General Terms and Conditions 12Pack April 26, 2019
Article 1. Definitions
Offer: An invitation to make an offer within the meaning of the Civil Code made by 12Pack by means of, but not limited to, quotations (in principle valid for one month), price quotes and proposals.
Purchaser: The person who enters into an agreement with 12Pack to deliver a Service.
General terms and conditions: This set of general terms and conditions.
12Pack: The user of these General terms and conditions.
Service: Work of a non-material nature to be performed by 12Pack on the basis of the Agreement.
Defect: Failure of the Service to comply with the Agreement.
Delivery time/Performance period: The period agreed between 12Pack and Purchaser within which the Service must be delivered, or the Agreement must be implemented, by Purchaser and 12Pack.
Order: The offer within the meaning of the Civil Code made by Purchaser. Agreement: The agreement concluded between the Customer and 12Pack with regard to the sale, purchase and delivery of a Product and/or the purchase of a Service to which these General Terms and Conditions apply.
Parties: 12Pack and the Customer jointly.
Price: The amount to be paid by the Customer to 12Pack for the Service.
Service: The Service or Product to be delivered by 12Pack to the Customer under the Agreement.
Product: The movable property to be delivered by 12Pack to the Customer under the Agreement.
Article 2. Applicability and interpretation
2.1 In the event of a conflict, the Agreement shall prevail over these General Terms and Conditions. The headings of the articles of these General Terms and Conditions shall have no independent meaning and shall not affect the interpretation of the provisions of these General Terms and Conditions. 2.2 These General Terms and Conditions (and their appendices) apply to all (invitations to make an) Offer, acceptance, order, confirmation and agreement between 12Pack and the Purchaser as well as to all (legal) relationships between the parties that arise from this or are otherwise related to this.
2.3 Any reference by the Purchaser to its own purchasing or other conditions is expressly rejected by 12Pack.
2.4 Deviations from and/or additions to these General Terms and Conditions only apply if and to the extent that 12Pack has expressly accepted them in writing (evidence agreement) and only apply to the relevant Agreement.
3. Establishment of Agreement
3.1 The Agreement is established when 12Pack has accepted or confirmed the Order (in writing) by means of an order confirmation and/or actually executes the Order.
3.2 If the Purchaser provides 12Pack with data, drawings, information etc., 12Pack may assume that they are correct and will base its Offer on this. 3.3 12Pack cannot be held to its Offer if the Purchaser could or should reasonably have understood that this, or a part thereof, contains an obvious error or mistake.
3.4 Upon acceptance of the Offer, 12Pack is not obliged to deliver a part of the Agreement for the proportional part of the Price stated for the whole for this part.
4. Prices
4.1 All prices used by 12Pack are inclusive of VAT and exclusive of any costs to be incurred in the context of the (execution of the) Agreement, including shipping and administration costs, as applicable at the time of the execution of the Agreement, unless otherwise stated in writing.
4.2 All prices are in euros, unless otherwise agreed in writing. 5. Payment terms and default
5.1 Payment of invoices takes place on the basis of advance payment, whereby in principle 50% is charged upon order confirmation (payment term 5 working days), 40% after the technical readiness notification of the Product by 12Pack and after acceptance of that notification by the Purchaser, but in any case after 2 weeks after the technical readiness notification (payment term 5 working days) and 10% after delivery (payment term 30 days). The stated terms are fatal terms. Payment of an amount has taken place at the moment that it has been credited to a designated bank account of 12Pack.
5.2 If the Purchaser does not pay (on time), the Purchaser is immediately in default by operation of law without further notice of default. The Purchaser is then liable for the statutory commercial interest (whereby a part of a month is considered a whole month), to be paid monthly. 5.3 Only when payment has been made will 12Pack proceed to the execution of that part of the Agreement to which the payment relates. 12Pack is also entitled to demand immediate (full) payment or security under suspension of its delivery obligation, for the fulfillment of all payment obligations of the Purchaser towards 12Pack. ThisThe Purchaser must bear any damage that is attributable to intent or deliberate recklessness on the part of 12Pack (in compliance with the provisions of Article 12 of these General Terms and Conditions), proof of which must be provided by the Purchaser.
