General Terms and conditions of sale and delivery

General Terms and conditions of sale and delivery AgriBioSource Europe b.v.

Article 1           Applicability
1.1 These terms and conditions are used by Agri Bio Source Europe B.V., hereinafter referred to as “ABS Europe”.
1.2 These terms and conditions apply to all offers by ABS Europe to (a) Customer(s) and all contracts with (a) Customer(s) of ABS Europe.
1.3The applicability of any general terms and conditions (of purchase) applied by the Customer is hereby expressly rejected. By way of derogation from Article 6:225 paragraph 3 of the Civil Code, ABS Europe is not bound to the derogations from the quote of ABS Europe present in the acceptance by the Customer.
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, the provisions specifically agreed to in writing shall prevail over these terms and conditions.

Article 2           Offers, Agreement
2.1 All offers are without obligation, unless agreed otherwise in writing. An agreement is established through a written confirmation of that agreement by ABS Europe. The Customer shall be committed to any verbal order placed with ABS Europe. A written confirmation includes in any event confirmation by letter, e-mail or fax. This provision shall not affect the right of ABS Europe to prove the establishment of an agreement through alternative means.
2.2 All offers are exclusive of sales tax and delivery and freight charges, unless otherwise specified.
2.3 The products, product compositions, dry matter contents, and the like referred to in the brochures and other written materials published by ABS Europe, as well as on the website, are indicative and are based on analyses ex-factory. The stated values are the average values in these products. These products are natural products and variations in the chemical composition (values) of these products are therefore possible. Consequently, no rights can be derived from these values. Furthermore, any variations above or below the aforementioned values in these products shall not constitute grounds for a breach of contract or wrongful action.
2.4 ABS Europe reserves the right to require security from the Customer before accepting and implementing an agreement.

Article 3           Prices and Rates
3.1 Unless expressly agreed otherwise, prices of the goods are based on delivery according to Incoterm (2010) DDP (Delivered Duty Paid), at the price and surcharge for the distance travelled to the delivery address, as stated in the offer or the price list valid on the delivery date of the product.
3.2 The introduction and/or increase of import duties, levies, sales tax and/or other taxes on (the delivery of) the goods or any raw materials and/or consumables or any other cost increase occurring after conclusion of the agreement, shall be charged to the Customer by ABS Europe.
3.3 ABS Europe determines the prices based on weight units or using the dry matter content and prices are always exclusive of VAT. Unless expressly stated otherwise, prices quoted by ABS Europe are in Euros.
3.4 If the price has partly been determined based on the dry matter content and the Customer disputes the dry matter content of the delivered product, such dispute needs to be done in writing (by letter, e-mail or fax) within 3 working-days upon receipt of the statement of the dry matter content. Upon receipt of the Customer’s dispute note ABS Europe shall re-measure the dry matter content in the control sample. In case of a deviation of the dry matter content of more than 1,0 per cent dry matter content ABS Europe shall adjust the invoice.
3.5 In the event that the price is calculated per weight unit and nothing else has been agreed, the weighing will take place on a calibrated weighbridge chosen by ABS Europe. Weighing discrepancies of less than 2% are not settled. ABS Europe has fully met its obligations if the difference between the contractually agreed quantity and the actual delivered quantity is not greater than 10%. In the event that the difference is greater than 10%, the difference up to and including the corresponding percentage is adjusted in line with the agreed price per weight unit, whilst the difference above these percentages will be adjusted in line with the daily price per weight unit valid that day.
3.6 A consignment note, delivery note or similar document issued upon the delivery shall be deemed to correctly state the quantity of the delivered product, unless the Customer objects to this immediately upon delivery of the product and has noted this on said document.
3.7 A composed quote does not obligate ABS Europe to carry out a portion of the agreement or to deliver a portion of the products stated in the quote or offer at a pro rata calculated portion of the price or rate stated.

Article 4           Transfer of Risk
4.1 Unless expressly agreed otherwise, all deliveries are based on Incoterm DDP. The place of delivery will be determined by the Customer.

