Terms and Conditions

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF JOHNSON PETFOODS B.V.

established in Rosmalen, Trade Register ‘s-Hertogenbosch, number. 17272900

ARTICLE 1: APPLICABILITY OF THESE TERMS AND CONDITIONS

  1. The following terms and conditions apply to all offers and agreements for the purchase and sale of goods, and services to be performed in that context, including the provision of advice. In these terms and conditions, the term buyer also includes the client commissioning services. It is agreed between us and the buyer that, if a contract has once been entered into under the applicability of the following terms and conditions, they shall also apply in full to future transactions.
  2. The applicability of the buyer’s general terms and conditions is expressly excluded, unless the parties have agreed otherwise in writing. If the parties’ general terms and conditions apply alongside each other, then, in the event of conflicting provisions in our and the buyer’s general terms and conditions, the provisions of our general terms and conditions shall prevail.
  3. If one or more provisions of these general terms and conditions are void or are annulled, the remaining provisions of these general terms and conditions shall remain applicable.

ARTICLE 2: FORMATION OF AGREEMENTS

  1. Our offers are non-binding unless stated otherwise. We have the right to withdraw a non-binding offer up to and including the third business day after receipt of acceptance. Prices stated in price lists, brochures and advertisements are not binding on us. This does apply if we state prices in an offer addressed to the buyer, but in that case only for the period stated in the offer, or for a maximum of 30 days after the date of the offer, without prejudice to the right to correct obvious errors. An order from the buyer, including one placed with one of our representatives, without a specific offer having preceded it, is deemed to have been placed in response to a non-binding offer. Our invoices also serve as order confirmations. Complaints regarding invoices must be submitted to us in writing within 3 working days of the invoice date, failing which the invoice will be deemed approved.
  2. The prices in our offers/quotations are for delivery ex warehouse, in Euros, excluding VAT, government levies, and shipping, freight, storage, security, administration and packaging costs, unless expressly agreed otherwise.
  3. We may pass on price increases if, between the time of the offer/acceptance and delivery, price changes of more than 5 % have occurred in respect of, for example, exchange rates, wages, raw materials, taxes, semi-finished products or packaging materials.

ARTICLE 3: DELIVERY

  1. The buyer shall be obliged to take immediate delivery from us of the purchased goods or the offered performance as soon as they are delivered or offered to the buyer.
  2. Agreed delivery periods shall never be final, unless expressly agreed otherwise. Accordingly, in the event of late delivery, we must be given written notice of default, allowing us a reasonable period, to be determined in consultation with us, to perform our obligations.
  3. We may extend the agreed delivery period by up to four weeks by written notice, without incurring any liability for damages. However, the buyer shall be entitled to notify us, with reasons, that failure to deliver within the period specified by us would be highly detrimental to the buyer. In that case, we shall do everything possible to deliver within the specified period.
  4. We shall be entitled to deliver the goods to be supplied in instalments within the agreed period or the aforementioned extended period. We shall be entitled to invoice each partial delivery separately.
  5. Delivery shall be at the buyer’s expense and risk. This shall be subject to an exception if we have expressly agreed to delivery free of charge to the buyer’s address. In that case, the goods shall be at our risk until they are delivered to the buyer’s address. Nevertheless, unloading the goods shall be at the buyer’s risk. Damage caused by or arising from acts of war or civil disturbance shall always be at the buyer’s risk.

ARTICLE 4: CALL-OFF CONTRACTS AND CONTRACTS WITHOUT A DELIVERY PERIOD

The provisions of these terms and conditions concerning deliveries also apply to every delivery under a call-off contract. If, under a call-off contract, the buyer fails to call off the goods within an agreed period, we shall be entitled, after an unsuccessful notice of default, to offer all goods still to be delivered -whether or not requiring payment in cash- or to terminate the agreement in whole or in part and charge damages. In the event of default in payment for a delivery, we shall be entitled to suspend an upcoming delivery or to proceed with extrajudicial termination of the agreement. If no delivery period has been specified, a period of one month after conclusion of the agreement shall apply, unless this period is incompatible with our
the buyer's known purchasing requirements at the time the agreement is concluded, in which case a period corresponding to those requirements shall apply.

ARTICLE 5: SECURITY

If, before or during performance of the agreement, we obtain clear indications of a deterioration in the buyer's creditworthiness such that we may reasonably doubt the buyer's full performance of its obligations, we shall be entitled to require the buyer to provide (additional) security of our choice and/or to require cash payment for future deliveries. If, despite notice of default, the buyer fails to comply with our demand, we may terminate the agreement or suspend performance of our obligations until full payment has been made and/or demand in one lump sum all amounts owed by the buyer to us.