7.2. If the Product is transported by or through the mediation of 12Pack, the Purchaser must ensure and guarantee proper, complete and sufficient receiving equipment as well as sufficiently qualified personnel and the Purchaser must guarantee that the (storage) location(s) in or where the Product must be unloaded is/are accessible unobstructed and without risks.
7.3. The Purchaser is obliged to accept the agreed Product. If the Purchaser refuses to accept the delivery or is negligent in providing information or instructions necessary for the (delivery), the Product will be stored at the Purchaser's risk. In that case, the Purchaser must pay the storage costs, without prejudice to the right of 12Pack to subsequently claim compliance and/or full compensation and/or to terminate the agreement.
8. Retention of title and intellectual property rights
8.1 The Product delivered and yet to be delivered by 12Pack remains the property of 12Pack until payment has been made of all that the Purchaser owes or will owe under the Agreement or any other agreement or legal relationship, including all claims due to failure to comply with such agreements or legal relationships.
8.2 If the Purchaser fails to meet its obligations towards 12Pack or if there is reasonable fear that this will be the case, 12Pack is entitled to remove the Product to which the retention of title referred to in paragraph 1 of this article applies, from the Purchaser or from third parties who hold the Product for the Purchaser. To this end, the Purchaser must provide access and cooperate with 12Pack. 8.3 The provisions of paragraph 2 of this article do not affect 12Pack's right to full compensation.
8.4 The Purchaser is obliged to mark the Product delivered under retention of title as the property of 12Pack.
8.5 Without prejudice to its other rights, 12Pack is irrevocably authorised by the Purchaser, if the Purchaser fails to fulfil its obligations towards 12Pack or fails to fulfil them on time, to take possession of the Product delivered by 12Pack without any notice of default or judicial intervention and to enter the place where the Product is located for that purpose.
8.6 The images, drawings and the like provided by 12Pack remain its property and may not be copied or reproduced or made available to third parties without its express permission.
8.7 12Pack reserves all intellectual and industrial property rights, whether or not related to the Performance. 8.8 All (claims to) intellectual property rights with regard to any result arising from the Agreement, shall rest with 12Pack, unless expressly agreed otherwise in writing. Purchaser shall transfer these (claims to) IP rights – to the extent necessary – free of charge to 12Pack. To the extent that such a transfer is not effected by these General Terms and Conditions, Purchaser shall cooperate free of charge in effecting this transfer upon first request.
Article 9. Indemnification
9.1 Purchaser shall indemnify 12Pack against all claims for compensation from third parties to the extent that such damage is the result of Purchaser's failure to comply, improperly or incompletely complying with these General Terms and Conditions or specific regulations of 12Pack, or Purchaser's failure to adequately inform third-party users when using the product, or Purchaser's incorrect provision of information or data that does not originate from 12Pack. In such cases, Purchaser shall also be obliged to compensate all damage suffered by 12Pack.
Article 10. Warranty
10.1 12Pack guarantees the soundness and the agreed quality of the Performance, which is performed to the best of 12Pack's knowledge and ability and in accordance with the requirements of good workmanship, applicable at the time of delivery, for one (1) year after the time of delivery (on parts of the Product with the exception of consumables), with the exception of deviating warranty conditions that apply to a relevant Product and that have been communicated as such to the Purchaser, whereby the warranty is linked to the Performance and is not transferable. With regard to the Service, there is an obligation of effort on the part of 12Pack and expressly not an obligation of result. If the Purchaser believes that this has not been met, he must act in accordance with article 11 of these General Terms and Conditions. If 12Pack in that case determines that the complaint is justified, 12Pack will act in accordance with the provisions of paragraph 2 of this article, but only if the Purchaser substantiates the Defect with sufficient evidence. 10.2 At the sole discretion of 12Pack, 12Pack will proceed with repair (whereby it will be determined on the basis of the findings of the 12Pack mechanic who will bear the costs for this), full or partial replacement or only subsequent delivery of the Product. If 12Pack proceeds with full or partial replacement of the Product, it can offset the benefit of any temporary use by the Purchaser. Explicitly not included under this warranty are costs that should not reasonably be borne by 12Pack, such as transport, travel and wage costs.
