The following General Terms and Conditions govern the relationship between Nisus Food B.V. and its customers.  Please read them carefully as they affect your right to seek redress against Nisus Food B.V. and limits our liability to you under the law.  By placing an order, the buyer agrees to having read & accepted our general terms and conditions.  Nisus Food B.V. is not be bound by any term or conditions proposed by its customers, unless such terms and conditions are expressly agreed to by Nisus Food B.V. in writing.

 

GENERAL TERMS & CONDITIONS OF SALE OF NISUS FOOD B.V.

 

Section 1 Definitions

Subsection 1

In the context of these General Terms and Conditions the following definitions shall apply:

Supplier: the supplier of the goods and services referred to in subsection 2 of this section.

Buyer: the party who is buying the goods and services referred to in subsection 2 of this section.

Subsection 2

In the context of these General Terms and Conditions the word “goods” shall be interpreted as both the goods and services supplied by the Supplier.

Subsection 3

In case of these General Terms and Conditions containing any reference to an internationally defined clause, such clause is to be interpreted in the sense of the  International Chamber of Commerce.

 

Section 2 Applicability

Subsection 1

Unless otherwise agreed in writing, these General Terms and Conditions shall apply to any agreement between the Supplier and the Buyer, including but not limited to agreements relating to the delivery by the Supplier of meat, meat products and other related goods.

Subsection 2

The provisions of the previous subsection shall equally apply to any (further or  supplementary) agreements between the Supplier and the Buyer, in respect of which the applicability of these “General Terms and Conditions” is not (expressly) stipulated.

 

Section 3 Offers/realisation of agreement

Subsection 1

All offers in any form whatsoever shall be free of obligation on the part of the Supplier, unless they specify an acceptance period and are based on delivery under normal circumstances and during normal working hours.

Subsection 2

If a no-obligation offer is accepted, the Supplier shall have the right to revoke the offer within two days of receipt of the acceptance.

Subsection 3

An agreement shall be effected upon written confirmation by the Supplier of the order issued by the Buyer. Parties shall nevertheless be authorised to otherwise prove the realisation of an agreement.

Subsection 4

Agreements with or undertakings by representatives or subordinates of the Supplier shall not be binding upon the Supplier unless said further agreements or undertakings are confirmed by the Supplier in writing or the Supplier has demonstrated acceptance of such by actually commencing execution of said agreement or undertaking towards the Buyer.

 

Section 4 Nature and scope of the agreement

Subsection 1

With respect to the nature and scope of the agreement the order confirmation or, in the absence of such, the Supplier’s offer shall be binding. In the event that there is also no such offer the Parties shall be free to prove the nature and scale of the agreement in an alternative manner.

Subsection 2

The agreement only covers the supply of the goods expressly agreed.

Subsection 3

Any deviation from or addition to the nature and scope of the agreement as set out in the order confirmation, and in the absence of such in the Supplier’s offer or as otherwise initially agreed, shall not be binding on the Supplier unless expressly agreed between the Parties in writing or the Supplier has demonstrated approval of such deviation or addition by actually beginning to execute said deviation or addition.

Should a deviation or addition to the nature and scope of the agreement be agreed, the Supplier shall be entitled to adjust the agreed price, method and period of delivery and other elements of the agreement in accordance with the agreed adjustments.

In the event that such addition or deviation leads to a longer period of delivery, the Supplier shall not be liable to any fines and/or claims for exceeding the delivery period.

Subsection 4

Without prejudice to the provisions otherwise set out in these General Terms and Conditions and unless expressly otherwise agreed in writing, the Buyer shall not be entitled to derive any rights and/or liability towards the Supplier from deviations of 1% or less from the agreed quantity  or weight.

 

Section 5 Price

Subsection 1

Unless the Supplier and the Buyer have expressly otherwise agreed in writing, the prices specified or agreed by the Supplier are based on CPT (carriage paid to agreed destination), exclusive of applicable sales tax, import duties or other taxes, levies or obligations and excluding the costs of loading and unloading, transport and insurance, all of which shall be for the account of the Buyer.

The Supplier shall not recognise an exemption of any tax or levy whatsoever unless the Buyer can provide the Supplier with a reliable certificate of exemption from the tax concerned.

