The provisions of these general conditions (the "Conditions") shall apply to all offers (including but not limited to quotations or requests for quotations) of DIFS B.V., also trading under the name of Dutch International Food Supply ("DIFS"), having its registered office in Alkmaar, the Netherlands, and to all agreements (the "Agreement") entered into with any of DIFS's customers (the "Customer") with respect to the sale, purchase and delivery of food and non-food products (the "Products"), to the extent not expressly agreed otherwise in writing between DIFS and the Customer (the "Party" or the "Parties").
The applicability of the Customer's general conditions is hereby expressly waived.
In the event of conflict between the provisions of the Conditions and any Agreement, the Agreement shall prevail.
Article 2: Offers and Formation of Agreements
All offers, made in any form whatsoever, shall be without engagement and may be revoked at any time. The same holds true if they set a term for acceptance. They shall not be binding on DIFS and shall constitute only an invitation to place an order, unless expressly provided otherwise by DIFS in writing.
An Agreement between DIFS and the Customer shall be formed by DIFS’s acceptance of the Customer’s order in writing, including electronically, or commencement of execution of the order.
To the extent that the Agreement is formed by DIFS’s commencement of execution of the order, DIFS’s invoice or pro forma invoice shall also constitute the order confirmation, provided that the prices stated in pro forma invoices are indicative only. The prevailing price shall be the current price as at the date of delivery (Article 3.2).
DIFS's order confirmation shall be deemed to be correct, unless DIFS has received written objections promptly after despatch of such confirmation. In such event no Agreement will have been formed.
If - for any reason whatsoever - DIFS is no longer able to supply a certain Product, DIFS shall be entitled to dissolve all or part of the Agreement in respect of such Product with immediate effect, without any claim arising on the Customer's part against DIFS for any form of damages.
Without prejudice to the provisions of paragraph 4 of this article, DIFS shall at all times be entitled to change the package contents and/or its product range. If a Product is unavailable, DIFS may propose a replacement Product without any liability arising on its part to compensate the Customer.
The minimum order volume shall be EUR 6,500 per order. Chilled fresh and frozen Products shall be subject to a minimum order volume of EUR 2,000 per order.
Articles 6:227b (1) and 6:227c of the Netherlands Civil Code [BW] do not apply.
Article 3: Prices
Unless agreed otherwise in writing in the relevant Agreement, the prices stated by DIFS shall be based on delivery Ex Works (Incoterms 2010).
The prices for Products used by DIFS shall be the current prices as at the date of delivery
Outside the Netherlands DIFS's deliveries shall be VAT exempt if the Customer has provided DIFS with its VAT registration number. Deliveries outside the European Union shall at all times be VAT exempt.
Article 4: Payments
Unless agreed otherwise in writing and in advance, payment shall be made prior to delivery of the Products as referred to in Article 5, in euros (in the Netherlands), without any deduction of discounts, bank costs or setoff. DIFS shall not commence performance of an Agreement until full payment in advance has been received by DIFS.
Invoicing shall at all times be effected on or before the time of delivery in accordance with the provisions of Article 5. Unless agreed otherwise in writing and in advance, payment of the invoices shall be made by transfer to a bank or giro account designated by DIFS within seven (7) days of the date of the invoice. Payment shall not be deemed to have taken place until the amount due has been irrevocably credited to DIFS’s bank account.
Failing punctual (advance) payment, the Customer shall be in default by operation of law, without any further notice of default being required, as from expiry of the payment term, as from which time the Customer shall pay interest on the payable amount (including VAT) equal to the statutory interest for commercial agreements as referred to in Article 6:119a BW and 6:120 BW.
DIFS shall be entitled to dissolve all or part of the Agreement and to consider all or part of any partial advance payment received by it as compensation of the costs incurred by it.
If the order was placed by more than one Customer, all Customers shall be jointly and severally liable for performance of the obligations as indicated in the Agreement and more specifically in this article.
In the event of cancellation by the Customer of all or part of an order, DIFS will be entitled to retain the full amount of the advance payment of all or part of the amount due, and the Customer will be required to compensate DIFS for all costs associated with the cancellation.
