General Terms and Conditions of Sale and Delivery
Adri en Zoon Schaal- en Schelpdierenhandel B.V., with registered office in
4401 PA Yerseke, the Netherlands, at Krab 17.
Zuidwest-Nederland Chamber of Commerce registration number: 22025360
ARTICLE 1: APPLICABILITY
1.1 All offers, orders, and agreements by Adri en Zoon Schaal- en Schelpdierenhandel B.V., hereinafter referred to as “the user,” are subject to these general terms and conditions. In the following, the client/buyer shall be referred to as “the other party.”
1.2 General and other terms and conditions used by the other party are expressly rejected by the user. These shall only be part of an agreement entered into by the parties if and insofar as these have been accepted by the user expressly and in writing.
1.3 The other party is assumed to have accepted the user’s general terms and conditions, unless the other party has stated in writing that it rejects the general terms and conditions.
1.4 Inapplicability of one of the provisions of the general terms and conditions in a specific case will not affect the applicability of the other provisions.
ARTICLE 2: AGREEMENTS
2.1 All offers and quotes issued by the user are without obligations.
2.2 An agreement shall only be formed after acceptance by the user.
2.3 Additions/amendments following agreements entered into shall be binding only after written acceptance by the user.
ARTICLE 3: OFFERS
3.1 All offers, quotes, price lists, delivery times, etc. specified by the user are without obligations. If an offer/quote contains a no-obligations offer that is accepted by the other party, the user reserves the right to revoke this offer within two days after receipt of the acceptance.
3.2 The user is entitled to pass changes to the cost price of goods sold following, for example, changes to terms of employment (including wages), social legislation, taxes, purchase prices, etc., on to the other party, also after formation of the agreement.
3.3 The user is entitled to pass changes to price lists after formation of the agreement on to the other party.
3.4 Price increases due to exchange rate fluctuations after formation of the agreement may be passed on.
3.5 The user is entitled to bring in third parties in the execution of the agreement that has been entered into.
3.6 Prices quoted are always exclusive of direct and indirect taxes, duties, surcharges, insurance premiums, and shipping and transport costs, unless specifically agreed otherwise in writing.
ARTICLE 4: DELIVERY/WORK PERFORMED
4.1 Goods shall be delivered to the delivery address agreed with the other party.
4.2 The risk in the goods shall be transferred to the other party upon delivery.
4.3 The other party is liable for the risk involved in unloading and storing goods. The other party agrees to compensate the user for all damage caused by unloading of the goods.
4.4 Delivery times and terms specified by the user are for information purposes only and can never be considered deadlines, unless explicitly agreed otherwise in writing. In the event of late delivery, notice of default must be served in writing. The other party must in that case allow the user a reasonable term to meet its obligations. The other party is not entitled to compensation for any losses, either direct or indirect and of any nature, caused by non-compliance with delivery times and terms. In case of split delivery of goods, each partial delivery or each phase shall be considered a separate transaction.
4.5 If it is not made possible for the user to deliver the sold goods to the other party, the user shall have the right to, without judicial intervention and without notice of default, terminate the agreement, without prejudice to the user’s right to full compensation. Extrajudicial termination of the agreement shall not affect the other party’s obligation to pay the purchase price. If the agreement is not terminated extrajudicially by the user, the user is entitled to store the sold goods at the risk and expense of the other party.
4.6 Delivery of goods sold happens in one batch at a delivery address specified by the other party. If required, the other party must take care of further distribution.
4.7 The other party guarantees adequate accessibility of the destination to which goods are to be delivered.
4.8 The user reserves the right to delay delivery if the other party has failed to comply with payment obligations relating to previous deliveries.
ARTICLE 5: PROGRESS, EXECUTION OF ACTIVITIES
5.1 Any delays in delivery of goods shall be at the expense and risk of the other party. All ensuing losses suffered by the user shall be recovered from the other party.
5.2 In the event that the agreement entered into by the parties cannot be honoured as is, the user is entitled to either terminate the agreement, without liability for any kind of compensation towards the other party, or make an alternative offer to the other party, which the other party shall be required to accept if it approximates the original agreement entered into by the parties.
5.3 In case of an amendment to the agreement at the request of the other party, all ensuing costs shall fall to the other party.
ARTICLE 6: COMPLAINTS/RETURNS
6.1 The other party agrees to check goods for possible faults and/or damage immediately upon delivery. The other party must notify the user of possible faults and/or damage in writing immediately after detection thereof in accordance with the user’s returns procedure, failing which the user shall have the right to no longer accept complaints.
6.2 The other party cannot make claims if the matter underlying the claim was reported to the user after the end of the day on which delivery took place. The user must be notified in writing in accordance with the user’s returns procedure.
