General Terms and Conditions of Sale of Stoffels Trading NV
Stoffels Trading NV (hereinafter: STOFFELS) established in Rijkevorsel, as well as its legal successors and/or its affiliated companies, has drawn up the following General Terms and Conditions of Sale.
1 Definitions
Other party: every (legal) person who enters into an agreement with STOFFELS, or to whom STOFFELS makes an offer and/or quotation, and apart from these, their representative(s), authorised representative(s), assignee(s) and heirs;
Agreement: every agreement entered into between STOFFELS and the Other Party, every amendment or supplement thereto, as well as all (legal) acts in preparation and execution of that Agreement.
2 Area of application
These General Terms and Conditions of Sale apply to all offers provided by STOFFELS, offers made, Agreements concluded, as well as orders accepted. Thus these General Terms and Conditions of Sale apply to all (legal) acts (including omissions) of STOFFELS and its Other Party in the matter.
The Other Party allows STOFFELS to make use of third parties, not being employees of STOFFELS, for the execution of the provisions of the Agreement. The General Terms and Conditions of Sale are also applicable to legal acts performed by these third parties - in the context of the execution of obligations resting on STOFFELS by virtue of the Agreement.
Deviations from and/or additions to any provision in these General Terms and Conditions of Sale are only binding to STOFFELS if these deviations and/or additions have been expressly agreed upon between STOFFELS and the Other Party without reservation and in writing. Any agreed deviations and/or additions only relate to the Agreement concerned.
If and insofar as the Other Party, when accepting an offer or quotation, or concluding an Agreement, refers to general terms and conditions other than the General Terms and Conditions of Sale of STOFFELS, in order for these general terms and conditions to be applicable to the Agreement, other general terms and conditions than the present terms and conditions are only applicable to the Agreement if STOFFELS has expressly accepted these general terms and conditions without reservation and in writing.
If any provision of these General Terms of Sale - following the intervention of a judicial authority - turns out to be null and void, only the provision in question shall be excluded from application. All other provisions shall remain in full force and effect.
3 Offers and Prices
All agreements concluded by STOFFELS are deemed to have been concluded at Kleine Gammel 61, 2310 Rijkevorsel, both with regard to the execution of the agreement and the payment of the agreement.
All amounts mentioned in quotations, offers, Agreements and orders are given in euros, unless parties have agreed otherwise in writing. Furthermore, all amounts mentioned are exclusive of transport costs and turnover tax, unless parties have agreed otherwise in writing.
Every offer made by STOFFELS is completely non-binding.
STOFFELS reserves the right to refuse orders without giving reasons.
STOFFELS is not obliged to honour an offer and/or an agreement for a stated price if this price is based on a printing and/or writing error.
4 Agreement
If an offer contains an offer without engagement, which is accepted by the Other Party, STOFFELS has the right to revoke the offer within two working days after receipt of the acceptance.
The Other Party will receive a written order confirmation or a written record of the Agreement from STOFFELS. This written record may consist of the invoice and/or order confirmation of STOFFELS.
If parties have agreed on further and/or additional arrangements or amendments after the Agreement has been established, these are only binding if and insofar as these arrangements have been recorded in writing. Again, the written record may consist of the invoice and/or order confirmation of STOFFELS.
An order by the other party must be placed 24 hours before departure.
5 Delivery
The agreed delivery time is not a deadline, unless the parties have expressly agreed otherwise.
Delays in delivery - insofar as permanent within the bounds of reasonableness - shall not entitle the Other Party to dissolve the Agreement or to any damages.
Delivery takes place at the Other Party's premises, unless the parties have agreed otherwise in writing in this respect. The moment of delivery is the moment the goods are delivered to the Other Party.
If parties have agreed that STOFFELS will store the goods to be delivered for the benefit of the Other Party, whether or not on its own premises or on the premises of a third party, delivery will take place at the moment the goods are stored.
STOFFELS is always entitled, before fulfilling its obligations under the Agreement, to demand sufficient security for the fulfilment of the payment obligations of the Other Party.