10.3. The aforementioned warranty obligation lapses if:
a. The Purchaser itself makes changes to or repairs the Product without prior written approval from 12Pack;
b. Has processed the Product. 10.4 12Pack does not provide a guarantee for a Defect that is wholly or partly the result of a (partially) prescribed method of processing, storage, production, construction or manufacturing by the Purchaser or that is wholly or partly caused by a supplier, consultant, subcontractor or assistant prescribed by the Purchaser.
10.5 The guarantee also does not cover defects that can be traced back wholly or partly to:
a. improper treatment by the Purchaser;
b. normal wear and tear/loss caused by normal use;
c. use, processing or treatment of the delivered goods other than in accordance with the guidelines and specifications provided with the Product or other than in accordance with the purpose for which the Product was delivered;
d. compliance with any government regulation.
10.6 During the period in which the Purchaser is in default with regard to any obligation towards 12Pack, 12Pack is not obliged to provide any form of guarantee.
1. Complaints
11.1 Any complaints relating to visible or easily verifiable imperfections or shortcomings must be specified by the Purchaser upon delivery of the Product on the consignment note, packing slip or driver's list to be signed upon receipt. An appeal to such imperfections or shortcomings cannot be invoked against 12Pack at a later time.
11.2 The Purchaser must report all other complaints (including those regarding invoices) to 12Pack within 48 hours after discovering any imperfections or shortcomings or after reasonably being able to discover them after delivery of the Product.
11.3 Complaints will be handled in accordance with the provisions of article 10 of these General Terms and Conditions.
12. Liability
12.1 The Purchaser will not hold 12Pack liable in any way for any shortcomings in the Performance. 12Pack only accepts obligations to pay damages to the extent that this article provides for this. With regard to the performance of the Service, 12Pack is
free to engage a third party. Liability in this regard is also governed by the provisions of this article. 12.2 The total liability of 12Pack due to attributable failure to fulfil the obligation to deliver any Performance and/or liability based on any other legal grounds is limited to compensation for direct damage up to the amount paid out by the insurer of 12Pack in the relevant case (with a maximum of € 2,500,000.--) and in all cases limited to a maximum amount of 50% of the agreed Price for that Performance (reduced by sales tax).
12.3 The total liability of 12Pack for damage due to death or bodily injury or for material damage to property will not exceed the amount paid out by any insurance of 12Pack, but in no case more than
€ 1,000,000.-- (in words: one million euros) per event. 12.4 Excluded from liability of 12Pack is indirect damage, including consequential damage, lost turnover and/or profit, missed savings, damage due to business stagnation and any other damage than that referred to in paragraphs 2 and 3 of this article.
12.5 12Pack is not liable for damage suffered by the Purchaser or any third party, of whatever nature and due to whatever cause, which is the result of incorrect and/or unskilled use by the Purchaser or any third party of the Product delivered by 12Pack.
12.6 A series of related damage-causing events is considered a single event for the application of this article.
13. Force Majeure
13.1 Force majeure is understood to mean all causes that prevent the (further) fulfillment of the obligations of 12Pack under the Agreement, foreseen or unforeseen, and that cannot be attributed to 12Pack. This includes in any case, but not exclusively, illness and/or strikes of personnel of 12Pack and/or Purchaser and/or third parties involved in the performance of the Agreement, government measures or regulations, war (threat of war), terrorism (threat), riot, molestation, fire, flood, earthquake and the failure of third parties to fulfil their obligations.
13.2 In the event of force majeure, regardless of the moment at which it occurs, 12Pack is authorised to suspend and/or (immediately) terminate the performance of the Agreement.
