Terms and conditions

General terms and conditions

ARTICLE 1. | DEFINITIONS

In these general terms and conditions, the following terms, which also appear in the plural and/or singular, have the given meaning, unless a different meaning arises from the nature or intent of the provisions.

1. Tubes Gifts: Tubes Gifts B.V., the user of these general terms and conditions, address Franciscusweg 14, 1216 SK Hilversum, registered in the trade register under KvK number 87821362.
2. Counterparty: any legal entity or natural person with whom Tubes Gifts has concluded or intends to conclude an agreement.
3. Consumer: the counterparty as referred to in the previous paragraph who is not acting in the exercise of a profession or business.
4. Agreement: any agreement concluded between Tubes Gifts and the Counterparty whereby Tubes Gifts is obliged to sell and deliver Products for payment.
5. Products: an item or substance to be delivered by Tubes Gifts to the Counterparty under the agreement, including, but not limited to, consumer goods packaged in Tubes Gifts, which may or may not have been made available to Tubes Gifts by the Counterparty.
6. Website: www.tubesgifts.com.
7. In Writing: communication in writing, communication by email, or any other means of communication that, according to the current state of technology and perceptions in society, can be considered as such.

ARTICLE 2. | GENERAL PROVISIONS

1. These general terms and conditions apply to every offer or proposal from Tubes Gifts and every agreement concluded.
2. Any general terms and conditions of the counterparty, however described, do not apply to the agreement, unless and insofar as these have been expressly agreed in writing prior to the conclusion of the agreement. In case of conflict between the provisions of these general terms and conditions and the general terms and conditions of the Counterparty, insofar as it has been expressly agreed that the general terms and conditions of the Counterparty will also apply to the agreement, only the provisions in these general terms and conditions shall apply.
3. Deviations from the provisions in these general terms and conditions can only be made if explicitly agreed in writing. If and insofar as what has been expressly agreed in writing deviates from the provisions in these general terms and conditions, what the parties have expressly agreed in writing shall apply.
4. If one or more provisions of these general terms and conditions prove to be null and void, this shall not affect the validity of the other provisions.

ARTICLE 3. | PROPOSAL AND MAKING AGREEMENTS

1. Every offer and every proposal from Tubes Gifts is without obligation, even if a term for acceptance of the offer or proposal has been stated. Tubes Gifts must re-confirm an accepted order or purchase order from the counterparty to form a legally binding Contract with the counterparty.
2. The counterparty cannot derive any rights from a Contract based on incorrect or incomplete information provided by the counterparty.
3. These GENERAL TERMS AND CONDITIONS can be downloaded from the Website and apply to every Contract.
4. A composite price quotation never obliges Tubes Gifts to fulfill a part of the offer or quotation at a corresponding part of the stated price.
5. If the acceptance by the counterparty deviates from the offer of Tubes Gifts, the Contract does not correspond with this deviation, unless Tubes Gifts expressly confirms this deviation.
6. Tubes Gifts may investigate the financial position of the Counterparty. Tubes Gifts reserves the right to cancel and terminate a Contract if it has reason to believe that the Counterparty will not fulfill its contractual obligations in time.

ARTICLE 4. | OBLIGATIONS OF THE COUNTERPARTY AND CUSTOM ORDERS

1. When in particular, but not exclusively, Product packaging is made to any extent according to the specifications of the Counterparty (hereinafter: custom orders), the Counterparty guarantees that it will provide or make available to Tubes Gifts within a reasonable period all items (including any consumer goods to be supplied by the Counterparty) and information (including any logos to be supplied by the Counterparty) that can reasonably be considered important for the fulfillment of the Contract, completely and, if applicable, in a manner prescribed by Tubes Gifts.
2. Any specifications from the Counterparty that Tubes Gifts needs for the execution of the order must be provided by the Counterparty via email. Logos to be printed on tubes must be supplied by the counterparty to Tubes Gifts in .eps files via email. The delivery of the consumer goods to be packaged in Tubes Gifts is at the expense and risk of the Counterparty.
3. Custom orders are based on the specifications confirmed by the counterparty. The counterparty guarantees the accuracy of the specifications provided and, if applicable, the suitability of the consumer goods supplied by the counterparty for packaging in tubes by Tubes Gifts. In this regard, the counterparty indemnifies Tubes Gifts against all claims that third parties may assert.
4. The counterparty guarantees that the information provided by him for the execution of the agreement, including trademarks, logos, and the like, does not infringe on the (intellectual property) rights of third parties. By providing the information referred to here, the counterparty declares that he is entitled to allow Tubes Gifts to process it for the execution of the order. In this regard, the counterparty indemnifies Tubes Gifts against all claims that third parties may assert.
5. Differences between the specifications received from the counterparty on the one hand and what is actually produced and delivered on the other hand, cannot give rise to complaints, compensation, suspension or dissolution of the Contract or compensation or any other form of compensation for the counterparty.
6. If the counterparty intends to reduce previously signed orders, the counterparty is obliged to contact Tubes Gifts immediately and inform them. Tubes Gifts will then inform the counterparty about the stage of the order and the possibilities and consequences of reduction. Tubes Gifts has the right to charge the counterparty for the lost profit margin and the costs associated with the reduction of the order (such as, but not limited to, costs of raw materials, costs of reserving the production line, printing, reserved tubes, etc.).
7. Notwithstanding any contrary language in the counterparty's purchase order, every purchase order is subject to acceptance by an authorized employee of Tubes Gifts and every transaction is exclusively governed by these General Terms and Conditions. All additional or different conditions proposed by the counterparty are automatically rejected, unless Tubes Gifts expressly agrees to them in writing.