Article 5           Delivery
5.1 All delivery times are approximates only. Exceeding the delivery time, for any reason whatsoever, shall not entitle the Customer to claims for non-fulfillment of any obligation assumed towards ABS Europe, including any right to compensation.
5.2 Customer has to mention the number and/or name of the silo into which unloading should take place  and to ensure that the said silo is marked visible. Customer warrants that he has sufficient storage capacity for the ordered quantity.
5.3 Customer shall ensure and warrant to ABS Europe that the silo’s and other storage in which ABS Europe can unload the purchased goods will be available without any obstructions and without any risks and that there will be sufficient storage capacity for the purchased goods.
5.4 If the Customer is incapable of receiving the quantity of goods ordered from ABS Europe, ABS Europe is entitled to charge additional transport and storage costs to the Customer without any further notice.

Article 6           Force Majeure
6.1 Force majeure in the broadest sense of the word releases ABS Europe from its obligation to deliver within a specified period or on a specified date, and gives her the right, if necessary, to suspend, or to wholly or partially terminate the corresponding agreement by means of a written notification to the Customer, without the Customer being entitled to compensation.
6.2 Force majeure means any circumstance or event that cannot be attributed to ABS Europe, as a result of which ABS Europe cannot reasonably be expected to fulfill its obligations, including, to the extent not already included, insufficient harvest, crop failure, operational failure, strike or interruption of operation of any nature, fire, railway strike, defective vehicles, transport problems of any nature that impedes, obstructs or delays transport to ABS Europe and/or from ABS Europe to the Customer, failing, delayed or late delivery by one or more suppliers, and conditions in general that disrupt the regular production of ABS Europe, or the delivery to the Customer.
6.3 Insufficient harvest or crop failure means the complete or partial failure of harvest of the raw materials and/or consumables required by ABS Europe, as a result of which ABS Europe cannot obtain the required raw materials and/or consumables, is unable to do so in good time, or only under more onerous conditions.
6.4 Failing, delayed or late delivery by a supplier as mentioned in article 6.2 concerns the raw materials and/or consumables required by ABS Europe, as a consequence of which ABS Europe cannot, not timely or only under for ABS Europe damaging conditions have the disposal of the required raw materials and/or consumables.
6.5 In the event that force majeure occurs while the agreement has already been partially performed, and if the remaining performance will be delayed by more than three months as a result of the force majeure, the Customer shall keep and pay for the goods that have already been delivered.
6.6 In the event that, as a result of force majeure, the delivery is delayed by more than three months, both the Customer and ABS Europe are entitled to terminate the agreement, this without the prejudice to the provision of Article 6.4.

Article 7           Retention of Title
7.1 All goods delivered to the Customer by ABS Europe shall remain the property of ABS Europe until the Customer has met all obligations towards ABS Europe relating to any current, previous and future deliveries of a similar nature, relating to activities that have been or have yet to be performed by ABS Europe, as well as relating to other claims ABS Europe against the Customer. Until that moment, the Customer shall be deemed to keep the goods on behalf of ABS Europe.
7.2 Until the moment the Customer has fully fulfilled its obligations towards ABS Europe the Customer is only entitled to process the goods, to the extent this is part of the normal and regular course of its business.
7.3 At the first request of ABS Europe, the Customer is required to establish a silent pledge on the goods delivered by ABS Europe, as soon as ABS Europe loses the property rights to these for any reason whatsoever, as security for payment of all existing and future claims by ABS Europe against the Customer, including those relating to collection costs and interest. Failing this, all claims of ABS Europe shall become immediately due and ABS Europe shall be entitled to dissolve the agreement(s), without prejudice to its right to compensation.
7.4 All goods and packaging in possession of the Customer, which originated from ABS Europe are at all times deemed to be the same as those stated on the unpaid invoices, insofar as the quantity of goods in possession of the Customer does not exceed the type and composition of the quantities stated on the unpaid invoices.
7.5 Pursuant to Articles 7.1 or 7.3, ABS Europe shall always be entitled to collect these goods without having to serve prior notice. To this end the Customer provides ABS Europe authorisation for this now and for henceforth, including the right to access the location where the goods are held and to remove them from this location.