13.3 If 12Pack terminates the Agreement due to force majeure, 12Pack is entitled to invoice insofar as the Agreement had already been performed at the time the force majeure occurred. This includes in any case all costs already incurred at that time in the context of the performance of the Agreement. The Purchaser is obliged to pay this invoice as if it concerned a separate Agreement. 14. Suspension and termination
14.1 In addition to the aforementioned force majeure situations, 12Pack is authorized to suspend the fulfillment of its obligations under the Agreement if the Purchaser has not fulfilled any due obligation towards 12Pack, or if 12Pack can reasonably expect that the Purchaser will not fulfill its obligation(s) towards 12Pack. In such cases, 12Pack will not be obliged to pay any compensation to the Purchaser.
14.2 The Purchaser is not authorized to suspend the fulfillment of its obligations under the Agreement towards 12Pack, not even in the event of complaints. 14.3 12Pack is authorized to terminate the Agreement with immediate effect by written notice to the Purchaser if:
a. a request is made for debt assistance, admission to the Statutory Debt Restructuring Scheme for Natural Persons, bankruptcy, suspension of payments or dissolution of (the company of) the Purchaser or one or more of the aforementioned circumstances actually occur;
b. a request is filed with respect to all or part of the Purchaser's assets for the appointment of a trustee, administrator or mentor;
c. a request is filed to seize the goods or property rights of the Purchaser or such seizure is actually imposed;
d. the business activities of the Purchaser are actually ceased
14.4 Suspension or termination on the basis of this article is not possible in the event that the Product has been modified at the request of the Customer or has been purchased by 12Pack at the request of the Customer. In these cases, the Customer is obliged to purchase the Product and to pay the Price to 12Pack.
14.5 In situations other than those mentioned under 3 of this article, the Agreement can only be terminated by mutual consent in the case of business customers. If the customer is a consumer, the statutory provisions regarding returns apply.
14.6 Termination does not lead to any obligations to undo. Notwithstanding the foregoing, termination results in the Customer being in default immediately and all claims of 12Pack being immediately due and payable and all property of 12Pack must be returned immediately. 15. Lapse of rights & transferability
15.1 Any claim against 12Pack that – in any way whatsoever – is related to or arises from the performance of the Agreement shall in any case lapse after one year, unless a different term applies under mandatory law, to be calculated from the date of delivery of the Performance.
15.2 12Pack is at all times entitled to transfer all its rights and obligations, or part thereof, related to or arising from (the performance of) the Agreement to a third party. Transfer by Purchaser is excluded, unless 12Pack has given express written permission. The aforementioned prohibition of assignment has a property law effect as referred to in article 3:82 paragraph 2 of the Dutch Civil Code.
16. Prototype and models
16.1 Prototypes, models and examples that have been shown and/or provided to Purchaser by or on behalf of 12Pack shall only be considered examples. This is only different if it has been expressly agreed in writing that the Product to be delivered will be the same. 12Pack explicitly does not provide any warranty on the prototypes, models and examples.
16.2 Costs of prototypes, models and/or examples (including administration, packaging and shipping costs) are for the account of the Purchaser.
16.3 12Pack is authorized to deliver a Product that deviates from the prototypes, models and/or examples as referred to in paragraph 1 of this article, if it concerns changes to the Product to be delivered, the packaging or accompanying documentation, which are required for the Product to function correctly, to comply with applicable legal requirements or if it concerns minor changes to the Product, which constitute an improvement.
17. Privacy
17.1 The personal data of the Customer provided to 12Pack by the Customer in the context of the performance of the Agreement will be processed by 12Pack in a proper and careful manner, in accordance with the General Data Protection Regulation, in a manner that is proportionate and subsidiary to the collection purpose that follows from the Agreement.
18. Applicable law and competent court
18.1 The Agreement and the legal relationships between the Parties arising from it or related to it are governed by Dutch law. 18.2 The Vienna Sales Convention (CISG) does not apply.
18.3 Unless the Parties agree otherwise in writing, all disputes between them will be settled by the Gelderland court, sitting in Arnhem.
12Pack B.V. Edisonstraat 16-06, 4004 JL Tiel, E-mail: info@12pack.eu, Website: http://www.12pack.nl and 12BB.eu Edisonstraat 16-06, 4004JL Tiel Email: info@12bb.eu, Website http://www.12BB.eu
Article 1. Definitions
Offer: An invitation to make an offer within the meaning of the Civil Code made by 12Pack by means of, but not limited to, quotations (in principle valid for one month), price quotes and proposals.