Subsection 2

The price or prices quoted in the offer or the agreed price or prices shall be based on the cost-determining factors at that time.

Should the prices of raw materials, materials, equipment, energy, wages, social security contributions, taxes and/or other cost-determining factors, also including the prices charged to the Supplier by its supply companies, undergo any changes during the period between the date of the agreement taking effect and the date of delivery, the Supplier shall be entitled to adjust the offered or agreed prices accordingly.

Subsection 3

Unless otherwise agreed in writing, all prices specified by the Supplier are in Euros. The exchange risk shall be for the account of the Buyer.

Subsection 4

If the price is agreed in any currency other than Euros, the corresponding amount in Euros at the time of payment shall not be less than the price would have been in Euros at the time the agreement became effective.

Subsection 5

The Supplier is entitled to charge the Buyer separately, i.e. in addition to the agreed price/prices, for any costs the Supplier shall incur in fulfilling its obligations to remove and/or process packaging materials.

Subsection 6

Recyclable packaging materials, such as crates etc. shall remain the property of the Supplier and must be returned to the Supplier by the Buyer. Should the Buyer fail to do so, the Supplier shall be entitled to charge to the Buyer all costs relating to the replacement of such materials.

 

Section 6 Delivery Period

Subsection 1

The delivery period shall commence on the last of the following days:

• the day the agreement becomes effective;
• the day the Supplier receives the documents, details, licences, specifications, and approvals required for the execution of the agreement and any other information or materials required for the delivery;
• the day the Supplier receives any advance payment due from the Buyer or the day the Supplier receives the security to be provided to the Supplier by the Buyer prior to the agreement.

 

Subsection 2

Specified delivery periods are never to be deemed fatal deadlines unless expressly otherwise agreed in writing. In the event of late delivery, the Supplier is to be issued written notice of default.

Should the Supplier be in default pursuant to the provisions of the previous sentence, the Buyer shall only be entitled to terminate the agreement if and insofar as it has not yet been fulfilled and the Buyer cannot reasonably be expected to maintain the agreement.

Subsection 3

Should delivery be partly or entirely hindered due to force majeure, the Supplier shall be entitled to postpone delivery, or to rescind the agreement in part or in full, insofar as such has not yet been executed, and to demand payment for those parts of the agreement that have been delivered, without being held to pay the Buyer any compensation whatsoever.

Subsection 4

In the event that delivery is delayed owing to circumstances not attributable to the Supplier, other than referred to in the previous subsection, then the Supplier shall invoice the agreed price/prices, which the Buyer shall be obliged to pay as if timely delivery had been made.

Subsection 5

Should the Supplier be obliged to recover or store goods as a result of such a delay as referred to above, the Supplier shall be entitled, without prejudice to the provisions of the following subsections, to charge the Buyer a monthly sum amounting to 2% of the price of the goods.

Subsection 6

The Supplier shall always be entitled to make partial deliveries and to send partial invoices accordingly.

Subsection 7

If after the delivery period has lapsed the goods have not been taken by the Buyer the goods shall remain available to the Buyer and stored at the risk and for the account of the Buyer but in such event, the Supplier shall be entitled to rescind the agreement by means of a written statement and to demand full compensation or to sue for relief from its obligation.  The Supplier shall then also be entitled to sell the goods to third parties after three days have lapsed following the Buyer’s offer. In the latter event, the proceeds of said goods shall replace the goods to a maximum amount equal to the agreed price of the goods providing that the Supplier shall be entitled to deduct all costs and damages incurred from the proceeds or to offset such costs and damages against the proceeds, without prejudice to the Supplier’s right to otherwise claim all costs and damages from the Buyer and leaving in tact all other rights to which the Supplier shall be entitled in respect of the Buyer in such event.

Subsection 8

In the event that an agreed delivery of ‘similar goods’ has not been taken by the Buyer once the delivery period has lapsed, the Supplier shall be entitled to designate the goods to be delivered, in which case the Supplier, upon notifying the Buyer of such, shall only be obliged to deliver these goods, without prejudice to the Supplier’s authority to deliver other goods that meet the obligation, and without prejudice to the provisions of the previous subsection.

