless otherwise expressly agreed.
13. PAYMENT
13.1. Payment shall be made in accordance with the payment methods and related terms offered by the trader in its order process. In other exceptional cases, the amounts owed by the consumer shall in any case be paid within 14 days after commencement of the cooling-off period, or in the absence of a cooling-off period within 14 days after the conclusion of the agreement.
13.2. When selling products to consumers, the consumer may never be required to pay more than 50% in advance by virtue of any general terms and conditions. Where advance payment is stipulated, the consumer may not invoke any rights whatsoever regarding the performance of the relevant order or service(s) before the stipulated advance payment has been made.
13.3. The consumer shall be obliged to inform the trader promptly of inaccuracies in payment details provided or specified.
If the consumer fails to fulfil their payment obligations(s) on time, they shall, after the trader has notified them of the late payment and granted the consumer a period of 14 days to still comply with their payment obligations and after payment has not been made within this 14-day period, owe statutory interest on the amount due and the trader shall be entitled to charge the extrajudicial collection costs it has incurred. These collection costs amount to a maximum of: 15% on outstanding amounts of up to € 2,500; 10% on the next € 2,500 and 5% on the next € 5,000, with a minimum of € 40. The trader may deviate from the amounts and percentages referred to in this article for the benefit of the consumer.
14. COMPLAINTS PROCEDURE
14.1. The consumer may address complaints to the trader using the email address mentioned in article 2. The trader shall handle the complaint in accordance with this complaints procedure.
14.2. The consumer should submit complaints to the trader as soon as possible, preferably within 48 hours. In any case, complaints about the implementation of the agreement must be submitted to the trader fully and clearly described within a reasonable time after the consumer has discovered the defects.
14.3. Complaints submitted to the trader shall be answered within a period of 14 days, calculated from the date of receipt. If a complaint requires a foreseeably longer processing time, the trader shall reply within the 14-day period with an acknowledgement of receipt and an indication of when the consumer can expect a more detailed reply.
14.4. The consumer shall allow the trader at least four weeks to resolve the complaint in mutual consultation. If this does not produce an amicable settlement, the consumer shall be free to submit the dispute to the ODR platform referred to in article 16.2.
15. DISPUTES
15.1. Agreements between the trader and the consumer to which these General Terms and Conditions apply, shall be exclusively governed by Dutch law.
15.2. The consumer may submit a dispute to the dispute resolution committee using the ODR platform link at: http://ec.europa.eu/consumers/odr/.
16. ADDITIONAL OR DEVIATING PROVISIONS
16.1. Additional provisions or provisions deviating from these General Terms and Conditions may not be to the detriment of the consumer and shall be recorded in writing or in such a manner that the consumer can store them in an accessible manner on a durable data carrier.
Annex I: Model form for withdrawal
Model form for withdrawal
(only complete and return this form if you wish to withdraw from the agreement)
To:
Berlin Packaging Netherlands B.V.
Attn: The Pack Stock
Bijsterhuizen 2401
6604 LK Wijchen
help.nl@thepackstock.com
I/We* hereby inform you that I/we* withdraw from our agreement regarding the sale of the following products:
Received on*
[Name of consumer(s)]
[Address of consumer(s)]
[Signature of consumer(s)] (only when submitting a hard copy of this form)
[Date]
* Delete or complete as appropriate.
GENERAL TERMS AND CONDITIONS OF B2B SALE FOR THE PACK STOCK WEBSHOP OF BERLIN PACKAGING NETHERLANDS B.V.
- Version 11 November 2024 -
1. DEFINITIONS
1.1 Berlin Packaging Netherlands B.V. with registered office at Bijsterhuizen 2401 in (6604 LK) Wijchen, registered with the Chamber of Commerce under 39087032 (“Berlin Packaging”) is a supplier of packaging goods.
1.2 Berlin Packaging supplies goods to customers through its webshop (“Customer”).
1.3 Either party under clause 1.1 or 1.2 hereinafter referred to individually as a ‘party’ and together as the ‘parties’.
