Terms and conditions RB Biobased Institute BV (2017)
Old – version 2017
Chamber of Commerce The Netherlands, number: 20153380
1.1 These terms and conditions are used by RB Biobased Institute B.V., hereinafter referred to as “Rodenburg”.
1.2 These terms and conditions apply to all offers by Rodenburg and all contracts with client(s) (“Buyer“) of Rodenburg, except insofar the parties have explicitly agreed to deviate from these terms and conditions in writing.
1.3 The applicability of any general terms and conditions (of purchase) applied by the Buyer is hereby expressly rejected.
1.4 These terms and conditions can only be deviated from following written agreement.
1.5 In the event of conflict between these terms and conditions and provisions specifically agreed to in writing (such as in the Contract, as defined hereinafter), the provisions specifically agreed to in writing shall prevail over these terms and conditions.
2 Offers, Contract
2.1 All sales will be confirmed in writing by Rodenburg by a signed and approved signed sales contract (“Contract“). A written confirmation includes in any event confirmation by fax, letter or email. This provision shall not affect the right of Rodenburg to prove the establishment of an agreement through alternative means.
2.2 An order is only binding for Rodenburg if it has been confirmed in writing by a duly authorized representative of Rodenburg.
2.3 The Buyer is deemed to have accepted the Rodenburg’s order unless the Buyer has notified Rodenburg in writing to the contrary within 48 hours after the receipt of the confirmation of Rodenburg. The Buyer is also deemed to have accepted Rodenburg’s order if he has requested the execution of the order.
2.4 Any (order) confirmation(s) from the Buyer which deviates from the Rodenburg’s order-confirmation, are only binding to Rodenburg if Rodenburg has accepted such deviations in writing.
2.5 Due to the use of natural raw materials in our products, samples and models shown or provided shall serve as indication only, without the goods having to comply with those samples and models. Minor variations in composition, colour, odour and suchlike shall not be considered to be defects. Commercial practice shall determine whether variations are minor.
3.1 The price of the goods and delivery depends on the agreed Incoterm (based on Incoterms 2010) and shall be set out in Contract. Unless expressly agreed otherwise, prices are based on Incoterm EXW or DDP, at the price and surcharge for the distance travelled to the delivery address, as stated in the price list valid on the delivery date of the product.
3.2 Rodenburg determines the prices based on weight units or using the dry matter content. Prices are always exclusive of VAT. Prices quoted by Rodenburg are in Euros, unless expressly stated otherwise.
3.3 Rodenburg’s delivery instructions form part of the Contract.
3.4 Products, product compositions, dry matter contents, like referred to in the brochures, communicated by Rodenburg, are indicative for our products ex factory. The stated values are the average values in these products.
4.1 Without prejudice to any right or remedy a party shall have against the other party for breach or non-performance of the Contract, each party shall have the right to terminate the Contract with immediate effect: (i) if the other party commits a material breach of the Contract and fails to remedy that breach within 30 days of a written notice giving reasonable particulars of the breach and requiring it to be remedied, or (ii) if the other party becomes or is deemed to be insolvent, discontinues its business, is unable to pay its debts, is the subject of bankruptcy proceedings, enters into liquidation whether compulsory or voluntarily or has a receiver or administrator appointed over all or any part of its assets, enters into any arrangement or agreement, or assignment with, or for the benefit of its creditors or any of them.
4.2 Termination under this clause shall be without prejudice to the fulfilment of purchase orders wholly or partially outstanding at the date of such termination, and likewise shall not prejudice or affect any right of action or remedy which shall at such date have accrued to either party under the Contract or shall accrue thereafter to either Party under an order.
4.3 Rodenburg is entitled to terminate the agreement if there are circumstances that are of such nature that it is not possible for Rodenburg to complete the Contract or if there are other circumstances that are of such nature that Rodenburg cannot reasonably be expected to continue its work under the Contract in unaltered form. Upon termination of the Contract, any amount receivable by Rodenburg from the Buyer will become immediately due and payable.
5.1 A delivery note, consignment note or similar document issued upon the delivery shall be deemed to correctly state the quantity of the delivered product, unless the Buyer objects to this immediately upon delivery of the product and has noted this on said document.
5.2 Rodenburg is entitled to partial shipment of order. Each delivery can be seen as a separate contract. Rodenburg shall always be entitled to invoice for such partial performances separately.
