General Terms & Conditions
Section 1. General provisions and competence
§1. These terms and conditions form part of all between 123BigBags B.V., headquartered at Kruiskade 117, 3012 EG Rotterdam, The Netherlands, and registered at the “Kamer van Koophandel” with number 64360830, hereafter referred to as “123BigBags”, concluded agreements with the “opposite party”, said that this contractor acts in the exercise of his / her business. These terms and conditions are valid for any offer and any agreement for which 123BigBags declares them competent, as long as both parties do not agree in writing to derivate from them.
§2. The competence of other conditions, brought in from the opposite party, shall be explicitly rejected, even if the opposite party refers to them and without any written rejection by 123BigBags being necessary.
§3. After having bought by 123BigBags for the first time the opposite party is expected to have accepted these conditions for all following transactions, regardless their nature or a comparable job, not accepted in writing by 123BigBags.
§4. Even if 123BigBags does not always require strict compliance, this does not mean, that these conditions are not competent nor 123BigBags in any way loses its right to expect strict compliance in other cases.
§5. Any deviations of these general conditions are only valid if they are fixed explicit and in writing. Out of those deviations the opposite party is not allowed to derive any rights for following transactions, except the deviations are explicit said valid for several transactions.
§6. If one or more conditions of these terms and conditions disappear or fail, the validity of the rest of the terms still remains. 123BigBags and the opposite party have to consider about replacing the failed or disappeared conditions with, so far as possible, similar conditions.
§7. 123BigBags has the right to change these terms and conditions from its side alone.
§8. All representatives and agents, employees and other people, which have received an order from 123BigBags, enjoy individually the same protection and are allowed to take advantage of the same exclusions, waivers and limitations of responsibility which are valid for 123BigBags, resultant of these terms and conditions and resultant of any concluded agreement with 123BigBags.
§9. These conditions are also valid for all agreements which are concluded between 123BigBags and a third party.
Section 2. Offers, agreement and cancellation
§1. An offer or a price quotation given by 123BigBags is not binding but it is only an invitation for an order of the opposite party, except the opposite party is explicit said to have agreed.
§2. All in brochures, on the website or in documentations named prices, weights, dimensions, colours or other subjects in relation to the goods to be sold by 123BigBags and all illustrations, drawings and descriptions are non-committal and are said to be valid with reasonable margins, unless 123BigBags has confirmed the opposite in writing. Deviations do not give the opposite party any right to refuse the reception or the payment of the goods neither to demand a compensation for the deviation.
§3. Offers from 123BigBags are non-committal. They are valid for 30 days if 123BigBags has not said anything different. 123BigBags is only bound to the offers if the acceptance is confirmed by the opposite party within 30 days in writing. 123BigBags has the right to cancel the offer so long as it is not accepted by the opposite party.
§4. Price offers by 123BigBags are ex. VAT (BTW) and public duties and all sorts of costs coming out of the agreement, such as shipping- and handling costs, transportation- and storage costs, import and export rights, insurance, environmental taxes, removal costs, and costs for quality control, except otherwise is agreed.
§5. An agreement between 123BigBags and the opposite party binds 123BigBags only in the case of a written (letter or e-mail) acceptance or if 123BigBags has fulfilled the agreement by delivering the goods to the opposite party. In this case the invoice is said to be a written acceptance of the order.
§6. The opposite party is not allowed to cancel an agreement that has already been accepted by 123BigBags except with a written permission of 123BigBags. Further, the opposite party says 123BigBags not to be responsible for any loss or costs, which 123BigBags create or from which it suffers, as a result of the cancellation of the agreement.
Section 3. Prices
§1. All by 123BigBags used prices are in euro, unless otherwise is agreed in writing.
§2. All agreements base on the prices that are valid at the time of concluding the agreement. If, in any case, after concluding the agreement but before definitive delivering, prices rise, 123BigBags has the right to calculate these price differences on the opposite party. If the difference is more than 5% of the invoice, the opposite party is allowed to change the order.
