General Terms and Conditions
- General
1.a These General Conditions from part of all agreements (hereinafter referred to as “Agreement”) under which Chemicals United B.V., VAT-number NL866751555B01 (hereinafter referred to as “Seller”) sells products (hereinafter referred to as “Product”) to a customer (hereinafter referred to as “Buyer”). For the purpose of these General Conditions, Agreement shall include any offers and quotations by Seller. These General Conditions apply mutatis mutandis to other agreements in so far no other Seller’s terms and conditions apply to such other agreement. Seller shall be deemed to have rejected Buyer’s conditions of purchase if and in so far as Seller has not accepted the applicability thereof by expressly stating so in writing.
1.b Any deviation from the provisions of the present General Conditions shall be effective only if and in so far as Seller has expressly agreed upon such departure in writing.
2. Delivery and quantity
2.a Deliveries of Product will be made only at the agreed supply point. Conditions of delivery will be interpreted on the basis of the latest version of Incoterms, latest conditions of Sale, the latter shall prevail.
2.b Seller shall deliver on call, unless otherwise agreed. Due to operational considerations Seller may deliver more or less Product than agreed or called, unless in the given circumstances such deviation is reasonable unacceptable to Buyer.
2.c Weighing and measurement in accordance with Seller’s usual methods are conclusive.
2.d Package material may be charged to Buyer supplementary and will only be taken back if and in so far Seller has a specific arrangement therefore.
2.e Seller reserves the right to refuse to deliver Product into
Buyer’s nominated room, including but not limited to vessels, vehicles and containers, or equipment which Seller in its sole judgment determines are unsuitable and Buyer shall reimburse Seller any damage resulting from such refusal. For the purpose of these Generals Conditions “Equipment” means any demountable container, tank, bulk liquid bag or any other receptacle for containing and transporting the Product. Buyer’s vouches that the means of transport it nominates and the crew thereof are qualified in all respects to transport the Product safely to the destination and satisfy the requirements that, taking also into account the nature of the Product are imposed or may be reasonable expected by the competent government agencies or, in addition, by Seller. Without prejudice to Buyer’s responsibility in this respect, Seller shall be entitled to reject a nomination or the loading of a nominated mean of transport if, in its sole judgment, those requirements have not been fulfilled, even if that nomination had previously been accepted by Seller. Seller shall not be liable for any damage resulting from delivery of Product into an unsuitable room or equipment or from unsuitable means of transport nominated by Buyer and Buyer shall indemnify Seller against any third party claims with respect to such damage.
f2.f 2.f With regards the quality of the Product to be delivered, Seller is solely obliged to deliver that quality of Product that has been agreed via the product specification. If no product specification has been enclosed to the Agreement, then such shall be supplied to the buyer upon written request. Seller therefore gives no guarantee whatsoever in respect of merchantability or of suitability for a particular use. In so far as the quality of the Product to be delivered has not been specified in the Agreement, Seller is entitled, in fulfilment of its obligation to deliver, to supply that quality of product that at the moment of execution of the Agreement is the production quality of the delivering installation. The specification of Product Samples made available to Buyer shall only be regarded as the specification to be delivered if that specification is expressly stipulated in the Agreement as the specification to be delivered. Complaints with respect to the quality of the Product shall be reported to Seller in writing immediately but within 2 working days after delivery at the latest. Within 24 hours following the arrival of the carrier and before unloading the goods into the Buyer’s premises, the Buyer shall do the necessary test to verify that the products conform to the specifications mentioned overleaf and/or in the agreement. In the absence of such test, no claim shall be accepted by the Seller if the Buyer unloads the goods. The Buyer shall be deemed to have accepted the goods.
2.g If the agreement provides for more than one delivery/off-take, the deliveries/off-takes shall, unless otherwise agreed, to be effected at regular intervals over the contract period. If Buyer takes a quantity of Product, during any period for which an off-take obligation exists, that is smaller than Buyer’s obligatory off-take for that period, Seller shall not be obliged, without prejudice to its rights to demand fulfilment and/or damages, to deliver the off-take shortfall after elapse of that period.
2.h Buyer vouches that the means of transport nominated can be loaded or discharged respectively within the agreed or –failing such arrangement– usual loading or discharge time for modern means of transport and loading/discharge installations and shall make good the damage suffered by Seller as a result of a circumstance attributable to or for the risk of Buyer that prevents loading or discharge from being effected within that time.
3. Price
3.a In the event any government or other competent authority will impose, after or repeal any tax of other levies in connection with the sale of delivery (including but not limited to any tax or other levies on raw materials), Seller may adjust the Product-price accordingly. Seller may also adjust the Product-price in case of fluctuations of the exchange rate of the Euro against the relevant foreign currency.
