GENERAL TERMS AND CONDITIONS OF SALE
For the purposes of these general terms and conditions of sale, the term «Seller» means Victory Foods PLC or an intermediary authorised by Victory Foods PLC or any other third party for whom Victory Foods PLC performs a contractual service.
The term «Goods» means any goods which are the subject of an invoice.
«Buyer» indicates the person, company or corporation who places an order with the Seller or whose invoice indicates that he is responsible for the payment of the Goods.
1. All orders placed shall be subject to the general terms and conditions of sale of the Seller, which shall not be altered by the Buyer's general purchase conditions. The Seller shall not be bound by any addition to or alteration of the present conditions unless they have been expressly accepted in writing by the Seller.
The Seller shall not be liable in any way for any defects in and/or cannot give any guarantee for any products or services of third parties and/or modifications carried out by third parties with regard to the Seller's Goods.
2. The offers of the Seller do not imply any contractual obligation on the part of the Seller.
The order shall only be accepted when confirmed in writing by the Seller (whether by sending an invoice for the ordered Goods or by any other means). Such confirmation shall always be subject to the suspensive condition of sufficient availability of the ingredients or components of the Goods listed in the order, either from the Seller itself or from a supplier of the Seller.
Orders transmitted to the Seller's representatives shall only be binding on the Seller after written confirmation by the latter.
The complete or partial cancellation of orders submitted to the Seller will only take effect after written consent from the Seller.
Requests for the cancellation of orders shall be assessed by the Seller without any contractual obligation on the part of the latter.
Cancellation of the contract by the Buyer shall not affect the Seller's right to full payment of the sales price.
No framework agreement or contract of indefinite duration shall be formed between the Seller and the Buyer unless otherwise agreed in writing. The acceptance or approval of any order by the Seller shall in no way confer any right on the Buyer to future orders or deliveries, nor any right to compensation from the Seller, and the Seller shall remain entirely free to accept or refuse future orders from the Buyer.
3. The Seller reserves the right to deliver quantities of the Goods sold with a deviation of 5% in more or less. Subject to any other classifications, the quality of the Goods shall be as specified by the Seller.
The characteristics of samples and specimens shall only be mandatory if the Seller and the Buyer have expressly agreed that such characteristics form part of the quality of the Goods. The classifications concerning the quality of the Goods, like all other classifications, shall only be binding if they are expressly agreed between the Seller and the Buyer. If the Seller performs in an advisory capacity it shall act on the basis of its knowledge at the commencement of its performance.
The given indications and information concerning the suitability and use of the Goods doesn’t alter the fact that the Buyer is responsible for inspecting and checking the Goods himself.
4. Delivery times are provided for information purposes only and are without any contractual obligation on the part of the Seller.
The delivery periods communicated by the Seller are furthermore subject to the availability and volumes of the Goods and/or the ingredients or components thereof. Exceeding these delivery times shall under no circumstances give rise to damages or price reduction or to termination of the agreement.
The Buyer shall take delivery of the Goods manufactured/delivered by the Seller at the agreed time or dates by collection at the Seller's warehouse. Should the Goods not be collected by the Buyer at the time of delivery, the Seller shall be entitled to store the Goods at the Buyer's risk and expense and in any event charge the Buyer a storage fee of fifteen (15) per cent (%) of the value of the Goods per day, without the Seller having or accepting any responsibility for the storage of the Goods. After a period of 45 days from the date of delivery, the Seller shall be entitled to resell or destroy the Goods. In such event the Buyer shall compensate the Seller in full for any reduced proceeds, additional costs incurred by the Seller due to the Buyer's default, costs of destruction and any other damage suffered by the Seller.
At the time of delivery, the Buyer or its agent or the Buyer's carrier shall sign a delivery receipt.
The Buyer is responsible for transporting the Goods. The Goods shall be transported at the Buyer's risk. Transport costs shall be borne solely by the Buyer. Where it has been expressly agreed that the Seller shall arrange for the carriage of the Goods sold, the manner of carriage, dispatch, packaging etc. shall be determined by the Seller in the absence of any further instructions from the Buyer. In such cases, the risk of storage, loading, transport and unloading shall remain with the Buyer and the Seller shall under no circumstances be held liable. The Buyer shall be free to take out insurance to cover such risks.