§3. A price, which is agreed between 123BigBags and the opposite party and which is said to be relevant, bases on the price agreed between 123BigBags and its supplier. If this price is changing because of circumstances for which 123BigBags is not responsible for - for example by a breach of contract or a deficiency by the supplier- 123BigBags has the right to give these changes to the opposite party and to adjust the price. 123BigBags tries to hold the original price as far as possible.
§4. A created price statement does not oblige to a partial execution of the order for a part of the agreed price.
Section 4. Execution, additions and changes of the agreement
§1. 123BigBags will execute the agreement with its best knowledge and conscience, in accordance to the requirements for good workmanship and current level of science.
§2. If necessary for a good performance, 123BigBags is allowed to take third party services.
§3. The opposite party has to give all things, that are said to be necessary to perform the agreement, to 123BigBags in time. If they are not to be used in time by 123BigBags, 123BigBags has the right to suspense the performance of the agreement and / or invoice the costs, resulting from the delay, to the opposite party.
§4. 123BigBags is not liable for any damages that are a result of incomplete or inaccurate information from the opposite party, unless 123BigBags is expected of having been aware of those.
§5. If the parties agree that the agreement takes place in phases, 123BigBags may withheld the execution of parts of the following phase so long as the opposite party has positively and in writing accepted the results of the earlier phase.
§6. The opposite party frees 123BigBags from possible claims of third parties which get damage in relation with the execution of the agreement and for whose the opposite party is responsible.
§7. 123BigBags holds on its right to take little changes on the agreement (so as mentioned in the offer) without becoming liable for damages and without giving any rights to the opposite party to cancel the agreement or to free from it.
§8. A change or an addition to the agreement is only valid if it is accepted expressly and in writing by 123BigBags. Changes have to be brought to the attention of 123BigBags in writing and in time.
Section 5. Date of delivery
§1. The dates of delivery named by 123BigBags are indicative and are based on the circumstances which are valid at the time of concluding the agreement in a size in which 123BigBags is dependent on third parties, because of the information they have given to 123BigBags. 123BigBags adheres as far as possible to the delivery date. A specified date of delivery never is a deadline.
§2. The delivery time begins when 123BigBags has accepted the order in writing or by e-mail. If the execution of the agreement depends on information or documents from the opposite party, then the delivery time begins when 123BigBags has got all information and documents, but never before the date of written acceptance (or by e-mail).
§3. If then the order is changed by the opposite party, 123BigBags is no longer bound by the original agreement and the date of delivery.
§4. Non-performance of the date of delivery does not entitle compensation for the opposite party. In this case the opposite party has no right to cancel or to stop the agreement, unless the delivery date is so far exceeded, that the opposite party can not be expected to stay on the relevant part of the agreement. In this case the opposite party is allowed to cancel or stop the agreement, but only so far as absolutely necessary, presupposed that 123BigBags has been informed in writing.
Section 6. Delivery and risk
§1. All deliveries of 123BigBags are done from the factory / warehouse to the transporter or the address of the opposite party. This means, the risk goes over at the moment when the opposite party is informed that the goods are available in the factory / magazine. If delivery is done to the address of the opposite party, this address may so long be used by 123BigBags till the opposite party tells a new address.
§2. The goods are transported in a way determined by 123BigBags. If delivery is not done by 123BigBags, it gets to the expense and risk of the other party. The opposite party must have an insurance. Delivery is at the vehicle and is done by both, the driver and the opposite party. The goods are said to be accepted when the opposite party has got them.
§3. The opposite party is obliged to accept the goods. If the opposite party declines the acceptance, 123BigBags is allowed to store the goods on bill and risk of the opposite party. If the opposite party does not take the goods despite of them being available or a payment already has taken place, 123BigBags has, after having told the opposite party, the right to sell the goods in the name of the opposite party to a third party. The opposite party still has to pay the invoice, plus interest and possible damage compensation, but in a certain case reduced by the net proceed obtained by selling to a third party.
