General Terms & Conditions
of Bato Plastics B.V.
of Bato Plastics B.V.
Article 1: Definitions
In these general terms and conditions of sale and delivery, the following definitions apply:
- General Terms and Conditions: these general terms and conditions of “BATO”;
- BATO: the private limited liability company BATO PLASTICS BV, having its registered office and principal place of business in Zevenbergen, municipality of Moerdijk, listed in the Trade Register of the Chamber of Commerce and Industry in Breda under number 17070526, or a company affiliated to BATO, that uses these general terms and conditions.
- Buyer: any natural or legal person who purchases goods and/or services from BATO, or with whom BATO enters into an Agreement or with whom BATO is negotiating the conclusion of an Agreement;
- Agreement: the agreement between BATO and the Buyer in respect of the supply of goods and/or services, incorporating these General Terms and Conditions;
- In writing: hardcopy or e-mail notification;
Article 2: Scope and Offers
- These General Terms and Conditions apply to all offers, quotations, recommendations and Agreements between BATO and the Buyer, unless expressly agreed otherwise in writing.
- These General Terms and Conditions also apply to all successive offers, quotations, recommendations and Agreements, formed in any way whatsoever.
- The applicability of any general (purchasing) terms and conditions of the Buyer is expressly rejected.
- Quotations issued by BATO will be valid for a period of 30 days, unless agreed otherwise. After the end of this period, the offer or quotation will lapse automatically, and no rights can be derived from it any longer.
- No rights can be derived from advertising material, brochures, sales documentation and suchlike.
- All offers and quotations issued by BATO are entirely free of obligation and revocable, and must be regarded as an invitation to place an order or to enter into an Agreement. BATO is free not to accept orders, or not to conclude Agreements, without having to state its reasons.
Article 3: Agreement
- Agreements concerning the supply of goods and/or services will be formed after an (order) confirmation (in writing) from BATO to the Buyer, after (the start of) the actual performance of the Agreement by BATO or through a different form of (tacit) acceptance by BATO.
- Changes to the Agreement can only be explicitly agreed in writing or by e-mail.
- The Buyer is responsible for the correctness and completeness of the information provided to BATO. BATO will not be liable for inaccuracies in data, drawings, recommendations etc. provided by, on behalf of or on the instructions of the Buyer. BATO is not obliged to check the data, drawings, and recommendations etc. received from the Buyer, or through the latter from third parties, and may rely on their accuracy. With regard to the foregoing, the Buyer will indemnify BATO against any claims arising from inaccuracies, including third-party claims.
- BATO will only put the good to be manufactured into production when the trial series provided by BATO has been approved by the Buyer and BATO has confirmed that approval (in writing). In the event that BATO, by arrangement with the Buyer, has invested in the (outsourced) manufacture of a mould and the Buyer rejects the trial series manufactured using this mould, the Buyer will be obliged to pay BATO the full (investment) costs in respect of that mould, without prejudice to BATO’s right to full payment or compensation.
Article 4: Deliveries
- BATO will perform all services, including services relating to recommendations, designs and drawings etc., on the basis of a best-efforts obligation.
- Goods will be deemed to have been supplied by BATO and to have been accepted by the Buyer:
- in case of ‘delivery ex works’ (EXW): as soon as the goods have been loaded in or onto the means of transport;
- In case of ‘delivery duty paid’ (DDP): as soon as the goods - for which BATO provides or arranges the transport - have arrived at the delivery address specified in the (order) confirmation and transport document and have been unloaded, and the Buyer has subsequently taken delivery of the goods by signing the transport document, delivery note or similar document.
- Unless otherwise agreed, goods are delivered ex works (EXW).
- If it has been agreed that the goods will be delivered at a particular delivery address, BATO will determine the manner of shipment or delivery. In that case, the delivery charges will be passed on to the Buyer.
- Multi-use packaging of goods supplied by BATO will remain BATO’s property.
- From the moment of delivery, the goods will be at the Buyer’s expense and risk.
- BATO is entitled at all times to make part deliveries.
- All (delivery) dates set by BATO will be approximate dates and can never be regarded as final deadlines. BATO will endeavour to comply as much as possible with the (delivery) dates specified or agreed.
