1. These general terms and conditions of sale and delivery (version 22/01) shall apply to all offers and agreements, whatever named, of Tomassen Duck-To BV.
2. In these general terms and conditions of sale and delivery, the following definitions apply:
• Seller: Tomassen Duck-To BV with its registered office in Ermelo, The Netherlands;
• Buyer: the other party that buys and purchases products and services from Tomassen Duck-To;
• Goods: the products and services sold and delivered by the Seller, including in particular slaughtered poultry and parts thereof;
• Free Delivery: if, in accordance with the agreement, delivery also includes transport of the Goods;
• General Terms and Conditions Contracts Broilers: the generally applied ‘General Terms and Conditions Broilers 1985’ or the generally applied general terms and conditions replacing the former ones that are used in the business for the purchase, sale and delivery of broiler ducks.
Scope of validity
3. These terms and conditions may also be invoked by employees of the Seller and by third parties involved by the Seller.
Other general terms and conditions
4. These general terms and conditions shall prevail at any time over any general terms and conditions of the Buyer, even if in the terms and conditions of the Buyer a stipulation of equivalent content has been included.
5. In addition to these general terms and conditions, the General Terms and Conditions Contract Broilers shall apply to the sale and delivery of live animals (broiler ducks). The stipulations of these general terms and conditions shall prevail over the General Terms and Conditions Contract Broilers.
Offers and changes
6. Offers made by or in the name of the Seller shall be without commitment unless agreed on otherwise.
7. The approximate date and time of delivery of the Goods shall be determined between the parties upon ordering. A delivery term thus agreed on shall therefore not be considered a firm date, unless expressly agreed on otherwise. In the event of expected differences, the Seller shall consult with the Buyer about a solution as soon as possible. If the parties do not reach agreement about the delivery term, the Buyer shall give written notice of default to the Seller.
Transport and Transfer of risk
8. In the case of Free Delivery by the Seller to the Buyer, the transport of the Goods shall take place for the account and at the risk of the Seller. In all other cases transport shall take place for the account and at the risk of the Buyer. This may be decided otherwise by written mutual understanding.
9. The Transfer of risk shall take place:
- • in the case of Free Delivery: at the moment when the Goods leave the means of transport at the delivery address indicated by the Buyer;
• in all other cases: at the moment of loading of the Goods into the means of transport at one of the sites of Tomassen Duck – To BV.
Fulfilment of agreements
- a. If visible defects have become known to the Buyer, the Buyer shall notify the Seller of this in writing upon delivery of the Goods, within 12 hours after the moment of the Transfer of the risk or upon the supply of services;
b. If at a later moment than stated under 10 a. the Buyer gets informed or should have been informed in reason of a found non-visible defect of the Goods, the Buyer shall notify the Seller in writing of this as soon as possible – but no later than within seven days;
- c. If the Buyer has not notified the Seller of any defect and has raised an objection or claimed compensation in writing within the respective relevant term as included in 10 a. and b., it shall be assumed that the Seller has performed properly. If the defects, the objections or a claim have not been notified in writing in due time in the manner as referred to under a and b of this clause, the Buyer shall forfeit any rights in respect of the defect because of non-conformity. This shall also include the Buyer’s right to rely on vitiated consent. Moreover, the Buyer shall be liable for the loss suffered by the Seller due to the established defects if it should have been clear to the Buyer that the Seller had an interest in being informed early of these defects, whereas the Buyer refrained from doing so;
- d. If, for whatever reason, delivered and accepted goods are taken back, the loading, transport and storage costs and further costs resulting from this shall be borne by the Buyer;
- e. The Seller has a retention of title on the Goods delivered by the Seller. If an invoice for delivered Goods or performed services is not paid in due time or the Seller has a claim against the other party because of defaulting in the performance of an agreement, the Seller shall be authorized to reclaim the goods or services delivered by the Seller as its property.
11. . Should loss arise in respect of the execution of any agreement with the Seller, the following shall apply:
- a. The Seller shall be liable for loss suffered by the Buyer as a direct consequence of a shortcoming that is exclusively attributable to the Seller. However, only that loss shall be eligible for compensation against which the Seller is insured or should have been insured in reason;
b. Not eligible for compensation shall be:
• trading loss, including loss due to stagnation and loss of profits
• loss caused by intention or intentional recklessness (whether or not by involving auxiliary persons);
c. The Buyer shall safeguard the Seller against any claims from third parties due to a defect in the Goods that were supplied by the Buyer to third parties and which Goods (also) consisted of Goods supplied by the Seller;
d. Any legal action for compensation based on liability of the Seller in respect of defects in supplied Goods or shortcoming in performed services shall expire through lapse of one year after the moment of the Transfer of the risk or termination of the services;
e. If the Seller recognizes liability, it will be entitled to repair the products or services or to supply new products or services in exchange for the supplied products or services, at its option;
f. During the time when the Buyer fails in the fulfilment of its contractual obligations towards the Seller, any right of guarantee shall be suspended;
g. Fulfilment of guarantee obligations shall be considered as sole and complete compensation. Any other claim for compensation shall be excluded, unless loss results from gross intention or negligence on the part of the Seller.