Purchaser: The person who enters into an agreement with 12Pack to deliver a Service.
General terms and conditions: This set of general terms and conditions.
12Pack: The user of these General terms and conditions.
Service: Work of a non-material nature to be performed by 12Pack on the basis of the Agreement.
Defect: Failure of the Service to comply with the Agreement.
Delivery time/Performance period: The period agreed between 12Pack and Purchaser within which the Service must be delivered, or the Agreement must be implemented, by Purchaser and 12Pack.
Order: The offer within the meaning of the Civil Code made by Purchaser. Agreement: The agreement concluded between the Customer and 12Pack with regard to the sale, purchase and delivery of a Product and/or the purchase of a Service to which these General Terms and Conditions apply.
Parties: 12Pack and the Customer jointly.
Price: The amount to be paid by the Customer to 12Pack for the Service.
Service: The Service or Product to be delivered by 12Pack to the Customer under the Agreement.
Product: The movable property to be delivered by 12Pack to the Customer under the Agreement.
Article 2. Applicability and interpretation
2.1 In the event of a conflict, the Agreement shall prevail over these General Terms and Conditions. The headings of the articles of these General Terms and Conditions shall have no independent meaning and shall not affect the interpretation of the provisions of these General Terms and Conditions. 2.2 These General Terms and Conditions (and their appendices) apply to all (invitations to make an) Offer, acceptance, order, confirmation and agreement between 12Pack and the Purchaser as well as to all (legal) relationships between the parties that arise from this or are otherwise related to this.
2.3 Any reference by the Purchaser to its own purchasing or other conditions is expressly rejected by 12Pack.
2.4 Deviations from and/or additions to these General Terms and Conditions only apply if and to the extent that 12Pack has expressly accepted them in writing (evidence agreement) and only apply to the relevant Agreement.
3. Establishment of Agreement
3.1 The Agreement is established when 12Pack has accepted or confirmed the Order (in writing) by means of an order confirmation and/or actually executes the Order.
3.2 If the Purchaser provides 12Pack with data, drawings, information etc., 12Pack may assume that they are correct and will base its Offer on this. 3.3 12Pack cannot be held to its Offer if the Purchaser could or should reasonably have understood that this, or a part thereof, contains an obvious error or mistake.
3.4 Upon acceptance of the Offer, 12Pack is not obliged to deliver a part of the Agreement for the proportional part of the Price stated for the whole for this part.
4. Prices
4.1 All prices used by 12Pack are inclusive of VAT and exclusive of any costs to be incurred in the context of the (execution of the) Agreement, including shipping and administration costs, as applicable at the time of the execution of the Agreement, unless otherwise stated in writing.
4.2 All prices are in euros, unless otherwise agreed in writing. 5. Payment terms and default
5.1 Payment of invoices takes place on the basis of advance payment, whereby in principle 50% is charged upon order confirmation (payment term 5 working days), 40% after the technical readiness notification of the Product by 12Pack and after acceptance of that notification by the Purchaser, but in any case after 2 weeks after the technical readiness notification (payment term 5 working days) and 10% after delivery (payment term 30 days). The stated terms are fatal terms. Payment of an amount has taken place at the moment that it has been credited to a designated bank account of 12Pack.
5.2 If the Purchaser does not pay (on time), the Purchaser is immediately in default by operation of law without further notice of default. The Purchaser is then liable for the statutory commercial interest (whereby a part of a month is considered a whole month), to be paid monthly. 5.3 Only when payment has been made will 12Pack proceed to the execution of that part of the Agreement to which the payment relates. 12Pack is also entitled to demand immediate (full) payment or security under suspension of its delivery obligation, for the fulfillment of all payment obligations of the Purchaser towards 12Pack. ThisThe Purchaser must bear any damage that is attributable to intent or deliberate recklessness on the part of 12Pack (in compliance with the provisions of Article 12 of these General Terms and Conditions), proof of which must be provided by the Purchaser.