ARTICLE 6: EXTENDED RETENTION OF TITLE

 

  1. Sale and delivery are subject to an extended retention of title. We shall remain the owner of the goods delivered by us -whether paid for or not- until the buyer has fulfilled its obligations to us under all ongoing agreements. The retained title also applies to claims that we have or may acquire as a result of the buyer's failure to perform one or more of the aforementioned agreements. Until that time, the buyer is required to keep the goods delivered by us separate from other goods, clearly identified as our property, and adequately insured and to keep them insured.

 

  1. The buyer is entitled to resell or process the goods delivered by us in the ordinary course of business, but as long as payment for any delivery of goods has not been made in full, the buyer is not entitled to pledge the goods to a third party, use them as security for a third party, or transfer them to a third party by way of security under any title whatsoever.

 

  1. A buyer who is in default of payment shall be required to return to us, upon first demand, any goods not yet resold. The costs of repossession shall be borne by the buyer.

ARTICLE 7: PAYMENT

  1. Unless otherwise agreed, payment must be made within thirty days of the invoice date, in the manner and at the place specified by us. The buyer may not invoke set-off or suspension. If we send the buyer an itemized statement of the amounts he owes us and/or the amounts we owe him, that statement shall also constitute a set-off declaration. Once the payment term has expired, the buyer shall be in default without any notice of default being required. At that point, all our outstanding invoices to the buyer shall become immediately and fully due and payable.
  2. From the due date, the buyer shall owe interest on the outstanding amount at a rate of 1.5 percent (1.5 %) per month until the date of payment. 3. If the buyer fails or is in default in the (timely) performance of its obligations, all reasonable costs incurred to obtain payment out of court shall be borne by the buyer. Extrajudicial collection costs shall amount to at least 15% of the unpaid amount, with an absolute minimum of € 250.00. If we have incurred higher costs that were reasonably necessary, these shall also be eligible for reimbursement.
  3. All legal costs incurred by us to enforce the buyer's obligations shall be reimbursed by the buyer. Legal costs also include the costs of a bankruptcy petition as a means of collection.
  4. In the event of liquidation, (an application for) bankruptcy, the buyer's admission to statutory debt restructuring under the Debt Restructuring (Natural Persons) Act, attachment, or (provisional) suspension of payments of the buyer, our claims against the buyer shall become immediately due and payable;
  5. Payments shall be applied first to reduce costs, then to reduce accrued interest, and finally to reduce the principal and accrued interest.
  6. Disputes relating to delivery shall at all times leave the buyer's payment obligation unaffected. The buyer is not permitted to suspend payment of the claim or to apply set-off.

ARTICLE 8: FORCE MAJEURE

  1. Force majeure within the meaning of this Article is deemed equivalent to force majeure under Article 6:75 of the Dutch Civil Code. Force majeure shall in any event, but not exclusively, include: fire, water damage, flooding, earthquake, volcanic eruption, ash clouds, nuclear reactions, soil, air and water pollution, terrorism, government measures, business disruptions at suppliers as well as breaches of contract by suppliers, including late deliveries, war, threat of war, civil war, riot, hostage-taking, (bio)chemical weapons and acts of violence, theft, asbestos, transport impediments, strikes (organized and unorganized), occupation of business premises, excessive staff absenteeism due to illness, shortage of labor or raw materials, defects in machinery or installations, disruptions in the supply of energy, all both at our business and at third parties from whom we must obtain the necessary materials or raw materials in whole or in part, as well as during storage or transport, whether managed by us or not, and furthermore all other causes arising through no fault or act of ours.
  2. During force majeure, our delivery and other obligations are suspended.
  3. If delivery is delayed by more than 6 months due to force majeure, both we and the buyer are entitled to rescind the agreement without judicial intervention and without us becoming liable for damages.
  4. If, when force majeure occurs, we have already partially fulfilled our obligations or can fulfil them only partially, we are entitled to invoice separately for the part already delivered or deliverable, and the buyer is obliged to pay this invoice as if it concerned a separate agreement.
  5. In the event of force majeure, the buyer may not claim damages from us.

