General terms and conditions
General Terms and Conditions of the private limited companies;
SYTO International B.V., and SYTO Co-Packaging Nederland B.V., with its registered office in and principal place of business in Culemborg at Erasmusweg 11, 4104 AL, the Netherlands.
SYTO Co-Packaging Polska Sp. z o.o., with its registered office in and principal place of business in Wolsztyn at Bersyna 76, 64-200 Poland
SYTO Co-Packaging Wadowice Sp.z o.o., with its registered office in and principal place of business in, Andrychów Inwald, at ul. Wadowicka 172A, 34-120 Poland,
These general terms and conditions are for the Dutch companies filed with the Chamber of Commerce in Amsterdam.
In these general terms and conditions the following terms the following are taken to mean:
SYTO :SYTO International B.V., /SYTO Co-packaging Nederland, SYTO Co-Packaging Polska Sp z o.o. /SYTO Co-packaging Wadowice Sp. z o.o.
Other Party :Every party which enters or will enter into an agreement with SYTO, or as the case may be request an offer, or to which an offer is sent by SYTO.
Article 1: applicability
1.1 These general terms and conditions apply to all offers and tenders that are made by SYTO and to all agreements - of whatsoever nature and by whatever name - that are concluded by SYTO with the other party.
1.2 SYTO expressly rejects the applicability of any general terms and conditions of the other party such as purchase terms and conditions.
1.3 These general terms and conditions can only be derogated from if SYTO has expressly set this out or acknowledged this in writing.
1.4 It is exclusively possible for the employees and auxiliary persons of SYTO to stipulate terms and conditions that derogate from the provisions of these general terms and conditions if this expressly ensues from the description of a power of attorney that has been provided to them in writing.
1.5 These general terms and conditions also apply for the benefit of personnel and assistants of SYTO, who are involved in the performance of the agreement, as well as for the benefit of third parties who are engaged by SYTO for the performance, wholly or in part, of the agreement.
1.6 The other party also accepts the applicability of these general terms and conditions, unconditionally, for all future agreements and offers for agreements with/from SYTO.
Article 2: offers
2.1 All offers are without obligation, unless a period for acceptance has been set out in the offer. SYTO nevertheless has the right to withdraw its offer for as long as the other party has not yet accepted the offer.
2.2 For a composite offer that is included in an offer there will be no obligation for SYTO to deliver a part of the goods/services included in the offer at a pro rata part of the full stated price.
2.3 The offers exclusively concern the quantities and the goods/services referred to in the offer and do not apply automatically for repeat orders.
2.4 The images, measurements, weights, colours, technical data and suchlike in brochures, offers and agreements must be understood in such a manner that the other party must take derogations into consideration, which do not exceed the usual boundaries.
Article 3: coming into effect of the agreement and confirmation
3.1 If and insofar as SYTO has set out a period for acceptance in an offer, an agreement will come into effect by means of full, unconditional acceptance in writing of this offer by the other party within the period referred to.
3.2 In all other events an agreement will only come into effect by order confirmation in writing on the part of SYTO.
3.3 Agreements that have come into effect by means of brokerage activities of representatives/agents of SYTO will only bind SYTO after SYTO has confirmed these in writing.
3.4 If the offers and order confirmations are based on information, drawings, etc. that are provided by or on behalf of the other party, SYTO will assume that this information is correct.
3.5 All images, drawings, data concerning mass, technical specification and other data forming part of brochures, catalogues, circular letters, notifications and price lists that are presented by or on behalf of the other party to SYTO, prior to, at, or after the submitting of an offer or tender, will be deemed to be exclusively of informational value. The data that forms part of the aforesaid documents will be exclusively binding if that has been expressly agreed in writing.
Article 4: prices
4.1 Unless stated otherwise on the order confirmation, all prices referred to by SYTO are in Euro.
4.2 Unless expressly stated otherwise, the prices of SYTO are:
• excluding VAT;
• on the basis of the minimum quantities applied by SYTO;
• ex warehouse;
• excluding import and export duties as well as any other government levies;
• excluding transport, storage and transfer costs;
• excluding insurance costs;
• excluding antipollution levies or environmental surcharges that are or will be imposed by authorities;
• excluding the costs of quality control and other taxes and levies concerning the goods and the services.
