Terms and Conditions
1. The General Conditions hereafter contained shall apply to all Seller’s offers, orders, activities, sales, supplies and deliveries, unless Seller has expressly agreed in writing to any deviation there from. Any General Conditions (in the widest sense of the world) of the Buyer shall apply only on the extent that the same do not deviate from Seller’s General Conditions or have been accepted by Seller in writing. Arrangements or orders made and passed on by word or mouth, by telephone, by telegram, by teleprinter or by telefax message shall not be binding upon Seller unless and until confirmed in writing.
2. All goods remain our full property until total payment has been effected.
Insofar as not stated otherwise, Seller’s offers are subject to confirmation by Seller in writing. Seller shall only be bound if and as soon as an order has been accepted by Seller in writing or has been executed by Seller. In the latter case Seller’s invoice shall serve as proof of the order and the acceptance thereof.
2. If the merchandise delivered by Seller should not have the content and or the quality or should not come up to the samples or analysis-results supplied by Seller, for which Seller declared in writing to be answerable, or if that delivery should not be in agreement with that agreed upon in another respect Seller shall - in Seller’s option - take back the goods sold or grant a price reduction not exceeding the amount of the actual depreciation. Seller shall not be liable for injurious consequences, not for any loss that may arise or result from the one and/or the other case for the Buyer or for third parties. In this respect the Buyer shall be obliged to hold Seller harmless.
3. Complaints about the content and/or the quality of merchandise sold by Seller should be communicated to Seller - on pain of extinction of rights by cable within 24 hours after arrival of goods and should be confirmed in writing and while sending at the same time a representative sample of this merchandise, within 8 days after delivery of those goods sold. The Buyer shall be obliged - in pain of extinction of rights - to show that the goods sold had the content and/or the quality, about which he complains, already at the time of the delivery thereof.
4. Seller’s measurements and weights shall be binding upon the Buyer. Provided the Buyer intimates the wish to that effect, he shall have the right to be present during Seller’s measuring or weighing.
5. If the quantity sold by Seller shall be denoted only approximately, Seller shall have the right, unless agreed upon otherwise - in Sellers option - to deliver 10% more or less than the quantity denoted.
6. The liability of Seller/viz. Van Es for any damage, claim, less-value demand, whatever, is limited to the amount for which Seller is insured with regard to the damage occurring. If, as the case arises, it turns out that for whatever reason there is no Insurance coverage, the liability of van Es shall be limited to the invoice value of the delivery of which the product that caused the damage formed part.
1. The selling prices by Seller shall be based on the exchange rates, taxes, imposts and duties as in force when entering into Seller’s agreement with the Buyer. Unless expressly stated otherwise with that agreement Seller shall have the right, with any modification of those rates of exchange, taxes, imposts and/or duties, to revise the selling prices stipulated by Seller accordingly.
2. Unless expressly otherwise agreed upon. Seller’s selling prices shall not include the costs of transportto the destination stated by the Buyer.
3. If seller agreed with the Buyer selling-prices inclusive of transport to the destination stated by him, Seller shall have the right, unless expressly otherwise stated, with any modification of the cost of transport since entering into the agreement, to revise the selling-prices stipulated by Seller accordingly.
1. If goods have been sold under terms as provided in the lncoterms of 1980 (including the supplement), obligations of Seller and Buyer are subject to the interpretation of the lncoterms, as far as these General Conditions do not deviate there from or are not contrary thereto.
2. If goods have been sold ‘free place of destination’, Seller must deliver the goods ex warehouse in conformity with the agreement, together with such evidence of conformity as may be required by the contract, and will forward the goods by any means of transport chosen by Seller, at his expense, but on Buyer’s risk to the place of destination. The further obligations of Seller and Buyer will be subject to the term of ‘freight and carriage paid to’- only if inland transport is provided - and to the term of cost and freight’ if sea transport is provided. The goods are only insured on behalf of the Buyer upon written instruction and for Buyer’s cost.
3. Goods sold on landed terms are subject to safe arrival thereof.
1. The Buyer shall be obliged, at the time agreed upon, - and in absence thereof immediately after receipt of Seller’s invoice - to pay the selling-prices and additional cost due by him, without any reduction, in cash at Seller’s office in Babberich or into banking or postal clearing account stated by Seller. If the quantity agreed upon is delivered in parts each part may be charged separately to the Buyer. Complaints from the Buyer, if any, shall be without prejudice to his obligation to pay.