§4. If call of order has been agreed, the opposite party is obliged to have taken all goods within 3 months after having concluded the agreement, unless another call period has, in writing, been agreed. If the opposite party dos not call the delivery in whole and in time, 123BigBags has the right to deliver the rest of the goods immediately and to demand payment or – having reminded to pay within 8 days – to stop the agreement and to demand damage compensation.
§5. 123BigBags has the right to deliver in parts except complete delivery is agreed. In case of delivery in parts any delivery is said to be a separate delivery, unless otherwise is agreed or arises from the nature of the order.
§6. Transport costs shall be borne by the opposite party if not free delivery is agreed. At the time the goods (or parts of them) are charged, the risk for all direct and indirect damage done to the opposite party or a third party, by or on the goods, is at opposite party.
Section 7. Storage
§1. If goods are available at the store of 123BigBags, they will be stored after the agreed collection period, on bill and risk of the opposite party.
§2. If it is agreed to have stored the goods by 123BigBags, storage is at the risk of the opposite party. In this case sending the invoice shall be deemed delivery and notice of storage.
§3. If goods, bought by the opposite party, can not be delivered at the agreed point of time, 123BigBags stores these goods at the risk of the opposite party. Any related costs shall be borne by the opposite party.
§4. The opposite party has the possibility to use the call off service. In this case a special agreement on call off service may be concluded.
Section 8. Quality and quantity
§1. 123BigBags does not vouch for having given any guarantees or recommendations, concerning the quality of the goods, for a certain purpose. The opposite party has to ensure whether they are suitable for the determined purpose. Therefore, no promises or guarantees are given by 123BigBags.
§2. 123BigBags has the right to adjust quantities conform a former minimum of quantity and / or packing unit.
§3. The amounts listed in the agreement are given as accurate as possible, wherein 123BigBags has the right to deviate from the listed and agreed quantity.
§4. The delivered quantities are documented on the delivery paper.
§5. If the opposite party does not submit an eventual complaint about the delivery paper within 24 hours after having got it, the documented quantity is said to be correct and accepted.
§6. 123BigBags expressly reserves its right to change non-substantial details, relevant to the supply business, without prior notice.
§7. Unless expressly stated, all listed dimensions are approximate. If the dimensions are given by the opposite party, 123BigBags has no responsibility.
§8. The change of dimensions by the opposite party, after the agreement is concluded, entails that the related costs are to be paid by the opposite party.
Section 9. Tolerances
§1. With respect to the agreed specifications, deviations, upward and downward, are permissible. For assessment, the average of the total of a variety, quality, colour and delivered quantity, is the scale. For other specifications as mentioned here, deviations, which have been allowed in an earlier delivery, are permissible. If it is agreed to a minimum or maximum value, double deviation upwards respective downwards, is permissible.
§2. In relation to the amount 123BigBags has executed properly if deviations in the amount are not bigger than:
- 5% above or below the agreed height, width or length of the big bags
- 5% above or below the agreed density of the fabric (gr/m2/Mu)
Section 10. Retention of title
§1. Regardless of whether the sold goods already are delivered, ownership passes over to the opposite party when it has paid completely for all amounts in relation to the delivered or still to be delivered goods out of an agreement. This includes purchase price, interest, taxes and other costs, which are to pay owing to these terms and conditions or the agreement. As well applies the retention of title for all ongoing commitments out of the agreement, which are asserted by 123BigBags to the opposite party.
§2. Before the ownership has not passed over to the opposite party, the opposite party is not allowed to sell the goods or to give them to a third party for use, neither to pledge them or to give them to the favour of a third party in any other way. By disregarding this ban the purchase price has to be paid immediately and completely, not regarding the payment terms.
§3. The opposite party is obliged to handle the goods with care and as the property of 123BigBags. The opposite party has to do what is expected to ensure the ownership rights of 123BigBags.
§4. The opposite party is obliged to insure (and to keep insured) all goods, which are delivered with retention of title, against fire, (water-) damage and theft and has to show the insurance policy on demand.