2. APPLICABILITY
2.1 These general terms and conditions of sale (“General Conditions”) apply to all offers made by Berlin Packaging on its webshop and all agreements the following orders between Berlin Packaging and the Customer for the delivery of goods ( “Agreement”) as per 11 November 2024.
2.2 The applicability of any other terms and conditions of the Customer is hereby expressly excluded, unless otherwise agreed in writing.
2.3 Deviations from and/or supplements to these General Conditions shall only bind Berlin Packaging insofar as these have expressly been agreed in writing. Save for such deviations and/or supplements these General Conditions shall continue to be in full force and effect.
2.4 If one or more provisions from these General Conditions in full or in part appear to be invalid, the other provisions shall remain in full force and effect in their entirety. Any invalid provision shall be replaced by a suitable provision that approaches the intent of Berlin Packaging and the economic result pursued by it as closely as possible.
2.5 Any failure or delay by Berlin Packaging in exercising any right under these General Conditions or any Agreement, any single or partial exercise of any such right or any partial reaction or absence of reaction by Berlin Packaging in the event of a breach by the Customer of any of its obligations under these General Conditions or any Agreement, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of Berlin Packaging’s rights under these General Conditions or any Agreement, nor shall it preclude any further exercise of any such rights.
3. OFFER AND ACCEPTANCE
3.1 All prices and availability of the goods stated on the webshop are subject to change at any time without prior notice. Berlin Packaging provides no guarantee to the prices or availability for any of the goods. In the event of a price or availability discrepancy is identified after the order confirmation is sent, Berlin Packaging reserves the right to cancel the order or offer an alternative solution subject to mutual agreement.
3.2. During the order process the selected goods will be reserved for a limited time as indicated on the ordering page. No rights can be derived from this reservation.
3.3 An order placed by the Customer shall not be deemed to have been accepted by Berlin Packaging until after Berlin Packaging has sent an order confirmation once payment is completed in full.
3.4 The Customer is responsible for checking the correctness of the order confirmation within 24 hours. If there are any issues identified by the Customer, Berlin Packaging needs to informed within those 24 hours. Berlin Packaging will then put reasonable effort into correcting the order if it the order hasn’t been shipped yet.
3.5 The fact that Berlin Packaging supplies goods to the Customer on a regular basis and/or has previously supplied the Customer does not give the Customer any right to future deliveries by Berlin Packaging. Berlin Packaging is not required to provide any reason for refusing to supply the Customer in the future.
4. PRICES
4.1 The price stated on the webshop shall consist of the purchase price of the goods, including VAT and handling fees, exclusive of transportation costs,, duties, and other government levies.
4.2 The packaging expenses are excluded in the price for the individual products referred to in Clause 4.1. Berlin Packaging shall not take back the packaging, except as otherwise agreed in the quote.
4.3 Once an order has been confirmed, the Customer has no right to claim compensation if the price of the ordered good is reduced after the order confirmation.
4.4 Adjustment of prices in accordance with Clause 4.3 do not entitle the Customer to cancel, terminate or dissolve the Agreement.
5. PAYMENT
5.1 Payment of the purchase price is to be completed through the direct payment options as provided on the webshop.
5.2 Payment shall be made without any reduction or set-off.
5.3 The payment terms as stated on the webshop and in these General Conditions will prevail over any other payment terms agreed between Customer and Berlin Packaging in other business relations.
5.4 Berlin Packaging reserves the right to demand advance payment or security for payment at all times, even if deliveries were previously made with a payment credit.
Berlin Packaging may, insofar as it is held to perform an obligation under an order, suspend the performance thereof when issues arise concerning a confirmed order, or dissolve the order at its choice in full or in part by means of a written notification, this without prejudice to its right to claim damages.
