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  1. These general sales and delivery conditions (version 22/01) apply to all quotations, offers and agreements, however named, of Tomassen Duck-To BV.

2. In these general terms and conditions of sale and delivery, the following definitions shall apply:

  • Seller: Tomassen Duck-To BV established in Ermelo;
  • Buyer: the other party who purchases and buys products and services from Tomassen Duck-To;
  • Goods: the products and services sold and delivered by the Seller, specifically including slaughtered poultry and parts thereof;
  • Free delivery: if delivery in accordance with the agreement also includes the transport of Goods;
  • General Conditions of Contracts for Broilers: the General Conditions of Contracts for Broilers 1985 that are generally applied in the broiler sector or the general conditions that subsequently replace them and that are used in the sector for the sale and delivery of broilers.

Scope of validity
3. These conditions may also be invoked by employees of the Seller and by third parties engaged by the Seller.

Other general terms and conditions
4. These general terms and conditions of sale and delivery shall at all times prevail over any general terms and conditions of the Buyer, even if the Buyer's terms and conditions contain a provision of similar purport.

  1. The sale and delivery of live animals (broilers) shall, in addition to these General Terms and Conditions, be subject to the General Terms and Conditions of Contracts for Broilers. The provisions of the present General Conditions of Sale and Delivery shall prevail over the General Conditions of Contracts for Broilers.

Tenders, offers and amendments
6. Quotations and offers made by or on behalf of the Seller shall be without obligation unless otherwise agreed.

7. The date and time of delivery of Goods shall be determined approximately between the parties at the time of the order. A delivery date thus agreed upon shall therefore not be a deadline, unless explicitly agreed upon otherwise. In the event of foreseeable deviations, Seller shall consult with Buyer as soon as possible on a solution. If no agreement is reached on the delivery time, the Buyer shall give the Seller notice of default in writing.

Transport and transfer of risk
8. In the event of carriage paid delivery by Seller to Buyer, the Goods shall be transported at Seller's expense and risk. In all other cases, transport shall be at Buyer's expense and risk. This may be deviated from by written agreement.

  1. Transfer of risk takes place:

in the case of carriage-paid delivery: at the moment the Goods leave the means of transport at the delivery address indicated by the Buyer;
in all other cases: from the moment of loading the Goods into the means of transport on the premises of Tomassen Duck-To BV.
Fulfilment of agreements

a. If the Buyer becomes aware of visible defects, the Buyer must notify the Seller in writing within 12 hours of the time of transfer of risk in the case of delivery of Goods, or immediately after the provision of services;
b. If the Buyer becomes aware, or reasonably should have become aware, of an apparent non-visible defect of the Goods at a later time than mentioned in 10 a., the Buyer shall notify the Seller in writing as soon as possible - but no later than within seven days - after it became aware or should have become aware of the non-visible defect;

c. If the Buyer has not notified the Seller in writing of any defect within the respective relevant period as set out in 10a. and b. and has objected or claimed damages, the Seller shall be deemed to have duly performed. If the defects, objections or a claim have not been notified in time in writing, it shall be assumed that Seller has performed properly. If the objections have not been made known in time in writing in the manner referred to in subparagraphs a and b of this Article, the Buyer shall lose all rights in respect of the shortcoming on account of non-conformity. This shall include the Buyer's right to invoke a lack of will. The Buyer shall also be liable for the damage suffered by the Seller as a result of the detected defects if it should have been clear to the Buyer that the Seller had an interest in being informed of these defects at an early stage, whereas the Buyer failed to do so;
d. If, for whatever reason in certain cases, delivered and accepted goods are taken back, loading, transport, storage and further resulting costs shall be borne by Buyer;
e. Seller retains title to the Goods it has delivered. If an invoice from Seller in respect of Goods delivered or services rendered is not paid on time or Seller has a claim against its other party for failure to perform an agreement, Seller shall be entitled to reclaim the Goods it has delivered as its property.

Attributable shortcomings
11. Should damage arise in connection with the performance of any agreement with the Seller, the following shall apply

a. The Seller shall be liable for damage suffered by the Buyer which is the direct result of a shortcoming attributable solely to the Seller. However, only damage for which the Seller is insured, or should reasonably have been insured, is eligible for compensation;
b. Not eligible for compensation are

  • trading loss, including stagnation damage and loss of profit;
  • damage caused by intent or deliberate recklessness (whether or not through the use of auxiliary persons);
    c. Buyer indemnifies Seller against all claims of third parties as a result of a defect in Goods delivered by Buyer to third parties and which Goods consisted (partly) of Goods delivered by Seller;
    d. Any legal claim for damages on account of Seller's liability in respect of defects in Goods delivered or shortcomings in services provided shall lapse 1 year after the time of passing of risk or termination of services;
    e. If Seller acknowledges liability, it shall, at its discretion, be entitled to repair the Goods or deliver new ones in exchange for the delivered Goods;
    f. During the time the Buyer is in default in the performance of its contractual obligations towards the Seller, any claim under the warranty shall be suspended;
    g. Satisfaction of warranty obligations shall constitute sole and full compensation. Any other claim for compensation is excluded, unless damage is the result of gross intent or fault on the part of Seller.
    Force majeure