§5. If the opposite party delays with a sum of money and / or does not, or not completely, fulfil its obligations, 123BigBags has the right to get back all delivered goods. The opposite party allows 123BigBags to bring all goods, worth the same amount called open, back in its possession, and has to pay for the costs. The opposite party is obliged to help. If the opposite party (even if called) refuses, 123BigBags therefore obtains a fine of €500,00 / day, so long as this transgression lasts and not regarding the right of 123BigBags to demand complete compensation.
§6. So long as 123BigBags is the owner of the delivered goods, the opposite party has to inform 123BigBags immediately, and in writing, when fitting is put on the goods (or parts of them) or when a claim is made. The opposite party has to inform 123BigBags about the location of the goods that are owned by 123BigBags.
§7. In case of a seizure, a (provisional) deferment of payment or a bankruptcy the opposite party has to show the (ownership-) rights immediately to possible bailiffs, agents or curators.
§8. The provisions set out in this section do not concern the other rights of 123BigBags.
Section 11. Force Majeure
§1. If 123BigBags can not fulfil its obligations because of circumstances out of its power, these obligations are to be pushed up so long as these circumstances last, without any obligation of compensation to the opposite party.
§2. If the situation of “Force Majeure” lasts longer than a month, 123BigBags has the right to adjust the time of delivery and the price to the circumstances, or to stop the agreement (or parts of it) without becoming obliged to compensate any damage. This is also valid if 123BigBags gets an advantage out of this situation called “Force Majeure”.
§3. Circumstances outside the power of 123BigBags are all sorts of circumstances, over which 123BigBags does not have any control and whereby the fulfilling of the obligations is prevented, completely or partly, as well as fulfilling of obligations can not be expected, and it does not matter if such a circumstance has been predictable at the time concluding the agreement. These circumstances include: war, risk of war, civil war, riots, import and export bans, theft, power failure, internet failure, transport bans, or other blocking reprimands by an authority instance, strikes, exclusions of workers, delaying tactics, physical or economic transport problems, fire and other destruction, stagnation, or other production problems of 123BigBags and its suppliers in relation to its own transport or a transport done by a third party or a reprimand executed by an authority instance and the lack of a license or a permit, to be received by an authority.
§4. If 123BigBags, in case of “Force Majeure”, has already fulfilled its obligations or only is able to fulfil them partly, 123BigBags is allowed to invoice the already delivered and the deliverable part separately; the opposite party is meant to consider this invoice as a separate agreement.
Section 12. Complaints and reclamations
§1. The opposite party has to check the goods at the time of delivery, and in any case as soon as possible. This includes quality and quantity check in relation to the agreement or to the requirements valid in normal business.
§2. If the opposite party has a claim on quality, quantity or state of the goods, or the fact that they do not fulfill the specifications, it has to inform 123BigBags within 8 days. If there is nothing found by a first inspection, within 10 days after getting knowledge of the deficiency, if this is later, then within 8 days after getting knowledge of the deficiency – but in every case within a month after the delivery date.
§3. If, out of §2 of this section, reclamation is done in time, the opposite party still is obliged to accept the goods and to pay them. If the opposite party wants to return the deficient goods this only happens with the previous and written permission of 123BigBags, and in the way that is indicated by 123BigBags.
§4. The opposite party is obliged to give 123BigBags the possibility to control the complaints. The fact that 123BigBags controls a complaint does not implicate any liability.
§5. A complaint has to contain an accurate and extended description of the deficiency, as well as further indices, so that it can be proved that the delivered goods and the defective goods are identical.
§6. The complained goods and the packaging have to be present to be able to be controlled by 123BigBags, in the state they were at the time the complaint was stated. Besides, they are not allowed to be sold to a third party unless 123BigBags has expressly given its permission. If it is not possible to provide the goods, the situation by delivery has to be fixed by making photos or films.
§7. If the deficiencies only concern a part of the delivered goods, it is not allowed to denigrate the whole delivery, unless the delivery is, in such a case, in a state of being useless.
§8. If a reclamation and / or a complaint is correct, 123BigBags shall (by its own choice) replace the deficient goods on its own costs or credit a sum like the sum the deficient goods are worth.