If the Other Party still has any payment obligation to STOFFELS, in particular if invoices of STOFFELS have remained wholly or partly unpaid by the Other Party, STOFFELS is entitled to suspend delivery obligations until the Other Party has fulfilled all its obligations.
6 Acceptance and complaints
The Other Party must inspect and check the agreed goods before or at the latest on delivery by STOFFELS. This inspection and check must take place in the presence of the driver. The Other Party must check whether the goods delivered comply with the provisions of the Agreement, namely:
a. whether the correct goods have been delivered;
b. whether the delivered goods meet the quality requirements to be set for them and agreed in this respect, i.e. the requirements that may be set for normal use and/or for commercial purposes;
c. whether the goods delivered correspond in terms of quantity (number, quantity, weight) with what the parties have agreed in that respect. If the deviation found by the Other Party is less than 10%, the Other Party shall be obliged to accept the delivered goods in full, at a proportionate reduction of the agreed price.
If delivery of the goods takes place at STOFFELS in Rijkevorsel, the Other Party must inspect the delivered goods in the STOFFELS sales area.
On pain of forfeiture of rights, the Buyer must report complaints about visible defects, including internal defects in the presence of the driver, during unloading and before departure of the means of transport by email or fax to STOFFELS (gert@stoffels-tomaten.be). Any non-visible defects must be reported to STOFFELS by fax or email immediately after discovery thereof - but at the latest within 24 hours after delivery and in any case before further processing and/or sale and delivery and/or transport - on penalty of forfeiture of all rights. If STOFFELS does not receive a complaint by fax or email within the aforementioned periods, the goods are deemed to have been delivered in accordance with the provisions of the Agreement and without any defect and the Other Party has processed his right to complain and dissolution of the Agreement.
If STOFFELS does not accept the timely complaint of the Other Party in writing within 24 hours, the Other Party will be obliged - on penalty of expiry of all rights, including the right of complaint and dissolution of the Agreement - to have an expertise carried out by an expertise agency to be designated by STOFFELS within 24 hours after expiry of that period in the presence of STOFFELS.
The provisions of this article apply in full if the goods delivered by STOFFELS on behalf of the Other Party are delivered to a third party. Thus the Other Party cannot object to STOFFELS that it did not inspect and check the delivered goods because they were stored elsewhere, at a third party.
The Other Party is obliged at all times to look after the goods as a prudent debtor and/or possessor.
7 Payments
The Other Party shall pay the agreed price upon receipt of the invoice relating to the delivery - without discount or claiming compensation - within 14 days from the invoice date, unless this regulation is deviated from in writing.
Settlement by the Other Party of the amounts invoiced by STOFFELS with a counterclaim put forward by him (Other Party), or suspension of payment by the Other Party in connection with a counterclaim put forward by the latter, is not permitted, unless STOFFELS has expressly and unreservedly acknowledged the indebtedness of the counterclaim, or the existence of the counterclaim has been irrevocably established in law.
If the payment term is exceeded, the Other Party shall owe penalty interest of 1% per month, without prejudice to the other rights of STOFFELS.
If the Other Party fails to pay the outstanding amounts to STOFFELS even after having been put in default by STOFFELS, the Other Party will also be obliged to pay the extrajudicial collection costs and the actual legal costs incurred. The amount of the extrajudicial collection costs is set at 15% of the principal amount due, with a minimum of € 500,-- excluding VAT. The actual judicial costs incurred include all costs of lawyers, experts, bailiffs, court fees, translators and witnesses.
8 Retention of title
Goods delivered by STOFFELS remain its property until full payment of all claims of STOFFELS on the Other Party arising from Agreements entered into between them, including interest and costs.
If the Other Party does not fulfil his obligations, or if STOFFELS has a well-founded fear that the Other Party is not capable of fulfilling his obligations arising from the Agreement, or if there is a suspicion that the Other Party does not want to fulfil the obligations resting on him, then STOFFELS will be entitled to retrieve or have retrieved from the Other Party or from the third party holding the goods for the Other Party the goods delivered by STOFFELS - on which the retention of title referred to in paragraph 1 of this article rests - and to enter the grounds and buildings of the Other Party for this purpose. The Other Party is obliged to cooperate in such action on the part of STOFFELS if the goods delivered by STOFFELS are no longer present in their original form and/or packaging or if they have been processed into other products, an undisclosed pledge will be established in favour of STOFFELS with regard to those goods, which will remain in force until all that STOFFELS has to claim from the Other Party for whatever reason, will have been paid in full.