Article 5: Delivery / Risk and Delivery Times
Unless agreed otherwise in writing, delivery shall be Ex Works (Incoterms 2010) Waalwijk (theNetherlands) or the place where DIFS's supplier has its registered office.
The Products to be supplied by DIFS shall be deemed to have been delivered if DIFS notifies the Customer that the Products are ready and have been separated for the Customer or are made available to the carrier for delivery to the Customer or for storage for the Customer.
The risk of loss of and damage to the Products shall pass to the Customer as soon as the Products are at the disposal of the Customer or the carrier.
Any loading damage shall be at the Customer's expense.
DIFS shall be entitled to deliver in consignments (partial deliveries), each of which shall be payable in advance or may be invoiced separately.
DIFS shall deliver the Products on disposable pallets. The height of the pallets to be loaded shall be at DIFS's sole discretion, without any liability arising on its part to compensate the Customer.
Delivery times stated shall be estimates only. In no event shall the delivery times stated be deemed to be strict deadlines, unless expressly agreed in writing that a delivery date is fatal. DIFS shall at all times be entitled to deliver the Products to the Customer prior to the delivery date stated.
In the event that any delivery time is exceeded, DIFS shall not be liable to pay any compensation. After a delivery time is exceeded by at least six (6) weeks, the Customer may give DIFS written notice of default by registered letter, granting a final (reasonable) term for delivery.
If delivery does not take place as yet within the term set, the Customer shall be entitled to dissolve the Agreement, unless DIFS is subject to force majeure (see article 14 hereof).
The Customer shall take delivery of the Products upon delivery by DIFS within the collection period set. If delivery of the Products is effected in a foreign port or airport, the Customer will be responsible for enquiring with the port or airport authorities as to the term within which it is to collect the Products.
Any costs of delay or otherwise incurred as a result of late collection or late payment of the Products will be payable by the Customer.
Article 6: Transport
If the Customer wishes to have the Products delivered at a location other than Ex Works Waalwijk (Incoterms 2010), DIFS may arrange that for the Customer if so instructed. Any instructions by the Customer to have DIFS arrange transport, despatch, customs formalities, and/or insurance of the Products shall be carried out by DIFS at the expense and risk of the Customer, all without prejudice to the provisions of Article 5 hereof.
The Customer shall be under an obligation to allow DIFS to take out insurance for the foregoing risk at the Customer's expense and risk.
On DIFS's demand, the Customerwill be required to state in writing what import, export and other documents are necessary to unload the Products in a foreign port or airport,
The Products shall be transported at the Customer’s expense and risk, even if the carrier claims inclusion of a clause in consignment notes, road waybills, etc., to the effect that all transport damage shall be at the expense and risk of the consignor.
Article 7: Customer's Responsibility
The Products supplied by DIFS are produced for the Dutch market.
The Customer shall be responsible for ensuring that the Products are in compliance with the laws and regulations applicable in its own country and/or the country where it sells the Products. DIFS disclaims any liability in this respect.
If the Customer purchases Products from DIFS with a short shelf life, the Customer shall be responsible for the consequences. DIFS disclaims any liability in this respect.
Article 8: Complaints
Promptly upon taking delivery of the Products, the Customer shall inspect the quantities and types of Products, as well as the packing, for possible irregularities, shortages and/or damage, and inspect the Products for possible defects and/or damage.
The Customer shall immediately state any complaints about quantities and types of the Products on the shipping document or delivery note, on pain of forfeiture of the right to complain.
Any visible defects to the Products and/or packing shall be reported in writing as soon as possible, but in any event within five (5) work days of receipt of the Products, accurately stating the nature of and ground for the complaints, failing which the Customer shall be deemed to have accepted the Products.
Putting the Products into operation and/or reselling the Products shall be deemed to constitute acceptance by the Customer.
The provisions of paragraphs 1 and 2 shall not affect the Customer’s rights in the event of hidden defects. The Customer shall report any hidden defects in writing to DIFS within five (5) work days after they have been, or could reasonable be, discovered, but in no event later than six (6) months after receipt of the Products.
If a best-before date of a Product has expired, the right to complain in respect of such Product shall be forfeited.
In the event of a complaint the Customer shall keep the Products complained about at DIFS’s disposal for further inspection. Furthermore, the Customer shall be under an obligation otherwise to cooperate in a possible inspection of the Products by DIFS.