5.5 If the amount due according to the order confirmation and/or invoice is not fully paid on time, the Customer shall be in default, without any demand or prior notice of default being required, and shall owe Berlin Packaging the statutory commercial interest pursuant to Art. 6:119a of the Dutch Civil Code from the date the amount is due. It shall as then also be due an immediately due and payable agreed late-payment fine of 2% of the invoice amount, without prejudice for Berlin Packaging to assert any other claims such as but not limited claims for (additional) damages.
5.6 All payments shall first be used for payment of fines, interests and costs, and subsequently each time for payment of the oldest outstanding invoice.
6. DELIVERY
6.1 The terms for the delivery of the goods are selected by the Customer during the ordering process and confirmed in the order confirmation
6.2 As from the moment of delivery the delivered goods shall be for the risk and account of the Customer, and if the Customer does not accept the delivery, as from the moment that the delivery has been refused.
6.3 Delivery times shall always be estimates and shall not be of the essence. Any excess of the delivery time, provided within reasonable limits, shall not entitle the Customer to cancel any order(s) or to compensate costs or losses created by the excess.
6.4 The Customer shall provide its full collaboration to the delivery of the goods that are to be delivered by Berlin Packaging pursuant to the Agreement. The Customer shall without having been demanded to do so be in default if it, after the first request of Berlin Packaging to that effect, fails to pick up the goods that are to be delivered or, if delivery at its address was agreed, if it refuses to accept delivery of the goods that are to be delivered.
7. QUANTITY AND CAPACITY
7.1 Berlin Packaging has the right to deliver up to 5% more or less than the agreed quantity. The Customer shall accept the excess up to that maximum, or accept the shortage.
7.2 Berlin Packaging has the right to supply orders in parts.
8. PERFORMANCE
8.1 Berlin Packaging may, at its option, fully or partly suspend the performance of the Agreement or dissolve the Agreement in full or in part by written notice without recourse to the courts with immediate effect and without Berlin Packaging being liable for payment of any compensation, in the event that:
a. the Customer fails to perform its obligations under an Agreement or these General Conditions properly, in a timely manner or at all;
b. the Customer applies for or is granted a suspension of payments, or applies for or is declared bankrupt;
c. the Customer is placed under legal guardianship or administration;
d. the Customer's enterprise is sold or discontinued;
e. an attachment is levied on a significant part of the Customer's operating assets.
8.2 In case of the situation of Clause 8.1 (a), the Customer shall be liable for all damage suffered by Berlin Packaging, inter alia consisting of loss of profits, suffered losses, product damage, costs and interests, transport charges, commission fees, judicial and extra-judicial costs, as well as all further direct and indirect costs connected with a breach of the Agreement.
9. RETURN SHIPMENTS
9.1 The shipments that have been ordered by the Customer but of which delivery has not been accepted or that have been returned shall be charged to the Customer. All damage arising for Berlin Packaging from the nonacceptance or the return shipments shall be paid by the Customer, unless the Customer demonstrates that the delivered goods are not in accordance with the Agreement.
9.2 Berlin Packaging shall without its prior written permission not be held to accept goods that have been returned to Berlin Packaging by the Customer, except as otherwise agreed in the order confirmation. The acceptance of the goods returned by the Customer shall not imply an acceptance by Berlin Packaging of the reason of the return.
10. COMPLAINTS
10.1 The Customer is obliged to inspect the quantity and quality of the delivered goods immediately after they have been delivered. Any visible defects relating to the quality or quantity have to be notified in writing within two (2) working days after delivery, specifying the nature and scope of the complaint. If a defect was not apparent on inspection and becomes apparent only later, the Customer shall submit its complaints to Berlin Packaging in writing immediately after the discovery is made.
10.2 After expiry of the periods stated in Clause 10.1, the goods shall be considered to have been delivered according to the agreed on quantity and the agreed on specifications and/or (legally) required quality. Any complaints that are submitted after the stated periods or not in writing shall not be handled.
10.3 If the delivered goods have been processed or used, the Customer shall be deemed to have accepted the goods without reservation, and submitting any complaints therefore shall no longer be possible.