 

Section 7 Force Majeure

In the context of these General Terms and Conditions ‘force majeure’ shall be interpreted as, among other things, any circumstances independent of the will of the Supplier, even if such could have been foreseen at the time of the agreement becoming effective, which temporarily or permanently prevent the fulfilment of the agreement, as well as, insofar as is not already included, war, a threat of war, civil war, revolt, strike, lock-out, transport problems, fire and/or serious damage at the premises of the Supplier or its suppliers.

 

Section 8 Delivery and Acceptance

Subsection 1

Unless otherwise agreed delivery of goods shall be made to the warehouse or factory of the Buyer, in which case the goods shall be deemed to have been delivered by the Supplier and accepted by the Buyer as soon as the goods have been transported to the delivery address specified by the Buyer and presented for unloading from the vehicle.

In the event that the Buyer collects the goods from the Supplier himself, delivery shall be ex warehouse, in which case the goods shall be deemed delivered by the Supplier and accepted by the Buyer as soon as they are given to the Buyer and/or loaded into the transport vehicle.

Subsection 2

In the event of delivery of services, the services shall be deemed delivered and accepted by the Buyer as soon as the work has been terminated and the Supplier’s staff has departed.

 

Section 9 Transfer of risk

The goods to be delivered shall be for the account and risk of the Buyer from the moment of delivery as referred to in the previous section.

 

Section 10 Transport

Unless otherwise agreed in writing the mode of transport, carriage, packaging etc. by the Supplier shall be determined without any ensuing liability whatsoever on the part of the Supplier.

Should the Supplier have offered the goods for delivery to the Buyer but the Buyer has not taken delivery of the goods due to any circumstance whatsoever not attributable to the Supplier, the goods to be delivered shall be for the account and risk of the Buyer from the moment they were offered for delivery, without prejudice to any other rights to which the Supplier is entitled and without prejudice to the pertinent provisions of section 6 of these General Terms and Conditions.

 

Section 11 Quality, testing, faults, claims

Subsection 1

The goods delivered by the Supplier shall be deemed sound if they meet the statutory requirements pertaining to veterinary quality as locally applicable to the Supplier’s place of business at the time the agreement came into effect and also comply with any other specification expressly agreed between the Supplier and the Buyer.

Subsection 2

Weight loss as a result of cooling or freezing shall not be considered a fault if such weight loss is less than 1%.

The Buyer shall only be able to prove any such weight loss with an official weighing certificate or other means to the satisfaction of the Supplier, from which it is sufficiently clear to the Supplier that the weighing was carried out at the time of or on a reliable public weighbridge immediately following delivery.

In the event that the Buyer collects the goods himself from the Supplier, the Supplier shall enable the Buyer to weigh the goods on the Supplier’s premises or to have such weighed in the presence of the Buyer. In such cases, any complaints about weight loss shall only be taken up by the Supplier if the weighing was carried out at the Supplier’s site.

Subsection 3

The Buyer is to inspect goods immediately after delivery for completeness and soundness.

Subsection 4

Any claims in respect of faults are to be made in writing within eight days of delivery, with such specified period constituting an absolute time limit, save the exceptions set out below.

Claims regarding non-frozen meat must be made in writing within 24 hours of delivery, which period shall constitute an absolute time limit.

Claims regarding frozen meat must be made in writing within 72 hours of delivery, which period shall constitute an absolute time limit.

All aforementioned claims must be accompanied by an inspection report, compiled by a competent and independent expert and verifying the fault and the nature and scale thereof, in the absence of which the Buyer shall not be able to exercise any rights towards the Supplier in respect of said claim(s).

Subsection 5

Any claims relating to hidden defects and faults which, despite thorough and professional examination, the Buyer had been unable to identify and report within the time limits stipulated in the previous subsection, are to be reported to the Supplier in writing within 24 hours of discovery of such a fault regarding non-frozen meat, within 72 hours of discovery of such a fault regarding frozen meat, and in all other cases within 10 calendar days of discovery, and in all cases within 30 days of delivery,  which periods shall constitute absolute time limits.

In such cases as referred to in the previous sentence, the written notification must always be accompanied by an inspection report compiled by a competent and independent expert, verifying the fault and the nature and scale thereof. In the absence of an inspection report as referred to in the previous sentence, the Buyer shall not be able to exercise any rights towards the Supplier in respect of said claim(s).