If the parties have agreed on a different method of delivery, this different arrangement shall apply only to this individual agreement and not to any subsequent agreement between the parties.
The use or resale of the Goods supplied by the Seller implies their irrevocable acceptance.
The Buyer accepts and acknowledges that the Seller may invoke against the Buyer any exceptions, exonerations and limitations of warranty that the suppliers, manufacturers or producers may invoke against the Seller, e.g. with respect to ingredients, components or parts of the Goods or materials related to the Goods. In the event that such suppliers, producers or manufacturers fail to deliver or fail to deliver on time for any reason whatsoever, the Seller is not liable to the Buyer.
In the event of unavailability of the Goods or parts thereof or an unusually large number of orders, the Seller reserves the right to only partially fulfil the orders.
Reusable pallets, containers and/or other transport aids shall remain the property of the Seller in any case. The Buyer shall return them at the Seller's first request and at its own expense. The Buyer may not make these pallets, containers and other items available to third parties or use them for purposes other than those for which they are intended. If the Seller receives the pallets, containers and other articles of equipment back in a damaged condition, the Buyer shall be liable and shall compensate the Seller in full for such damage.
5. The Buyer will take receipt of the Goods immediately upon delivery and inspect them for any defects or non-conformity and verify that the quality and/or quantity of the delivered Goods is as agreed.
Any visible defects shall be specified on the delivery receipt and at the latest within 24 hours after delivery after having noticed the defects. The protest shall be duly justified and reported in writing to the Seller, whereby the Buyer shall describe in detail any defects. In the absence of such a complaint, the complaint shall not be accepted and shall be deemed inadmissible, and the Buyer shall be deemed to have definitively accepted the Goods and to have waived any and
all rights of action against the Seller.
Complaints due to visible defects shall only be valid and considered if the Goods have not yet been put into use by the Buyer and/or have not yet been resold. Such complaints shall not suspend the Buyer's (payment) obligations.
In the event of a defect in any of the Goods, and subject to and without prejudice to the foregoing, the Seller shall replace the Goods without further compensation to the Buyer unless such replacement would be impossible or disproportionate. The Buyer may not return the purchased Goods without the written consent of the Seller (which shall not constitute in any way an admission of defect or liability).
However, a complaint does not give the Buyer the right to terminate the agreement, nor the right to refuse acceptance or payment of the Goods, nor the right to claim damages.
The right to damages against the Seller shall be irrevocably lost six (6) months after the alleged fault has occurred. The Buyer shall send a written notice of default to the Seller with a reasoned description of the alleged fault within the aforementioned period.
Any possible compensation at the Seller's expense shall in any case be limited to the amount of the purchase price, notwithstanding the nature and importance of the damage and the complaint.
6. The Seller has the right to modify the prices and/or the payment conditions at any time, but never retroactively. Duties and taxes are always borne by the Buyer.
7. All complaints regarding the content of the invoices must be submitted to the Seller by registered letter within eight days of the invoice date.
8. All invoices are payable in cash at Bassilly.
All prices and other tariffs charged by the Seller are always exclusive of VAT and exclusive of any other government levies, of whatever nature, relating to the delivered Goods or their transport, including any new taxes, duties or levies introduced after the conclusion of the agreement, which shall always be borne in full by the Buyer.
The Seller shall be entitled to invoice the Buyer for advance payments prior to the commencement of production and/or delivery of the Goods.
The Buyer accepts, to the extent necessary, to receive electronic invoices from the Seller.
The Seller shall be entitled to allocate payments first to any costs, conventional damages and interest on arrears before allocating them to the outstanding principal.
The Seller shall be entitled to set off any amount owing to the Buyer on any basis whatsoever against any amount owing to the Seller by the Buyer, whether or not such amounts are already due and payable. However, no set-off shall be permitted by the Buyer.
