Article 1: Applicability, definitions
1.1. These Terms and Conditions apply to every offer made to a third party and every agreement of purchase and sale concluded with a third party by the private company with limited liability incorporated under Dutch law Wylax International B.V. or the private company with limited liability incorporated under Dutch law Affish B.V., hereinafter both referred to in the singular as “the user”.
1.2.The purchaser will hereinafter be referred to as “the co-contracting party”.
1.3.In these General Terms and Conditions, “in writing” and “written” shall be taken to mean: by letter, e-mail, fax or any other means of communication on a par with them in view of the state of the art and generally accepted standards.
1.4. In these General Terms and Conditions, “products” shall be taken to mean: both perishable products and products with an expiration date.
1.5. In these General Terms and Conditions, “products with an expiration date” shall be taken to mean: deep frozen food products, other products with a long shelf life and all products without an expiration date.
1.6. In these General Terms and Conditions, “perishable products” shall be taken to mean: fresh fish, frozen fish or other fresh or frozen products the quality of which deteriorates or may deteriorate within a short time-span.
1.7. Possible non-applicability of any (part of a) provision of these General Terms and Conditions does not affect the applicability of the remaining provisions.
1.8. In the event of an inconsistency or difference between these General Terms and Conditions and a translated version thereof, the Dutch text will prevail.
1.9. These General Terms and Conditions also apply to repeat orders and partial orders arising from the agreement.
1.10. If the user has submitted these General Terms and Conditions several times to the co-contracting party, there will be considered to be a prolonged trading relationship. In that case the user does not have to submit the General Terms and Conditions every time anew for them to be applicable to subsequent agreements.
Article 2: Offer, quotations, prices
2.1. Every offer and every quotation of the user shall be valid for the period stated therein. An offer or quotation which does not state a validity period shall be non-committal. In the event of a non-committal offer or quotation, the user shall have the right to withdraw said offer or quotation within no more than 2 working days from receipt of acceptance.
2.2. The prices stated in an offer, quotation or pricelist are exclusive of VAT and any costs, such as the cost of transport, cost of dispatch, administrative charges, handling fees and expense claims from third parties engaged.
2.3. A composite offer or quotation does not oblige the user to deliver part of the service offered for a corresponding part of the price.
2.4. If the offer or the quotation is based on information provided by the co-contracting party and said information appears to be incorrect or incomplete or changes at a later date, the user will have the right to adjust the prices and/or delivery periods indicated.
2.5. The offer, the quotation and the prices do not automatically apply to repeat orders or partial orders.
2.6. Samples, models, colour specifications, dimensions, weights and other descriptions shown and/or provided in brochures, promotion material and/or the website of the user are as accurate as possible, but serve only as an indication. The co-contracting party cannot derive any rights from them.
2.7. The samples and models provided shall remain the property of the user and must be returned to him at the expense of the co-contracting party immediately on request.
2.8. If (cost) price increasing circumstances arise for the user between the date of concluding the agreement and the performance thereof as a consequence of amended regulations and legislation, government measures, currency fluctuations or price changes with regard to market prices, the necessary materials and/or raw materials, the user will have the right to increase the prices agreed accordingly and charge them to the co-contracting party.
Article 3: Conclusion of agreements
3.1. The agreement is concluded upon the co-contracting party’s acceptance of the offer from the user, also if said acceptance differs from the offer on minor points. However, if the acceptance of the co-contracting party differs on essential points, the agreement will not be concluded until the user has agreed to the differences in writing.
3.2. The user will not be bound by:
– an order which was not preceded by an offer;
– oral arrangements;
– additions or amendments to the General Terms and Conditions or the agreement,
until after the written confirmation thereof to the co-contracting party or as soon as the user has started to carry out the order or arrangements or has sent an invoice to the co-contracting party, without the co-contracting party raising objections.
Article 4: Engagement of third parties
4.1. If a proper performance of the agreement requires it in the opinion of the user, he may have certain deliveries carried out by third parties.