10.4 The Customer is required upon first request of Berlin Packaging to return a sample of the allegedly defective items or other evidence as requested by Berlin Packaging in order to conduct an investigation into the root cause of the complaint.
10.5 The terms of payment shall not be suspended or altered by submitting a complaint. In no event is the Customer entitled to suspend any payments nor to set off any of the sums due against any claims the Customer presumes to have.
10.6 If and to the extent Berlin Packaging considers the Customer's complaint to be justified, it will, at its option as a sole remedy:
a. repair or replace the delivered goods; or
b. credit (part of) the purchase price paid by the Customer in connection with the delivered goods; or
c. take back the delivered goods without any further performance of the Agreement.
11. RETENTION OF TITLE
11.1 Berlin Packaging reserves the ownership of the goods delivered by it until the time of full and final payment by the Customer for those goods. The retention of title (“eigendomsvoorbehoud”) extends to anything Berlin Packaging has to claim from the Customer, including compensation and fines.
11.2 Customer has the obligation to label the goods delivered by Berlin Packaging as such to be able to identify which goods belong to Berlin Packaging and to treat goods that have been supplied subject to retention of title with care until ownership has been transferred to the Customer.
11.3 Customer shall insure the goods at its own expense for the duration of the retention of title against all reasonable circumstances following an adequate industry standard compliant insurance, such as but not limited to damage by fire, explosion, water, theft and destruction.
11.4 If the same goods have been delivered on one or more unpaid invoices, the goods that are present at the Customer shall be considered to have been delivered on the unpaid invoices. As long as goods have not been paid in full and/or the Customer also otherwise fails to perform any of its obligations towards Berlin Packaging, Berlin Packaging shall irrevocably continue to have the right and shall irrevocably continue to be authorised to take back any goods delivered by it that are still present at the Customer, without interference of the courts, irrespective of its further actions towards the Customer. The Customer is obliged to grant Berlin Packaging access to the area(s) in which the goods delivered are located, failing which the Customer shall forfeit a due and immediately payable fine amounting to EUR 50,000 for every refusal to grant access and EUR 2,500 for every day the refusal continues.
11.5 The Customer is obliged to immediately report situations in which any third parties enforce rights, including seizures, in relation to goods delivered by Berlin Packaging that are still delivered under retention of title. If the Customer does not fulfil this obligation, the Customer shall forfeit an immediately due and payable fine amounting to 20% of the principle amount due to Berlin Packaging, exclusive of VAT, with a minimum of EUR 500,- , without prejudice for Berlin Packaging to assert any other claims such as but not limited claims for (additional) damages.
11.6 As long as Berlin Packaging has any outstanding claim on the Customer on any account whatsoever, the Customer may not dispose of, deliver or pledge the goods delivered by it or perform legal acts with regard to these goods, except within the framework of its regular corporate activities, until after Berlin Packaging has granted its prior written approval to do so as well as to the conditions subject to which all this takes place.
11.7 The Customer is obliged at Berlin Packaging's first request:
a. to pledge to Berlin Packaging in the manner prescribed in Article 3:239 of the Dutch Civil Code all the Customer's claims against insurers in relation to the goods delivered under retention of title;
b. to pledge to Berlin Packaging in the manner prescribed in Article 3:239 of the Dutch Civil Code the claims which the Customer acquires against its customers upon the resale of goods supplied by Berlin Packaging under retention of title.
12. WARRANTY
12.1 Unless otherwise agreed in writing, Berlin Packaging does not make any warranties in relation to goods delivered to the Customer other than that the goods delivered meet the specifications as included in the order confirmation and as long as the goods are used under normal and expected circumstances and in accordance with Berlin Packaging’s instructions. Berlin Packaging expressly excludes all other warranties, including warranties of merchantability and fitness for a particular purpose.
12.2 The exclusive remedies for a breach of warranty as defined in Clause 12.1 are stated in Clause 10.6 of these General Conditions.