4.3 If one of the costs-determining factors of a product/service changes in the period between the date of the offer and the date of the delivery, SYTO will have the right to adjust the agreed price accordingly, regardless of whether or not the fact or the cost increase was foreseeable at the time of the offer or confirmation, all this with due regard to the statutory regulations concerning this. If the price change takes place within three months after the coming into effect of the agreement, the other party will have the option to terminate the agreement.
4.4 If the agreed work must be executed outside the usual working hours (between 08:00 hours and 18:00 hours on working days) the following extra payment will be charged:
• on working days before 24:00 hours - normal rate x 125%;
• on working days after 24:00 hours;
• on Saturdays - normal rate x 150%;
• on Sunday and during holidays - normal rate x 200%.
Article 5: location, manner of delivery and conditions
5.1 The agreed delivery period commences on the day on which the order confirmation in writing is dated, or as the case may be (in the absence of an order confirmation in writing) on the day on which the other party addresses SYTO for the first time in writing for the delivery on a specific date. However, the delivery period will not commence until after the other party has made all the data, documents, any required permits and any goods to be processed, which are required for the performance of the agreement, available to SYTO.
5.2 The delivery periods stated by SYTO always apply as an estimate and are never final deadlines. Any exceeding of this period will not give the other party the right to terminate the agreement, unless the exceeding of the delivery period is such that it can no longer be required, in accordance with the requirements of reasonableness and fairness, from the other party to maintain the agreement. If the other party terminates the agreement, no obligation will ensue therefrom for SYTO of compensation of any damage suffered by the other party with regard to this.
5.3 Before the other party can proceed with termination as referred to in article 5.2 in the event of no delivery in a timely manner, SYTO must be given notice of default and SYTO must be granted a period of 14 days to still fulfil its obligations.
5.4 SYTO will determine the manner of the performance of the agreement. All this is unless expressly otherwise agreed between parties.
5.5 SYTO can engage third parties for the fulfilment of its obligations ensuing from the agreement concluded with the other party.
5.6 Unless determined otherwise in writing, in the event of extension/change of the scope of the work, or of giving instructions for extra work after the coming into effect of the agreement, the period for the execution of the order will be extended and will be recorded by SYTO.
5.7 Any partial execution of an order, which will be interpreted as a delivery or partial execution of the order, can be invoiced separately. In that event the partial execution will be interpreted as a separate transaction. In that event payment will take place in conformity with the provisions of article 8.
5.8 SYTO can invoice for the extra work, whereby extra work is taken to mean all goods and services provided by SYTO upon the request from, or with permission from the other party, which exceed the goods and services described in the agreement. If the performance of the agreement, without extra actions, not specified by the other party, appears to be impossible, SYTO can requests that the other party issues a request in writing for the execution of the extra necessary work. SYTO has the right to execute more work than set out in the order in writing or the order confirmation, but can exclusively invoice for this work with permission in writing from the other party.
5.9 The place of delivery is the location of SYTO where the work is/will be executed, unless otherwise agreed in writing between parties.
5.10 If the other party makes it known prior to the delivery that the other party wishes to receive the goods at a location other than as agreed, SYTO will accede to this request insofar as this can be required from SYTO in all reasonableness. If the acceding by SYTO to this request entails extra costs, the other party will be obliged to pay the extra costs to SYTO.
5.11 SYTO can at any time require that financial security is provided. If, within 10 days after receipt of such a request, the other party has not provided financial security as referred to above, SYTO will have the right to suspend the fulfilment of its contractual obligations without any consequences.
Article 6: transport
6.1 If SYTO takes care of the transport of the goods intended for the other party, this will take place at the other party's expense and risk and in a manner to be determined by SYTO.
6.2 Unless the transport takes place with its own transport, the goods will not be insured during the transport. The other party must personally take care of this.
6.3. If it appears that the delivery is not possible to the location stated by the other party, the extra costs related thereto will be at the other party's expense.
6.4 The delivery will always take place next to the vehicle with which the goods are delivered. The other party will be obliged to take receipt of the goods there. The other party together with SYTO will be responsible for ensuring the unloading of the goods. If it appears that the other party is in default of this, the extra costs to be incurred by SYTO for this purpose will be at the other party's personal expense.