Article 5: Delivery, delivery periods
5.1 Delivery periods agreed may never be considered to be final deadlines. If the user fails to comply with his delivery obligations or if he fails to comply with them in time, the co-contracting party shall give him written notice of default and allow a reasonable period of time to still fulfil the delivery obligations, unless it concerns delivery of perishable products, in which case the co-contracting party has the right to cancel the order in writing.
5.2 The user is entitled to deliver in parts, whereby each partial delivery may be invoiced separately.
5.3 The risk attached to the products to be delivered will pass on to the co-contracting party at the time of delivery. This is the moment at which the products to be delivered leave the premises, the warehouse or the shop of the user or at which the user has communicated to the co-contracting party that he may collect the products.
5.4 The products are dispatched or transported at the risk and expense of the co-contracting party and in the manner to be determined by the user. The user is not liable for any loss of whatever nature, whether or not to the products themselves, related to the dispatch or transport.
5.5 If the user himself delivers the products to the co-contracting party, the risk attached to the products will pass on at the time they arrive at the location of the co-contracting party and are actually at his disposal.
5.6 If it appears to be impossible to deliver the products with an expiration date to the co-contracting party (in the manner agreed) or if said products are not collected due to a cause within the control of the co-contracting party, the user shall have the right to store the products with an expiration date at the expense and risk of the co-contracting party. After notification of the storage, the co-contracting party must enable the user to still deliver the products or collect them within the period of time to be established by the user.
5.7 If the co-contracting party fails to fulfil his purchase obligation after expiry of the period of time referred to in the preceding paragraph, he will be in default with immediate effect. In that case, the user will have the right to dissolve the agreement fully or in part with immediate effect by means of a written statement and to sell the products with an expiration date to third parties, without any obligation arising for the user to pay damages, interest and costs. The foregoing does not affect the obligation of the co-contracting party to pay any (storage) costs, losses due to delays, lost profits or other damage or the right of the user to still claim fulfilment.
5.8 If it appears to be impossible to deliver the perishable products to the co-contracting party (in the manner agreed) or if said products are not collected due to a cause within the control of the co-contracting party, the co-contracting party shall be in default by operation of law. In order to limit his loss, the user will in that case have the right to sell the perishable products to third parties. If the user does not manage to sell the perishable products in a timely fashion, he will have the right to destroy them. Upon sale or destruction of the perishable products, the user will have the right to dissolve the agreement fully or in part with immediate effect by means of a written statement; all the foregoing without any obligation arising for the user to pay damages, interest and costs. The foregoing does not affect the obligation of the co-contracting party to pay any (storage) costs, losses due to delays, lost profits or other damage or the right of the user to still claim fulfilment.
5.9 A delivery period agreed will not commence until the time the user has received all information necessary for the delivery and any (advance) payment agreed from the co-contracting party. If this causes a delay, the delivery period shall be extended on a proportional basis.
Article 6: Packaging
6.1. Packaging intended to be used several times remains the property of the user. Said packaging shall not be used by the co-contracting party for any purpose other than its intended use.
6.2. The user will determine whether the packaging must be returned by the co-contracting party or whether he himself will collect the packaging and at whose expense such is to be effectuated.
6.3. The user has the right to charge the co-contracting party a fee for said packaging. If the packaging is returned carriage paid by the co-contracting party within the period of time agreed for it, the user must take the packaging back and repay the fee charged to the co-contracting party or settle it with the fee the co-contracting party is to pay for the packaging of a subsequent delivery.
6.4. If the packaging is damaged, incomplete or gone lost, the co-contracting party shall be liable for the loss and his right to repayment of the fee shall lapse.
6.5. If the loss referred to in the preceding paragraph exceeds the fee charged, the user does not have to take back the packaging. In that case, the user will have the right to charge the co-contracting party for it at cost price, reduced by the fee paid by the co-contracting party.
6.6. The user does not have to take back packaging intended for a single use and he may leave it with the co-contracting party. In that case, any costs for its removal will be at the expense of the co-contracting party.
