General terms and conditions of sale and delivery Hepromij B.V.
1. APPLICABILITY OF THESE TERMS & CONDITIONS.
The contract becomes binding for us only following written confirmation from us. The text of such confirmation determines the content of the contract. If no protest is received concerning the content of our confirmation within a period of eight days after receipt thereof, this is binding upon the customer. All contracts entered into with us contain the resolutive or suspensive condition – at our discretion – that we will ascertain the customer’s creditworthiness, such to be determined exclusively by us. Data concerning the goods offered such as formulas, structure, quality, etc., as provided by us with the offer, are binding upon us, whereby the parties assume that minor deviations not detrimental to the essence of that sold are permissible. In the event of cancellation of an order by the customer, all costs incurred, as well as damages and interest, will be charged to the customer.
All prices agreed are binding, unless subsequent to the offer the prices of raw materials or semi-finished goods, wages, salaries, social security charges, government levies, freight and/or other costs increase by more than 10%. Such increases will then be charged on. In the event of an increase in prices within three months of the conclusion of the contract, the customer is entitled to dissolve the contract within one week of have taken cognisance of the price increases and providing that delivery has not yet taken place. The contract cannot be dissolved in the event of a price increase we are obliged to make by government measures. Payment of any additional costs by virtue of this article shall be made simultaneously with the principal amount.
Delivery is ex works. Additional transport costs are at the customer’s expense. Loading is at our risk. Transport and unloading is at the customer’s risk. The delivery term for the products commences the moment we have received the assignment. Delivery terms quoted do not constitute terms to be observed on penalty of forfeiture of rights. The customer is obliged to issue its instructions for delivery sufficiently completely and promptly that we are able to deliver within the term agreed. Delivery will take place in packaging and with labels as agreed in advance. If delivery is made without packaging, the customer is responsible for ensuring clean means of transport and storage silos. We are entitled to deliver the products earlier or later than agreed and to make partial deliveries. In the event that we are not able to fulfil our obligations on time, we will immediately inform the customer or this stating the term, by which the delivery term is reasonably expected to be exceeded. In the event of late delivery, we must also be put into default by the customer in writing and we must be granted a reasonable term according to the circumstances within which to deliver, without being liable to pay compensation within this term. If a term to be observed on penalty of forfeiture of rights is agreed or such is set by the customer, we are entitled to suspend delivery or dissolve the agreement – at our discretion – if circumstances of force majeure exist as referred to in these terms & conditions and we are not guilty of an attributable shortcoming in the performance of the contract. The duration of the suspension depends on the duration of the circumstances causing the force majeure, subject to the understanding that, if these circumstances last for longer than 4 weeks, the customer is entitled to dissolve the contract. In this case, we are not obliged to pay compensation for damages. If a term to be observed on penalty of forfeiture of rights is agreed or the customer sets such within which we have to deliver, and this delivery does not take place, we are obliged to pay compensation for damages incurred by the customer with the observance of the stipulations of these terms & conditions in this respect.
6. RETENTION OF TITLE.
As long as we have not received payment in full, the products delivered, either finished or unfinished, remain our property. Our retention of title continues to exist if we still have any claim against the customer on other grounds. We are entitled to repossess our products in the event that the defaulting customer fails to fulfil its obligations, is wound up, requests or is granted a moratorium, is involuntarily liquidated or its goods are attached. The customer is prohibited from all acts of disposal concerning the products delivered, including attachment of these goods as security for the benefit of third parties (e.g. pledges) as long as it has not fulfilled its payment obligations. The customer may only sell on the products subject to the retention of title in the normal operation of its business, in which case the customer is obliged to deliver the products subject to a retention of title.