12.3 Samples are provided to the Customer as an example of the good that can be delivered. The Customer is not entitled to claim any rights in relation to the characteristics, looks, properties and use of the good based on the samples provided.
12.4 The Customer is responsible for testing the compatibility of the packaging delivered by Berlin Packaging and the product of the Customer used in combination with this packaging. Berlin Packaging excludes any and all liability for damages resulting from non-compatibility of the packaging with the Customer’s or any third party product.
13. LIABILITY
13.1 Nothing in these General Conditions shall limit or exclude Berlin Packaging's liability for:
a. death or personal injury caused by its intent or negligence;
b. fraud or fraudulent misrepresentation; or
c. any matter in respect of which it would be unlawful for Berlin Packaging to exclude or restrict liability.
13.2 Subject to Clause 13.1:
a. Any liability of Berlin Packaging shall be limited to the amount (excluding VAT) charged by Berlin Packaging to the Customer for the supply of the relevant goods that caused the damage or loss, subject to a maximum of EUR 25,000 (twenty-five thousand euros) per event or series of related events; and
b. Berlin Packaging shall under no circumstances whatsoever be liable to the Customer for loss of profit, claims by third parties or other indirect or consequential damages.
c. Berlin Packaging shall not be liable for any damages as a result of Customer’s use of the goods contrary to their labelling or intended use.
13.3 Customer shall without delay take all necessary efforts to limit any damages and its effects to a minimum.
13.4 The exclusions and limitations of liability in this Clause 13 also apply in favor of Berlin Packaging’s affiliates, subsidiaries, agents, legal representatives, employees, subcontractors and any persons or entities mandated by Berlin Packaging to fulfil its obligations.
13.5 The exclusions and limitations in this Clause 13 apply to any contractual and non-contractual liability of Berlin Packaging and will survive termination or dissolvement of the Agreement.
14. INDEMNITY
14.1 Without prejudice to the provisions set forth in Clause 13, the Customer shall indemnify and hold harmless Berlin Packaging against any and all claims of third parties and consequential damages resulting from the delivery of goods by the Customer to third parties, including goods that have been delivered by Berlin Packaging to the Customer.
15. LOSS OF RIGHTS
15.1 All Customer's rights of action against Berlin Packaging, whether in breach of contract, in tort or on any other ground, shall lapse as soon as a period of one (1) year has elapsed from the day on which the Customer became aware or could reasonably have become aware of the existence of those rights of action and the Customer has not commenced legal proceedings in respect of those rights of action within that one-year period.
16. FORCE MAJEURE
16.1 In addition to the provisions of Article 6:75 of the Dutch Civil Code, a default by Berlin Packaging in the performance of any obligation to the Customer cannot be attributed to Berlin Packaging in the event of a circumstance beyond Berlin Packaging's control, as a result of which the performance of its obligations to the Customer is prevented in whole or in part or as a result of which the performance of its obligations cannot reasonably be required of Berlin Packaging. Such circumstances include but are not limited to: war or similar situations, riots, sabotage, boycotts, strikes, occupations, blockages, shortages of raw materials, failures in the operation of factories, transportation problems of whatever nature (among which traffic-jams), machine damage, thefts, such sickness absence of staff of Berlin Packaging that the implementation of the Agreement is seriously obstructed, failures in the performance by subcontractors, transporters and/or other third parties who have been called upon by Berlin Packaging to assist in the implementation of the Agreement, obstructed shipping traffic, measures of the government that lead to any obstructions in either the Netherlands and/or abroad, natural disasters, epidemics, pandemics and quarantines.
16.2 In case of force majeure on the side of Berlin Packaging, Berlin Packaging shall have the right at its own discretion to suspend the execution of the Agreement for the duration of the force majeure situation.
16.3 If a situation as described in Clause 16.1 lasts longer than 60 days, both Parties have the right to dissolve the Agreement in full or in part by submitting a written statement to that effect. The parties shall make a reasonable arrangement regarding the consequences of that dissolution.