ARTICLE 5. | TOLERANCES

1. The characteristics of the Products to be delivered stated and/or depicted by Tubes Gifts in the offer, proposal, web store, or otherwise may deviate slightly from what is actually delivered. All deviations in the characteristics of the Products that the Counterparty should reasonably be deemed to tolerate, such as minor differences in color, dimensions, weight, and taste, are considered insignificant. The presence of insignificant deviations does not give the Counterparty cause to file a complaint, suspend any of its obligations under the Agreement, dissolve the Agreement, or claim damages or any other form of compensation.
2. The counterparty is aware that wine remains a natural product, the quality of which can change during transport and storage. Tubes Gifts must always be given the opportunity to replace a Product free of charge when a demonstrable and proven loss of quality is the result of its processing by Tubes Gifts.

ARTICLE 6. | DELIVERY OF THE PRODUCTS

1. Incoterms ExWorks apply to all orders.
2. If Tubes Gifts arranges the transport of the Products, the invoice address shall be considered the delivery address if the delivery address has not been provided by the Counterparty. The risk of loss and/or damage to the Products as a result of their transport is for the account of the counterparty, unless expressly agreed otherwise by Tubes Gifts.
3. Tubes Gifts reserves the right to deliver orders in parts.
4. If the delivery period is exceeded by Tubes Gifts, this shall in no case entitle the counterparty to refuse to accept the products to be delivered or to refuse to pay the amounts due to Tubes Gifts under the Contract. If Tubes Gifts incurs additional costs that it would not otherwise have incurred if the Products had been accepted at the scheduled time of delivery, these costs will be charged to the counterparty. These costs may include, but are not limited to, any additional costs related to multiple delivery attempts or reasonable costs calculated by Tubes Gifts for storage of the Products.
5. The Counterparty will ensure that information regarding invoicing, including any specific payment characteristics such as purchase order numbers (PO numbers) and/or cost center(s), is provided in a timely manner, so that the delivery of Products is not delayed. Tubes Gifts can only start production once this information is available or if Tubes Gifts has been accepted as a supplier in the supplier systems. The Counterparty will ensure that the agreed specifications are provided in a timely manner, so that the delivery of Products is not delayed.
6. Tubes Gifts reserves the right to deliver and invoice a maximum of 5% more or less than the agreed quantity in the case of products that have been specially manufactured or specially composed for the Counterparty. Tubes Gifts is not in default due to fewer than the agreed number of products when the counterparty defaults on the delivery of the required and agreed content. In that case, the Contract will be fully invoiced.

ARTICLE 7. | DELIVERY OF PRINTED MATTER

1. If Tubes Gifts is commissioned to deliver products that have been specially manufactured or composed for the Counterparty, the Counterparty is obliged to supply immediately reproducible material of good quality for dispatch.
2. Tubes Gifts is only obliged to send the counterparty a digital proof for approval in advance if this has been requested by the counterparty in writing before placing the order. In that case, Tubes Gifts undertakes to provide a proof to Co-Contractor no later than four weeks after receiving the order and after receiving the materials to be reproduced, which is deemed to have been approved if no written response to the digital proof has been received within five working days.
3. All costs of the digital proof, the model, the sample, or example will be charged separately.

