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General terms and conditions

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This is a translation of the Dutch text. In the event of any difference, the Dutch version prevails.

General Terms and Conditions of Sale and Delivery of W.G. den Heijer & Zn. B.V.

Article 1: Applicability

  1. These General Terms and Conditions of Sale and Delivery (hereinafter: “the Conditions”) apply to all quotations for sale made by and/or all contracts of purchase and sale concluded by W.G. den Heijer & Zn. B.V. (hereinafter: “den Heijer”) as seller. (Quotations for) contracts of purchase and sale are understood to include all (quotations for) contracts or (quotations for) clauses in contracts intended to transfer ownership.
  2. Deviating provisions, including (general) terms and conditions of buyers, apply only if and insofar as den Heijer has expressly accepted their applicability in writing, including by fax. Such acceptance always applies to one quotation and/or one contract only.

Article 2: Offers

Quotations made by den Heijer (whether oral or written) are without obligation and constitute merely an invitation to place an order. A contract between den Heijer and a buyer is concluded only when den Heijer has expressly accepted that order.

Article 3: Amendments

Any amendment to or cancellation of a concluded contract requires the written consent of both parties, unless otherwise provided below. Without prejudice to the provisions of the following articles, the party wishing to amend or cancel the contract is obliged to compensate the other party for all transaction loss arising from the amendment or cancellation, as well as the associated costs.

Article 4: Delivery and transfer of risk

  1. Unless otherwise agreed, the goods are delivered from a place to be determined by den Heijer.
  2. The goods sold are at the buyer's expense and risk from the moment of delivery.
  3. If, at the buyer's request, delivery takes place elsewhere than at the place determined by den Heijer, transport from the place determined by den Heijer to the place of delivery is at the buyer's expense.
  4. If the goods sold are ready for delivery at the agreed time of delivery, but cannot be delivered for reasons for which den Heijer does not bear the risk, den Heijer's written notification that the goods are ready for delivery counts as delivery. From that moment, all costs incurred by den Heijer in connection with the storage of the goods are at the buyer's expense. If the buyer subsequently fails to take receipt of the goods within a number of days to be determined by den Heijer, den Heijer is entitled to dissolve the contract with the buyer without further notice of default or judicial intervention and to recover the resulting damage from the buyer.

Article 5: Delivery periods

  1. The agreed times of delivery can only be given approximately. Although every effort will always be made to meet the agreed times of delivery as far as possible, den Heijer is never liable for the consequences of any failure to meet them.
  2. Such a failure does not entitle the buyer to cancel the order or to refuse receipt of or payment for the goods, nor does it oblige den Heijer to pay any compensation whatsoever to the buyer, or to deliver from stock if the goods were purchased for supply by third parties.
  3. Only if the delivery period has been exceeded by more than 60 days may the buyer either grant den Heijer a further period of 30 days within which the goods must still be delivered, or cancel the contract in writing. If the goods are not delivered within the further period of 30 days, the contract concerned is dissolved by operation of law. In none of the cases described in this paragraph is den Heijer obliged to pay any compensation.
  4. If force majeure on the part of den Heijer prevents delivery or timely delivery, den Heijer is entitled to cancel the contract without being obliged to pay any compensation.

Article 6: Force majeure

Force majeure means any circumstance that is not attributable to the fault of den Heijer, nor at its risk, and that prevents the performance of den Heijer's obligations or makes it so difficult that performance can no longer reasonably be required of it, including war, threat of war, hostilities, mobilisation, riot, fire, explosion, storm, frost, flood, strike, occupation of business premises, lockout, business disruption, illness of staff, transport difficulties, export, import or transit bans, other statutory impediments at home or abroad, disruption of the energy supply and non-delivery, late delivery or improper delivery by suppliers, regardless of whether the circumstance in question was foreseeable at any time.

Article 7: Ownership

  1. Without prejudice to the other provisions of the contract concerned, all goods delivered by den Heijer to the buyer remain the property of den Heijer until the moment of payment of all claims owed by the buyer to den Heijer on any account whatsoever, including interest and costs, and, where goods are supplied on current account, until the moment of settlement of any balance in favour of den Heijer.
  2. Until the full payment or settlement referred to in the previous paragraph has taken place, the buyer is not authorised to pledge the goods to third parties or to transfer possession of them, with the exception of a non-fiduciary transfer of ownership if and insofar as this transfer is consistent with the normal conduct of the buyer's business or profession. In the event of breach of this provision, and in the event that Article 12, paragraph 4 applies in whole or in part, den Heijer is entitled to take back, or have taken back, all goods delivered by it from the place where the goods are located, without any authorisation from the buyer or the court being required for this.

Article 8: Complaints / claims

  1. If the size or quantity of the goods delivered to the buyer does not comply with what was agreed, the buyer may lodge a complaint with den Heijer in writing, stating reasons, no later than 24 hours after delivery of the goods concerned in the case of fresh goods, and no later than 72 hours after delivery in the case of deep-frozen goods. If the buyer has complained within the stated periods and the quality of the goods sold does not comply with what was agreed, den Heijer has the choice: either to take back the goods and cancel the contract without being obliged to pay any compensation, or to deliver replacement goods that do have the agreed quality, or to grant a discount on the sales price that it considers reasonable, taking the lower quality into account.
  2. If the buyer complains as referred to in the previous paragraph, the buyer is obliged to give den Heijer the opportunity to inspect the goods (or have them inspected) in order to establish the allegedly reduced quality. The costs of this inspection are at the buyer's expense if the inspection shows that the complaint was unfounded.

