GENERAL TERMS AND CONDITIONS OF SALE

 

1. Completion of Agreement

The Seller’s offers shall be without engagement, and the Agreement shall become effective only upon the Seller’s confirmation in writing.

Any business done by the Seller’s agents or representatives must be confirmed in writing to the Buyer by the Seller’s management.  The parties shall be bound by the terms and conditions of such confirmation in the absence of any protest lodged by the Buyer and received within eight working days from the date of our confirmation in writing.

Only the parties shall be bound by these Terms and Conditions, and these Terms and Conditions shall have priority over all and any general and special terms and conditions the Buyer thinks to subject the conclusion of the Agreement to, subject to any prior deviation in writing therefrom by the Seller.

 

2. Delivery

The ordered goods shall be delivered, from our factories and warehouses, carriage paid, C&F, C.I.F. or F.O.B. (in accordance with the most recently published version of the Incoterms of the International Chamber of Commerce).

Any delay in the collection and/or loading shall oblige the Buyer to take delivery of the goods in our factories and warehouses and/of at the place of loading.

Each delivery shall be regarded as the subject of a separate agreement, except in the event of  refusal to pay upon presentation, suspension of payment, liquidation, composition, bankruptcy of the Buyer or any other similar measure.  In such cases the deliveries still to be carried out, shall be regarded as the subject of one and the same agreement;  the Seller shall be entitled to stop the deliveries.

 

3. Term of Delivery

The terms of delivery are given by way of indication only and cannot give rise to any sanction of any kind whatsoever in the event of non-compliance thereof, except if such terms were stipulated imperatively at the time the goods were ordered and accepted as such in the confirmation of the order.

The Seller disclaims any responsibility for any late delivery or non-delivery in the event of force majeure or events beyond his control, such as mobilization, war, riots, strike, lock-out, acts of the public authorities, administrative restriction and any other such reasons as may make the normal receipt of raw material, fuels and supplies, as well as the normal production, shipment or transport of goods impossible, and, generally speaking, for all and any such reasons beyond the Seller’s control, as may make the performance of the Agreement impossible, either in whole or in part.

The Seller reserves the right not to execute the orders or to execute the same with delay in the event of force majeure or when it is impossible or more difficult to execute such orders because of any reason beyond his control.

 

4. Transfer of Ownership and Risk

The Seller shall remain the full owner of all delivered goods, wherever such goods may be, until the full payment of the invoices concerned.  The goods shall always be transported at the Buyer’s risk even if the sale has been concluded carriage paid, C&F, C.I.F. or F.O.B.  The only purpose of any such mention in the special terms and conditions as seems to be contrary to this clause is to include the costs of transport and/or the insurance in the price, and does not affect the principle that the risk is at the charge of the Buyer.

 

5. Acceptance – Protest

The goods shall always be deemed to have been accepted upon their delivery.  No protest because of non-conformity or apparent defects of the goods shall be allowed unless formulated in writing at the time of acceptance or within five days from their delivery by registered letter and/or fax.

Complaints regarding the weight of the goods shall be accepted only if they are recorded in writing within 24 hours from the moment delivery is taken of the same by the carrier or the representative of the Buyer.

If the protest is well-founded, the Seller shall have the option to replace the defective goods or take the goods back refunding the price paid for the same, in which case the Buyer shall waive any other repairs or damages, in any form whatsoever.

 

6. Sample Taking

Each party shall take a sample of the goods.

If the sale is made by trucks, the sample shall be taken by the Seller upon the departure of the goods and by the Buyer upon their arrival.

Should the characteristics of the samples taken by the Seller and the Buyer not match, a sample shall be taken in the presence of both parties in the Buyer’s silos insofar as the origin of the contested goods can still be found.

If the origin cannot be found anymore or should the Buyer refuse such sample taking, the sample taking in the Seller’s silos shall be deemed to have taken place in the presence of both parties.

If the sale is made by ship, the sample taking shall be carried out by the Seller or by an authorized inspection body.

This sample taking which shall be deemed to take place in the presence of  both parties, shall be carried out in our factories or warehouses and/or at the time of loading, also in the event of  a C&F and C.I.F. sale.

In the event of protest, the samples taken as hereinbefore provided for shall be submitted to an inspection body designated by mutual agreement at the request of the first party to take action.  Should no agreement have been reached within 15 days from the date of such request, the inspection body designated shall be the inspection body chosen by the Seller.  A counteranalysis can be carried out at the request of one of the parties in a laboratory on which an agreement has been reached as provided for in article 15.

The average result of both analyses shall be regarded as evidence.  The costs of both analyses shall be borne by the unsuccessful party.

Should the second analysis be contested, the parties shall submit the dispute to arbitration, as provided for in the article 15 hereinafter set forth.

 

7. Collection of Goods

Any goods not collected within 15 days from the date of notice that they are the Buyer’s disposal by registered letter and/or fax, shall be invoiced even if they are not collected.

In the event of late collection, the Buyer shall also pay the storage charges to the Seller, fixed  on a fixed basis at 0.50% of the price of the goods stored, calculated per period of 15 days of delay, or the real storage charges should the goods be stored at the premises of a third party.

The Buyer can under no circumstances invoke the late collection of the goods to defer their payment as provided for in article 8.