Article 7: Complaints and returned products
7.1. The co-contracting party shall undertake to inspect the products immediately following delivery and state any visible defects, damage, differences in numbers, weight and/or other non-conformities on the consignment note or accompanying receipt. If there is no consignment note or accompanying receipt, the co-contracting party shall undertake to report to the user the defects, damage, etc., within 2 working days from receipt of the products, followed by a written confirmation thereof.
7.2. Contrary to the preceding paragraph, perishable products are subject to a 24-hour period of time from delivery.
7.3. If there is no report as referred to in the preceding paragraphs, the products will be deemed to have been received in good condition and to comply with the agreement.
7.4. Other complaints about the products must be reported in writing to the user immediately following discovery thereof and no later than the applicable expiration date or within the applicable guarantee period. The co-contracting party shall bear the risk of all consequences if such is not reported immediately. If no explicit expiration date has been agreed or stated on the products, the usual expiration date for such products in the (fish) industry will apply.
7.5. If a complaint is not reported to the user within the period of time stated in the preceding paragraphs, the applicable expiration date or guarantee agreed cannot be relied on.
7.6. Products ordered will be delivered in the (wholesale) packing in stock with the user and/or minimal quantities or numbers. Minor differences accepted within the industry with regard to sizes, weights, numbers, colours, etc., indicated, shall not constitute a defect on the part of the user. In this respect, the guarantee cannot be relied on.
7.7. Complaints do not suspend the payment obligation of the co-contracting party.
7.8. The co-contracting party must enable the user to investigate the complaint and provide the user with all relevant information to that end. If the investigation into the complaint requires the products to be returned, they shall be returned at the expense of the co-contracting party, unless it later on appears that the complaint is well-founded. The transport risk is always for the co-contracting party.
7.9. Return consignments shall in all cases be effectuated in the manner to be determined by the user and in the original packing or packaging.
7.10. No complaints can be submitted about imperfections in or features of products made from natural materials, raw materials or ingredients if such imperfections or features are inherent in the nature of the those materials, raw materials or ingredients.
7.11. No complaints can be submitted about discolouring and small relative differences in colour.
7.12. No complaints can be submitted about differences in odour and flavour, whether or not as a consequence of a modified formula of (food) products.
7.13. No complaints can be submitted about products which have changed their nature and/or composition after receipt thereof by the co-contracting party or have been treated or processed entirely or in part.
7.14. No complaints can be submitted about products of which the prescribed cold chain or the cold chain customary within the industry has been broken.
Article 8: Warranties
8.1. The user will ensure that the deliveries agreed are effectuated properly and in accordance with the standards prevailing in the industry, but he will never give any guarantee beyond what has been agreed explicitly between the parties with regard to said deliveries.
8.2. Until the expiration date and during the guarantee period, the user will guarantee the usual normal quality and soundness of the products delivered.
8.3. If the manufacturer or supplier has given a guarantee for the products delivered by the user, said guarantee will prevail between the parties in a similar manner. The user will inform the co-contracting party thereof.
8.4. If the purpose for which the co-contracting party wants to treat, process or use the products differs from the usual purpose of said products, the user will only guarantee that the products are suitable for such purpose if he has confirmed it in writing to the co-contracting party.
8.5. The expiration date or guarantee cannot be relied on as long as the co-contracting party has not paid the price agreed for the products.
8.6. In the event of a justifiable reliance on the expiration date or guarantee, the user will at his discretion and free of charge remedy or replace the products or repay the price agreed or give a discount on it. If there is collateral damage, the provisions of the liability article included in these General Terms and Conditions apply.
Article 9: Liability
9.1. The user does not assume any liability apart from the guarantees explicitly agreed upon or given by the user.
9.2. Without prejudice to the provisions in the preceding paragraph, the user shall only be liable for direct damage. Any liability of the user for consequential losses, such as trading loss, loss of profits and/or losses suffered, losses due to delays and/or personal or bodily injury, is explicitly excluded.