Subsection 6

Should the Supplier accept a claim by the Buyer, the Supplier shall at its own discretion resolve the fault free of charge by means of additional or replacement delivery or by crediting the Buyer for the part of the delivery to which the shortcoming applies.

The Supplier shall only be held to the obligations as referred to in the previous sentence if and insofar as the Buyer demonstrates that the identified faults and/or shortcomings are the consequence of circumstances attributable to the Supplier.

If so desired, the Supplier shall be entitled to carry out its own investigation as to the nature, scale and cause of the specified fault or shortcoming, in which case the Buyer shall be obliged to afford the Supplier full cooperation and any failure to do so shall result in the Buyer not being able to exercise any rights towards the Supplier in respect of the specified shortcomings.

Subsection 7

In the event of any such circumstances as referred to in this section, the Buyer shall only be able to rescind the agreement concluded with the Supplier if the Buyer can demonstrate that the specified faults are attributable to the Supplier, and in such case only after the Buyer has allowed the Supplier a period that is by all means reasonable in the given circumstances within which to acceptably resolve the specified faults, and also only if the Buyer cannot reasonably be expected to maintain the agreement.

Subsection 8

Any claims concerning invoiced amounts charged by the Supplier are to be submitted in writing within 8 days of the invoice date, which period shall constitute an absolute time limit.

Subsection 9

With the exception of cases of intent or serious misconduct on the part of the management or lower management of the Supplier, the fulfilment of the provisions of subsection 6 of this section shall constitute the only compensation. By observing the provisions of section 18 of these General Terms and Conditions, the Supplier shall not be liable to pay any other form of compensation whatsoever.

 

Section 12 Returns

Subsection 1

Returns shall only be accepted by the Supplier following prior written consent and if carriage is paid.

Subsection 2

The acceptance of any returns shall not constitute approval by the Supplier.

 

Section 13 Retention of title

Subsection 1

The Supplier shall retain the title of all goods delivered to the Buyer until full payment has been made of the purchase price for all the goods.

Subsection 2

In the event that the Supplier, in respect of the agreement effected with the Buyer, has carried out work for the Buyer which is to be paid for by the Buyer, the retention of title shall equally apply until full payment of such amount receivable has also been made in full.

Subsection 3

The retention of title shall also apply in respect of any amounts receivable by the Supplier from the Buyer as a result of a failure on the part of the Buyer to meet one or more of its obligations towards the Supplier.

Subsection 4

Until such time as the title of the goods delivered has been transferred to the Buyer, the Buyer may not pledge the goods or assign any other right to any third party except as provided in the following subsection of this section.

Subsection 5

The Buyer shall be entitled to sell or transfer the goods delivered, subject to the retention of title to a third party within its normal business activities. In the event of sale on credit, the Buyer shall be obliged to insist on retention of title in respect of its buyers on the grounds of the provisions of this section.

Subsection 6

The Buyer undertakes not to assign or pledge any amounts receivable from its buyers to any third party without the prior written consent of the Supplier. The Buyer undertakes to pledge the intended amounts receivable to the Supplier, should the Supplier express such wish, in the manner stipulated in Section 3:329 of the Dutch Civil Code, as additional security in respect of all amounts receivable from the Buyer by the Supplier in any capacity whatsoever.

Subsection 7

The Buyer is obliged to store any goods delivered subject to the retention of title with due care and as recognisable property of the Supplier.

Subsection 8

The Buyer is obliged to insure the goods for the duration of such retention of title against damage caused by fire, explosion or water, and against theft, and to afford the Supplier insight into the policies relating to said insurances at first notice.

Any claims that the Buyer has against the insurers of the goods pursuant to aforementioned insurances shall, should the Supplier so desire and make such known, be pledged by the Buyer to the Supplier, in the manner stipulated in Section 3:329 of the Dutch Civil Code, as additional security in respect of all amounts receivable from the Buyer by the Supplier in any capacity whatsoever.

