GENERAL TERMS AND CONDITIONS FOR DELIVERY OF:
Speerstra Feed Ingredients BV/Trading BV Postbus 160 8530 AD, Lemmer Chambre of Commerce KvK 01085923 +KvK 01085921
hereinafter to be referred to as: SFI/SFT
Article 1 Definitions
1. In the present general terms and conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise.
User: the user of the general terms and conditions: Speerstra Feed Ingredients BV / Speerstra Feed Trading BV (SFI/SFT)
Buyer: the user’s opposite party, acting or not acting in the course of a business or in the course of a pro- fession.
Article 2 Applicability
1. The stipulations of the present terms and conditions shall apply to each and every offer and agreement between SFI/SFT and a buyer, to which SFI/SFT has declared the present terms and conditions applicable, insofar as parties have not explicitly deviated from the present terms and conditions in writing. 2. The present terms and conditions shall also apply to all agreements with SFI/SFT the execution of which calls for the services of third parties.
3. In case of delivery of special named goods/products the terms of condition of that special producer/supplier shall apply to the agreement between SFI/SFT and buyer. (above mentioned conditions are available on request).
Article 3 General
1. Agreements and offers made by employees of SFI/SFT shall only apply when there has been made a written agreement signed by the director of SFI/SFT
2. The buyer’s general terms and conditions shall only apply if parties have explicitly agreed in writing that said general terms and conditions shall apply to the present agreement with the exclusion of the present general terms and conditions. In that event possibly still conflicting stipulations in the SFI/SFT’s and buyer’s general terms and conditions shall only apply between parties, if and in so far that they are a part of SFI/SFT’s general terms and conditions.
Article 4 Offers
1. AII offers shall be free of obligation unless the offer contains an acceptance term. The offers made by SFI/SFT shall be free of obligation; they shall be valid for a period of 24 hours, unless indicated otherwise. SFI/SFT shall only be bound by the offers if the acceptance thereof is confirmed in writing by the buyer within thirty days.
2.TermsofdeliverygiveninSFI/SFT’s offersshallonlybetentativeandexceedingthesetermsof delivery shall not entitle buyer to dissolution or damages, unless explicitly agreed upon otherwise.
3. The prices given in above-mentioned offers and tenders shall be exclusive of VAT and other government levies, as well as of shipment costs and possible packaging and administration costs, unless explicitly stated otherwise. Prices are based on the Euro rate at the day of offer.
4. SFI/SFT shall only be bound by the offers if the acceptance thereof is confirmed in writing by the buyer within 24 hours.
Article 5 Delivery
1. Delivery shall be made ex works store/warehouse of SFI/SFT. The goods travel at buyer’s risk and expense, unless stated otherwise. If delivery is made on the basis of the “Incoterms”, the “Incoterms” valid at the moment the agreement is concluded, shall apply.
2. Buyer shall be held to take delivery of the goods the moment that SFI/SFT delivers them to him or has them delivered, or the moment at which the goods are put at buyer’s disposal under the agreement.
3. II the buyer refuses to take delivery or fails to give the information or instructions necessary to the delivery, SFI/SFT shall be entitled to store the goods at buyer’s risk and expense. If the goods are serviced, SFI/SFT shall be entitled to charge possible service charges. Said service charges shall then be invoiced separately.
4. SFI/SFT shall be entitled to deliver 10 % less or more goods as agreed.
5. To all agreements in which delivery during winter months is foreseen, the so-called ice clause applies. This means that the buyer is obliged to receive the goods bought in any other port, without compensation for dead freight, and that if buyer does not immediately pick up the goods on the other discharging port, the extra expenses, such as demurrages costs, as a result of this may be charged to the buyer.
6. If buyer fails to fulfil his payment obligation within the term of 14 days SFI/SFT is authorized to suspend or dissolve the agreement. Buyer is obligated to compensate SFI/SFT for all damage and costs suffered as a result of the buyers negligence.