If third parties wish to establish or exercise any right to the goods delivered by STOFFELS under retention of title, the Other Party must inform STOFFELS thereof immediately. Furthermore, the Other Party must point out to this third party the circumstance that the goods have been delivered under retention of title. The Other Party must put the third party in possession of the Agreement concluded between the parties showing that a retention of title has been made with respect to the goods delivered.
The Other Party is obliged to cooperate with all measures which STOFFELS wishes to take to protect its right of ownership with respect to the goods delivered by it.
9 Liability and risk
If the Other Party has in his possession goods delivered by STOFFELS which are the property of STOFFELS (including packaging) and/or fall under the reservation of ownership as mentioned in article 8 of these General Terms and Conditions of Sale, the Other Party is liable for damage caused by and/or with these goods from the moment that the goods are delivered to him until the moment of return of these goods, or the moment of transfer of ownership of these goods.
Furthermore, the Other Party is liable - if he has goods in his possession which are the property of STOFFELS (including packaging) and/or fall under the retention of title as mentioned in article 8 of these General Terms and Conditions of Sale - for damage suffered by STOFFELS as a result of damage, loss or destruction of these goods and which damage is caused in the period between the moment on which STOFFELS has delivered the goods and the moment of return of these goods or the moment of transfer of ownership of these goods.
If STOFFELS has to make use of its retention of title as a result of circumstances attributable to the Other Party, but nevertheless suffers damage, the Other Party will be liable for the damage suffered by STOFFELS.
If STOFFELS has delivered goods to the Other Party which are owned by a third party, the Other Party indemnifies STOFFELS for all claims of this third party relating to damage caused by and/or with the goods which STOFFELS has delivered to the Other Party, as well as damage to the goods delivered by STOFFELS to the Other Party.
The Other Party indemnifies STOFFELS for all claims of third parties for damage related to the goods delivered by STOFFELS.
If STOFFELS is liable for any damage, all liability of STOFFELS is limited to the amount paid out in the relevant case under the corporate liability insurance of STOFFELS, increased by the excess under this insurance. If for whatever reason no payment should occur under this insurance, all liability is limited to the net amount of the invoice corresponding to the delivered goods on the basis of which the Other Party claims
10 Force majeure
In case of force majeure, STOFFELS is entitled to suspend the fulfilment of its contracts for the duration of the force majeure. If the duration or the seriousness of the force majeure makes it necessary - and this is solely at the discretion of STOFFELS - STOFFELS is entitled to regard the purchase agreement, insofar as it has not yet been executed, as dissolved without judicial intervention, and STOFFELS is not obliged to pay any compensation. STOFFELS may terminate the agreement, without right to compensation, if the force majeure situation lasts longer than 10 (ten) calendar days and/or the prospect exists that the force majeure situation will last longer than 10 (ten) calendar days.
Unless otherwise stipulated below, force majeure shall be considered to be any special circumstance, which makes the fulfilment of the delivery obligation of STOFFELS impossible or so problematic, that fulfilment cannot reasonably be required of it, such as war, mobilisation, strike, absenteeism of personnel, labour disturbances, revolution, riots, storm ice, flooding, stagnation in the supply of electricity or water, operational fire, operational stagnation due to machinery breakdown or difficulties in the supply of energy, , total or partial crop failure, abnormal drought or continuous and/or abnormal amounts of precipitation and/or frost, disease in the crop, plagues of vermin, default of suppliers, etc. Furthermore, STOFFELS has the right to terminate the agreement, insofar as not fulfilled, without being obliged to compensate any damage, when government measures hinder the import, export or transit of sold goods and/or make it more financially disadvantageous for it and the Other Party is not willing to compensate the disadvantage of this measure to it for delivery of the goods, on first request.
Force majeure of the suppliers of STOFFELS, including growers, applies as force majeure of STOFFELS.