Subsection 9

Should the Buyer fail to meet its obligations towards the Supplier or the Supplier have reasonable grounds to fear that the Buyer shall fail to meet such obligations, the Supplier shall be entitled to withdraw the goods delivered subject to retention of title. Following any such withdrawal the Buyer shall be credited with the market value, which shall never amount to more than the original purchase price, minus the costs incurred to recover the goods and minus any other rights to which the Supplier shall hence become entitled, including the right to settlement against any losses incurred by the Supplier.

 

Section 14 Transfer of rights and obligations

Without the prior written consent of the Supplier, the Buyer shall not be entitled to transfer its rights and obligations in part or in full to any third party or to pledge such rights and obligations in any way whatsoever.

 

Section 15 Payment

Subsection 1

Unless otherwise agreed in writing and without prejudice to the provisions of the following subsections, payments to the Supplier are to be made within 21 days of the invoice date, which period shall constitute a fatal deadline.

Subsection 2

All payments are to be made in the agreed manner without any discount and/or set-off of debts.

The Buyer shall never be entitled to suspend payments, on any grounds whatsoever, or to offset them against (alleged) amounts receivable from the Supplier.

Subsection 3

The Supplier shall be entitled at all times to require full or partial payment in advance for every delivery or partial delivery.

Subsection 4

Should the Supplier consent to payment in instalments of the full or partial sum in respect of specific goods delivered or to be delivered, the sales tax for the full sum shall be payable together with the first instalment unless otherwise agreed in writing.

Subsection 5

Any costs for the account of the Supplier and advanced by the Buyer shall be set off against the final instalment.

Subsection 6

The Supplier shall at all times be entitled to require adequate security from the Buyer for the fulfilment of all or part of its payment obligations before any delivery or further delivery is made.

Subsection 7

The Supplier shall be entitled to suspend further delivery should the Buyer fail to fulfil its payment obligations or fail to fulfil its obligation to provide security or otherwise fail to fulfil any of its obligations towards the Supplier, also if a fixed period of delivery has been agreed, without prejudice to the Supplier’s right in any such case to rescind the agreement and/or demand full compensation, and without prejudice to any other rights to which the Supplier shall then become entitled.

Subsection 8

Unless expressly agreed otherwise in writing all payments, by whatever title, made by the Buyer shall first be deducted from the costs, then deducted from the interest and finally deducted from the principal sum of the outstanding invoice amount and, in the event that more than one invoice is outstanding, the payments shall first be deducted from the principal sum of the invoice with the oldest invoice date.

Subsection 9

Should the Buyer fail to make payment within the agreed term of payment, the Buyer shall be legally in default and shall be liable, without notice of default and from the due date of the unpaid invoice/invoices, to pay the Supplier interest on the outstanding amount equivalent to the statutory interest plus 2%.

Subsection 10

Should the Buyer be in default pursuant to the provisions of subsection 9 of this section all amounts receivable by the Supplier from the Buyer shall become payable on demand.

Subsection 11

If payment is made by means of bills of exchange or cheques, all exchange and cheque costs shall be for the account of the Buyer. The same applies to C.O.D. costs.

 

Section 16 Judicial and extrajudicial costs

All judicial and extrajudicial costs incurred by the Supplier in respect of the collection of receivables from the Buyer shall be for the account of the Buyer, such extrajudicial costs being calculated pro rata to the outstanding sum or pro rata to the value of the performance otherwise receivable from the Buyer, in the manner set out below, with the proviso that said costs shall amount to a minimum of €150 and with the proviso that the Supplier shall at all times be entitled to demand all extrajudicial costs actually incurred should such costs amount to more than the sum calculated as set out below.

The extrajudicial costs shall be calculated on the basis of the amount receivable or the value of the performance otherwise receivable from the Buyer as follows:

 

on the first €2,950   15%

on the excess up to €5,900  10%

on the excess up to €14,750    8%

on the excess up to €59,000    5%

on the excess over €59,000    3%

 

Section 17 Liability

Subsection 1

In compliance with the provisions of subsection 9 of section 11 of these General Terms and Conditions, the Supplier shall never be liable for damage of any kind whatsoever except in the event of intent or serious misconduct on the part of the management or lower management of the Supplier and except if and insofar as such is contrary to the provisions of imperative law.