Article 7: storage
7.1 SYTO can agree with the other party that it will store the goods in its own warehouse at the other party's expense and risk. The starting point thereby is always that SYTO will be entitled to invoice for the stored goods immediately and in full. The goods can be available for other party on delivery on a call-off basis.
7.2 If the goods intended for the other party cannot be delivered by SYTO at the agreed time and/or to the agreed location, SYTO will store the goods at the other party's risk. The costs attached to this will be at the other party's expense.
Article 8: payment terms
8.1 Payment will always take place within fourteen days after the invoice date, without any reduction, suspension, or reliance on compensation, at the office of SYTO or by means of transfer to the bank or postbank account of SYTO stated in the invoice.
8.2 SYTO will always be entitled during the performance of the agreement to decide to deliver the goods exclusively subject to cash on delivery, or as the case may be to require partial payment in advance.
8.3 If the other party does not pay within the period set out, the other party will be deemed to be in default by operation of law without the requirement of any demand or notice of default for this purpose.
8.4 From that time the 'statutory (commercial) interest' as referred to in Section 119a and 120, second subclause, Book 6 of the Civil Code, as well as the judicial and extrajudicial costs incurred in order to claim specific performance, termination and/or compensation, will be at the other party's expense, except to the extent that SYTO is ruled against in an irrevocable judicial decision concerning this.
8.5 If the other party does not fulfil its payment obligation(s) in a timely manner and after SYTO has pointed out the due payment to the other party and SYTO has granted the other party a period of 14 days to still fulfil its payment obligations, after payment has not been forthcoming within this period of 14 days, the other party will owe the statutory interest over the amount still owed and SYTO will be entitled to charge the extrajudicial collection costs incurred by SYTO. These collection costs will amount to a maximum of:
• 15% over the outstanding amounts up to € 2,500;
• 10% over the next € 2,500;
• 5% over the next € 5,000 with a minimum of € 40.
SYTO can derogate from the aforesaid amounts and percentages to the advantage of the other party.
8.6 The non-fulfilment, fulfilment not in a timely manner, or incomplete fulfilment by the other party of its payments obligations will give SYTO the right to suspend further performance of the agreement on its part until the other party has fulfilled this obligation. SYTO has the right, at its discretion, to terminate the agreement without prejudice to its right to compensation related to the late, or as the case may be non-performance of the agreement.
8.7 Payments made by the other party will always serve firstly to settle the payment of all costs and interest owed, and thereupon to settle due and payable invoices which have been outstanding the longest, even if the other party states that the payment relates to a later invoice.
Article 9: industrial property
9.1 All rights to offers and tenders made by SYTO, order confirmations, calculations, patterns, projects, (technical and other) drawings, plans, data and data series, accrue to SYTO or to the author(s) thereof.
9.2 The documents or data (data series) as referred to in subclause 1 of this article may not be made available in any form whatsoever, or left behind for availability, to or for third parties, or published or reproduced in any manner whatsoever, without prior permission in writing from SYTO or from the author.
9.3 Following the execution of the order or the earlier termination of the contract, all documents and data (data series) referred to in subclause 1 of this article must be returned to SYTO complete and without any damage.
9.4 In the event of breach of the provisions of this article, the other party must pay for each breach a contractual financial penalty to the amount of 5,000 Euro. SYTO can also claim compensation over and above the amount of the recorded financial penalty.
9.5 The other party indemnifies SYTO against all consequences of any breach of any third party rights, if SYTO, upon the request from the other party, has used a specific image, drawing, model, or specific design.
9.6 If the other party makes substances, materials and suchlike available to SYTO for the performance of the agreement, the other party will expressly indemnify SYTO against possible claims by third parties on the basis of breach of copyrights under patents, trademarks or designs.
Article 10: complaints
10.1 The other party must inspect (have inspected) the delivered goods at the delivery or as soon as possible afterwards. The other party must hereby in particular check whether the delivery corresponds with the agreement.
10.2 Complaints must be made known in writing with acknowledgement of receipt to SYTO within eight days after receipt of the goods.