5.3 If the Buyer does not accept the delivery, or in the case of ex-works delivery does not collect the goods delivered within seven days after delivery and/or in the manner stipulated by Rodenburg, the Buyer has ordered following the offer from Rodenburg, then Rodenburg is entitled to charge the extra costs of transport and storage to Buyer without any further notice.
5.4 If a situation provided for in article 5.3 arises, and, despite being given a reasonable time by Rodenburg, the Buyer still fails later collect the goods or fails to do so in time and/or properly, Rodenburg shall be released from all its obligations. In that case, Rodenburg may offset the refund of the purchase price (if paid) against the storage costs incurred and against any loss of value which the goods have sustained since delivery.
5.5 In accordance with article 21, section 1 of the Regulation (EC) No. 767/2009, the Buyer shall waive the statement of the details and the information as referred to in Regulation (EC) No. 767/2009, article 15, subsections c), d), e) and g), and article 16, section 1, subsection b). These details therefore do not have to be stated on the accompanying administrative document.
6 Force Majeure
6.1 Rodenburg cannot be held to fulfil any obligation towards the Buyer if Rodenburg is hindered in doing so as a result of a circumstance that is not the result of a fault or negligence of Rodenburg and that neither under the law nor pursuant generally accepted principles can be considered to be for the account of Rodenburg. Force majeure in these general conditions includes all causes that come from outside, foreseen or unforeseen, on which Rodenburg does not have any influence, but as a result of which Rodenburg is not able to meet its obligations. To the extent that Rodenburg has partially met its obligations under the Contract at the time of the force majeure, Rodenburg will be entitled to invoice this part separately to the Buyer.
6.2 Rodenburg shall suspend performance of its obligations for the duration of the event of force majeure. If the period, during which the event of force majeure prevents Rodenburg from fulfilling its obligations, continues beyond a period of 30 days, either party shall have the right to terminate the Contract without there being any liability to pay compensation towards the other party.
7 Acceptance and Complaints
7.1 All goods delivered by Rodenburg are considered accepted by the Buyer when: (a) Rodenburg has not received a written complaint from the Buyer within the period prescribed in article 7.2, or (b) the Buyer uses the delivered goods in its production process, processes them in its end products or re-packages them. Acceptance, as meant in this article 7, means the discharge of Rodenburg of its obligations in relation to the delivery of the goods, which are the subject of acceptance.
7.2 The Buyer shall inspect the delivered quantity of goods and other possible defects visible upon delivery and make the usual reservations on accompanying (transport) documents if necessary. All defects obvious at first sight shall be reported, clearly stating the grounds on which the goods are not accepted to Rodenburg within 7 days from delivery of the product.
7.3 The Buyer shall be deemed to have received the packaging in a good condition, unless the Buyer can show otherwise upon delivery.
7.4 Complaints concerning defects that were invisible upon delivery must be filed in writing, with a clear description and within 24 hours after discovery of the defect, but in any case before the Buyer uses the delivered goods in his production process, processes them in his goods, or repackages them.
7.5 No complaints will be accepted when signing the documents without further reference, or when submitting complaints after the period stated in article 7.2, or the goods delivered by Rodenburg are used for an abnormal purpose for which they are not intended, or the nature and/or composition of the goods is changed after delivery, or if the goods are fully or partially damaged, re-packaged, or in case the shelf life has expired or if goods have not been stored in the prescribed manner.
7.6 Complaints will be taken into consideration provided that the goods are kept at the disposal of or returned to Rodenburg in accordance with the instructions given by Rodenburg (also see article 8.1).
8 Returns and Liability
8.1 Without prior written consent on its part, Rodenburg shall not be obliged to accept returns from the Buyer. In the event goods are returned without the prior written consent of Rodenburg, their dispatch and storage after their return shall be at the Buyer’s expense and risk.
8.2 Rodenburg only accepts liability for damages due to an attributable failure to perform under the Contract on the condition that the Buyer notifies Rodenburg of the default in writing properly and immediately. The notification must state a reasonable period to resolve this failure and must be sent by registered post. The notification must also contain an as detailed description of the failure as possible, allowing Rodenburg to respond satisfactorily.
8.3 Except for gross negligence or willful intent on the part of Rodenburg or its management, the total liability of Rodenburg under the Contract for attributable failure to perform under the Contractor for any other reason is limited to the compensation of the actual direct damages up to a maximum of the agreed price of the delivery.
8.4 Rodenburg is not liable for indirect damages, including lost savings, lost profits, loss of goodwill and losses resulting from business interruption, even if Rodenburg has been made aware of the possibility of such damages.
