of the private limited liability company Profish Food B.V., having its registered office in Twello (municipality of Voorst) further referred to as Profish
GENERAL TERMS AND CONDITIONS
the private limited liability company
Profish Food B.V.
registered office at Twello (municipality of Voorst)
further referred to as Profish
ARTICLE 1: GENERAL
1.1 With the filing of these General Terms and Conditions with the Registry of the District Court of Zutphen, all previous terms and conditions of Profish have lapsed.
1.2 A client is defined as anyone who places an order with Profish, wishes to purchase or buy goods from Profish, or wishes to conclude or enter into any agreement of another nature with Profish.
1.3 Insofar as not inconsistent with these Terms and Conditions, the terms and conditions of the Herring Pact also apply, which form an indissoluble part of these Terms and Conditions, as if they were literally included herein. A copy will be sent upon first request.
ARTICLE 2: APPLICABILITY
2.1 These terms and conditions apply to all quotations, both oral and written, to all agreements and to all activities and deliveries of Profish insofar as not expressly agreed otherwise in writing.
2.2 The applicability of any general terms and conditions of the client is expressly excluded. In particular, a mere reference by the client to its own terms and conditions or a standard clause on the letterhead or in the client's own terms and conditions containing the exclusive effect of these own terms and conditions will not suffice.
2.3 If deviations have been agreed in respect of certain subjects regulated by these terms and conditions, the present General Terms and Conditions shall continue to apply to the remainder of the agreement. Agreed deviations shall never apply to more than one order, unless confirmed again in writing.
ARTICLE 3: OFFERS AND OFFERS
3.1 All offers are, unless explicitly agreed otherwise, without obligation, whereby the offer made is only considered an invitation to place an order. Profish is only bound after it has confirmed the order in writing. The period within which an offer remains valid is, unless otherwise stated, sixty days.
3.2 The prices in offers are only applicable to the quantities indicated therein.
3.3 With regard to all goods offered, in addition to what is stated in the price lists, the normal and/or usual tolerances shall apply. Minor deviations shall never release the client from its obligations under the agreement.
3.4 In the case of compound quotations, there is no obligation to deliver part of the goods quoted at a corresponding part of the price quoted for the whole.
3.5 If an offer is not accepted, Profish reserves the right to charge for all or part of the costs incurred.
ARTICLE 4: ORDERS
4.1 An order binds the client. Profish is only bound by sending the order confirmation. If the client has not made its objections known to Profish within five working days after sending the order confirmation, the order confirmation is deemed to reflect the agreement correctly and completely.
4.2 All prices quoted by Profish are exclusive of V.A.T. and/or other taxes, charges or duties on the services as such, unless explicitly stated otherwise on the order confirmation.
ARTICLE 5: CHANGES IN THE ASSIGNMENT
5.1 Changes in the execution of an assignment that are requested by the client after the assignment has been given must have been communicated to Profish by the client in a timely manner and in writing. If they are communicated verbally or by telephone, the risk of the implementation of the changes will be borne by the client, unless these changes have been confirmed in writing by Profish.
5.2 Changes to the original order, of whatever nature, made orally or in writing by or on behalf of the client, which cause higher costs than could be counted on at the time of quotation and/or order confirmation, will be charged to the client.
5.3 If the client alters and/or cancels the assignment given, in whole or in part, and this has been accepted by Profish in writing, the client is obliged to reimburse Profish for all costs reasonably incurred in order to carry out this assignment (costs of calculation, preparation, storage, commission, etc.). If Profish so desires, the client is also obliged to compensate Profish for loss of profit, as well as any other damages resulting from the cancellation.
ARTICLE 6: CHANGES IN PRICES
6.1 Changes to prices quoted, without prior notification and also after the order confirmation has been sent, are expressly reserved; Profish shall thus be entitled to pass on to the client any increases in wages, social employer's contributions and/or other terms of employment that have occurred since the conclusion of the agreement and before the entire delivery has taken place, as well as increases in other rates, rights, charges, levies and taxes, as well as any changes in exchange rates that increase costs for Profish. If the increase is more than 5% of the agreed upon price, the client is entitled to cancel the agreement and is obliged to pay Profish for the part of the order that has already been executed.
