GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY AND TERMS OF PROVISION OF SERVICES OF UNIDEX BV. REG # 28052264, CHAMBER OF COMMERCE, LEIDEN, NETHERLANDS, SEPTEMBER 2000
1. APPLICABILITY OF THESE CONDITIONS
1. The following conditions apply to all offers and contracts issued or entered into by Unidex BV (hereinafter: the Supplier) to or with the other party (hereinafter the Buyer, or the other party).
2. The applicability of any conditions of the Buyer is herewith explicitly excluded.
3. Deviations from these conditions are only possible if such should be explicitly agreed upon in writing.
4. In addition to these conditions, the Supplier may choose to declare one or several sections of the General Provisions Grains, Seeds and Legumes (“Bepalingen GZP”) of the Grains Committee (“Het Comité van Graanhandelaren”) as applicable. These General Provisions are available at www.graan.com.
5. In addition to aforementioned conditions, the Supplier may choose to declare one or several sections of the Incoterms 2010 as applicable. The Incoterms 2010 are available at http://www.iccwbo.org/.
6. If any provision which forms part of these General Terms and Conditions or any agreement between parties should be invalid or become void, the remainder of the General Terms and Conditions or the agreement shall as far as possible remain in force and the provision in question shall be promptly replaced in consultation between the parties, by a provision which as far as possible approximates the intention of the original provision.
2. OFFER AND ACCEPTANCE
1. All offers made by the Supplier are free of obligation, unless otherwise is stated in writing. Oral agreements are only binding if confirmed in writing by the Supplier, including by email or other means of digital communication used by Supplier.
2. Orders are valid when confirmed by the Buyer to the Supplier in writing, including email or other means of digital communication accepted by Supplier, or when Supplier has started the actual execution of the order.
3. Orders placed in the form of an e-mail message from the Buyer to the Supplier are only valid after acceptance of the order is confirmed to the Buyer in writing, including email or other means of digital communication used by parties.
4. Information supplied by Supplier in the form of printed matter, brochures etc. are subject to changes without prior notice on the part of Supplier, and cannot be understood as a binding offer.
5. After acceptance, cancellation of the order by Buyer is only possible after explicit written consent by the Supplier. The Supplier is entitled to demand compensation for any expenses related to the cancellation.
3. RETENTION OF TITLE
1. The goods remain the Supplier’s property until the following will have been performed in full:
– payment or any other consideration owed by the Buyer for any goods supplied or to be supplied according to the agreement, as well as for activities performed or to be performed according to such agreement.
– charges due to failure on the part of the Buyer to comply with the terms of such agreement(s).
2. The Buyer cannot claim any right of retention.
3. If the Buyer transforms goods such as meant in subsection 1 into other goods, the Supplier will become the direct owner of such goods, and the Buyer will keep these goods for the Supplier, until all obligations meant in subsection 1 have been fulfilled.
4. Resale is permitted only in the regular course of business and only subject to the condition that the Buyer or its reseller obtains direct payment from his customer or makes the provision that title shall pass to the customer only when the latter has performed its payment obligations in full.
5. If the Buyer is in default with respect to obligations as meant in subsection 1, the Supplier is entitled to retrieve (or have retrieved) any of his property at the expense of the Buyer from wherever his property may be. Buyer shall be obliged to offer all necessary assistance in the above.
4. QUALITY AND SAMPLES
1. Unless specific requirements were made at the time of the placement of the order and such requirements were explicitly accepted in writing, the Supplier will deliver normal trading quality according to the Hazard Analysis and Critical Control Point (HACCP) conditions as laid down in the quality documents to be found on http://www.fda.gov/. Any grains, seeds and legumes samples shown or supplied serve solely for reference, without implying any obligation to supply goods identical to them.
5. TRANSPORT AND DELIVERY
1. Unless explicitly agreed otherwise, delivery of the goods will be done by road transportation according to the Free Carrier (FCA) terms, or according to the Carriage and Insurance Paid (CIP) terms, and for sea transportation according to the Free On Board (FOB) terms or the Cost, Insurance and Freight (CIF) terms (all in accordance with the Incoterms 2010). Conditions of delivery agreed upon between parties shall be interpreted as much as possible in accordance with the Incoterms 2010.
2. The information in the bill of lading or bill of delivery provided by the carrier with respect to the products delivered is sufficient proof between the parties, provided that the bill of lading or the bill of delivery was signed by the Buyer in a clearly legible manner.
3. The other party is required to immediately accept the purchased goods or services offered, as soon as they are delivered or offered to him. If Buyer refuses to take delivery of the goods or fails to give information or instructions necessary for delivery, the goods shall be stored at Buyer’s risk. In the latter case all additional costs, including storage charges and the legal interest, shall be payable by Buyer. In the latter case and without prejudice to the above, Supplier shall be entitled to sell the goods, having given Buyer prior written notice of default. In this case any costs and losses incurred by Supplier shall be payable by Buyer.