10.3 Visible shortfalls/defects and/or damage must be made apparent by the other party in any consignment note or the delivery document.
10.4 If at the receipt of the goods no comment is made in the consignment note and/or receipt with regard to any damaged goods and/or packaging, this will apply as conclusive evidence that the other party has received the delivered goods in any event no later than at delivery in a proper and undamaged condition.
10.5 The sole fact that SYTO accepts a complaint for investigation, will not automatically imply that SYTO acknowledges liability with regard to this.
10.6 Any complaint must at least contain a comprehensive and precise description of the defect, as well as a statement of further details from which it can be deduced that the delivery and the goods rejected by the other party are identical.
10.7 The goods that the complaints relate to must remain available for SYTO for viewing and/or inspection in the condition that they were in at the time when the defects were noticed, unless SYTO expressly informs the other party otherwise in writing. If keeping the goods available is impossible, the other party must by means of visual material (photo/film) record the situation at the delivery.
10.8 If the complaint concerns a part of the delivered goods, this cannot be a cause for rejection of the entire consignment, unless the delivered consignment can in such an event not be reasonably regarded as useable.
10.9 If a complaint with regard to delivered goods is justified, SYTO will not be obliged to more than - if possible - replacement of the rejected goods at its expense, or as the case may be (at the discretion of SYTO) crediting the other party for an amount equal to the price of the rejected goods owed by the other party.
10.10 The other party will return the rejected goods to SYTO after prior permission in writing from SYTO and subject to the conditions to be determined by SYTO.
10.11 Every claim of the other party will lapse after the other party has taken the goods into use, has processed or adapted, has printed or cut the goods, or has let the goods be taken into use, or has let the goods be processed or adapted, has let the goods be printed or cut, or as the case may be has supplied the goods on to third parties, unless the other party demonstrates that the other party has not been able to make the complaint known to SYTO at an earlier stage.
10.12 The complaint period for the invoices sent by SYTO amounts to eight days. If no objection is made against the invoice within this period, it will be deemed to correctly represent the underlying transaction with SYTO.
10.13 Following the expiry of the periods referred to in this article, the other party will be deemed to have approved the delivery or the invoice and in that case complaints will no longer be accepted by SYTO for dealing with.
10.14 SYTO will be released from any liability and will not be obliged to accept and/or investigate complaints regarding defects, if the other party has not fulfilled its payment obligations in a strict manner, or as the case may be other obligations towards SYTO, and also not in the event that the other party and/or third parties, whether or not on the instructions of the other party, without prior permission in writing from SYTO, have made or have executed any change or repair of the goods delivered by SYTO.
10.15 Complaints will not give the other party the right to proceed with suspension of its payment obligations or other obligations existing towards SYTO.
Article 11: liability
11.1 If SYTO is liable, this liability will be arranged as follows:
• SYTO will only be liable if damage is caused by intention or gross negligence on the part of SYTO or its managerial employees.
• The liability on the part of SYTO is furthermore limited to the amount of the transaction concerned.
• However, if in accordance with the requirements of reasonableness and fairness the liability on the part of SYTO for payment of the amount of the transaction might be too insignificant in proportion to the damage suffered by the other party, the liability on the part of SYTO will be limited to a maximum of 125% of the amount of the transaction in question.
• Consequential loss is expressly excluded insofar as this amounts to a sum that is higher than the amount for which SYTO is liable on the basis of the above.
11.2 Any further liability is excluded.
11.3 With the exception of the event of an intentional act or gross negligence on the part of SYTO, SYTO will not be liable for costs, damage and interest, which are the direct or indirect result of:
• Infringement of patents, licences, copyright or other rights of third parties resulting from the use of data provided by or on behalf of the other party to SYTO;
• Negligence on the part of employees of SYTO or of persons who are used by SYTO during the performance of the agreement.
11.4 SYTO will not be liable for:
• Any (incorrect) assembly by third parties and/or incorrect application and/or incorrect processing of the goods delivered by SYTO;
• The failure by the other party to acquire the required permits;
• Suffering injuries during the assembly or use, unless the injuries are the result of defective goods delivered by SYTO;
• The absence and/or unsuitability of the required facilities.