The customer must immediately inspect the products delivered or have these inspected for quantity, weight, type, composition, suitability and other properties and immediately report any deviations to us, together with a written confirmation. In any event, assessment of the products must take place in accordance with the criteria agreed for this in terms of the condition in which these are at the time of delivery. All complaints must be made in writing to our address within five working days of the time of delivery; we are not obliged to process complaints received later. If the customer has not submitted a complaint within this period, the customer will be considered to have accepted the goods delivered as suitable in all respects. Products about which the customer has complained must be kept by the customer unused, unmixed and unprocessed at a suitable location and at the disposal of the seller, who shall have unrestricted access thereto. Any samples must be taken by a sworn sample-taker or another authorised expert – at the seller’s discretion – the samples sealed on behalf of both parties shall provide incontrovertible evidence between the parties in relation to the composition, quality and condition of the products at the time the samples were taken. Investigation of the samples will be undertaken by the Centraal Instituut voor Voedingsonderzoek [Central Feed Research Institute] in Zeist or another suitable neutral institute to be nominated by the seller. The party ordering the sampling will bear the cost of sampling and investigation. Return shipments must be carriage paid and are only permitted following permitted following permission from us. The risk for returned goods is at the buyer’s expense.
We guarantee the weight, quality and composition of the products as stated on the labels or delivery reports. The guarantee expires as soon as the products are processed or mixed with other products delivered by third parties. The guarantee applies only if the other party has fulfilled all its obligations (both financial and other) from any contract(s) with us whatsoever.
9. LIABILITY AND COMPENSATION FOR DAMAGES.
We are only liable for the composition of our products as long as these are in the original packaging and the final use-by date has not expired. For loose products, our liability applies to the weight, quality and composition as stated in the delivery reports. We are not liable for costs, damages and interest that may arise as a direct or indirect consequence of force majeure as described in these terms & conditions or actions or negligence on the part of the customer or its subordinates. Damages may only be claimed for up to the maximum amount if our insurance covers this. All other claims for compensation are rejected. All claims for loss of profits or other indirect losses are rejected. All demands for compensation for damages on the grounds of liability on the part of the seller in relation to defects in the products delivered lapse through the expiry of the use-by date, with a maximum of eight (8) months following delivery.
Payment must take place without deduction of any discount and, unless agreed otherwise, within 8 days of the date of invoice. Setoff is not permitted. Should it come to our attention following shipment of our products that the customer is in an unfavourable financial position, we are entitled to demand either immediate payment or security. If payment of the sum owed has not been received by us within the due term, we are entitled to charge the customer interest of 1.25% per month, calculated from the date of invoice. We are also entitled, in addition to the principal sum and interest, to claim from the customer all costs, both in and out of court, incurred through the failure to pay. The out-of-court costs will amount to 15% of the principal amount, with a minimum of EUR 500. Liability to pay and the amount of the out-of-court costs arise from the sole fact that we have called in the assistance of a third party for collection.
11. FORCE MAJEURE.
Extraordinary circumstances, such as storm damage and other natural disasters, hindrance by third parties, obstruction of transportation in general, full or partial strikes, riot, war or threat of war either within the Netherlands or in the country of origin of the products, lock-outs, loss of or damage to the products during transportation to us or the customer, failure to deliver the goods (on time) on the part of our suppliers, export and import bans, full or partial mobilisation, restrictive measures by any government body, fire, faults an accidents within our company or in means of transport, the imposition of levies or other government measures that entail a change in the actual circumstances, situations in general in which we cannot be expected to perform (on time), constitute force majeure for us and relieve us of our obligation to deliver (on time), without the customer being able to exercise any right to compensation of any nature whatsoever or howsoever called. We are entitled in this or similar cases, such completely at our discretion, to dissolve the purchase contract following a reasonable term without any obligation to pay compensation, or to demand that the contract be amended in line with the circumstances.
12. DISPUTES, APPLICABLE LAW AND ELECTION OF DOMICILE.
The law of the Netherlands applies to this contract. All the disputes between the parties in relation to this contract will be submitted exclusively in the first instance to the competent court in the district in which the seller has its registered office, unless the parties agree upon mediation, arbitration or a binding recommendation. The parties elect domicile in this matter at the offices of the seller.