- BATO will be deemed to have fulfilled its obligations concerning the quantity of goods to be supplied if it has delivered the agreed quantity or (up to) 10% more or (up to) 10% less than the agreed quantity. If BATO is aware of a circumstance that may prevent timely delivery, it will hold consultations with the Buyer. The Buyer is never entitled to any compensation for late delivery.
Article 5: Prices and payments
- All prices are in euros and exclude VAT, unless stated otherwise.
- Unless agreed otherwise, payment must be made within 30 calendar days of the invoice date.
- The invoice amount must be paid without any deduction or set-off. BATO expressly reserves the right to demand upfront payment.
- If, following the conclusion of the Agreement, circumstances arise which affect the cost price, such as changes in the prices of raw materials or in the actual goods to be supplied, in wages, in exchange rates, in import and export duties, etc., BATO will be entitled to pass on those price changes to the Buyer.
- The buyer is not entitled to suspend its payment or other obligations towards BATO.
- If no payment is effected within the applicable period, the Buyer will be in default by operation of law. The Buyer will then owe contractual interest at a rate of 2% on top of the statutory (commercial) interest applicable in that case. The extrajudicial collection costs will then be set at a flat rate of 15% of the outstanding amount, with a minimum of EUR 250.
- Payments will first be applied to settle interest and costs and subsequently to settle the principal sum(s) outstanding for the longest period, even if the Buyer indicates otherwise in this respect.
- When BATO so requests, the Buyer will furnish (adequate) security to BATO’s satisfaction for the fulfilment of the Buyer’s obligations towards BATO. If the Buyer fails to comply immediately with a request to that end from BATO, the latter will be entitled to suspend the supply of goods and/or services with immediate effect and the Buyer will be in default, without any notice of default being required.
Article 6: Retention of title
- BATO will retain the title to all the goods it has supplied until all BATO’s claims against the Buyer, on whatever grounds, have been paid in full, including interest and costs. Only when all claims have been paid in full will the title to the goods supplied be transferred.
- If BATO has not received payment of the due and payable claims in respect of which BATO retains the title to the goods supplied, BATO will be entitled to repossess the goods concerned, without notice of default and without judicial intervention. BATO is irrevocably authorised to do so by the Buyer already at the present stage, and the Buyer will be obliged to grant BATO access to all areas and grounds that are accessible to it and/or are being used, all this without prejudice to BATO’s right to claim (full) compensation from the Buyer.
- The Buyer is prohibited from establishing a lien on the goods delivered by BATO and not yet paid for on behalf of a third party, or encumbering these goods with any other right, limited or otherwise.
Article 7: Complaints
- The Buyer must check the goods supplied for defects and quantity immediately upon delivery.
- Any complaints about goods and/or services supplied by BATO must be submitted to BATO in writing within five days of the relevant goods and/or services having been delivered, stating the nature of the complaints/defects, failing which any claim against BATO in respect of (alleged) defects will become null and void.
- Minor damage or deviations that do not affect the possibility of using the goods cannot be regarded as a defect.
- A complaint will not suspend the Buyer’s payment obligation towards BATO.
- The Buyer will be responsible for the consequences of any ambiguity and/or inconsistency in the information provided to BATO that may be relevant for the performance of the Agreement.
Article 8: Guarantee and Liability
- BATO guarantees that the goods and/or services it supplies are sound and comply with what the Buyer may expect under the Agreement.
- Variations in the goods supplied in terms of colour, wear resistance and suchlike which are acceptable from a technical perspective according to the customary standards applicable cannot give cause for any entitlement/claim against BATO, nor result in an obligation on BATO’s part to replace the goods supplied.
- BATO's liability is always limited to the amount that is paid out under BATO's liability insurance for the event in question. If no payout should be made under the aforesaid insurance, for whatever reason, BATO’s liability will be limited to the invoice amounts which have been charged by BATO in relation to the order or the Agreement and have been paid in time.
- BATO will never be liable for losses resulting from the Buyer’s improper use of the goods supplied, for example if the goods became damaged or defective due to improper use, or if the Buyer and/or third parties made or tried to make alterations to the goods, or used the goods for purposes for which they were not intended.
- BATO is never liable for indirect damage or consequential damage, such as loss of profit, damage due to business interruption, losses, growth and florescence damage, costs incurred to prevent or determine consequential damage, etc.
- The Buyer indemnifies BATO against all third-party claims relating to the Agreement.
- Any claim against the BATO, unless it has been acknowledged by the latter, will become null and void by the mere lapse of 12 months after the inception of the claim.