4. An indication of the delivery period, or of any period within which the Supplier must meet his obligations, will be given to the best of Supplier’s knowledge, but this indication shall never be a final deadline (“fatale termijn”), unless this has been expressly stipulated otherwise. If the Supplier is not able to meet his obligations in the indicated period or term, the Supplier must receive a notice of default in writing, in which a reasonable second term must be specified, after having been agreed upon after mutual consultation.
5. Unless the Buyer has already sent a notice of default as meant in the previous subsection, the Supplier may extend the term agreed upon by a maximum of 20 working days, without incurring liability. He must do so within 10 working days after the expiration of the term, and may do so one time only. The other party, however, is entitled to notify the Supplier in writing, by means of a well-reasoned letter, informing him that non-compliance within the term set by the Supplier would lead to disadvantageous results. If the Supplier does not challenge this notification or insufficiently challenges it, he is obliged to deliver within a term that will be set by the other party.
6. The Supplier is entitled to make partial deliveries of the deliverable goods, provided that this is done within the term agreed upon, or within the term extended according to the previous subsection.
7. The term will also be extended in the event of a temporary impediment as meant in section 10 subsection 2, in accordance with section 10 subsection 3.
8. Unless agreed otherwise in writing, the transport of the goods to be delivered shall as of the time that the goods exit Supplier’s storage facilities, be for the account and at the risk of Buyer. From the moment of delivery the goods shall always be at buyer’s risk only. A transportation insurance is only concluded following the explicit request of the other party, and at its own expense.
6. COMPLAINTS AND RETURN SHIPMENTS
1. The Buyer must examine the goods upon delivery, in order to confirm that they conform to the specifications which are part of the agreement. If this is not the case, the Buyer can protest immediately and not later than 24 hours after delivery. The well-reasoned complaint must be sent to the Supplier in writing. If this is not the case, the Buyer can no longer claim faulty delivery.
2. If the Supplier decides to conduct (or have conducted) an inquiry of its own into any shortcomings reported by Buyer in the goods delivered, Buyer shall be obliged to offer all necessary assistance. Upon the Supplier’s request, the Buyer is required to return to the Supplier a sample of the goods subject of the complaint. If Buyer fails to comply with any of the provisions in this article, he shall forfeit all claims against Supplier.
3. Return shipments can only be carried out after consultation with the Supplier, and with his consent. Transportation costs arising from return shipments are to the account of the Buyer, unless it was agreed otherwise. A copy of the bill of lading, a copy of the invoice and a copy of the storage supervision documents must be submitted to the return shipment.
4. In the event that the Buyer proves that the goods subject of the complaint did not comply with the terms of the agreement, and provided that the complaint was made in accordance with the aforementioned subsections, the Supplier will undertake an additional (re)delivery or provide a credit note for an amount not higher than the amount of the order. In all other instances, the Supplier will not be held to any obligation.
5. In the event that, after the expiration of the aforementioned term, the Supplier should undertake certain efforts, these efforts shall be considered as an act of good will on the part of the Supplier, and not lead to any liability on his part, unless otherwise was agreed in writing. In the event that a complaint shall be found unjustified, and if for the purpose of establishing such fact, the Supplier undertook certain activities or supplied certain goods, the Supplier is entitled to charge any resulting expenses according to the Supplier’s regular price scheme to the account of the other party.
7. PRICES AND PAYMENT
1. All prices quoted are excluding VAT and excluding any other government levies, unless stated otherwise. In those cases where Buyer fails to inform Supplier of its VAT registration number (acceptable for customs clearance), Supplier shall send Buyer an invoice including VAT.
2. The mode and terms of payment are set in the agreement or in the order confirmation. In general, payment must be made in Euro within 30 days, counting as of the date of the invoice, unless otherwise was agreed in writing. After the expiration of this term, the Buyer shall be in default, without need for a notice of default to be sent.
3. As of the beginning of the period of default, the Buyer will owe a contractual interest, equal to the statutory commercial interest rate (“wettelijke handelsrente”) in the Netherlands.
4. If, as a result of the state of default, the Supplier should incur legal or extra-legal collection expenses, the Supplier has the right to charge all these expenses to the Buyer.
5. Payments effected by Buyer shall at all times serve as settlement firstly of any interest and costs due, and secondly of the longest outstanding payable invoices, even if Buyer states that the payment concerns a later invoice.
1. In the event of a reasonable ground or suspicion that the Buyer will not strictly comply with his obligations, the Buyer is required to immediately provide or supplement any securities the Supplier deems appropriate and necessary for the fulfilment of the Buyer’s obligations, in the form required by the Supplier, at first written request. As long as the Buyer fails to comply with such request, the Supplier is entitled to suspend all his obligations towards the Buyer.