9. Unless otherwise agreed in writing, all the Seller's invoices shall be paid by the Buyer in cash.
In the event of late payment, an interest of 1% per started month will be charged on the total amount of the claim by operation of law and without notice of default, starting from the due date.
In addition, an irreducible amount of 10% of the claim that has become due and payable, with a minimum of EUR 100.00, shall be charged by operation of law without notice of default as fixed compensation, without prejudice to the Seller's right to demand higher compensation if proof of higher damage actually suffered is provided.
Furthermore, all legal and other collection costs shall be borne by the Buyer.
10. In the event of overdue payment, the Seller reserves the right to suspend its services, whether the overdue payment is arising under the current or any previous or subsequent contracts, and only resume the services in case of regularisation of payment. In the case of suspension, the Seller shall in no way be liable for any damage (direct or indirect) suffered by the Buyer, its customers or other third parties.
11. The Seller may consider the agreement terminated by operation of law and with immediate effect by giving written notice to the Buyer if the Buyer files for bankruptcy, is declared bankrupt, the conditions of bankruptcy are evidently met, protection from creditors is sought (the latter subject to the exclusion of this possibility under the relevant legislation) or it is decided to dissolve and liquidate the Buyer (judicially or extrajudicially).
In the event of early termination of the agreement by the Buyer, the Buyer shall pay to the Seller damages equal to 30% of the agreed total price of the Goods, without prejudice to the Seller's right to claim higher damages upon proof of higher actual loss. The foregoing is without prejudice to the Buyer's obligation to pay in full for all Goods produced and/or delivered.
12. Risk of loss, destruction and damage to the Goods delivered by the Seller (but not ownership) shall pass to Buyer upon delivery. Delivery shall be made upon dispatch of the Goods by the Seller to the Buyer or any other person to whom the Seller has been instructed by the Buyer to deliver the Goods.
Thereafter, the Seller shall not be responsible for the protection of the Goods.
13. The Goods shall remain the property of the Seller until the Buyer has paid the Seller the full purchase price due, even if the Goods have been processed. Between the date of delivery and the date of payment, the Buyer shall bear all risks of loss and destruction of the Goods of whatever nature.
14. The drawing and/or acceptance of bills of exchange or other negotiable documents does not constitute a renewal of debt, which is a deviation from the general terms and conditions of sale of the Seller.
15. The Buyer shall comply with all legal and administrative regulations concerning the import, transport, deposit and use of the Goods.
16. The Seller does not guarantee the quality of the Goods and does not warrant that they are in accordance with the Buyer's intended use of the Goods.
17. Except in cases of fraud, wilful misconduct or gross negligence, the Seller shall not be liable in any way for indirect or consequential damages, for example but not limited to, loss of time, loss of customers, loss of profits, loss of revenues, increase in overheads, disruption to a trade, claims by third parties (for example but not limited to the Buyer's customers), late VAT or tax returns, reputational damage, loss of future savings, staff costs, loss of opportunity or business, loss of goodwill or any other form of economic damage.
Insofar as the Seller is dependent on the cooperation, deliveries, production and/or services of third parties in the performance of the agreement, it cannot be held liable for any damage resulting from their fault, including their gross or intentional fault.
18. Section 17 of the present conditions are also valid in the event of force majeure.
Force majeure covers any event which prevents, disturbs or hampers the normal execution of the Seller's plans for supply, production or delivery. This definition includes: accidents, damage within the company, damage to machinery, explosions, fire, floods, internal difficulties, obstructions of an official nature, difficulties in making the Goods available at the place of delivery, non-availability or limited availability of raw materials, one or more manufacturers defaulting for whatever reason and in particular supplying the Seller with the necessary Goods for production and energy,...
19. Any dispute between the Buyer and the Seller shall be subject to the exclusive jurisdiction of the Courts of Kortrijk or the Justice of Peace of Kortrijk.
However, the Seller shall have the option to have the dispute settled before the Court of the Buyer’s domicile.