Article 6 Time of delivery
1. If SFI/SFT has given a term of delivery, it shall only be indicative. A given term of delivery shall therefore never constitute a term to be observed on penalty of forfeiture of rights.
2. Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own. In addition to the provisions of the law and the judge-made law in this respect, force majeure shall in the present general terms and conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which user cannot have any influence but which prevents user from fulfilling his obligations. The following circumstances will be understood to be force-majeure:
a.) natural disasters,(threat of war, terrorist attacks, insurrection;
b.) stagnation in the supply of raw materials or the dispatch of a finished product;
c.) iIIness suffered by so many persons that delivery is reasonably impossible;
d.) manufacturing problems at SFI/SFT suppliers
e.) delivery problems at SFI/SFT suppliers on which SFI/SFT has no influence
f.) problems with transport or transport carried out by third parties
g.) damage to means of production as a result of fire ,storm or other extreme unforeseeable causes;
h.) any measure taken by a national or international authority.
3.SFVSFTshall inform the buyer as soon as possible of (potential)situations of force majeur
Article 7 Partial delivery
SFI/SFT shall be entitled to deliver the goods in parts, unless such is deviated from in writing in the agreement. SFI/SFT shall be entitled to invoice the thus delivered goods separately.
Article 8 Quality
Possible visible shortcomings must be communicated in writing to SFI/SFT within 24 hours following delivery. In case of complaints SFI/SFT should be given the opportunity to have the goods examined by itself and an independent surveyor.
Non-visible shortcomings must be reported within two weeks following delivery.
Goods about the non-confirmity of which buyer has given notice shall be kept available for SFI/SFT without having been mixed or processed.
2.ln case Buyer has started to convert or sell the goods buyer looses the right to claim.
3.SFI/SFT shall not be liable in case the delivered goods are not suitable for the buyers purpose. 4.Special quality requirements made by buyer must be put in writing before the agreement comes to terms.
5.In case the in the Netherlands delivered goods should be used/converted in other countries SFI/SFT is not Iiable for the quality requirements which comply in that certain country.
1. Buyer shall have the goods examined without delay: Buyer has to take notice of the quantity and quality of the delivered goods.(article 8:1 + 2)
2. Visible shortcomings must be reported within 24 hours after delivery by fax or mail to SFi/SFt. SFi/SFt must be given the opportunity to have the goods examined by itself and an independent surveyor.
3. Non visible shortcomings must be reported by writing within 2 weeks after delivery.
4. II the buyer has already started to process/sold the product then he looses all rights to claim.
5. Submitting a quality claim, irrespective whether the claim is accepted or not, shall not suspend, annul or otherwise change the payment and other obligations of the buyer. The buyer is not allowed to offset or suspend payment.
6. Goods can only be returned (and replaced) after written permission of SFI/SFT.
Article 10 Retention of Title
1. AII goods delivered by SFI/SFT, shall remain SFI/SFT’s property until buyer has fulfilled all of his obligations under all agreements concluded with SFI/SFT
2. Buyer shall not be authorised to pledge or encumber in any way the goods falling under the retention of title, under the retention of title.
3. If goods delivered by SFI/SFT already were processed before payment a proportional part of the product is SFI/SFT’s property.
4. Sfi/Sft is entitled to sell the product and will restitute the amount above the requirement to the buyer.
5. It third parties seize goods delivered subject to retention of title or wish to establish orassert a right to them, buyer shall be held to inform SFI/SFT thereof as soon as can be reasonably expected.
6. The buyer shall undertake la insure the goods delivered subject to retention of title and to keep them insured against damage caused by fire, explosion and water as well as against theft and make this insurance policy available for inspection on first demand.
Article 11 Suspension and Dissolution
SFI/SFT shall be authorised to suspend the fulfilment of the obligations under the agreement or la dissolve the agreement, in the event that:
1. Buyer does not fulfil or does not fully fulfil his obligations resulting from the agreement. After the agree- ment has been concluded, SFI/SFT learns of ircumstances giving good ground to fear that the buyer will not fulfil his obligations. If good ground exists to fear that the buyer will only partially or improperly fulfil his obli – gations.