7.2. If the Product is transported by or through the mediation of 12Pack, the Purchaser must ensure and guarantee proper, complete and sufficient receiving equipment as well as sufficiently qualified personnel and the Purchaser must guarantee that the (storage) location(s) in or where the Product must be unloaded is/are accessible unobstructed and without risks.
7.3. The Purchaser is obliged to accept the agreed Product. If the Purchaser refuses to accept the delivery or is negligent in providing information or instructions necessary for the (delivery), the Product will be stored at the Purchaser's risk. In that case, the Purchaser must pay the storage costs, without prejudice to the right of 12Pack to subsequently claim compliance and/or full compensation and/or to terminate the agreement.
8. Retention of title and intellectual property rights
8.1 The Product delivered and yet to be delivered by 12Pack remains the property of 12Pack until payment has been made of all that the Purchaser owes or will owe under the Agreement or any other agreement or legal relationship, including all claims due to failure to comply with such agreements or legal relationships.
8.2 If the Purchaser fails to meet its obligations towards 12Pack or if there is reasonable fear that this will be the case, 12Pack is entitled to remove the Product to which the retention of title referred to in paragraph 1 of this article applies, from the Purchaser or from third parties who hold the Product for the Purchaser. To this end, the Purchaser must provide access and cooperate with 12Pack. 8.3 The provisions of paragraph 2 of this article do not affect 12Pack's right to full compensation.
8.4 The Purchaser is obliged to mark the Product delivered under retention of title as the property of 12Pack.
8.5 Without prejudice to its other rights, 12Pack is irrevocably authorised by the Purchaser, if the Purchaser fails to fulfil its obligations towards 12Pack or fails to fulfil them on time, to take possession of the Product delivered by 12Pack without any notice of default or judicial intervention and to enter the place where the Product is located for that purpose.
8.6 The images, drawings and the like provided by 12Pack remain its property and may not be copied or reproduced or made available to third parties without its express permission.
8.7 12Pack reserves all intellectual and industrial property rights, whether or not related to the Performance. 8.8 All (claims to) intellectual property rights with regard to any result arising from the Agreement, shall rest with 12Pack, unless expressly agreed otherwise in writing. Purchaser shall transfer these (claims to) IP rights – to the extent necessary – free of charge to 12Pack. To the extent that such a transfer is not effected by these General Terms and Conditions, Purchaser shall cooperate free of charge in effecting this transfer upon first request.
Article 9. Indemnification
9.1 Purchaser shall indemnify 12Pack against all claims for compensation from third parties to the extent that such damage is the result of Purchaser's failure to comply, improperly or incompletely complying with these General Terms and Conditions or specific regulations of 12Pack, or Purchaser's failure to adequately inform third-party users when using the product, or Purchaser's incorrect provision of information or data that does not originate from 12Pack. In such cases, Purchaser shall also be obliged to compensate all damage suffered by 12Pack.
Article 10. Warranty
10.1 12Pack guarantees the soundness and the agreed quality of the Performance, which is performed to the best of 12Pack's knowledge and ability and in accordance with the requirements of good workmanship, applicable at the time of delivery, for one (1) year after the time of delivery (on parts of the Product with the exception of consumables), with the exception of deviating warranty conditions that apply to a relevant Product and that have been communicated as such to the Purchaser, whereby the warranty is linked to the Performance and is not transferable. With regard to the Service, there is an obligation of effort on the part of 12Pack and expressly not an obligation of result. If the Purchaser believes that this has not been met, he must act in accordance with article 11 of these General Terms and Conditions. If 12Pack in that case determines that the complaint is justified, 12Pack will act in accordance with the provisions of paragraph 2 of this article, but only if the Purchaser substantiates the Defect with sufficient evidence. 10.2 At the sole discretion of 12Pack, 12Pack will proceed with repair (whereby it will be determined on the basis of the findings of the 12Pack mechanic who will bear the costs for this), full or partial replacement or only subsequent delivery of the Product. If 12Pack proceeds with full or partial replacement of the Product, it can offset the benefit of any temporary use by the Purchaser. Explicitly not included under this warranty are costs that should not reasonably be borne by 12Pack, such as transport, travel and wage costs.