9.3. The co-contracting party must take all the measures necessary to prevent or limit damages.
9.4. If the user is liable for damage suffered by the co-contracting party, the user’s liability for compensation shall always be limited to a maximum of the amount his insurer will pay out in the relevant case. If the insurer does not pay out or if the damage is not covered by an insurance taken out by the user, the user’s liability for compensation shall be limited to a maximum of the invoice amount for the products delivered.
9.5. The co-contracting party must confront the user no later than within 6 months after he became aware or could have been aware of the damage he suffered, failing which the right to compensation lapses.
9.6. The user shall not be liable and the co-contracting party cannot rely on the applicable expiration date or guarantee if the damage was caused:
a) by inexpert use, use contrary to the intended use of the products delivered, or instructions, advice, directions for use, consumer information leaflets, etc., provided by or on behalf of the user;
b) by inexpert storage (for example non-cold storage);
c) by erroneous or incomplete information provided to the user by or on behalf of the co-contracting party;
d) by indications or instructions by or on behalf of the co-contracting party;
e) as a consequence of the choice of the co-contracting party differing from the user’s advice and/or the usual;
f) by the wrong choice made by the co-contracting party in respect of the products delivered.
9.7. In the cases listed in the preceding paragraph, the co-contracting party shall be fully liable for all damage arising and he will explicitly indemnify the user against all claims from third parties for compensation for the damage referred to.
9.8. The liability limitations included in this article do not apply if the damage is due to intent and/or deliberate recklessness on the part of the user or the managerial staff at board level or if mandatory statutory provisions dictate otherwise. Only in these cases will the user indemnify the co-contracting party against any claims from third parties in respect of the co-contracting party.
Article 10: Payment
10.1. The user always has the right to require (partial) advance payment or any other security for payment by the co-contracting party.
10.2. While the co-contracting party waives a possible statutory right to suspension or settlement, payment must be made within an expiry period of 30 days from the invoice date, unless the parties have agreed a different term of payment in writing. Furthermore, the accuracy of an invoice is definitive if the co-contracting party has not raised objections within said term of payment.
10.3. If an invoice is not paid in full upon expiry of the term referred to in the preceding paragraph or if no direct debit collection could be made, the co-contracting party shall owe the user a default interest of 2% per month, calculated over the principal on a cumulative basis. Parts of a month will in this respect be calculated as a full month.
10.4. If payment is still not made after the user’s demand thereto, the user will furthermore have the right to charge the co-contracting party extrajudicial collection costs of 15% of the invoice amount, observing a minimum of €150.
10.5. The user will first deduct payments made by the co-contracting party from all interest and costs owed and, subsequently, from the earliest outstanding invoices due, unless the co-contracting party states in writing upon payment that it relates to a later invoice.
Article 11: Retention of title
11.1. The user retains the right of ownership of all products delivered and to be delivered under the agreement until the time the co-contracting party will have fulfilled all payment obligations in respect of the user.
11.2. The payment obligations referred to in the preceding sentence consist of payment of the purchase price of the products, increased by accounts receivable for work performed related to the delivery and accounts receivable for breach by the co-contracting party of his obligations, such as claims for payment of damages, extrajudicial collection costs, interest and any financial penalty.
11.3. With regard to delivery of identical, non-identifiable products, the batch of products pertaining to the oldest invoices will in each case be deemed to have been sold first. Consequently, the retention of title is always vested in all products delivered which at the time of reliance on the retention of title are still in the shop and/or inventory or stock of the co-contracting party.
11.4. Products subject to retention of title may be resold by the co-contracting party within the scope of his normal business activities, provided that he has also stipulated retention of title in respect of the buyers of the products delivered.
11.5. As long as retention of title is vested in the products delivered, the co-contracting party shall not in any manner pledge the products or bring them into the (actual) control of a financier by means of lists of receivables pledged to the bank.
11.6. The co-contracting party must inform the user immediately in writing if third parties allege to have ownership rights or other rights to the products in which retention of title is vested.
11.7. The co-contracting party shall undertake to maintain the products with due care and as identifiable product of the user for as long as the title retention is vested in them.