ARTICLE 8. | DELIVERY PERIODS

1. Tubes Gifts endeavors to meet the lead times and/or delivery periods to which it has committed itself with the counterparty. These periods are indicative only and not binding. Tubes Gifts cannot be deemed to be in default before the Counterparty has informed Tubes Gifts in writing that Tubes Gifts is in default and that notice includes a reasonable period to remedy or replace the default, and that Tubes Gifts is still in default after the expiration of that period.
2. If Tubes Gifts is dependent on data to be provided by the counterparty for the execution of the agreement, the lead times and delivery periods referred to in the previous paragraph shall not commence until Tubes Gifts has received this data.
3. Tubes Gifts is dependent on timely delivery of material by third parties for the execution of an Agreement. In the event of late delivery of said materials, Tubes Gifts cannot be held liable for the resulting longer delivery time of the Products. Tubes Gifts will inform the counterparty of this in a timely manner.

ARTICLE 9. | INSPECTION AND COMPLAINTS

1. Upon delivery, or immediately thereafter, the Counterparty must investigate whether the nature and quantity of the Products correspond to the Agreement. If, in the opinion of the Counterparty, the nature and/or quantity of the Products do not correspond to the Contract, he must report this to Tubes Gifts at the time of delivery or immediately thereafter, with exact specifications, including photos, batch code, packaging, etc.
2. If there are defects that could not reasonably have been seen or recognized at the time of delivery, the Counterparty must report them to Tubes Gifts in writing within two days after becoming aware of the existence of the defects, or within two days after he could reasonably have become aware of the defects.
2. If the Counterparty does not report his complaint within the aforementioned two-day period, the complaint shall not create any obligation for Tubes Gifts towards the Counterparty.
3. Even if the Counterparty complains in time, he is obliged to pay Tubes Gifts' invoice in time.
4. After discovering any defect, the counterparty is obliged to immediately cease the use and/or further delivery to third parties of the Products concerned.

ARTICLE 10. | CONFORMITY

1. Product defects due to an external cause or due to other circumstances that cannot be attributed to Tubes Gifts do not constitute grounds for complaints.
2. The counterparty is not entitled to return the Products. If there is a defect and the counterparty has filed a complaint with Tubes Gifts in time in accordance with article 8, Tubes Gifts will remedy the defect, replace the defective tubes/Products, or refund the price of the defective tubes/Products in question as soon as Tubes Gifts deems it necessary. The counterparty will not be able to claim any compensation and/or loss of profit from Tubes Gifts, of whatever nature, on the basis of a defect beyond the replacement of the defective tubes/Products and the refund of the price paid for them as mentioned above.

ARTICLE 11. | SPECIAL PROVISIONS FOR RESELLERS

1. If the Products to be delivered by Tubes Gifts are intended for resale by the Counterparty, that resale by the Counterparty is for its own account and risk.
2. Any cooperation between the reseller and Tubes Gifts is never exclusive, unless expressly stated otherwise. Tubes Gifts has the right to appoint multiple resellers without geographical restriction.
3. The counterparty acting as a reseller of the Products is solely responsible for fulfilling his Contractual obligations towards his end-users.

ARTICLE 12. | FORCE MAJEURE

1. Tubes Gifts is not obliged to fulfill any obligation from the Contract in case of force majeure.
2. If the force majeure means that performance of the agreement is permanently impossible, parties have the right to dissolve the agreement with immediate effect.
3. If Tubes Gifts has already partially fulfilled its delivery obligations when the force majeure occurs, or can only partially fulfill those obligations, it is entitled to invoice the part already delivered or deliverable.
4. Notwithstanding the provisions of the previous paragraph, damage due to force majeure is not eligible for compensation.
5. Any government regulation or instruction in connection with a pandemic can count as force majeure and will be considered as such if Tubes Gifts informs the counterparty thereof.

ARTICLE 13. | SUSPENSION AND TERMINATION

1. Tubes Gifts has the right to suspend or partially terminate the Contract with immediate effect if the Counterparty does not fulfill its obligations under the Contract in time and completely or if Tubes Gifts becomes aware of circumstances that give good reason to fear that the Counterparty will not be able to fulfill its obligations.
2. If the Counterparty is in a state of bankruptcy, has applied for or been granted a moratorium, has goods seized or is seized, or if the Counterparty cannot freely dispose of its assets, Tubes Gifts has the right to terminate the Contract with immediate effect.
4. The Counterparty cannot claim any form of compensation with regard to a right of suspension or dissolution exercised by Tubes Gifts on the basis of this article.
5. The Counterparty is obliged to compensate Tubes Gifts for the damage and loss of profit, of whatever nature, as a result of the suspension or termination of the Contract.
6. If Tubes Gifts terminates the Contract on the basis of this article, all outstanding invoices will become immediately due and payable.