10.3. The aforementioned warranty obligation lapses if:
a. The Purchaser itself makes changes to or repairs the Product without prior written approval from 12Pack;
b. Has processed the Product. 10.4 12Pack does not provide a guarantee for a Defect that is wholly or partly the result of a (partially) prescribed method of processing, storage, production, construction or manufacturing by the Purchaser or that is wholly or partly caused by a supplier, consultant, subcontractor or assistant prescribed by the Purchaser.
10.5 The guarantee also does not cover defects that can be traced back wholly or partly to:
a. improper treatment by the Purchaser;
b. normal wear and tear/loss caused by normal use;
c. use, processing or treatment of the delivered goods other than in accordance with the guidelines and specifications provided with the Product or other than in accordance with the purpose for which the Product was delivered;
d. compliance with any government regulation.
10.6 During the period in which the Purchaser is in default with regard to any obligation towards 12Pack, 12Pack is not obliged to provide any form of guarantee.
1. Complaints
11.1 Any complaints relating to visible or easily verifiable imperfections or shortcomings must be specified by the Purchaser upon delivery of the Product on the consignment note, packing slip or driver's list to be signed upon receipt. An appeal to such imperfections or shortcomings cannot be invoked against 12Pack at a later time.
11.2 The Purchaser must report all other complaints (including those regarding invoices) to 12Pack within 48 hours after discovering any imperfections or shortcomings or after reasonably being able to discover them after delivery of the Product.
11.3 Complaints will be handled in accordance with the provisions of article 10 of these General Terms and Conditions.
12. Liability
12.1 The Purchaser will not hold 12Pack liable in any way for any shortcomings in the Performance. 12Pack only accepts obligations to pay damages to the extent that this article provides for this. With regard to the performance of the Service, 12Pack is
free to engage a third party. Liability in this regard is also governed by the provisions of this article. 12.2 The total liability of 12Pack due to attributable failure to fulfil the obligation to deliver any Performance and/or liability based on any other legal grounds is limited to compensation for direct damage up to the amount paid out by the insurer of 12Pack in the relevant case (with a maximum of € 2,500,000.--) and in all cases limited to a maximum amount of 50% of the agreed Price for that Performance (reduced by sales tax).
12.3 The total liability of 12Pack for damage due to death or bodily injury or for material damage to property will not exceed the amount paid out by any insurance of 12Pack, but in no case more than
€ 1,000,000.-- (in words: one million euros) per event. 12.4 Excluded from liability of 12Pack is indirect damage, including consequential damage, lost turnover and/or profit, missed savings, damage due to business stagnation and any other damage than that referred to in paragraphs 2 and 3 of this article.
12.5 12Pack is not liable for damage suffered by the Purchaser or any third party, of whatever nature and due to whatever cause, which is the result of incorrect and/or unskilled use by the Purchaser or any third party of the Product delivered by 12Pack.
12.6 A series of related damage-causing events is considered a single event for the application of this article.
13. Force Majeure
13.1 Force majeure is understood to mean all causes that prevent the (further) fulfillment of the obligations of 12Pack under the Agreement, foreseen or unforeseen, and that cannot be attributed to 12Pack. This includes in any case, but not exclusively, illness and/or strikes of personnel of 12Pack and/or Purchaser and/or third parties involved in the performance of the Agreement, government measures or regulations, war (threat of war), terrorism (threat), riot, molestation, fire, flood, earthquake and the failure of third parties to fulfil their obligations.
13.2 In the event of force majeure, regardless of the moment at which it occurs, 12Pack is authorised to suspend and/or (immediately) terminate the performance of the Agreement.