6.3 When the other party detects any kind of fault and/or damage, the other party shall be obliged to do anything or refrain from doing anything that is reasonably possible and necessary to prevent (further) damage.
6.4 The other party agrees to render full cooperation to the user for any investigations of complaints. If the other party fails to cooperate or investigation of complaints is not possible or no longer possible for other reasons, the other party shall not be able to enforce claims against the user.
6.5 Returning delivered goods to the user is possible only with the user’s prior written consent and in accordance with the user’s returns procedure. When returned, goods must be in their original condition and sealed packaging, with the original labels and the user’s returns label. Costs involved in returning goods shall fall to the other party.
6.6 Minor differences in quality, dimensions, or other criteria are not valid reasons for complaint.
6.7 The presence of any kind of fault and/or damage as referred to in this article shall not entitle the other party to suspend or offset payment obligations. Compensation is expressly excluded.
6.8 The user does not accept complaints regarding (partially) processed products.
6.9 Complaints regarding invoices must be lodged with the user by the other party within two days after receipt.
ARTICLE 7: LIABILITY/WARRANTY
7.1 Except insofar as damage is the result of intent or wilful recklessness on the part of the user, the user cannot be held liable for damage, including consequential damage, immaterial damage, loss of profits, environmental damage, and personal injury, direct or indirect, of any nature, regardless of how it was caused and by whom it was caused. The same limitation applies to staff or third parties used by the user in executing the agreement and for performance of the user’s activities.
7.2 The user’s liability, as exists for whatever reason, shall in any case be limited to the amount of the net selling price of the goods delivered. The user shall never be obliged to pay any kind of compensation.
7.3 The other party shall indemnify the user against any claims of any nature as lodged against the user by third parties in relation to possible losses suffered or to be suffered beyond the liability the other party can enforce to the user.
7.4 Any liability of the user to the other party shall in any case lapse within six months after delivery of the goods sold.
ARTICLE 8: PAYMENT
8.1 Unless explicitly agreed otherwise in writing, payments must be made within 14 days after the invoice date, failing which the other party shall automatically be in default without any further demand or notice of default being required. The other party is not entitled to invoke any right of suspension or offsetting.
8.2 In case of default, the other party shall be liable to pay (cumulative) default interest on the outstanding invoice amount at a rate of 1.5% per month. Without prejudice to the user’s right to claim actual damages, the other party also agrees to pay all extrajudicial collection charges relating to the collection of the claim by the user. These charges are fixed at a rate of 15% of the payable principal sum with a minimum of €100.
8.3 The user is entitled to opt to terminate the agreement in full or partially in the event of default by the other party, without further notice of default or judicial intervention, while the other party shall continue to be obliged to pay the user full compensation.
8.4 If the user initiates legal proceedings, the other party shall be liable to compensate the user for all costs incurred. This includes lawyer fees, fees for representatives, court fees, bailiff’s costs, fees for extracts, etc.
8.5 In the event of late payment for any invoice, all outstanding invoices, including those for which the payment term has not yet expired, shall become payable immediately.
8.6 The user reserves the right to require security for payment, if it suspects, wholly at its own discretion, that the other party will not or not fully meet its payment obligations, or not do so on time. The user shall in that case also be entitled to require prepayment. The user furthermore reserves the right to suspend its obligations until payment has been made or proper security has been provided.
8.7 Payments made by the other party shall always go towards settling payable interest and costs, and subsequently towards settling amounts due on the oldest payable invoices, even if the other party specifies that a payment relates to other invoices.
ARTICLE 9: SEVERAL LIABILITY AND OFFSETTING
9.1 If the other party has or will have, on any grounds, one or multiple counterclaims against the user, the other party shall not be entitled to offset these against the user’s claims.
9.2 If the other party is made up of one or several natural or legal persons, these shall all be fully liable for compliance with the other party’s obligations towards the user.
ARTICLE 10: RETENTION OF TITLE
10.1 As long as the other party has not made full payment on claims under any agreement entered into with the user, as well as in relation to claims due to non-compliance with these agreements, goods delivered to the other party by the user shall remain the property of the user. In the event of non-compliance by the other party with any obligation under the agreements entered into with the other party, the user reserves the right to repossess any goods that are its property.
10.2 As long as title to goods delivered by the user is retained by the user, the other party shall not be allowed to process, sell, or establish any kind of security on these goods, unless this happens as part of its regular business operations.
10.3 In the event that the user were to invoke retention of title, the agreement relating to the goods in question shall be considered terminated, without prejudice to the user’s entitlement to compensation for damage, loss of profits and interest.