3.b Unless otherwise agreed, all prices shall be exclusive of taxes and other levies. Payment of taxes and other levies due shall be effected simultaneously with the payment of the purchase price. If the final destination of the Product, contrary of the destination stated by the Buyer , lies within Dutch territory, irrespective of whether Buyer can be held accountable therefore. Buyer shall, at Seller’s first request, pay the taxes and other levies that thereby become due.
4. Payment
4 4.a Payment shall be made on delivery or within the agreed term of payment, without offsetting of debts or deduction of discount, in the currency and manner agreed. If payment is not made by the due time, Buyer shall owe Sellers the statutory interest on the unpaid amount over the period that payment is overdue without any summons or notice of default being required, without prejudice to Seller’s right to claim fulfilment and/or full damages and/or dissolution of the agreement and without prejudice to the provisions of Article 4.3. All costs of payment, provision of security therefore or recovery thereof shall be for Buyer’s account.
4.b Seller shall be entitled at all times to offset outstanding amounts that it claims from Buyer at any time against outstanding amounts that it owes to Buyer at any time to one or more other Group companies, instead to Buyer, in settlement of its debt to Buyer.
4.c If, in Seller’s judgment, there are grounds for fearing that Buyer will not fulfil its obligations vis-a vis Seller, Seller shall be entitled –irrespective of what has been agreed about payments and the provision of a security- to demand payment in advance or (additional) security and to suspend delivery until payment or adequate security has been received. If Buyer fails to fulfil all or some of its obligations or fails to do so on time or omits to provide adequate security for the same, Seller shall be entitled to terminate the agreement without judicial intervention, and without any warning or summons being required, by written notice with immediate effect or with effect from a date stated therein, without prejudice to Seller’s right to claim fulfilment and/or damages.
4.d If the Buyer is in default in respect of the payment of any sum payable under the contract, then without
prejudice to the Seller’s other rights and remedies, the Buyer shall pay the Seller cumulative interest on
all overdue sums at the rate of 3% per month. In addition, the Seller shall be entitled to receive an
indemnity corresponding to 15% of the overdue sums, without the prejudice to any other rights of the
Seller.
5. Retained ownership
5.a Ownership of the Product shall be retained by Seller until Seller has been obtained full payment for the
Product and for any damages, if any, resulting from Buyer’s non-fulfilment of the Agreement. If a Bill
of Lading or comparable cargo document is taken out, buyer shall be deemed to hold same for Seller
until payment has been made as referred to above. The risk in respect of the Product, however, shall be
transferred to Buyer at delivery of the Product. Buyer shall at Seller’s first request issue a statement in
writing representing that Buyer holds for Seller the Product for which no payment as referred to above
has been received.
6. Claims
6.a The Seller shall have no liability for any claim of the Buyer with respect of the goods, unless the Buyer
gives notice thereof to the Seller within one week of delivery or, if the matter could not have been
apparent upon reasonable examination at delivery, within one month of delivery. In the event of a claim
relating to damage to, deterioration in or partial loss of the goods in transit, or for incomplete delivery,
the Buyer shall in addition give immediate notice to the carrier.
6.b Any claim in respect of total or partial non-delivery must be made within one week of the date of
delivery and, if not so made, delivery shall be deemed to have been made in accordance with the
contract.
6.c No claim shall be accepted by the Seller unless the Buyer has afforded the Seller a reasonable opportunity to inspect the goods within one month of delivery and before they are used or processed.
6.d In cases where the quantity or quality of the goods delivered is in dispute, no claim shall be accepted by the Seller unless the Buyer has provided the Seller with all pertinent details and with a sworn surveyor’s contract. The cost for such test shell be borne by the buyer in full if the test confirms that the products quality complies with the applicable product specification.
6.e The Seller shall in no event be liable for goods that have meanwhile been fully or partially consumed, changed from their original form or co-mingled by the Buyer with the exception of a reasonable amount of goods (not exceeding one ton) used to verify whether the goods meet the specifications stated overleaf and/or in the agreement.
7. Liability
7.a In the event of non-fulfilment, untimely fulfilment or improper fulfilment by Seller of its obligations without any question of force majeure, Buyer shall solely have a claim to compensation of the damage suffered as a result of Seller’s non-performance up to no more than the invoice value of the relevant delivery. If the Product does not conform to the agreed specification, Seller shall be entitled, notwithstanding the above, to make replacement Product available to Buyer, unless in the given circumstances this is reasonable unacceptable to Buyer. Seller shall not be liable for indirect or consequential damage. Seller’s liability on account of improper fulfilment shall lapse if the Product is utilized or processed completely or partially. Information and advice, for example in respect of the possible uses of the Product, are given by the Seller to the best of its knowledge, with account being taken of any research it has performed and experience it has gained. Seller, however, accepts no liability whatsoever for any incorrectness in the information and advice it provides. Buyer shall hold Seller harmless from claims in respect of damage for which Seller is not liable. Limitations or exclusions or liability are also irrevocably imposed and accepted for those who are engaged by seller in the execution of the Agreement.