Article 8           Acceptance and Complaints
8.1 The delivered goods contain and/or consist wholly or partially out of waste materials and/or coproducts and/or products, which inter alia contain materials from third parties and from which the nature and composition are variable and are potentially contaminated by or with foreign bodies.
8.2 The Customer is obliged to sufficiently inspect the delivered goods or to have them inspected upon delivery and in any case prior to treating or processing them, to ensure that they match the quality or type stipulated in the agreement.
8.3 All goods delivered by ABS Europe are considered accepted by the Customer when:
      a.       ABS Europe has not received a written complaint from the Customer within the period prescribed in Article 8.3 or 8.4, which specifically states the grounds on which the goods are not accepted; or
      b.       the Customer uses the delivered goods in its production process, processes them in its end products or re-packages them.
      Acceptance, as meant in this Article 8, means the discharge of ABS Europe of its obligations in relation to the delivery of the goods, which are the subject of acceptance.
8.4 Complaints relating to the delivered quantity of goods and other defects visible upon delivery must be recorded on the accompanying documentation immediately.
8.5 Complaints concerning defects that were not visible upon delivery must be filed in writing, with a clear description and within 24 hours after discovery of the defect, but in any case within a reasonable period of time after delivery of the goods in question and before the Customer uses the delivered goods in his production process, process them in his goods, or re-packages them.
8.6 When signing the documents without further reference, or when submitting complaints after the period stated in Article 8.4, ABS Europe shall no longer be under any obligation to take such complaints into consideration.
8.7 If, after delivery, the nature and/or composition of the goods is changed, or if the goods are fully or partially damaged, re-packaged, if the shelf life has expired or if goods have not been stored in the prescribed manner, complaints will not be accepted.
8.8 Complaints will be taken into consideration provided that the goods are kept at the disposal of or returned to ABS Europe in accordance with the instructions given by ABS Europe (also see Article 10.1). Costs associated with any sampling and testing of samples shall be borne by the party which, on the basis of the outcome of this investigation, is found to be at fault.
8.9  In the event that the goods delivered by ABS Europe are used for a purpose other than the normal use for which they are intended, complaints will not be taken into consideration.
8.10 Customer is responsible for correct processing of the goods delivered by ABS Europe. Customer shall, if required, in a timely manner obtain the necessary licenses.

Article 9           Liability
9.1 ABS Europe shall only be liable and obliged to compensate damage due to an attributable failure to perform an agreement or for any other reason if the Customer declares ABS Europe to be in default or holds ABS Europe liable, immediately and in writing containing a description of the loss and the attributable failure in as much detail as possible, and if ABS Europe has been given a reasonable period to remedy such failure and has subsequently failed to fulfill its obligations within this period.
9.2 ABS Europe shall in no event be liable for any indirect damage, including any damage which is not the direct result of failure, loss of goodwill, loss caused by business interruption, reputational damage, loss of profits and loss of sales, loss of savings, recall costs and compensation (including fines and penalties) payable to third parties, and losses caused by delays.
9.3 The total liability of ABS Europe shall be limited, in any event, up to a maximum of the agreed price for the delivery.
9.4 The limitations of liability specified in this article shall not apply in the event of willful intent or gross negligence on the part of the management of ABS Europe.
9.5 All recommendations provided by ABS Europe and its employees regarding the use of goods and menu’s to be provided are always given to the best of its knowledge and ability. These recommendations are always without obligation and ABS Europe can in no way be held liable for the consequences of whether or not following them.
9.6 Information on (potential) gas revenues which is provided by employees of ABS Europe is only indicative and therefore no rights may be derived from it.
9.7 The Customer indemnifies ABS Europe against any third-party claims for compensation of damage for which ABS Europe is not, or would not be, liable under the provisions of the foregoing paragraphs of this article.

Article 10         Returns
10.1 Returns are only permitted if ABS Europe has agreed to such in writing in advance or if such returns are executed by or on behalf of ABS Europe.
10.2 Unless agreed otherwise, returns are at the expense and risk of the Customer. In the event that the return is based on a complaint and this complaint is upheld by ABS Europe, ABS Europe shall reimburse the Customer for the cost of the return.

Article 11         Packaging
11.1 All packaging intended for reuse shall be given in loan to the Customer. ABS Europe shall charge the Customer a surcharge for the packaging, as detailed in the quotation.
11.2 Unless the Customer can show otherwise upon delivery, the Customer shall be deemed to have received the packaging in a good condition. The cost of repair of damage caused to the packaging shall be charged to the Customer by ABS Europe. The Customer shall also be charged for any loss of the packaging. The packaging shall be deemed to have been lost if the Customer does not return it within three months after delivery.
11.3 All packaging intended for reuse shall under all circumstances remain the property of ABS Europe, the Customer is not authorised to sell or dispose of such in any way.
11.4 The packaging intended for reuse will only be taken back at the price that has been charged in the event of undamaged return sending. The offsetting of charges for packaging that has been returned will only be permitted after receipt of a credit note sent by ABS Europe.
11.5 All packaging intended for one-off use is considered to be a part of the delivered goods and will not be taken back by ABS Europe.