2. ln case SFI/SFT does not receive the delivery from its own supplier
3. In case of Forcemajeure (article 6)
1. Unless agreed otherwhise in writen prices are given: ln Euro’s/Ex Vat
Ex Transport IF.O.T. Based on minimum quantities.
2. Sfl/SFT shall be allowed among others, to charge on price increases if changes in price have occurred between the moment the offer was made and the moment of execution of the agreement with respect to, e.g., exchange rates, salaries and wages, raw material, semi-finished products or packaging material
3. If price increase should be more then 10% buyer is entitled to suspend the agreement.
Article 13 Payment:
1. Payment must be made within 14 days from the date of invoice, in a way to be indicated by SFI/SFT and in the currency in which the goods were invoiced.
2. If buyer fails to fulfil his payment obligation within the term of 14 days, then buyer shall be in default by operation of law. In that event, buyer shall owe an interest of 1 % per month, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply.
3. SFI/SFT’s claims against buyer shall become due on demand in the event that buyer is wound up, attached, declared bankrupt, or if a suspension of payment is granted.
4. Payment must be made without reduction or deduction unless SFi/ISFt has given written permission.
5. Payments will be deducted from the oldest outstanding invoice even if the buyer said to pay a more recent one.
Article 14 Collection Charges
1. If the buyer fails to fulfil his obligations (in due time) or defaults on them, then all reasonable costs incurred to have all extrajudicial costs and debts paid shall be borne by the buyer. It the buyer remains in default of payment within the set time period, he forfeits an immediately payable fine of 15% on the amount due at that moment when it is a claim on a Dutch buyer or 20% when it concerns a foreign buyer, everything with a minimum of € 500,-.
2. If SFi/SFt demonstrates that he has incurred higher expenses, which were necessary in reason, said expenses shall also qualify for reimbursement.
3. The reasonable judicial and execution costs possibly incurred shall equally be borne by buyer.
Article 15 Liability:
1. Raw materials for animal feed is only intended to be used as raw material for compound feeds
2. SFI/SFT is only Iiable for damage caused directly by SFIISFT’s employees
3. Under no circumstances shall SFI/SFT be Iiable lor damage caused by any product that has not been produced by SFI/SFT.
4. If SFI/SFT is liable for direct damage, then said liability shall be Iimited to a maximum of one and a halve the amount of the invoice, at any rate that part of the agreement to which the liability relates, at any rate to a maximum of € 35.000 (In words: euro thirty five thousand) SFI/SFT’s Iiability shall at all times be Iimited to a maximum equalling the amount of the payment to be made by SFI/SFT’s insurer in the occurring event.
Article 16 Force Majeure
1. In addition to the provisions of the law and the judge-made law in this respect, it envisaged or not, on which SFI/SFT cannot have any influence but which prevents SFI/SFT from fulfilling his obligations. Industrial action at SFI/SFT ’s suppliers, as well as fire, war, blockades, perils of the sea, storm, water overflow, frost, disasters or acitivities of terrorism shall also be understood to be a circumstance of force majeure.
2. Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfilment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to dissolve the agreement without any obligation to pay the opposite party damages.
Article 17 Disputes
1. The Court in user’s place of business shall have exclusive jurisdiction to hear actions, unless the District Court is the competent Court. User shall nevertheless be entitled to submit the dispute to the Court deemed competent by the law.
18 Applicable Law
1. Dutch law shall apply to each and every agreement between SFI/SFT and the buyer. The Vienna Sales Convention shall be explicitly excluded.
Article 19 Changes to the Terms and Conditions, interpretation and their location
1. The present terms and conditions have been filed at the office of the Chamber of Commerce in Leeuwarden nr 01085923 (SFI) and nr 01085921 (SFT)
2. The Dutch version of these general terms and conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these terms and conditions.
3. The most recently filed version shall always apply, or, as the case may be, the version valid at the time the agreement was concluded.