Article 9: Intellectual property
- All Intellectual Property Rights to the goods and/or services developed or made available by BATO in the context of the Agreement, including but not limited to trademarks, trade names, copyrights etc., will be vested exclusively in BATO. These expressly include all rights in relation to moulds. The Buyer will refrain from infringing these rights in any way.
- All drawings, sketches, schedules, samples, models, designs, calculations etc. (hereafter: “drawings etc.”) produced by BATO or on BATO’s instructions will be the property of BATO and will remain so after the Agreement has been performed. Drawings etc. may not be reproduced or be shown or made available to third parties for whatever purpose, either wholly or in part, without BATO’s written consent.
- Drawings etc. must be returned to BATO when BATO so requests.
- BATO is entitled at all times to add the goods it has produced to its range and to market these goods or sell them to third parties, even if the relevant mould should be owned by the Buyer. The production rights will be vested in BATO at all times.
- If, in the broadest sense of the word, BATO manufactures and/or delivers goods on the basis of drawings, samples, models etc. or other changes received from the Buyer or third parties, the Buyer guarantees that the manufacture and/or delivery of those goods does not infringe any patent, trademark or other intellectual or other property right of third parties, and indemnifies Buyer BATO against all claims arising therefrom.
- If a third party objects to the manufacture and/or delivery on the basis of any alleged right as referred to above, this automatically entitles BATO to immediately suspend production and/or delivery and demand the Buyer reimburses the costs incurred, without prejudice to BATO's claims for possible further damages, and without BATO being obliged to pay any compensation to the Buyer.
Article 10: Moulds
- All moulds, tools, etc. manufactured by or on the instructions of BATO (hereafter: “moulds etc.”) are and will remain the property of BATO at all times, even if they were fully or partly paid for by the Buyer.
- If moulds etc. are manufactured at the Buyer’s request, BATO will not be obliged to start this manufacture or arrange for it to start until the Buyer has paid the agreed fee (upfront fee/deposit). If no fee has been agreed, the Buyer will pay BATO an upfront fee/deposit to be determined by BATO when BATO so requests. The foregoing will equally apply to any alterations of moulds etc.
- Unless the parties have agreed otherwise in writing, BATO will charge the costs of the manufacture of moulds etc. to the Buyer in the following manner: 50% of the costs immediately after the order has been issued or the Agreement has been concluded, and 50%of the costs at the time of the first (part) delivery of the goods manufactured using the relevant moulds etc.
- In the event that moulds etc. are in BATO’s possession but are owned by the Buyer, BATO will return these when the Buyer so requests in writing, but only after all BATO’s claims against the Buyer, on whatever grounds, have been paid. The costs and the risks attached to returning and transporting these moulds will be borne by the Buyer.
- BATO is not liable for loss or damage of the moulds etc. belonging to the Buyer. The Buyer must ensure that the moulds etc. are adequately insured.
- In the event that BATO is liable for damage caused to moulds etc. owned by the Buyer, the moulds etc. will be either repaired or replaced, this being at BATO’s discretion. BATO will not be bound by any further obligation or obliged to pay compensation.
- If BATO specified the number of shots or products for which the moulds etc. can normally be used in the quotation and/or Agreement, the moulds etc. will be deemed to be no longer suitable for further production once that number of shots or products has been attained. If this was not specified in the quotation and/or Agreement, BATO will inform the Buyer as soon as the moulds etc. are no longer suitable for production. Only BATO will decide whether moulds etc. are no longer suitable for production.
- Moulds etc. owned by the Buyer which are no longer suitable for production need not be returned to the Buyer and may be destroyed by BATO, without BATO being obliged to pay the Buyer any compensation.
Article 11: Force majeure
- If BATO is unable to fulfil its obligations towards the Buyer due to force majeure, those obligations will be suspended for the duration of the force majeure situation. When the force majeure situation has lasted one month, both parties will be entitled to terminate all or part of the Agreement in writing insofar as such termination is necessary within reason. In the event of force majeure, the Buyer will not be entitled to any payment or compensation.
- Force majeure is understood to mean any circumstance beyond BATO’s control which prevents it from fulfilling all or part of its obligations towards the Buyer or which means that BATO cannot reasonably be expected to fulfil its obligations, irrespective of whether that circumstance could have been foreseen at the time when the Agreement was concluded. These circumstances include strikes, business interruption or other internal or external problems at BATO or third parties engaged by it, or measures imposed by the government.