a. Force majeure means circumstances preventing the fulfilment of the commitment, which cannot be attributed to the Seller. The Seller shall not be liable in the event of force majeure. In these general terms and conditions, force majeure includes, in addition to its definition in law and case law, all external unforeseen causes over which the Seller cannot exercise any control, but which prevent the Seller from fulfilling its obligations. Force majeure includes at least (but not exclusively):
situations related to weather or weather influences;
strikes in companies other than those of the Seller as well as strikes (regardless of the reason) in the Seller's company;
shortages of what is necessary to realise the agreed performance (including raw materials, personnel, etc.);
stagnation(s) at suppliers or other third parties on which the Seller depends, also including stagnation as a result of an outbreak of Avian Influenza, human epidemic/pandemic or the consequences/effects of war at one or more suppliers;
general transport problems;
b. The Seller shall also be entitled to invoke force majeure if the circumstances preventing (further) performance occur after the Seller should have fulfilled its commitment;
c. During force majeure, the Seller's delivery and other obligations shall be suspended. If the period in which fulfilment of the obligations by the Seller is not possible due to force majeure lasts longer than 3 months, both parties are authorised to dissolve the agreement without any obligation to pay damages in that case;
d. If the Seller has already partly fulfilled its obligations when the force majeure occurs, or can only partly fulfil its obligations, it shall be entitled to separately invoice the part already delivered or the deliverable part, as the case may be, and the Buyer shall be obliged to pay this invoice as if it were a separate contract. The foregoing does not apply if the delivered or deliverable part has no independent value;
e. Force majeure releases the Seller from its obligations under the agreement in force between the parties, without the Buyer or other third party(ies) being entitled to any compensation, even if the Buyer's terms and conditions (if the applicability thereof has been expressly agreed) provide otherwise. A force majeure situation shall never release the Buyer from its payment obligation towards the Seller and the Buyer cannot suspend payment of the amounts due.

13. Free payment may only be made to the Seller or a third party authorised in writing by the Seller for this purpose.

  1. Payment by the Buyer must be made within 30 days of the invoice date by transferring the amount due to the Seller. If this term is exceeded, the Buyer shall be in default by operation of law, without further notice of default or warning. The Buyer shall owe the Seller statutory interest on the outstanding items over the default period. Any judicial and extrajudicial collection costs shall also be borne by the Buyer.

  2. Each price stated is inclusive of packaging (box), exclusive of packaging (pallet/crate) and exclusive of turnover tax, unless otherwise agreed in writing. If transport is organised by Seller, packaging must be exchanged immediately on delivery to Buyer. If transport is organised by the Buyer, the packaging must be exchanged immediately on loading at the Seller's site. If there is no exchange as set out above, the packaging not exchanged will be invoiced to Buyer at the current daily price, unless otherwise agreed in writing.

  3. Taxes, import duties, levies and/or other governmental charges which are introduced, adjusted or have become known to the Seller after the quotation, offer or the conclusion of the sale/purchase agreement, shall be charged to the Buyer, even if such taxes, import duties, levies and/or other charges have not been taken into account. If the price increase exceeds 10% of the original price, the Buyer shall be entitled to dissolve the agreement.

17. If before or during the execution of an agreement the Seller obtains reasonable doubt about the Buyer's creditworthiness (in any case, but not limited to: application for suspension of payment or bankruptcy of the Buyer and/or seizure of all or part of the Buyer's goods and/or in the event of liquidation of the Buyer's company):

then Seller, without Seller being obliged to any notice or other formality towards Buyer, shall have the right not to deliver or to cease further deliveries, as long as Buyer shall not have provided security for payment of the purchase price to the satisfaction of Seller;
the Buyer shall be obliged at the Seller's first request to provide (additional) security for the outstanding obligations vis-à-vis the Seller if delivery has taken place against payment within a certain period, while the Buyer has failed to fulfil his obligations. The foregoing shall be under penalty of immediate exigibility of the entire purchase price of delivered Goods and cessation of delivery or further delivery, respectively.
18. Barring evidence to the contrary, Seller's records shall be considered complete and binding between the parties.

Applicable law and competent court
19. The legal relationship between the parties is governed by Dutch law. Any disputes shall be settled by the competent Dutch court. Contrary to the statutory rules for the relative competence of the civil court, any dispute between the Buyer and the Seller, in the event that the District Court is competent, shall be settled by the District Court of Zutphen. However, the Seller remains authorised to summon the Buyer before the court that is competent according to the law. Not applicable and explicitly excluded is the "United Nations Convention on Contracts for the International Sale of Goods (CISG)".

Amendments to general terms and conditions
20. The seller is authorised to make amendments to these terms and conditions. These amendments shall come into force at the announced time of entry into force. The Seller will print the amended terms and conditions on the back of its stationery/invoices and post them on its website (also available via a link in e-mails from all Seller employees).