- a. Force majeure shall be understood as: circumstances hindering the fulfilment of the obligation and which cannot be attributed to the Seller. Seller is not liable in case of Force Majeure. In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in law and jurisprudence: all external unforeseen causes over which the Seller has no influence, but as a result of which the Seller is unable to fulfil its obligations. Force majeure includes in any case (but not exclusively):
- situations related to the weather or weather influences;
- strikes in companies other than Seller’s as well as strikes (for whatever reason) in Seller’s company;
- shortages of what is necessary for achieving the agreed performance (including raw materials, personnel, etc.);
- stagnation(s) at suppliers or other third parties on which the Seller depends, including stagnation as a result of an outbreak of Avian Influenza (Bird Flu), human epidemic/pandemic or the consequences/effects of war in countries of one or more suppliers;
- general transportation issues;
- b. The Seller is also entitled to rely on force majeure if the circumstances that prevent (further) fulfilment occur after the Seller should have fulfilled its commitment;
- c. During force majeure, the delivery and other obligations of the Seller shall be suspended. If the period in which fulfilment of the obligations by the Seller is not possible exceeds three months, both parties will be entitled to dissolve the agreement, without an obligation to pay compensation in that case;
- d. If, at the start of force majeure, the Seller has already partially fulfilled its obligations or can fulfil its obligations only partially, the Seller will be entitled to invoice the already delivered or the deliverable part separately and the Buyer shall pay this invoice as if it concerned a separate contract. The above shall not apply if the delivered or deliverable part has no independent value.
13. Discharging payment shall only be made to the Seller or to a third party authorized for this in writing by the Seller.
14. Payment by the Buyer shall be made within 30 days after invoice date by crediting the account of the Seller with the due amount. In the event that this period is exceeded, the Buyer shall be in default by operation of law without any further notice of default or warning. The Buyer shall owe the Seller the legal interest on the outstanding items for the defaulting period. In addition, any judicial and extrajudicial collection costs shall be borne by the Buyer.
15. Every price stated shall be inclusive of packing (master carton), exclusive of packaging (pallets/crates) and exclusive of VAT, unless otherwise agreed in writing. If transport is organized by the Seller, the packaging must be exchanged immediately upon delivery to the Buyer. If transport is organized by the Buyer, the packaging must be exchanged at the Seller’s location immediately upon loading. If an exchange is not made as set out above, the packaging that has not been exchanged will be invoiced to the Buyer at the current price, unless otherwise agreed in writing.
16. Taxes, import duties, levies and/or other governmental charges implemented, adapted or become known to the Seller after the offer or the conclusion of the purchase agreement or sales contract shall be charged to the Buyer, even if such taxes, import duties, levies and/or other charges have not been taken into account. If the price increase is more than 10% of the original price, the Buyer will be entitled to dissolve the agreement.
Provision of security
17. If before or during the execution of an agreement the Seller has reasonable doubt about the creditworthiness of the Buyer (at any rate, without limitation: request for suspension of payment or bankruptcy of the Seller and/or attachment of all or part of the properties of the Buyer and/or in the event of liquidation of the company of the Buyer):
- then, without an obligation on the part of the Seller towards the Buyer of any notice or any other formality, the Seller will be entitled not to deliver or to discontinue further deliveries as long as the Buyer has not provided security that is satisfactory to the Seller for payment of the amount due;
- • on the first demand of the Seller, the Buyer shall provide (additional) security for the outstanding financial obligations towards the Seller if delivery took place against payment within a specific term, whereas the Buyer had defaulted in the fulfilment of the obligation. The above shall be on penalty of immediate payability of the entire purchase price of delivered Goods and discontinuation of the delivery or further delivery respectively.
18. Except for proof to the contrary, the administration of the Seller shall be considered complete and binding between the parties.
Applicable law and competent court
19. The legal relationship between the parties shall be governed by Dutch law. Any disputes shall be settled by the competent Dutch court. Contrary to the legal rules for the relative competence of the civil court, any dispute between the Buyer and the Seller shall be settled by the district court in Zutphen, The Netherlands, if the court is competent. However, the Seller will still be entitled to summon the Buyer to appear before the legally competent court. The United Nations Convention on Contracts for the International Sale of Goods (1980), [CISG] shall not apply and shall be expressly excluded.
Changes to general terms and conditions
20. The Seller will be entitled to make changes to these general terms and conditions. These changes will come into effect on the announced date of entry into force. The Seller will print the amended terms and conditions on the back of its letterhead/invoices and post them on its website (also available via a link in emails from all employees of the Seller).