Subsection 2

Without prejudice to the provisions of the previous subsection all liability on the part of the Supplier for consequential losses or any other indirect losses is expressly excluded.

Subsection 3

Without prejudice to the provisions of the previous subsections, any compensation obligation of the Supplier in the event of liability on the part of the Supplier shall at all times be restricted to 50% of the price agreed with the Buyer exclusive of VAT, with the proviso that should the agreement relate to partial deliveries or should the Supplier have exercised its right to make partial deliveries, the compensation obligation of the Supplier shall at all times be restricted to 50% of the price relating to that part of the agreement to which the damages are most closely connected, with the proviso that any compensation obligation shall at all times be restricted to €25,000.

Subsection 4

The Buyer is to notify the Supplier in writing of any damages within 20 days of the discovery of such, and any failure to do so shall result in the Buyer not being able to exercise any rights towards the Supplier in respect of said damages.

If such be the case, the Buyer shall also be obliged to afford the Supplier full cooperation with any investigation that the Supplier may conduct as to the nature, scale and cause of the specified damages, under penalty of the loss of any claims the Buyer has against the Supplier in respect of said damages.

Subsection 5

Without prejudice to the provisions of the previous subsections of this section all rights of action against the Supplier on the part of the Buyer shall lapse one year after the damage occurred or started to occur.

 

Section 18 Indemnity

Except in cases of intent and/or serious misconduct on the part of the management or lower management of the Supplier, and except if and insofar as such is contrary to the provisions of imperative law, the Buyer shall be obliged to indemnify the Supplier against any costs, losses and interests which the Supplier may incur as a direct or indirect result of any legal actions brought against the Supplier by any third party concerned or as a result of the execution of the agreement. Pursuant to the agreement the Buyer shall be obliged to act upon a claim for indemnification on the part of the Supplier.

 

Section 19 General Foods Law

The Buyer shall be obliged to strictly observe all obligations in respect of goods delivered by the Supplier pursuant to European Parliament and Council Regulation (EC) number 178/2002 (General Food Law) of 28 January 2002 and any regulations based upon that.

The Buyer shall indemnify the Supplier against all claims from any third parties, including government bodies, if and insofar as the Buyer fails to comply strictly with the aforementioned regulations.

 

Section 20 Proof of administration

Unless proven otherwise with respect to the agreement the information in the Supplier’s administration shall be decisive.

 

Section 21 Suspension and rescission

Subsection 1

Without prejudice to the provisions of the previous sections pertaining to suspension and rescission, should the Buyer fail to duly fulfil, or to duly fulfil in good time, the obligations pursuant to the agreement effected between the Supplier and the Buyer, the Supplier shall be entitled, if there is serious reason to doubt whether the Buyer can fulfil its obligations pursuant to the aforementioned agreement, in the event of bankruptcy, suspension of payment, legal restraint, closure, liquidation of the Buyer, full or partial transfer of a large part of the business capital or operating assets, or a writ of attachment served on the Buyer, to either suspend the agreement without notice of default or judicial intervention or to rescind the agreement insofar as said agreement has not yet been executed, in which case the Supplier's right to compensation for losses and/or loss of profit shall remain intact.

Subsection 2

In the event of rescission, as referred to in the previous subsection, the agreed price payable to the Supplier, minus any payment already made and costs not yet incurred by the Supplier, shall become payable on demand.

Subsection 3

In such cases as stipulated in the first subsection any outstanding amounts receivable by the Supplier from the Buyer shall immediately become fully payable on demand.

 

Section 22 Dutch text binding

Should these General Terms and Conditions be drawn up in a foreign language, in the event of any deviation from the Dutch text or in the event of a difference of opinion as to the meaning and/or interpretation of any clause, the Dutch text and interpretation of these General Terms and Conditions, shall always be conclusive.

 

Section 23 Disputes /Applicable Law

Subsection 1

All agreements to which these General Terms and Conditions apply in part or in full shall be governed by Dutch Law. The applicability of the Vienna Sales Convention of 1980 is expressly excluded.

Subsection 2

Any disputes shall first be settled by the competent court in the jurisdiction of Rotterdam, to the exclusion of all other courts, without prejudice to the Supplier’s right to summon the Buyer before the court in its own domicile.