Article 12: Termination
- BATO will be entitled to terminate all or part of the Agreement in writing, without prior notice of default and without prejudice to its right to claim compensation and/or its right to suspend all or part of its obligations under the Agreement: (i) if the Buyer requests or is subject to a suspension of payments procedure or declaration of bankruptcy; (ii) if the Buyer suspends business operations, or partly or wholly transfers, liquidates or suspends its enterprise, or; (iii) if the Buyer can no longer be deemed capable of fulfilling its obligations, or; (iv) if the Buyer fails to comply with the Agreement.
- If the Agreement is terminated, all BATO's claims against the Buyer become immediately due and payable.
Article 13: Protection of personal data
- In the context of the implementation of an Agreement or legal obligations, the Buyer may have personal data about the Buyer or persons associated with it or working for it or on its behalf processed by BATO or on BATO’s behalf. In these circumstances, BATO will ensure or demand an appropriate level of security in view of the risks involved in the processing and the nature of the personal data to be protected. However, this only applies if and insofar as this data is stored in the Buyer’s computer systems, other systems or infrastructure. Personal data is processed in accordance with the General Data Protection Regulation (GDPR).
- BATO handles the personal data provided by the Buyer with care. Personal data is only accessible to the Buyer, and is not shared with third parties, except in the context of the implementation of an Agreement or the cases in which BATO is obliged to do so pursuant to prevailing laws and regulations or a court decision.
- In the event of a data breach, the Buyer will, if necessary and reasonably possible, cooperate with BATO so that it can comply with its notification obligation in good time in accordance with the provisions of the GDPR.
- The Buyer is responsible for compliance with the applicable laws and regulations on the protection of personal data, and indemnifies BATO against costs and damage resulting from claims by third parties in connection with violations of the GDPR by the Buyer.
Article 14: Other provisions
- If any provision of these General Terms and Conditions should be void or voided, the other provisions will remain in full force. In that case, BATO will draw up a new provision to replace the void/voided provision, whereby the purport of the void/voided provision will be taken into account to the greatest possible extent.
- Components made available to BATO by or on behalf of the Buyer which are to be affixed to or incorporated into the good to be manufactured by BATO must be delivered to BATO in the required quantities with a 10% surplus, in good time and free of charge to the BATO factory. The Buyer is responsible and liable for the components and other goods thus made available to BATO, and for their proper applicability in the context of the implementation of the Agreement. BATO will assume without any further examination that these components etc. can be applied to, affixed to or incorporated into the goods to be manufactured without any problem. If the delivery of the aforesaid components is overdue, or if these components cannot be correctly processed by BATO and this results in a production standstill, the Buyer will be liable for all losses sustained and to be sustained by BATO as a result of this standstill.
- BATO is entitled to set off any claims of the Buyer against BATO for whatever reason with claims of BATO against the Buyer for whatever reason.
- The Buyer will not be entitled to use and/or sell the goods and/or services supplied by BATO in contravention with laws and regulations.
- BATO will be entitled to engage third parties for the purpose of the performance of the Agreement.
- In the event of any attributable failure on the Buyer’s part to perform the Agreement, the Buyer will owe BATO, without judicial intervention, a penalty equalling 10% of the total or maximum price involved in the Agreement. BATO is entitled to the penalty without prejudice to any of its other rights or claims.
- The Buyer may not transfer the rights and obligations under the Agreement to a third party without BATO’s express written consent.
Article 15: Applicable law and disputes
- The legal relationship between BATO and the Buyer is governed exclusively by Dutch law. The applicability of the Vienna Sales Convention is excluded.
- Insofar as mandatory law does not provide otherwise, any disputes between BATO and the Buyer will be submitted to the competent Dutch court in the district where BATO has its registered office. However, BATO has the right to opt for dispute settlement in accordance with the Arbitration Regulations of the Netherlands Arbitration Institute. In that case, the arbitral tribunal will consist of one arbiter. The place of arbitration will be Rotterdam and the proceedings will be conducted in Dutch. Any disputes between BATO and a Buyer based in China, India, Japan, Turkey or the United States will be settled exclusively in accordance with the Arbitration Regulations of the Netherlands Arbitration Institute.
These General Terms and Conditions have been filed with the Chamber of Commerce in Breda.