Article 9: Warranty and liability

  1. Except as provided in Article 8, den Heijer is not obliged to give any guarantee as to the soundness of the goods delivered.
  2. Without prejudice to the provisions of Article 8, neither den Heijer nor third parties engaged by den Heijer in the performance of the contract (hereinafter: “Third Parties”) are liable to the buyer for compensation of any damage, transaction loss or consequential loss, caused to persons or goods by or in connection with the performance of the contract or by or in connection with the goods sold or their use. If, notwithstanding the foregoing, den Heijer or any Third Party is liable to the buyer under provisions of mandatory law, den Heijer or that Third Party, as the case may be, is liable only for compensation of the transaction loss and in particular not for compensation of consequential loss. If den Heijer or any Third Party is obliged under the previous sentence to pay any compensation for damage, den Heijer or that Third Party, as the case may be, is not liable for damage exceeding the sales price of the goods delivered.

Article 10: Indemnification

The buyer indemnifies den Heijer and Third Parties against all claims for compensation of damage, transaction loss or consequential loss, caused to persons or goods by or in connection with the performance of the contract or by or in connection with the goods sold or their use.

Article 11: Price

  1. The sales price stated by den Heijer is based on its purchase price and other cost factors. If any of these price components is increased after confirmation of the buyer's order, but before delivery of the goods, den Heijer is entitled to pass on that increase to the buyer.
  2. Without prejudice to the general applicability of the provisions of paragraph 1, this applies in particular to changes in import or export duties or other duties or taxes occurring after the order confirmation has been sent, and to changes in the exchange rate of the euro against the foreign currency in which den Heijer may have purchased the goods from its supplier.
  3. If, after the contract has been concluded, it is amended and/or supplemented by den Heijer and the buyer in such a way that den Heijer's obligations are amended and/or supplemented, den Heijer is entitled to increase the sales price by a reasonable amount to be determined by it. If den Heijer increases the price in this way, it is obliged to notify the buyer thereof in writing, stating the increased sales price, no later than the fourteenth day after the day on which the contract was amended and/or supplemented.

Article 12: Terms of payment

  1. Unless otherwise agreed in writing, the buyer is obliged to pay the sales price, plus the costs for its account, within the period stated on the invoice or, in the absence of such a statement, no later than the thirtieth day after the invoice date, in euros, by cash payment at the office of den Heijer or by deposit or transfer to a bank account designated by den Heijer.
  2. Payment by deposit or transfer to a bank account is deemed to have been made as soon as the amount concerned has been credited to den Heijer's bank account. All costs associated with payment by deposit or transfer are for the buyer's account.
  3. The buyer is not entitled to suspend payment of the amounts owed by it on the grounds that den Heijer has failed to fulfil any obligation towards it under any contract whatsoever.
  4. Every contract of purchase and sale by den Heijer is entered into subject to the condition subsequent (resolutive condition) that the buyer concerned, on the basis of information to be obtained by den Heijer, proves in den Heijer's opinion to be sufficiently creditworthy.
  5. In the performance of a concluded contract, den Heijer is entitled to suspend the performance of its obligations until the buyer concerned, at den Heijer's request and to den Heijer's satisfaction, has provided security for the performance of all its obligations under that contract.
  6. Unless otherwise agreed in writing, a buyer is not permitted to set off the sales price against one or more claims it may have against den Heijer.
  7. If a buyer fails to pay on time any amount owed by it to den Heijer, it is in default without any notice of default from den Heijer being required. When a buyer is in default, it owes interest on the amount owed by it to den Heijer equal to the promissory note discount rate of De Nederlandsche Bank applicable on the due date, increased by 4% per annum, calculated from the date on which payment should have been made until the date of payment in full.
  8. If the agreed payment period has been exceeded, den Heijer is entitled to charge its buyer the judicial and extrajudicial collection costs associated with the collection of the purchase price if it uses appropriate persons or institutions to collect the claim. In that case, den Heijer has the choice either to charge the costs actually incurred or to charge a fixed amount of 15% of the sales price of the goods delivered, or of the amount to be collected by it, as the case may be.

Article 13: Default by the buyer

If a buyer fails to fulfil, fails to fulfil on time or fails to fulfil properly any obligation arising for it from this or any other contract concluded with it, and also if it is declared bankrupt or a petition for its bankruptcy has been filed, or it itself applies for a suspension of payments or for its own bankruptcy, or decides on or proceeds to the (whether or not partial) cessation or liquidation of its business, and also if any executory attachment is levied against a buyer, it is deemed to be in default by operation of law and den Heijer is entitled, without any notice of default or judicial intervention being required, at its option, whether or not in combination: (a) to suspend the performance of any, several or all of its obligations towards that buyer, on any account whatsoever; (b) even if otherwise agreed, to demand cash payment for each performance of any obligation on its part; and/or (c) to dissolve the contract(s) in whole or in part, or to declare them dissolved, without being obliged to pay any compensation, give any guarantee or otherwise. The provisions of this paragraph apply without prejudice to den Heijer's right to compensation for damage, costs and interest.

Article 14: Applicable law

All quotations and contracts to which these General Terms and Conditions of Sale and Delivery apply are governed exclusively by Dutch law, unless the parties, in derogation from this provision, have expressly agreed in writing that some foreign law shall apply.

Article 15: Disputes

All disputes that may arise in connection with a quotation or a contract to which these General Terms and Conditions of Sale and Delivery apply shall, to the exclusion of the jurisdiction of any other court, be brought at first instance before the District Court of The Hague (rechtbank 's-Gravenhage).

© W.G. den Heijer & Zn. b.v.