8. Force Majeure
8.a None of the parties shall be liable for non-fulfilment, untimely fulfilment or improper fulfilment of its obligations if, in so far as and as long as fulfilment has been party or in full, temporarily or continuously delayed or prevented by force majeure, which shall include, inter alia:
regulations of a government agency, of a port, local or other authority or anybody or person indicating that it/he is such an agency or authority or is acting on its behalf;
hindrances, restrictions or obstructions in respect of the extraction, production, supply (including extension of supply lines) and/or importation of raw and auxiliary materials for the Product and/or in respect of the manufacturing of the Product and/or the transportation thereof to the place of delivery (including non-performance by supply companies);
circumstances which have not been anticipated by Seller or cannot reasonably be expected to have been anticipated by Seller and which are of such interest that Seller, would such circumstances be known to him, would not or not on the same conditions have entered into the Agreement;
war, strikes, threat of strike action or other labour conflicts.
The obligation to make prompt payment of a sum of money or the provision of security therefore can in no case be averted by a claim of force majeure.
8.b The party whose obligations cannot be completely fulfilled as a result of force majeure shall inform the other party in writing by fax, email AND registered letter as quickly as possible about the occurrence of the facts and circumstances creating that force majeure, indicating to what extent it can continue the deliveries or off-takes, as the case may be. Seller shall in no case be bound to cover any shortfalls from other suppliers. If the Product still available is insufficient for supplying all off-takes, Seller shall be entitled to distribute the Product available amongst its regular off-takers in a manner fairly determined by Seller. Buyer shall be free to purchase quantities not delivered by Seller from other suppliers. In that case, Buyer shall refrain from contracting long-term obligations vis-à-vis those suppliers, insofar in the given circumstances this is not reasonably unacceptable, and shall re-continue off-taking when informed by Seller that the latter can resume its deliveries.
8.c Quantities that are –in deviation of the Agreement- not delivered by Seller or are not taken by Buyer as result of force majeure shall be deducted from the quantities to be contractually supplied or taken, as the case may be.
9.
Postponement or omission in claiming strict fulfilment of contractual obligations on one or more occasions or in exercising any right or privilege shall in no case be regarded as renunciation for the future of the right of fulfilment or of such rights or privileges, unless that renunciation for the future has been expressly made in writing.
10. VAT
10.a If the supply qualifies as an intra-community transaction as defined in Article 28 © (A) of EEC Council Directive 91/680, Buyer will notify Seller, in writing and before the supply takes place, which VAT number he will use for each transaction and, in case transport is not arranged by or on behalf of Seller, that the goods will be transported by him or on his behalf to another EC Member State. If, in the above described situation, Seller has sufficient confidence that it will receive evidence required in time, and, therefore, invoices Buyer with 0% VAT, Buyer shall provide Seller as soon as possible with documents proving that the goods have been transported to another EC Member State. Buyer is liable for any VAT and fines due by the Seller if the documents mentioned are not received in time by Seller. If the VAT number cannot be verified with fiscal authorities in due time, or if fiscal authorities cannot validate the number at verification, the supply will be deemed to be a national supply and VAT will be levied accordingly. In case goods are transported by or on behalf of Seller and fiscal authorities do not accept the proof that the goods have been transported to another EC Member State, Buyer will do his utmost to provide Seller with additional information and to assist Seller in having the proof accepted.
11. Excise Duties
1 11.a Buyer is in case of FOB/FCA deliveries liable for all taxes, increases and fines which are the result of infringements during the transport of the goods or any shortage observed on acceptance of the goods by the addressee of the AAD.
11.b Buyer is in case of CIF/CFR deliveries liable for all taxes, increases and fines which are the result of any shortage observed on acceptance of the goods by the addressee of the AAD. Buyer will return to Seller the return sheet of the AAD signed by an authorized person within 14 days after the date of the AAD.
12.
In case of conflict between these General conditions of Sale in the Dutch (B) language and any translations thereof in other languages, the Dutch (B) edition shall prevail.
13.
The Agreement shall be governed by the Laws of Netherlands excluding the applicability of the United Nations Convention on Contracts for the International Sale of Goods (1980). Any dispute in connection with the Agreement shall be exclusively submitted to the competent Court at Rotterdam, Netherlands.
14. Entire Agreement and Amendment
These terms and conditions, together with the terms and conditions stated overleaf and/or in the agreement, contain the entire agreement between the parties with respect to the subject matter here of; and may not be amended other than by a written agreement signed by the Seller and the Buyer.