If at the occurrence of the force majeure STOFFELS has already partly fulfilled its obligations, or can only partly fulfil its obligations, it is entitled to invoice the already delivered or part delivered separately. The Other Party shall then be obliged to pay the invoice as if it were a separate agreement. All purchase agreements of agricultural products concluded by STOFFELS, regardless of whether STOFFELS or third parties have cultivated the products, are subject to harvest reservation. If as a result of a disappointing harvest with respect to the quantity and/or quality of agricultural products, so many products are less available, which also includes rejection by the competent authorities, than could reasonably be expected at the conclusion of the agreement, STOFFELS has the right to reduce the quantities sold accordingly. This is the case, among others, if the products purchased by STOFFELS on cultivation contracts are insufficient to satisfy all its customers. By supplying this thus reduced quantity, STOFFELS then fully complies with its delivery obligations. In that case STOFFELS is not obliged to deliver substitute agricultural products and is also not liable for any damage whatsoever.
11 Default and dissolution
If the Other Party does not comply, does not comply properly or does not comply on time with any obligation which may arise for him from the Agreement entered into with STOFFELS or the law, including the obligation to pay on time as included in article 7 of these General Terms and Conditions of Sale, the Other Party will be in default without notice of default and STOFFELS will be entitled to suspend execution of the Agreement and/or to terminate that Agreement and directly related Agreements in whole or in part, without STOFFELS being obliged to pay any compensation and without prejudice to the further rights of STOFFELS.
If the Other Party is in default, he shall owe STOFFELS the statutory (commercial) interest as well as all (extra)judicial costs which STOFFELS has reasonably had to incur in order to establish the liability of the Other Party and/or to obtain satisfaction of his claim, and which fall within the scope of article 6:96 subsection 2 BW.
In case of (provisional) suspension of payment or bankruptcy of the Other Party, shutting down or liquidation of the company of the Other Party, all Agreements with the Other Party will be legally dissolved, unless STOFFELS informs the Other Party within a reasonable period of time that it requires fulfilment of (part of) the Agreement(s) concerned, in which case STOFFELS is entitled to suspend the execution of the Agreement(s) concerned without notice of default, until payment has been sufficiently secured, without prejudice to the further rights of STOFFELS.
STOFFELS has the right to terminate the Agreement if there is permanent force majeure on the part of the Other Party. In that case the Other Party will compensate all costs incurred and to be incurred by STOFFELS to STOFFELS.
In each of the cases mentioned in paragraphs 1, 2, 3 and 4 of this article, all claims of STOFFELS on the Other Party will be immediately claimable and the Other Party will be obliged to immediately return leased or unpaid goods.
The Other Party must immediately inform STOFFELS if movable or immovable property owned by STOFFELS and in the possession of the Other Party within the framework of the execution of the Agreement is seized.
In case of bankruptcy or suspension of payment, the Other Party must immediately inform STOFFELS accordingly, and show the Agreement to a bailiff, curator or administrator immediately, pointing out the property rights of STOFFELS.
12 Industrial and intellectual property rights
STOFFELS expressly reserves any intellectual and/or industrial property rights (trademarks) with respect to products delivered by it.
The Other Party is not permitted to infringe the intellectual and/or industrial property rights of a third party with the use of products delivered by STOFFELS. The Other Party indemnifies STOFFELS for possible claims of third parties on account of an infringement on intellectual and/or industrial property rights made with the use of the goods delivered by STOFFELS, and which take place after STOFFELS has delivered the goods to the Other Party.
13 Applicable law
The legal relationship between STOFFELS and the Other Party shall be governed by Belgian law.
The provisions of the Vienna Sales Convention are excluded.
14 Disputes
Disputes arising from an order, offer, offer, or Agreement to which these General Terms and Conditions of Sale apply, including conflicts relating to these General Terms and Conditions of Sale, will be exclusively settled by the competent court in the district of Turnhout, on the understanding that this choice of forum does not affect the right of STOFFELS to have a dispute settled by arbitration or binding advice.
Parties may, in deviation of the provisions in paragraph 1 of this article, agree in writing to leave the settlement of the dispute to the competent court in another district.