A complaint shall not entitle the Customer to suspend its payment or other obligations vis-à-vis DIFS and/or to invoke setoff.
The Products may be returned only with the prior written consent of DIFS, on conditions subsequently to be determined by DIFS relating, inter alia, to the costs and method of return.
In the event that the Products are returned without DIFS’s consent, shipment and storage of the Products shall be at the Customer's expense and risk.
If the Parties are in dispute as to the foundation of a complaint with respect to the Products the Parties shall jointly engage an independent expert and request such expert to issue an opinion.
The outcome of the inspection by the independent expert shall be binding on the Parties, unless agreed otherwise in writing. The costs involved in the inspection shall be paid by the (largely) losing Party.
Article 9: Warranty
Third-party products shall be supplied subject to the warranty provided by the relevant third parties only.
Under the warranty DIFS shall only be under an obligation to credit the invoice amount in respect of complaints accepted by DIFS in accordance with the provisions of Article 8. In no event shall DIFS be under any further obligation, including compensation of other costs, damage and/or interest.
Any other conditions and warranties relating to the quality of the Products or their fitness for their intended use shall apply only if agreed in writing between the Parties.
Any warranty claims shall expire if the Customer modifies or processes the Products delivered, or makes any changes to them without DIFS's consent, or improperly uses, or causes third parties improperly to use, the Products delivered.
The minimum durability of Products (in days) stated by DIFS will commence upon departure of transport from Waalwijk.
Article 10: Termination of the Agreement
In the event of the Customer’s failure, or failure fully or punctually, to perform any obligation vis-à-vis DIFS, if it has been granted a moratorium on payment of debts, it has been declared bankrupt or it has adopted a resolution to wind up its company, it shall be in default by operation of law, and all DIFS’s claims shall become immediately due and payable and subject to statutory commercial interest (Article 119a in conjunction with Article 6:120 BW) as from such time or the due date, whichever is earlier. The Customer shall thereby also pay to DIFS all extrajudicial costs to be incurred by DIFS, equal to at least 15% of the outstanding amount, all without prejudice to DIFS’s right to claim judicial costs, if any.
Furthermore, in such event DIFS shall be entitled to suspend (further) performance of its obligations for a maximum period of two (2) months and take back the Products owned by it or to dissolve all or part of the current Agreement and any other Agreements entered into with the Customer, all without prejudice to its other rights. During the period of suspension DIFS shall have the right, and at the end of such period the obligation, to opt for (further) performance or for dissolution of all or part of the suspended Agreement or Agreements, without any liability arising on its part to pay damages to the Customer.
The foregoing suspension shall not affect the Customer’s obligations.
Article 11: Retention of title
Title to the delivered Products shall not pass to the Customer until the Customer has
performed its payment obligations under the Agreement underlying the delivery,including damages, costs, interest and penalties, if any, even if security for payment has
been provided.
Article 12: Liability and Indemnity
DIFS’s total liability to the Customer shall be limited to performance of the obligations described in Article 9.
In no event shall DIFS be liable for any damage as a result of use of the Products by the Customer or by third parties, unless due to a defect for which DIFS is liable on account of failure to comply with the warranty issued. Liability for indirect damage, consequential damage, non-material damage, trading loss or environmental damage, including lost turnover and profit, losses incurred, loss of market share, stagnation in production, investments made, goodwill acquired, damage to reputation, etc., is also expressly excluded.
Without prejudice to the provisions of paragraphs 1 and 2 of this article, DIFS's liability, on any basis whatsoever, shall at all times be limited to a maximum amount per event equal to the invoice amount of the Product or Products that had caused the damage and to a maximum amount per calendar year equal to the total invoice amount of the Product or Products delivered by DIFS to the Customer during the relevant calendar year.
For the purpose of this article, a series of connected damaging events shall be deemed to be a single damaging event.
If DIFS is held liable by any third party for any damage for which under the Agreement with the Customer or these Conditions it is not liable, the Customer shall fully indemnify it in that respect and compensate DIFS for all amounts payable by DIFS to such third party.
Article 13: Recall
The Customer shall assist DIFS in carrying out a product recall, if any.
DIFS shall credit the Customer for the invoice amount of the relevant Products.