 

8. Price

The prices are calculated without taxes.  All and any taxes and costs given on top of the price are given by way of indication only.  The Buyer shall pay the taxes and costs applicable at the time of the delivery of the goods.

 

9. Payment – Interests of Default – Penalty

The payments should have been made on the due date of the invoices concerned, stated in the confirmation of the order or in the invoice.

The payments shall be made without prejudice to the exigibility of the invoices due to the Seller prior thereto.

Without prejudice to article 5, the Buyer shall be deemed to have accepted the invoice without reservation if he has not made any remark as regards the amount claimed not later than 5 days after the receipt of the invoice.  Any use or treatment of the goods, both in whole and in part, shall imply the lapse of any right to protest.

In default of payment of an invoice on its due date, such invoice shall be increased ipso jure and without notice of default by interests of default of 1% per month, even if such month has already started, reckoning from the due date until full payment, as well as by an interest equal to the rediscounting rate of the Belgian National Bank for accepted bills of exchange presented to the bank for payment, applicable at the time of exigibility of the invoice.

In the event of late payment, the amounts shall also be increased by fixed damages amounting to 10 % without affecting the Seller’s right to ask for damages for any other losses actually caused.

The Buyer can under no circumstances invoke a challenge to defer his payments.

 

10. Non-fulfilment – Extension – Dissolution

Should the Buyer fail to fulfil his obligations in whole or in part during the currency of an agreement, the Seller shall reserve the right to suspend the performance of all running agreements with the Buyer or to dissolve the same ipso jure and without notice of default, by registered letter or dated faxed message, without the Buyer being allowed to claim any damages and interests resulting therefrom and without prejudice to any damages due to the Seller.

Notwithstanding this clause, the Seller may always demand that the order be carried out.  The Buyer can never invoke the expiry of the term of delivery to demand the dissolution of the agreement or the extension of the fixed term.

Any change in the Buyer’s legal or commercial situation, and in particular his death, incapacity, bankruptcy, composition, protest of a bill of exchange even non-accepted, the dissolution or any change of his legal form, shall entitle the Seller to dissolve the running agreements  or to subordinate the performance thereof to the granting of guarantees by the Buyer, which shall be determined by the Seller.

 

11. Taxes and Rates

Subject to the provisions of article 7, all and any taxes and duties and, in particular, customs duties, V.A.T. and other indirect taxes on the transfer of the goods, invoice taxes, licence taxes and any increase of such taxes and duties regarding the goods or those intended to be used for the manufacture thereof, shall be borne by the Buyer.

The Seller may alter the terms and conditions of the agreement, should the present or future provisions of the directives and regulations of the European Economic Community be altered.

 

12. Assignment

The agreement shall be performed directly by the parties.  Each assignment, in whole or in part, of the agreement by the Buyer shall be subject to the prior written permission of the Seller.

 

13. Quality Standards and Crop Conditions

The technical standards stated by the Buyer shall be observed by the Seller to the extent that the weather conditions until the crop and/or genetic characteristics typical of this kind demanded by the Buyer permit the Seller to meet the same.  In the opposite case, the two parties shall undertake to adapt such standards after an objective determination of the quality of the crop.

 

14. Insurance

Whatever the nature of the sale may be as provided for in the special terms and conditions, it shall always be the Buyer’s responsibility to insure the risk and dangers of the transport and storage at his expense by taking out the appropriate insurance policies.

In the event of a C.I.F. sale, the Seller shall only be bound to deliver a marine insurance policy to the Buyer, taken out in accordance with the terms and conditions of article 10 of the Antwerp Policy of 1859, with the amendments of the Clauses of 1900.

 

15. Governing Law – Arbitration – Survey

All the Seller’s agreements shall be governed by the laws of Belgium and the General Terms and Conditions of Agreement of the Antwerp (Belgium) Arbitration and Reconciliation Chamber for Grains and Seeds whereof the Buyer declares to have taken note and to have accepted the contents thereof.

In the event of contradiction, the general terms and conditions of sale of Boortmalt shall prevail.  In default of an amicable settlement, any dispute regarding the conclusion, construction and performance of this Agreement shall be submitted to the Antwerp Arbitration and Reconciliation Chamber for Grains and Seeds, in accordance with sections 1676 et seq. of the Judicial Code.

In the event of dispute, the party wishing to submit the dispute to the Arbitration Chamber shall inform the opposite party thereof, state the subject of the dispute and refer to these Terms and Conditions.  At the same time, such party shall inform the Arbitration Chamber in order to enable the latter to organize the continuation of the proceedings.

The parties henceforth accept to submit the samples taken in accordance with the provisions of article 6 above to the Arbitration Chamber in the event of dispute regarding the quality of the goods.

The Arbitration Chamber shall analyse such samples or have the same analysed by an internationally renowned European laboratory, agreed upon and designated by common agreement of  both parties for such purpose and, if no agreement is reached, by the Arbitration Chamber if the latter is of the opinion that this is necessary to end such dispute.

The Arbitration Chamber shall not be bound by the results of such analysis, and it may deviate therefrom insofar as it states the grounds on which its decision is based in respect thereof.

The arbitration charges shall be borne by the unsuccessful party.

Should the Buyer fail to pay any uncontested invoices in time, the Seller shall be entitled to institute any debt collection proceedings before the Commercial Court of the judicial district where the Seller has his registered office; the same shall be true if the Buyer effects an unlawful set-off between an uncontested and a contested claim.