8.5 Rodenburg shall not be liable for damages resulting from third-party claims against the Buyer under articles 6:185-193 of the Dutch Civil Code if the defect in the goods delivered by Rodenburg cannot reasonably be attributed to Rodenburg or a third party for which it is responsible, especially if the defect did not exist at the time when the goods were transported by Rodenburg or if the defect is due to the Buyer’s failure to comply with instructions provided by Rodenburg.
8.6 All recommendations from Rodenburg and its employees regarding the use of goods for feeding stuffs, feeding schedules and feed rations are always given to the best knowledge of the adviser. These recommendations are always without obligation and Rodenburg cannot be held liable for the consequences of whether they are followed or not.
8.7 The Buyer shall indemnify Rodenburg against third party claims relating to damages for which Rodenburg is not or should not be liable for under the provisions of the preceding paragraphs of this article.
8.8 Due to the use of natural raw materials, Buyer must always try out our products on a small scale and await the outcome before proceeding to use these natural products on a large scale. In the event that the Buyer does not strictly adhere to the aforementioned advice, Rodenburg cannot be held liable for the damages as a result of large-scale use.
9 Payment and Retention of Title
9.1 The Buyer will pay Rodenburg the agreed price/prices and other expenses for the goods delivered. Set-off or retention of payment by the Buyer is not allowed, unless Rodenburg confirmed in writing that set-off or retention of payment is allowed by Buyer.
9.2 Buyer shall pay Rodenburg within fourteen (14) days from invoice date. If the price remains unpaid in whole or in part after agreed payment date, the Buyer fails to effect payments due. Rodenburg shall be entitled without any further notice to suspend its obligations under the Contract and/or charge 1% interest per month on any unpaid amount.
9.3 All costs in connection with debt collection shall be for the account of the Buyer. Extrajudicial costs shall amount to a minimum of EUR 750.
9.4 Rodenburg is entitled to deduct any amounts it owes to the Buyer from any amount that the Buyer owes to Rodenburg.
9.5 In all cases all goods delivered to Buyer by Rodenburg shall remain, without any restriction, property of Rodenburg until the Buyer has adequately fulfilled all obligation(s) under the Contract and payment(s) in full has been received by Rodenburg .
9.6 The Buyer shall be allowed to use the goods delivered subject to Rodenburg’s retention of title in the normal course of its business. Any other use shall be prohibited. In particular, the Buyer shall not be entitled to pledge or encumber with any other right the goods delivered subject to the Rodenburg’s retention of title. Intellectual Property Rights
9.7 The intellectual property rights (the ownership of which is) resting with Rodenburg shall remain the property of Rodenburg at all times. The Buyer shall not in any way use or refer to the intellectual property rights of Rodenburg or any derivatives thereof, without the prior written consent of Rodenburg.
The sale of goods to Buyer shall not convey any license or right under any intellectual property rights, relating to the compositions and/or applications of the goods, and the Buyer expressly assumes all risks of any intellectual property infringement by reason of its importation and/or use of the goods, whether or not in combination with other materials or in any processing operation.
9.8 Rodenburg has not verified the possible existence of third party intellectual property rights, which might be infringed as a consequence of the sale and delivery of the goods and Rodenburg cannot be held liable for any loss or damages in that respect.
10 Disputes and Applicable Law
10.1 Any dispute between the Buyer and Rodenburg, including the sole recovery of outstanding payments owed by the Buyer, shall be exclusively settled by the competent court of the district of Oost Brabant, the Netherlands.
10.2 These terms and conditions, and the relationship between Rodenburg and the Buyer shall be governed by and constructed in accordance with the laws of the Netherlands, exclusively. The application of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is expressly excluded.
11 Final Provisions
11.1 Nothing in these terms and conditions shall create, or be deemed to create, a partnership or joint venture between the parties or constitute one party as the agent of any other party. Neither party shall enter into or have authority to enter into any engagement or make any representation or warranty on behalf of or otherwise bind or oblige the other party hereto.
11.2 If any provision of these terms and conditions is or is held to be invalid or unenforceable, then so far as it is invalid or unenforceable it has no effect and is deemed not to be included in these terms and conditions. This shall not invalidate any of the remaining provisions of these terms and conditions. The parties shall use all reasonable endeavours to replace the invalid or unenforceable provision by a valid provision, the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
11.3 These terms and conditions are prepared in the Dutch and English language. In the case of a dispute in connection with the content or meaning of these general conditions, the Dutch text will be binding.
– Deposited at the Chamber of Commerce on the 15th of September 2017 –
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