§9. In case of complete replacement or complete credit of the goods the already used / consumed part of the goods has to be considered.
§10. Every claim of the opposite party ends when the goods are in use, or if they are edited, processed, cropped or delivered to a third party, also if it is done by a third party, unless the opposite party is able to prove that it was not possible to report the reclamation to 123BigBags in an earlier state.
§11. The deadline for complaints concerning invoices of 123BigBags is 8 days. If not having protested against the invoice within this time, the invoice is said to be a correct reproduction of the basing transaction.
§12. As the time of delivery, mentioned in this section, is elapsed, the delivery and the invoice are said to be positively accepted. Besides, the right to complain forfeits and 123BigBags shall not work on reclamations any longer. Moreover, each exposure, concerning hidden deficiencies, shall be called forfeited, if it is not (conform to §2) signed by the opposite party within 6 months after mentioning and within 1 year after delivery.
§13. 123BigBags is released from any liability and has not to be called to accept complaints about deficiencies and / or to check, if the opposite party does not fulfill its obligations towards 123BigBags, even not in the case, that the opposite party and / or a third party have done any changes on the goods without prior agreement.
§14. Complaints and / or reclamations do not give any rights to the opposite party to suspend its payment obligations and / or to ignore other obligations.
Section 13. Payment
§1. If not explicitly agreed otherwise, payment has to be done within 14 days after the date of the invoice, without any deductions or allocations.
§2. If payment is not done within the agreed period, the opposite party (without being informed or warned by 123BigBags) is obliged to pay interest of 2,5% / month and / or, if it is more, legal interest. All judicial and extrajudicial costs, which occur to 123BigBags, shall be borne by the opposite party. All extrajudicial costs amount to be 15% of the whole sum of the invoice, with a minimum of €250.00.
§3. In case of overdue payment 123BigBags is allowed to suspense delivery of other goods and / or to free from other agreements with the opposite party, as well as to suspend those, without being obliged to compensation. In this case the opposite party is obliged to pay for possible costs and to pay compensation for consecutive loss or damage, including loss of earnings.
§4. 123BigBags holds on its right to require bail for further obligations of the opposite party, even after partial delivery. If the opposite party refuses, 123BigBags is allowed to omit or to suspend the performance of the agreement, without the opposite party being allowed to demand compensation from 123BigBags. In this case, the opposite party is obliged to pay 123BigBags for suffered loss or damage.
§5. In case of a bankruptcy, liquidation, fitting or suspension of payment by the opposite party the demands of 123BigBags are immediately claimable.
Section 14. Liability, compensation and limitation
§1. Total liability of 123BigBags because of an accountable capable shortcoming, with compliance of the agreement or any way, herein expressly included any shortcoming in relation to warranty obligations, is limited to the maximum sum that has to be paid by the relevant insurance. If the insurance, in an individual case, does not give a cover or is going to pay, the responsibility of 123BigBags is limited to the net invoice amount. Total liability of 123BigBags never is worth more than €10,000.00.
§2. Liability by 123BigBags for direct damage, following damage, loss of earnings, lack of savings, reduced goodwill, damage out of operation stagnation, damage as a result of talks by buyers of the opposite party, or damage of mutilation or destruction of circumstances or documents, is excluded.
§3. The restrictions of liability, mentioned in §2 and §3, expire in case of intention or conscious recklessness by 123BigBags.
§4. If continued fulfilment is not possible, liability of 123BigBags because of an accountable capable shortcoming only occurs, if the opposite party immediately and in writing has given notice to 123BigBags and a reasonable period of purification is given and the fulfilling of the obligations fails after this date. The notice has to contain an as complete and detailed as possible description of the shortcoming, so that 123BigBags can react adequate.
§5. Precondition for the emergence of any right of compensation always is, that the opposite party gives notice of the damage as soon as possible after its creation.
§6. A printing error or another error or an omission in sales literature, a price statement, price list on the website, bill or another document can, without any liability, be corrected by 123BigBags. 123BigBags can not be bound to obvious and spelling errors.