ARTICLE 7: IMPLEMENTATION OF THE ASSIGNMENT
7.1 Profish undertakes to carry out the work assigned to it to the best of its knowledge and ability, but it does not accept any liability for not achieving the goal intended by the client.
7.2 Profish is at all times entitled to deliver 10% more or less.
7.3 Profish is entitled, without notice to or consultation with the client, to outsource the assignment or parts thereof to or have them performed by third parties not employed by Profish, if, in the opinion of Profish, this will promote a good or efficient execution of the assignment.
7.4 Each partial execution of an order, including the delivery of parts of a composite order, may be invoiced, in which case that partial delivery will be considered as a separate transaction; in such a case, payment must be made in accordance with the provisions of article 13.
7.5 All agreements concluded with the client regarding fishery products shall be subject to catch reservation. If, as a result of disappointing catches with respect to the quantity and/or quality of fishery products, so many products are less available, which also includes rejection by competent authorities, than could reasonably be expected at the time the agreement was concluded, Profish is entitled to reduce the quantities sold accordingly. Profish is not obliged to deliver replacement fishery products.
7.6 If an order needs to be expedited, additional manpower, overtime, rush orders and/or other possible additional costs incurred may be charged.
ARTICLE 8: FORCE MAJEURE
8.1 Force majeure means any circumstance independent of Profish's will, as a result of which the fulfillment of its obligations to the client is prevented in whole or in part, or as a result of which the fulfillment of its obligations cannot reasonably be required of Profish, regardless of whether that circumstance could have been foreseen at the time the agreement was concluded.
8.2 Force majeure will in any case include: War, threat of war, mobilization, riots, floods, storm damage, traffic congestion, stagnation in, respectively restriction or discontinuation of deliveries by public utility companies, fire, breakdown of machinery and other accidents, strikes, lockouts, import and export bans, actions of employee organizations, which make the execution of an order impossible, government measures, non-delivery of products to Profish by third parties and other unforeseen circumstances, also in the country of origin of the products, which disrupt normal business operations and delay the execution of an order or make it reasonably impossible.
8.3 Force majeure releases Profish from complying with the agreed upon deadline or from its obligation to execute the order, without the client being able to claim any right or compensation for costs, damages or interest.
8.4 In the event of prolonged force majeure, Profish will notify the client immediately, whereby the client has the right to cancel the order in writing for eight days after receipt of the notification, but with the obligation to compensate Profish for the part of the order that has already been executed.
ARTICLE 9: DELIVERY OF THE ORDER
9.1 All delivery times are always given by Profish as approximate and are not binding. The delivery period will commence as soon as the order confirmation has been sent and, in addition, all information that Profish deems necessary has been provided by the client.
9.2 Exceeding the delivery time will never discharge the client from its obligations under the agreement, nor will it entitle the client to claim dissolution of the agreement and/or damages, unless the client has informed Profish in writing of the consequences of a delay when giving the order and this has been confirmed in writing by Profish.
9.3 If the exceeding of the delivery term is such that the client cannot reasonably be required to maintain the agreement, the client is nevertheless entitled to cancel the order in question, provided that it notifies Profish of this in writing, without prejudice to Profish's right to still carry out the order in question within 4 weeks of receiving the aforementioned notification. Client may demand that Profish immediately decide whether or not it wishes to make use of this right.
9.4 Where Profish deems it necessary, or where expressly desired by the client, the goods will be delivered packed in crates and on pallets; the crates and pallets will remain the property of Profish. A deposit will be charged to client on the crates and pallets.
9.5 The customer will be credited with an amount equal to the deposit charged to it, or the charging of a deposit will be waived, if, in the opinion of Profish, the packaging material referred to in 9.4 has been delivered to Profish carriage paid and in good condition.
9.6 Profish is authorized to suspend its activities with immediate effect and even to regard all agreements with the client as fully or partially dissolved, without a notice of default and/or judicial intervention being required, while retaining its right to compensation for damages, if, exclusively at the discretion of Profish:
- the client fails to comply with any obligation arising from any agreement governed by these terms and conditions.
- the customer fails to pay the amounts due to Profish, without prejudice to the provisions of article 13.
- there is good reason to assume that the customer will remain in default of paying the amounts due to Profish
- the customer proceeds to discontinue or transfer its business or an important part thereof, including the contribution of its business to an already existing or to be established company, or proceeds to change the objective of its business
- the principal proceeds to dispose of its assets, or if all or part of its property is seized;
. All amounts that the principal owes Profish will become immediately due and payable.