ARTICLE 14. | PRICES, COSTS AND PAYMENTS

1. All prices quoted by Tubes Gifts are in EUROs and exclusive of VAT.
2. All prices are subject to change without prior notice due to circumstances such as currency fluctuations, transport prices, fluctuations in raw material prices, and/or other unforeseen economic circumstances such as a government-mandated lockdown.
3. Unless otherwise agreed, a 100% advance payment applies to all orders. This advance payment will be invoiced and paid by the co-contracting party within 14 net days immediately after the conclusion of the Agreement, unless otherwise stated in the Agreement.
4. All orders, less the advance payment, will be invoiced when the order can be collected by the co-contracting party. All payments must be made within 14 days of the invoice date, unless otherwise stated on the invoice.
5. If the Co-contracting Party is in default of any of its payment obligations towards Tubes Gifts, Tubes Gifts is not obliged to further perform the Contract.
6. Payment must be made in the manner(s) indicated by Tubes Gifts.
7. Tubes Gifts has the right to invoice the Co-contracting Party exclusively by e-mail.
8. In case of non-payment, the co-contracting party is legally in default. From the day the Co-contracting Party is in default, it owes 2% interest per month on the outstanding amount, with a part of the month being considered a full month.
9. All reasonable costs, such as judicial, extrajudicial and enforcement costs, incurred in connection with the collection of the amounts owed by the Co-contracting Party to Tubes Gifts, shall be borne by the Co-contracting Party.
10. Tubes Gifts may withhold the delivery of the Products until full payment of all outstanding invoices has been received.

ARTICLE 15. | LIABILITY AND INDEMNIFICATION

1. Tubes Gifts is not liable for defects in the delivered Products after their delivery.
2. Tubes Gifts cannot be held liable for damage and or loss of profit, of any kind whatsoever, suffered by the co-contracting party as a result of non-performance of the Contract.
3. In the event of a deficiency in the delivery and/or if the delivered Products are not in accordance with the Contract, Tubes Gifts will replace the defective Products with new Products or refund the purchase price for these defective Products to the co-contracting party. Tubes Gifts will try to resolve the problem in good contact with the co-contracting party and inform the co-contracting party of its decision.
4. The co-contracting party indemnifies Tubes Gifts against all claims of third parties who suffer damage and or loss of profit, of any kind whatsoever, in connection with or as a result of the delivered Products.

ARTICLE 16. | RETENTION OF TITLE AND RIGHT OF RETENTION

1. All Products delivered to the Co-contracting Party remain the property of Tubes Gifts until the Co-contracting Party has fulfilled all its payment obligations.
2. The Co-contracting Party is obliged to store the delivered Products subject to retention of title with due care and as identifiable property of Tubes Gifts.
3. If Products are sold and/or delivered to third parties by the Co-contracting Party in the normal course of its business or contrary to the provisions of this article, the purchase price becomes immediately due and payable.
4. The co-contracting party grants Tubes Gifts or parties designated by Tubes Gifts unconditional permission to enter all places where Products subject to retention of title are located. The co-contracting party must provide Tubes Gifts with all information at the first request to enable it to exercise its ownership rights. All reasonable costs in connection with the exercise of Tubes Gifts' ownership rights will be charged to the Co-contracting Party.
5. Tubes Gifts has the right to retain all goods of the co-contracting party in its possession to satisfy all due and payable claims that Tubes Gifts has against the co-contracting party.

ARTICLE 17. | GENERAL COMPLAINTS POLICY

1. If the Co-contracting Party has a complaint, Tubes Gifts may require a sworn inspector and/or certified laboratory to draw up an inspection report on the delivered Products.
2. This report shall be at the expense of the co-contracting party, unless otherwise agreed between the parties.
3. The expert report will be sent to both parties and is deemed to contain the truth about the Products.

ARTICLE 18. | GENERAL FINAL PROVISIONS

1. Dutch law applies exclusively to every Agreement and all legal relationships arising therefrom.
2. Parties will not appeal to judicial intervention before having made their best efforts to resolve the dispute in mutual consultation.
3. The court in Rotterdam, the Netherlands, has exclusive jurisdiction to rule on all disputes arising from or related to the Agreement or any agreement between Tubes Production Company and Co-contracting Party that follows therefrom.

30-03-2023