10.4 The other party neither has the right to offset any of their claims against goods that are subject to retention of title, nor to suspend its obligation to make the goods available.
10.5 Property law consequences of retention of title are governed by the laws of the country where the goods are at the time of delivery.
10.6 In case of goods for export, and contrary to the previous paragraph of this article, the property law consequences of retention of title shall be governed by the laws of the destination country, provided those laws, in terms of retention of title, offer provisions that are more favourable for the user than those that would apply under the laws applicable based on the previous paragraph.
ARTICLE 11: PLEDGE
11.1 The other party is not authorised to give goods delivered to third parties as security and/or establish a nonpossessory pledge on these goods and/or give financiers actual control over these goods for storage, which would be considered an attributable failure on the part of the other party. The user can in that case immediately, without having to give any kind of notice of default, suspend its obligations under the agreement, or terminate the agreement, without prejudice to the user’s right to compensation for damage, loss of profits and interest.
ARTICLE 12: SUSPENSION AND TERMINATION
12.1 The user reserves the right to, without prejudice to its entitlement to damages, and without notice of default and without judicial intervention, suspend execution of the agreement and all related agreements with immediate effect and/or terminate this agreement and all related agreements in full or partially with immediate effect if:
a. the other party fails to comply with any obligation under the agreement, or fails to do so on time or properly;
b. the other party has filed for bankruptcy or applied for a moratorium or, if the other party is a natural person, statutory debt adjustment has been sought for the other party;
c. the company of the other party is dissolved, wound up, or closed down;
d. part of the other party’s capital has been seized;
e. the user has valid reason to believe that the other party is not able or will not be able to meet its obligations ensuing from the agreement or agreements entered into with the user, and the other party has failed to provide sufficient security for compliance with its obligations after a request to that effect by the user.
12.2 Any claims the user may have or acquire against the other party in cases referenced in the first paragraph of this article shall be fully and immediately payable, while the user also reserves the right to take back all goods on which it has retained title.
12.3 The other party is not entitled to invoke any right of suspension or offsetting against the user.
12.4 The other party is not entitled to terminate the agreement in full or partially if it was itself already in default in terms of compliance with its obligations.
ARTICLE 13: FAILURE/DEFAULT
13.1 In the event that the user is unable to comply with the provisions from the agreement entered into with the other party, and this can be attributed to non-attributable non-compliance on the part of the user or a third party/subcontractor brought in for the execution of the agreement, the user reserves the right to terminate the agreement entered into by the parties or suspend compliance with its obligations towards the other party for a reasonable period set by the user, without being held to any kind of compensation. The other party shall in that case be held to compliance for the part of the agreement that has been executed.
13.2 Circumstances causing non-attributable non-compliance include: war, riots, mobilisation, civil disorder in the Netherlands or abroad, government measures, strike and lockout by workers or threats thereof and similar circumstances, disruption of currency exchange rates as they were at the time of entering into the agreement, operational failure due to fire, accident, or other incidents, natural phenomena, regardless of whether it is the user, their subcontractors, or third parties brought in by the user for execution of the agreement who fails/fail to comply or comply on time.
13.3 In the event that the other party were to fail to promptly comply with its obligations towards the user in any way, such as due to a suspension of payment, application for a moratorium, bankruptcy, seizure or assignment of estate, or liquidation of the other party’s business, any amounts payable by the other party to the user under any agreement shall become immediately due and payable.
ARTICLE 14: CANCELLATION/TERMINATION
14.1 The other party waives all rights to termination of the agreement as awarded by Article 6:265 et seq. of the Dutch Civil Code or other statutory provisions, unless cancellation has been agreed as specified in the second paragraph.
14.2 Cancellation by the other party is possible only with the user’s written consent. The user reserves the right to specify conditions for termination of the agreement.
14.3 Any amounts the other party has already paid will not be refunded.
ARTICLE 15: GENERAL PROVISIONS
15.1 The other party is not authorised to transfer rights and obligations under the agreement or ensuing agreements to third parties, neither in full, nor partially.
15.2 Amendments to these general terms and conditions or deviating provisions shall be valid only if these have been recorded in writing and signed by both parties.
ARTICLE 16: APPLICABLE LAW AND DISPUTES
16.1 Agreements entered into under these general terms and conditions are governed by Dutch law to the exclusion of provisions of International Treaties including the Vienna Sales Convention, insofar as these do not contain mandatory law.
16.2 Any disputes between the parties that may arise in relation to the agreement shall exclusively be submitted to the Middelburg site of the court of Zeeland-West-Brabant, without prejudice to the user’s right to initiate legal proceedings against the other party before the court that is competent by law or a treaty. A dispute exists as soon as one of the parties has notified the other party thereof in writing.