17. CONFIDENTIALITY
17.1 Neither party may disclose the existence any non-public information, meaning any information explicitly noted as non-public and any information – given the nature of the information – which should reasonably be considered as non-public, it receives from the other party (collectively, “Confidential Information”) to any third party, nor use the Confidential Information for any purpose other than performance of any Agreement, without the prior consent of the other party. Notwithstanding the foregoing, Confidential Information may be disclosed if the receiving party becomes legally compelled to do so, provided that before disclosure the receiving party must notify the disclosing party and cooperate at the expense of the disclosing party to contest, limit or protect such required disclosure.
17.2 If either party breaches the obligation stated in Clause 17.1, the other party shall forfeit an immediately due and payable fine amounting to EUR 50.000,-, exclusive of VAT.
18. INTELLECTUAL PROPERTY RIGHTS
18.1 The Customer warrants that any orders placed with Berlin Packaging do not infringe copyrights, model or drawing rights or any other intellectual or industrial property rights of third parties. The Customer shall indemnify Berlin Packaging against any and all claims of third parties for infringements of intellectual or industrial property rights in connection with the order placed by the Customer.
18.2 Unless expressly agreed otherwise in writing, Berlin Packaging shall at all times be the exclusive owner of any intellectual or industrial property rights that may arise in respect of the works created by Berlin Packaging in the performance of the Agreement, including but not limited to design drawings, models, artwork, inventions, computer software, databases and photographic recordings. Insofar as necessary, the Customer shall use its best efforts to cooperate to transfer any of these rights to Berlin Packaging or any third party designated by Berlin Packaging.
19. GOVERNING LAW AND COMPETENT COURT
19.1 All offers and Agreements shall be governed by the laws of the Netherlands with the exclusion of the Vienna Sales Convention.
19.2 All disputes that arise from or in the context of any Agreement shall exclusively be submitted to the District Court of Arnhem, the Netherlands, this with exception of disputes that pursuant to the law have to be submitted to the Subdistrict Division of any District Court in the Netherlands (“Kantongerecht”).
20. DEVIATIONS FOR ORDERS TO GERMANY
20.1 These General Conditions apply only to business people within the meaning of § 14 German Civil Code (BGB), legal persons under public law or special funds under public law.
20.2 Replacing article 5.5: If the amount due according to the invoice is not paid on time, the Customer shall be in default, without any demand or prior notice of default being required, and as of the due date shall owe Berlin Packaging a default interest in the amount of 9% above the respective base interest rate (§ 247 para. (1) BGB). It shall as then also be due an immediately due and payable agreed late-payment fine of 2% of the invoice amount.
20.3 Article 10.3 will not be applicable for this region.
20.4 Replacing article 10.6: If and to the extent Berlin Packaging considers the Customer's complaint to be justified, it will, at its option, repair or replace the delivered goods. If such alternative performance has failed or if an additional period for performance set by the Customer has expired without success or is dispensable according to the statutory provisions, the Customer is entitled to reduce the purchase price accordingly or to withdraw from the Agreement.
20.5 Replacing article 13.1: Nothing in these General Conditions shall limit or exclude Berlin Packaging's liability in the following instances:
a. Damages from injury to life, limb or health due to the negligent breach of duty by Berlin Packaging or one or more of its vicarious agents (“Erfüllungsgehilfen”);
b. Damages arising from an intentional or grossly negligent breach of duty by Berlin Packaging or one or more of its vicarious agents;
c. Negligent breach of such an obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the Customer may usually rely (material contractual obligation), by Berlin Packaging or one or more of its vicarious agents; however, if Berlin Packaging or one or more of its vicarious agents breach a material contractual obligation, without acting intentional or grossly negligent, Berlin Packaging’s liability is limited to the foreseeable, typically occurring damages;
d. Berlin Packaging has assumed a guarantee; and
e. Mandatory liability of Berlin Packaging due to legislation such as the German Product Liability Act (“Produkthaftungsgesetz”).