If the Products are to be destroyed by the Customer at DIFS's request, DIFS shall reimburse the reasonable costs demonstrably incurred in that respect.
The Customer shall destroy the relevant Products on DIFS's first demand. If, despite DIFS's request, the Customer fails to destroy the Products, the Customer shall be liable for all the consequences. DIFS disclaims any liability in this respect.
Article 14: Force Majeure
Force majeure shall be taken to mean any circumstances with respect to persons and/or materials used, or habitually used, by DIFS in the performance of the Agreement, of such a nature that they render performance of the Agreement impossible or burdensome and/or disproportionally expensive to such an extent that DIFS can no longer or not immediately be required to perform the Agreement.
In any event force majeure shall include but not be limited to: war and comparable situations; government measures; strike; exclusion; obstruction by third parties; transport problems, including delays at national borders; Products exceeding their shelflife due to transport delays; technical complications unforeseen by the Parties; stagnation as a result of time lost through frost and other weather conditions; fire, explosion, other serious malfunctions at DIFS’s business that do not come under DIFS’s scope of risk, and the situation where a performance to be rendered by a third party that is important to the performance to be rendered by DIFS is not rendered, or not rendered properly or in good time.
During a situation of force majeure DIFS's delivery and other obligations shall be suspended. If the period during which performance by DIFS of its obligations is impossible due to force majeure continues for more than one month, DIFS shall be entitled to dissolve the Agreement without any liability arising to pay damages.
The Customer, however, shall not be entitled to dissolve the Agreement, unless the Customer can demonstrate that earlier performance is essential to its business operations. In such event dissolution shall be effected in writing within five (5) days of expiry of the term of one month.
If, upon occurrence of the situation of force majeure, DIFS had already partially performed its obligations or can only partially perform its obligations, it shall be entitled to invoice the part already delivered and/or the part to be delivered separately, and the Customer shall be under the obligation to pay the relevant invoice as if it were a separate agreement.
The foregoing does, however, not apply if the part already delivered and/or to be delivered has no independent value.
Article 15: Miscellaneous Provisions
In no event shall the Customer be authorized to set off any obligation on its part, irrespective of whether such obligation has become due and payable, against any obligation of DIFS vis-à-vis the Customer.
All causes of action that the Customer may have against DIFS pursuant to an Agreement or the law are prescribed by one year of commencement of the prescription period in accordance with the statutory rules.
The most recently provided or sent version of these Conditions shall prevail.
These Conditions are subject to amendment by DIFS. Any such amendments shall take effect on the effective date announced, save with respect to Agreements entered into prior to such date. DIFS shall send the Customer the amended Conditions in good time. If no effective date has been communicated, amendments shall take effect vis-à-vis the Customer as soon as it has been notified or has taken cognizance of the amendment.
Article 16: Intellectual property
Without the prior written consent of DIFS, the Customer may not use the tradename, word or pictorial mark of DIFS or any of its suppliers in any means of communication or in any form whatsoever.
Article 17: Applicable law and disputes
The legal relationship between the Parties shall be governed by the laws of the Netherlands, with the exclusion of the Convention on International Sales of Goods 1980.
The Dutch text of these Conditions shall be binding.
For purposes of interpretation of international commercial terms, the "Incoterms 2010" as drawn up by the International Chamber of Commerce in Paris, France (I.C.C.), as amended from time to time, shall apply.
Any disputes as a result of or in connection with an Agreement with a Customer having its registered office within the European Union (with the exception of Denmark), to which these Conditions apply, or the Conditions themselves, and the interpretation or performance thereof, either of a factual or of a legal nature, shall be submitted to the competent court in Utrecht, the Netherlands, to the extent that mandatory law does not dictate otherwise.
To the extent that any such disputes are the result of agreements with a Customer having its registered office outside the European Union, or in Denmark, such disputes shall be decided by arbitration in accordance with the Arbitration Rules of the International Chamber of Commerce ("ICC") in Paris, France. The place of arbitration is Utrecht and the arbitration proceedings shall be conducted in the English language. The Chairman of the ICC shall, at his own discretion, appoint one (1) or three (3) arbitrators, provided that he shall consider the interest of the matter in relation to the arbitration costs to be incurred.