11.5 SYTO will properly save the data, documents, drawings and projects that are provided by the other party. SYTO will be exclusively liable during the implementation of the agreement for saving the aforesaid data. The other party must request the aforesaid data within 14 days after the implementation of the agreement. SYTO will not be liable for damage to or loss of the aforesaid data (unless the damage is the result of malice) if the other party does not submit a request for this purpose within 14 days after the completion of the agreement. SYTO can nevertheless claim compensation of the damage resulting therefrom. SYTO will not be liable for the loss or destruction of the aforesaid data as a result of fire, theft, burglary, etc.
Article 12: force majeure
12.1 Force majeure includes in these general terms and conditions, in addition to that which is included in the Law and Case Law, all external causes, foreseen or unforeseen, beyond the control of SYTO, but as a result of which SYTO is not able to fulfil its obligations.
12.2 The circumstances referred to in subclause 1 also include: pending declaration of war, riots, civil unrest, fire, floods, strike actions, sit-in protest actions, exclusions, import or export barriers, government measures, damage to machines, interruption of the power supply, breakdowns in the functioning of the product facility and the blocking of deliveries by suppliers.
12.3 In the event of force majeure the implementation of the agreement will be suspended for as long as the force majeure situation makes the performance of the agreement by SYTO impossible.
12.4 If the force majeure situation on the part of SYTO lasts longer than one month, the other party will have the right to terminate the agreement, however this will be without the other party being able to claim any compensation of the damage suffered.
Article 13: termination
13 If the other party does not, or does not in a timely manner, fulfil one of its obligations under an agreement concluded with SYTO, as well as in the event of late payment of amounts that are eligible for collection, the absence of payment, application for moratorium, application for bankruptcy, application for a debt management scheme, or placement under guardianship of the other party, or in the event of the liquidation of the enterprise of the other party, SYTO will be entitled to terminate the agreement, wholly or in part, as well as other agreements not yet executed between SYTO and the other party, without notice of default and/or judicial intervention and to claim compensation.
Article 14: confidentiality and non-competition
14.1 Without prior permission in writing, parties are not permitted, during and after the end of the duration of the agreement, to provide third parties with information concerning the enterprise of another party. This information consists of the following matters: all data concerning formulas, designs, drawings, diagrams, processes, projects, machines, etc. and also data (data series) concerning the company, clients and type and contents of agreements. This obligation will not be binding if this data was officially known or available in another manner prior to the commencement of the work. In the event of breach of the provisions of this article by one party, this party must pay a contractual financial penalty to the amount of 5,000 Euro to the other party for each breach. Parties can also claim compensation over and above the amount of the recorded financial penalty.
14.2 During the implementation of the agreement and within 6 months after the implementation thereof, the other party may not conclude, directly or indirectly, an employment contract, a contract under civil law, or enter into a commercial relationship, with the employees of SYTO, who participate in the implementation of the order. This prohibition also applies to persons who are only hired by SYTO for the duration of the contract. In the event of breach of one or more provisions of this article, the contractual financial penalties will be set at an amount of 5,000 Euro for each breach and 500 Euro for each day during which the execution of work, or the duration of an employment contract, a contract under civil law, or a commercial relationship with former employees of SYTO, continues. SYTO can also claim compensation over and above the amount of the recorded financial penalty.
Article 15: partial voidness
15.1 If one of the clauses, or a part thereof, of these general terms and conditions, or any part of the underlying agreement might be null and void or declared void, this will not affect the remainder of the contents of the clause, the clauses of these general terms and conditions, or as the case may be the underlying agreement, will remain in effect.
15.2 Parties will in that case make an arrangement for the null and void or voided passage, which will as closely as possible approach that which parties intended with the underlying agreement, or as the case may be with these general terms and conditions.
Article 16: applicable law
16 The law of the Netherlands applies, with the exclusion of every other legal system, to all matters concerning these general terms and conditions, the agreement, or the performance of the agreement concerned.
Article 17: disputes
17 Disputes ensuing from agreements concluded with SYTO will be adjudicated by the Civil Court of the place of business under the articles of association of the concerned SYTO.
Article 18: Translations
18 These general terms and conditions are drawn up in Dutch, English and polish. In the event of differences in interpretation the Dutch version will apply.