11.8. The co-contracting party shall undertake to provide such business insurance or contents insurance that the products delivered subject to retention of title are always included under the policy and he will allow the user immediately on request to inspect the insurance policy and the associated proof of premium contributions.
11.9. If the co-contracting party acts contrary to the provisions of this article or if the user invokes the retention of title, the user and his employees will have the irrevocable right to access the premises of the co-contracting party and repossess the products delivered subject to retention of title. This will apply without prejudice to the right of the user to compensation for damage, lost profits and interest, and the right to dissolve the agreement without further notice of default by means of a written statement.
Article 12: Bankruptcy, no power of disposition, etc.
12.1. The user will always have the right to dissolve the agreement without further notice of default by means of a written statement to the co-contracting party when the co-contracting party:
a) is declared bankrupt or a petition for his bankruptcy has been submitted;
b) applies for a (provisional) moratorium;
c) is subjected to an attachment under a warrant of execution;
d) is put under guardianship or administration;
e) otherwise loses the power of disposition or legal capacity with regard to his assets or parts thereof.
12.2. The co-contracting party shall always undertake to inform the guardian or administrator of the (contents of the) agreement and these General Terms and Conditions.
Article 13: Force majeure
13.1. In the event of force majeure on the part of the co-contracting party or the user, the user will have the right to dissolve the agreement by means of a written statement to the co-contracting party or suspend his obligations in respect of the co-contracting party for a reasonable period of time without being obliged to pay damages.
13.2. Within the scope of these General Terms and Conditions, force majeure on the part of the user shall be taken to mean: a non-attributable breach by the user, third parties or suppliers engaged by him or other compelling reasons on the part of the user.
13.3. Circumstances deemed to constitute force majeure on the part of the user include, among others: war, riots, mobilization, domestic and foreign disturbances, government measures, strikes within the organization of the user and/or the co-contracting party or the threat thereof and similar circumstances, distortion of the currency exchange rates existing at the time of concluding the agreement, operational breakdowns due to fire, burglary, sabotage, failure of electricity, internet or telephone connections, natural phenomena, (natural) disasters, etc., as well as transport and delivery problems caused by weather conditions, roadblocks, accidents, import and export obstructive measures, etc.
13.4. If the situation of force majeure arises at the time the agreement has already been partially performed, the co-contracting party shall in any event undertake to fulfil his obligations until such time in respect of the user.
Article 14: Cancellation, suspension
14.1. If the co-contracting party wishes to cancel the agreement prior to or during the performance thereof, he will be obliged to pay the user compensation for the amount to be determined by the user. The compensation will include all costs incurred by the user and damage he suffered due to the cancellation, including loss of profits. The user has the right to fix the compensation and charge the co-contracting party 20 to 100% of the price agreed, at his discretion and depending on deliveries already made.
14.2. The co-contracting party is liable in respect of third parties for the consequences of the cancellation and he will indemnify the user against claims from said third parties arising from it.
14.3. The user has the right to settle all amounts paid by the co-contracting party with the compensation owed by it.
14.4. In the event of suspension of the performance of the agreement on the co-contracting party’s request, all costs incurred at that time will be immediately due and payable and the user may charge them to the co-contracting party. Furthermore, the user may charge the co-contracting party for all costs incurred and to be incurred during the suspension period.
14.5. If it is impossible to resume performance of the agreement after the suspension period agreed upon, the user will have the right to dissolve the agreement by means of a written statement to the co-contracting party. If performance of the agreement is resumed after the suspension period agreed upon, the co-contracting party shall undertake to compensate the user for any costs he has as a consequence of such resumption.
Article 15: Applicable law/court of competent jurisdiction
15.1. The agreement concluded between the user and the co-contracting party is exclusively governed by Dutch law.
15.2. Applicability of the Vienna Sales Convention (CISG) is explicitly excluded.
15.3. Any disputes will be submitted to the court of competent jurisdiction of Rotterdam, the Netherlands.