Article 12         Payment
12.1 The Customer will pay ABS Europe the agreed price/prices and other expenses for the goods delivered. Invoices are due upon receipt thereof by the Customer. ABS Europe reserves the right to charge interest of 1% per month for each month, or part thereof, during which an invoice remains unpaid after the payment deadline specified in the quotation, without notice of default being required for such.These interest charges shall commence on the first calendar day after the payment deadline specified in the quotation. If a payment deadline is not specified in the quotation, the interest shall be calculated as of the day following the last day of the payment deadline as specified in the agreement. If both the quotation and the agreement do not state a payment deadline, interest shall be calculated as of the day following the last day of the payment deadline as specified on the invoice. If a payment deadline is not specified in the quotation, the agreement and the invoice, interest shall be calculated from the 9th day after the invoice date.
12.2 ABS Europe has the right to demand cash payment or payment in advance, if it considers it appropriate, as well as to suspend further delivery as long as payment for previous deliveries is still outstanding. The Customer is at all times obliged to lodge the security deemed necessary by ABS Europe for payments due, upon first request.
12.3 Payment shall be considered completed as soon as ABS Europe received the money.
12.4 In the event of a dispute regarding a part of the invoice, the part of the invoice that is not in dispute must be paid in accordance with the previous provisions.
12.5 For deliveries in parts or installments, the terms and conditions of payment apply for each partial delivery or each installment.
12.6 ABS Europe is entitled to deduct any amounts it owes to the Customer from any amount that the Customer owes to ABS Europe, or to other group members that are part of Coöperatie Koninklijke Cosun U.A.. All of the costs associated with debt collection, such as postage, telephone and internal administration charges, as well as the entire costs of legal proceedings and all judicial and extrajudicial legal costs, such to include costs not assessed by a judicial body, shall be for the account of the Customer.The extrajudicial costs shall amount to at least 15% of the claim with a minimum of EUR 750.

Article 13         Dissolution
13.1 In the event that the Customer has in any way failed to comply with his obligations, the Customer ceases operations, the Customer requests a suspension of payment, a request for a suspension of payment was filed against the Customer, the Customer is in a state of suspension of payment, the Customer has applied for bankruptcy, an application for bankruptcy was filed against the Customer, the Customer is in a state of bankruptcy, or offers an agreement with his creditors or in other comparable circumstances, without prejudice to its right to claim for failure to perform and/or damages, ABS Europe is entitled to fully or partially dissolve the agreement with the Customer and/or claim compensation without legal intervention and without any compensation being owed to the Customer and in the event of a partial dissolution, the delivery to the Customer may be suspended.
13.2 In the event that the agreement is dissolved on one or several grounds specified in the previous paragraph, any claim that ABS Europe has against the Customer will be payable immediately, provided that it has not yet been paid.
13.3 If circumstances arise in relation to persons and/or materials which ABS Europe uses, or normally uses, for the execution of the agreement, which are of such a nature that the execution of the agreement would be impossible, or made so prohibitive and/or disproportionally expensive that performance of the agreement can no longer be demanded in all reasonableness, ABS Europe shall have the right to dissolve the agreement.

Article 14         Confidentiality 
14.1 Each of the parties will treat as confidential all information received from the other party that is designated as confidential, or the confidential nature of which should reasonably have been evident (hereinafter referred to as "Confidential Information"). Confidential Information in any event includes the existence, the nature and the contents of the agreement, as well as other business information of ABS Europe.
14.2 Article 14.1 does not apply to Confidential Information which a) is already publicly known, b) has been independently developed by one party, without the use of the Confidential Information of the other party, c) was received from a third-party who was under no obligation to keep such information confidential, d) was already in the possession of the receiving party without an obligation of confidentiality. Article 14.1 does also not apply when the receiving party is forced by competent authorities to disclose such information, in which case the receiving party will immediately notify the providing party about this.
14.3 Confidential Information may only be used within the context of the agreement and may only be copied or reproduced insofar as this is necessary in order for the receiving party to perform its obligations under the agreement.
14.4 Each party shall treat the Confidential Information of the other party in the same manner as it treats its own Confidential Information and similar data, and they are at all times required to take the necessary precautions to maintain the confidentiality of such Confidential Information.
14.5 The obligations set forth in this article shall remain in force for 3 years after the end of the agreement.