ARTICLE 10: RETURNS
10.1 Return shipments will not be accepted by Profish unless it has given written notice that it will accept the goods to be returned or returned.
10.2 The provisions of article 10.1 apply equally to goods taken delivery of; the mere taking delivery of goods at the warehouse of Profish and/or by its employees is therefore not regarded as acceptance.
10.3 Goods returned in error will remain at the disposal and risk of the customer; any transport and/or storage costs will be at the customer's expense. For return shipments, as a result of which it appears that a wrongful claim has been made, the above applies in full.
ARTICLE 11: COMPLAINTS
11.1 The client has the obligation to check the quantity, dimensions, weight and/or packaging of the goods delivered. This inspection must take place immediately upon delivery. If no complaint is made immediately after delivery and receipt of the goods, the data stated on the waybill or delivery notes shall be deemed correct.
11.2 Client shall be entitled to examine (or have examined) all products for weight, quantity and quality. The costs related to this will be borne by the customer, except in case of rejection.
11.3 If Profish delivers products to the customer that Profish has obtained from its suppliers, Profish is never obliged to any further guarantee or liability towards the customer than what Profish can claim from its supplier.
11.4 Complaints regarding fresh fish or fresh fish products must be reported to Profish by telephone or fax within 24 hours after receipt of the delivery. If they are reported by telephone and Profish so desires, complaints must also be made in writing.
11.5 Complaints regarding other products must be reported to Profish by telephone or fax within 48 hours after receipt of the delivery. If they are reported by telephone and Profish so desires, complaints must also be made in writing.
11.6 A delivery is approved if:
- client has approved or accepted the products.
- customer has not inspected the products within 24 hours or 48 hours after delivery.
- customer puts the products into use before inspection.
After approval of the delivery, Profish no longer accepts any liability towards the customer or third parties other than those mentioned in article 11.
11.7 Defects that could not reasonably have been detected within the period stipulated in article 11.4 or 11.5 must be reported to Profish immediately after detection, but no later than fourteen days after receipt of the delivery.
11.8 After the detection of any (alleged) defect, processing or any other use of the product must be discontinued immediately.
11.9 The customer shall provide all cooperation desired by Profish for the investigation of the complaint, including by giving Profish the opportunity to conduct an on-site investigation into the quality and/or quantity of the delivered product.
11.10 If Profish deems a defect in the delivered product to be evident, it shall have the option either to redeliver free of charge, or to grant the client a discount on the quoted price, to be determined by mutual agreement.
11.11 A complaint regarding certain work or deliveries shall not suspend the client's obligation to pay for that or other work/deliveries.
11.12 Defects to a part of what has been delivered do not give the right to reject the entire performance delivered.
11.13 Profish is not liable for printing, writing and/or typing errors and/or ambiguities in offers, order confirmations and/or prospectuses, nor for the consequences thereof. In case of differences in explanation of offers, order confirmations or prospectuses, Profish's explanation will be binding.
ARTICLE 12: LIABILITY
12.1 Except in cases of intent or gross negligence, to be proven by the client, Profish shall not be liable for any damage, by whatever name and regardless of the cause, insofar as this damage exceeds the amount of the work to be carried out by Profish, the goods to be delivered or a proportional part thereof. Damage, insofar as it consists of lost profit or reduced proceeds, will under no circumstances be eligible for compensation.
12.2 Agreements with employees of Profish will not bind Profish, unless confirmed in writing by Profish.
12.3 Profish does not accept any responsibility for defects caused by or arising from the delivered goods through the fault or actions of the client or third parties, or through external causes.
12.4 Advice, whether or not given at the request of the client, is given by Profish to the best of its knowledge and in good faith, but it does not accept any liability for loss or damage, directly or indirectly resulting from the content of its advice.
ARTICLE 13: PAYMENT
13.1 Unless otherwise agreed, all payments shall be made within eight days of the invoice date, net cash without any deduction in current Dutch currency.
13.2 If an order for delivery or for the performance of work is given on behalf of two or more natural or legal persons, such persons shall each be jointly and severally liable for the full performance of the obligation arising from the ad hoc contract.