13.3 If 12Pack terminates the Agreement due to force majeure, 12Pack is entitled to invoice insofar as the Agreement had already been performed at the time the force majeure occurred. This includes in any case all costs already incurred at that time in the context of the performance of the Agreement. The Purchaser is obliged to pay this invoice as if it concerned a separate Agreement. 14. Suspension and termination
14.1 In addition to the aforementioned force majeure situations, 12Pack is authorized to suspend the fulfillment of its obligations under the Agreement if the Purchaser has not fulfilled any due obligation towards 12Pack, or if 12Pack can reasonably expect that the Purchaser will not fulfill its obligation(s) towards 12Pack. In such cases, 12Pack will not be obliged to pay any compensation to the Purchaser.
14.2 The Purchaser is not authorized to suspend the fulfillment of its obligations under the Agreement towards 12Pack, not even in the event of complaints. 14.3 12Pack is authorized to terminate the Agreement with immediate effect by written notice to the Purchaser if:
a. a request is made for debt assistance, admission to the Statutory Debt Restructuring Scheme for Natural Persons, bankruptcy, suspension of payments or dissolution of (the company of) the Purchaser or one or more of the aforementioned circumstances actually occur;
b. a request is filed with respect to all or part of the Purchaser's assets for the appointment of a trustee, administrator or mentor;
c. a request is filed to seize the goods or property rights of the Purchaser or such seizure is actually imposed;
d. the business activities of the Purchaser are actually ceased
14.4 Suspension or termination on the basis of this article is not possible in the event that the Product has been modified at the request of the Customer or has been purchased by 12Pack at the request of the Customer. In these cases, the Customer is obliged to purchase the Product and to pay the Price to 12Pack.
14.5 In situations other than those mentioned under 3 of this article, the Agreement can only be terminated by mutual consent in the case of business customers. If the customer is a consumer, the statutory provisions regarding returns apply.
14.6 Termination does not lead to any obligations to undo. Notwithstanding the foregoing, termination results in the Customer being in default immediately and all claims of 12Pack being immediately due and payable and all property of 12Pack must be returned immediately. 15. Lapse of rights & transferability
15.1 Any claim against 12Pack that – in any way whatsoever – is related to or arises from the performance of the Agreement shall in any case lapse after one year, unless a different term applies under mandatory law, to be calculated from the date of delivery of the Performance.
15.2 12Pack is at all times entitled to transfer all its rights and obligations, or part thereof, related to or arising from (the performance of) the Agreement to a third party. Transfer by Purchaser is excluded, unless 12Pack has given express written permission. The aforementioned prohibition of assignment has a property law effect as referred to in article 3:82 paragraph 2 of the Dutch Civil Code.
16. Prototype and models
16.1 Prototypes, models and examples that have been shown and/or provided to Purchaser by or on behalf of 12Pack shall only be considered examples. This is only different if it has been expressly agreed in writing that the Product to be delivered will be the same. 12Pack explicitly does not provide any warranty on the prototypes, models and examples.
16.2 Costs of prototypes, models and/or examples (including administration, packaging and shipping costs) are for the account of the Purchaser.
16.3 12Pack is authorized to deliver a Product that deviates from the prototypes, models and/or examples as referred to in paragraph 1 of this article, if it concerns changes to the Product to be delivered, the packaging or accompanying documentation, which are required for the Product to function correctly, to comply with applicable legal requirements or if it concerns minor changes to the Product, which constitute an improvement.
17. Privacy
17.1 The personal data of the Customer provided to 12Pack by the Customer in the context of the performance of the Agreement will be processed by 12Pack in a proper and careful manner, in accordance with the General Data Protection Regulation, in a manner that is proportionate and subsidiary to the collection purpose that follows from the Agreement.
18. Applicable law and competent court
18.1 The Agreement and the legal relationships between the Parties arising from it or related to it are governed by Dutch law. 18.2 The Vienna Sales Convention (CISG) does not apply.
18.3 Unless the Parties agree otherwise in writing, all disputes between them will be settled by the Gelderland court, sitting in Arnhem.
12Pack B.V. Edisonstraat 16-06, 4004 JL Tiel, E-mail: info@12pack.eu, Website: http://www.12pack.nl and 12BB.eu Edisonstraat 16-06, 4004JL Tiel Email: info@12bb.eu, Website http://www.12BB.eu