Article 15         Intellectual Property Rights
15.1 All intellectual property rights which are owned by ABS Europe or its supplier(s) shall remain the property of ABS Europe at all times. The Customer shall not in any way acquire any rights of intellectual property in relation to intellectual property rights (the ownership of which is) resting with ABS Europe or to any information received from ABS Europe in any form whatsoever.
15.2 All documents provided by ABS Europe, such as reports, advices, agreements, designs, sketches, drawings, etc. are solely intended for use by the Customer and for the project for which they are intended. These documents may not be reproduced, published, edited or processed, nor may they be communicated to third parties without prior permission from ABS Europe, unless the nature of the document suggests otherwise.
15.3 The designs, sketches, drawings, samples, etc. created by ABS Europe in the context of the agreement shall remain the property of ABS Europe, regardless of whether these have been made available to the Customer or to third parties, unless the agreement expressly states otherwise.
15.4 The Customer is not permitted to change the delivered goods, wholly or in part, or to provide them with a different brand name and/or packaging, or otherwise to remove or change any indication of copyright, trademarks, trade names or other intellectual or industrial property rights of ABS Europe, unless otherwise agreed in writing.
15.5 Customer is not permitted to resell the delivered goods, unless ABS Europe has agreed to this in writing.
15.6 The Customer is not permitted to use any name, trade name, trademark, logo or any other reference to ABS Europe in any external press release, advertising materials, publicity materials or other, without the permission of ABS Europe.

Article 16         Data Privacy Protection
16.1 ABS Europe processes personal data in accordance with applicable national and/or international data protection laws, both within as outside the EU.
16.2 In case ABS Europe processes personal data for the Customer in the course of its performance under the agreement, ABS Europe can be qualified as data processor and the provisions in this article 16 will also qualify as data processing agreement as stipulated in the EU General Data Protection Regulation. ABS Europe will solely process received personal data further to documented instructions from the Customer and will not in any way use (or cause to be used) such personal data other than necessary for its performance under the agreement.
16.3 ABS Europe will implement appropriate technical and organisational security measures to ensure confidentiality and protection against loss or unlawful processing. The Customer is allowed to at its own expenses periodically examine and evaluate these measures. ABS Europe will at the choice of the Customer, delete or return all personal data after the end of the provision of services relating to processing, unless storage is required by law.
16.4 At its first request ABS Europe will assist the Customer and provide all information available which enables the Customer to comply with its own statutory obligations and to demonstrate this. The Customer acknowledges and agrees that in the course of its performance under the agreement, ABS Europe may use further (sub)processors. ABS Europe will impose upon such further processors the same data protection obligations as stipulated in this article.
16.5 ABS Europe is not liable for damage of any kind (whether direct or consequential) resulting from its processing of personal data under the agreement. The Customer indemnifies ABS Europe (in its role or data processor or otherwise) against any third party claim or action resulting directly or indirectly from ABS Europe its processing of personal data.

Article 17         Disputes and Applicable Law
17.1 Any dispute between the Customer and ABS Europe, including the sole recovery of outstanding payments owed by the Customer, shall initially exclusively be tried by the competent court in the district where ABS Europe is located.
17.2 Notwithstanding the provisions in paragraph 1, ABS Europe is at all times entitled to present a dispute for settlement by arbitration to the Dutch Arbitration Institute in Rotterdam, in accordance with the rules of this Institute.
17.3 Dutch law exclusively applies to all offers of sale and all agreements to which ABS Europe is party. The application of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is expressly excluded.

Article 18         Final Provisions
18.1 With regard to the agreement each party is considered an independent contractor and none of the parties will have the right to represent or bind the other. Nothing in the agreement or in these General Terms and Conditions of Sale and Delivery establishes or will have established a joint venture, a partnership or an agency relationship between the parties.
18.2 The Dutch language is the authentic language of these terms and conditions.
18.3 In the event that one or several provisions of these general terms and conditions would appear to be non-binding, wholly or in part, the other provisions of these terms and conditions remain in force. ABS Europe reserves the right to replace the non-binding provisions with provisions that are binding and that differ as little as possible from the replaced provision, taking into account the objective and the purpose and intent of these general terms and conditions.

Deposited at the Chamber of Commerce on the 25 May 2018.

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