2. If the Buyer fails to comply with the request aforementioned in subsection 1. within 14 days after having been served a notice to that effect in writing, any obligations owed by the Buyer are due with immediate effect.
9. END OF THE AGREEMENT
1. If the Buyer does not fulfill one of the obligations following from the agreement in a proper or timely manner, or in the event of bankruptcy of the Buyer, suspension of payment on his part, the placement under guardianship of the Buyer (his legal entity), the closing down of his business or the liquidation thereof, the Supplier is entitled to cancel the agreement in its entirety or in part or to suspend the (further) performance of his obligations under the agreement at his own discretion, without any further obligation to pay damages and without prejudice to any right he may have by law or custom. In those events, the Supplier is also entitled to demand immediate payment of any due amount.
10. FORCE MAJEURE
1. If proper compliance with all or part of his obligations on the part of the Supplier shall be impossible, temporarily or permanently, as a result of one or several circumstances beyond the control of the Supplier, among which the events mentioned in the subsection below, the Supplier is entitled to cancel the agreement on the basis of force majeure.
2. Force majeure shall in any case be understood to include:
– strikes, labor actions, lock-outs, illness, bans on import, export or transit or any other government measures that prevent Supplier from fulfilling its obligations at the time and in the manner agreed, transportation problems, production failures, contagious animal disease(s), natural disasters, nuclear disasters, wars and military threats, a general shortage of the raw materials required and other goods or services required for the performance of the agreed commitment;
– exercise of one or several rights by third parties against the Buyer with respect to failures on behalf of the latter regarding agreements between said third party and the Buyer on goods delivered by the Supplier;
– the fact that an obligation towards Supplier, of importance in connection with an obligation to be performed by Buyer itself, is not performed at the time or in the manner agreed.
3. During the period of force majeure Buyer’s obligations shall be suspended and Buyer shall not be entitled to end the agreement. In case the performance of the obligation is suspended for more than one month, each party shall be entitled to dissolve the agreement, without any obligation to pay compensation.
4. If, in the case of force majeure following to the occurrence of any one or several of the events listed in subsection 2, the Supplier has already fulfilled his obligations in part, or his able to fulfill his obligations only in part, he is entitled to invoice the goods delivered or to be delivered separately, and the Buyer is obliged to honor such invoice as if it concerns a separate contract. If the Buyer does not cooperate with the delivery after the Supplier has given him a term (of 14 days) thereto, the Supplier is relieved of his obligation to deliver.
11. LIABILITY AND DAMAGES
1. Supplier’s liability, insofar as covered by its legal liability insurance, shall be limited to the amount paid by the insurer. If in any case the insurer refuses to pay, or if the loss or damage is not covered by the insurance, liability shall be limited to the net invoice value of the goods delivered, to a maximum of € 10.000.-
2. The Supplier is only accountable for damages resulting from intentional acts or gross negligence. Additionally, Supplier shall never be liable for any consequential loss.
3. If the nature or the composition of a product supplied by Supplier will be changed after delivery due to actions by third parties, and if it is established that such changes has affected the extent of the damage, any liability on the part of the Supplier is excluded. The same applies in the event of damage due to frost or other damaging weather conditions.
4. The stipulations in this section do not prejudice the liability of the Supplier due to mandatory provisions.
12. REPUTATION OF THE BRAND
1. The Buyer shall not alter any packaging comprising the goods and shall not obliterate or obscure any warnings or advice appearing on such packaging concerning the use, storage or disposal of the goods.
2. The Buyer shall not alter, remove or in any way tamper with any of the trademarks or other marks or number of the Supplier attached to or placed upon the goods.
3. The Buyer shall ensure to not jeopardize, damage or harm the reputation and/or good name of the Supplier, its brand names, trademarks or any other distinguishing signs owned by the Supplier, including, but not limited to, by advertising or trading goods with any of the Supplier signs attached to or placed upon that are damaged, leaking, moldy, corroded or discolored.
13. CHOICE OF LAW AND FORUM
1. All legal relationships between the Supplier and the Buyer are exclusively governed by Dutch law. Any dispute or conflict between and the Supplier and Buyer fall under the exclusive jurisdiction of the competent court of the district of Noord-Holland and/or by the pertaining authorities of the Grains Committee (“Het Comité van Graanhandelaren”) in Rotterdam (at one’s discretion), unless the Supplier, in his capacity of plaintiff or requesting party, chooses (at it’s discretion) the jurisdiction of the place of domicile or business of the Buyer.
2. In contrary to the provision of the previous paragraph, parties may jointly choose another method of settling disputes.