§7. A description, a specification or a statement in relation to one or more goods in a catalogue, folder, an ad or other literature always is to be understood as approximate and 123BigBags in no way is liable for possible inaccuracies in that literature.
§8. If codes are used, 123BigBags is not liable for them to be readable or useful.
§9. Acting rights or other powers over 123BigBags by the opposite party expire after 6 months from the moment that the fact exists that the opposite party can apply them to 123BigBags.
Section 15. Suspension and release
§1. 123BigBags is empowered to suspend the fulfilling of the obligations or to dissolve from the agreement if the opposite party does not fulfill its obligations OR after the conclusion of the agreement 123BigBags gets knowledge of circumstances that give 123BigBags a serious reason to guess that the opposite party is not able to fulfill its obligations. In this case 123BigBags is allowed to demand additional bail. At the time of concluding the agreement the opposite party is asked by 123BigBags to give bail for fulfilling its obligations of the agreement and it fails to do as demanded.
§2. Further, 123BigBags is allowed to relieve / to get a release from the agreement if there occur such circumstances that fulfilling the agreement is impossible, or that, with a scale of reasonableness and fairness this no longer can be expected, even if there occur circumstances, that let reasonably expect the persistence of the agreement.
§3. By a release of the agreement the demands of 123BigBags are due immediately. If 123BigBags suspends the fulfilling of the agreement, 123BigBags retains its rights under the law and the agreement.
§4. 123BigBags always reserves the right to demand compensation of damage.
Section 16. Intellectual property and copyright
§1. 123BigBags reserves, according to these terms and conditions, the unlimited rights which are entitled on the basis of copyright.
§2. All documents of 123BigBags, such as texts, sketches, drawings, designs, films, software, (electronic) resources, etc., are copyright protected and only for use of the opposite party. They are, without prior agreement, not allowed to be reproduced or republished or get to the knowledge of a third party except otherwise obtain from the nature of the documents.
§3. Copyright of texts, designs, drawings, lithographs, photos, software programs, models, stamps dies, clichés, produced by 123BigBags or by its order, is to remain permanent to 123BigBags, no matter if it has been given to the opposite party or a third party for use, except otherwise is agreed. In case of using these said things without the prior and written permission of 123BigBags, the opposite party is imposed a fine of € 25.000,00 per transgression, notwithstanding the right of 123BigBags to claim compensation.
§4. The opposite party makes 123BigBags harmless for all consequences out of a possible violation of rights belonging to a third party, if 123BigBags has used a certain text, image, drawing, model or a certain form, or other protected intellectual property, on request of the opposite party. The opposite party has to pay for all in this connection incurring costs and frees 123BigBags from any liability.
§5. If the opposite party has given raw material, auxiliary material, ingredients or printing to 123BigBags for processing in the goods they bought, it expressly frees 123BigBags from any responsibility having violated copyrights and rights under patents, trademarks or models.
§6. The opposite party is not allowed to make changes on legal cases except otherwise obtain from the delivery or otherwise is agreed in writing.
Section 17. Applicable law and jurisdiction
§1. For these conditions and all agreements for which these conditions are applicable, or other agreements which are a result of those, only Dutch law is applicable.
§2. All disputes that may be arise out of these conditions or an agreement, for which these conditions are applicable in whole or in part, or in connection with other agreements which are a result of those, are principle be settled in the district of Rotterdam, except 123BigBags (for reasons of its own) requests the opposite party that the court ́s jurisdiction has to be at the headquarters of the opposite party.
Section 18. Amendment, interpretation and location of the conditions
§1. These conditions are filed at the office of “Kamer van Koophandel”, Rotterdam and will be sent free of charge on request. Besides, they are published on the website of 123BigBags.
§2. These conditions were originally created in Dutch. If translated to another language, the Dutch version is said to be authentic and serves common terms in the context of language by the Dutch judicial system.
§3. Always the version latest deposed is applicable, as the version that was valid at the time of concluding the agreement.