2. Seller shall have the right at all times to claim that the Buyer within a period to be fixed by Seller and in the way to be indicated by Seller, shall give security for the due fullfilment of his obligations to pay. As long as a security, as demanded by Seller, has not been given, Seller shall not be obliged to deliver the merchandise sold by Seller
3. If the Buyer fails to pay the amount due to him at the time provided in paragraph l, he shall be immediately in default - without any proof in that being required - Since that time he shall be due to interest on the amount in arrear according to a monthly rate of interest of 1,50%.
4. In case of default, bankruptcy, suspension of payment and placing under curator ship (guardianship) of the Buyer, Seller shall have the right, without juridical intervention, to consider the agreement concluded with him or the part thereof not being executed, as cancelled and to claim compensation of the damage caused to Seller owing to that cancellation. All costs incurred by Seller in and out of court in connection with non payment or delaying payment by the Buyer, shall be for his account, i.e. with a minimum of 15% of the amount of all invoices not or delayed paid.
1. The property in the merchandise sold by Seller and delivered to the Buyer shall only be transferred to the Buyer after payment by him of the selling-prices and additional cost due to Seller.
2. In case mixing with other products takes place, the Buyer shall be deemed, when entering into the agreement, on the ground of which the quantities concerned have been delivered to him, to have transferred to Seller the co-ownership of the whole parcel formed as a result of that mixing, which co-ownership is than accepted by Seller.
3. If, even without invitation, Buyer omits to inspect goods before shipment he is considered to have taken over the goods as regards quality and quantity on the basis of the shipping documents.
Force majeure and circumstances, that shall handicap, interfere with or delay the production, the delivery or the shipment to Seller or to the Buyer, just as strike or lockout, lack or labor, trucks of suitable shipping space, stagnation of the traffic by land or by water, stopping of mines, pits, refineries and other plants, interruption of work, natural or compulsory decrease of production on the spot where the merchandise to be delivered by Seller are obtained by Seller, abnormal and unforeseen rises in price, breach of contract or failure of suppliers, carries or other third parties engaged by Seller, war, hostilities state of war or state of siege, mobilization in the country of shipment destination or transit, prohibitions on export, import or transit issued by the EC-authorities and/or the authorities of the country of shipment, destination or transit, shipwreck or damage of means of convenance and all other calamities of whatever nature shall release Seller, if and insofar as Seller wishes that, from Seller’s obligations under the agreement concluded with the Buyer, or suspense these obligations without Seller’s being obliged to pay compensation, whatever.
If goods are sold on terms whereby delivery shall be at future date or dates, the obligation to observe strictly the date or dates agreed upon, rests upon Buyer. If Buyer violates these obligations or one of these obligations, Seller has the choice to without precious summons of notice cancel the contract or the remainder of it, or to claim the fulfilment of the contract or the remainder of it, and is in both cases entitled to claim full damages.
1. Seller shall not be liable for damages that shall be caused by the merchandise delivered and to be delivered by Seller to the Buyer. The Buyer shall be obliged to hold Seller harmless for all claims that third parties might make on Seller in connection with such damages.
2. Recall: In case of possible recall-action and particularly for the purpose of recovery of the goods, the buyer authorizes van Es to enter any building where the goods are (or reasonably might be) for reprocessing or substitution purposes. The buyer is not entitled to suspend payment or to deduct any amount from the invoice. The buyer shall handle the delivered goods in a reasonable way conform commercial storage conditions particularly towards cleaning, temperature, strange odors etc. and shall not perform any acts that may adversely affect the quality of the goods.
1. Seller’s agreement with the Buyer shall be governed by the Dutch Law.
2. Any disputes arising from Seller’s agreement with the Buyer or in consequence thereof shall be adjudicated upon, subject to appeal, by the competent judge at the residence of the Seller, unless Seller, should file a petition to another judge or should subject himself to the Judgement of such other judge.
VAN ES FOODS INTERNATIONAL BV
6909 DA BABBERICH
October 13, 2009