ARTICLE 9: INSPECTION AND COMPLAINTS

  1. The buyer is required to inspect, or have inspected, the goods carefully immediately upon delivery.
  2. The quantities, weight and composition stated on the consignment notes, delivery notes, order confirmations, invoices or similar documents shall be deemed correct unless a complaint is made immediately upon receipt and before processing and/or treatment, and the complaint is noted on the consignment note or receipt.
  3. The buyer must submit complaints regarding delivered goods to us in writing. The following shall apply:

–        visible defects will no longer be actionable if the buyer has not notified us of the defect in writing within 3 working days of receipt of the goods;

–        latent defects or any other defects than those described in paragraphs 1 and 2 must be reported to us in writing within 5 working days after the buyer discovered, or could reasonably have discovered, the defect. After this period, the buyer may no longer invoke a defect in performance.

  1. When notifying us of a complaint in writing, the nature and grounds of the complaint and the time it was discovered must be specified accurately. If these details are not provided, the notification will not be considered a complaint.
  2. The buyer must notify us in writing of any errors in the invoice within 5 working days of receipt. Failing this, the invoice will be deemed correct and undisputed.
  3. Minor deviations within the usual tolerances may not constitute grounds for complaints, claims for damages or requests to cancel the order by the buyer. If a model has been shown to the buyer, it shall be presumed to have been shown merely for illustrative purposes, without the goods being required to conform to it, unless it is expressly agreed that the goods will conform to it. Deviations in colour can never give rise to any complaint;
  4. Complaints will not be accepted in respect of goods that have been opened or processed and/or treated, whether in whole or in part.
  5. A complaint does not release the buyer from its payment obligations. Article 7.7 of these terms and conditions remains fully applicable.
  6. If we deem a complaint to be justified, we shall be entitled to choose one of the following options: a. Revise the invoice and adjust the invoice amount accordingly. b. Repair the goods supplied or replace them with a product having the same specifications, with the replaced products to be handed over to us. c. Take back the goods supplied and terminate the agreement, refunding the invoice amount paid by the buyer without being liable for any further compensation.
  7. Even if a complaint is made in a timely manner, the buyer remains obliged to accept and pay for the goods purchased. If the buyer wishes to return defective goods, this may be done only with our prior written consent and in the manner specified by us;
  8. If it transpires that a complaint was made without justification and we have performed work or supplied goods in connection therewith, we shall be entitled to charge the buyer for the associated costs at our usual prices.
  9. Any legal claims must, on pain of forfeiture, be brought before a court having jurisdiction under these terms and conditions no later than one year after the complaint is reported. Upon expiry of this period, any claim for compensation of damage shall be forfeited.

ARTICLE 10: LIABILITY

  1. We shall not be liable for damage suffered by the buyer, except and insofar as the buyer can prove that such damage was caused by our wilful misconduct or gross negligence, or that of our subordinates.
  2. Should we nevertheless be held liable, we shall under no circumstances be liable for indirect damage suffered by the buyer. Indirect damage shall in any event, but not exclusively, include: consequential damage, loss of profit, loss of turnover, reduced revenue, lost savings, personal injury, loss of goodwill, disruption damage, labour costs, downtime damage, interest costs, repair costs, lifting and transport costs, fines, non-material damage, business or environmental damage suffered by the buyer, its subordinates and persons employed by or for the buyer.
  3. Liability for damage is expressly limited to the amount paid to us by the insurance policy in the relevant case, plus our deductible. If for any reason no payment is made under the insurance policy, liability for damage is expressly limited to the invoice value of the goods and work in respect of which the damage was established, or at least with which the damage is connected.
  4. Damage shall in any event include damage resulting from failure to perform, damage resulting from termination, and damage based on an unlawful act.
  5. Any legal claim for compensation of damage shall be forfeited unless it is notified to us in writing within 1 month after the damage-causing event has occurred (and we have been held liable in writing).
  6. Claims for damages, other than claims as referred to in Article 9 paragraph 12 of these terms and conditions, must be brought by the buyer before the court designated and having jurisdiction under these terms and conditions within 1 year after liability has been invoked. After that period, the claim for damages shall be time-barred.

ARTICLE 11: SUSPENSION AND TERMINATION

  1. Furthermore, we shall be entitled to terminate the agreement, or cause it to be terminated, if circumstances arise that are such that performance of the agreement becomes impossible or cannot reasonably be required according to standards of reasonableness and fairness, or if other circumstances arise that are such that the agreement cannot reasonably be expected to remain unchanged;
    – the buyer fails to perform, or fails to perform on time or in full, its obligations under the agreement;
    – after the agreement has been entered into, circumstances come to our knowledge that give us good reason to fear that the buyer will not perform, or will not perform on time or in full, its obligations. If there is good reason to fear that the buyer will perform only partially or inadequately, suspension shall be permitted only to the extent justified by the breach;
    – the buyer was requested, upon entering into the agreement, to provide security for the performance of its obligations under the agreement, and such security is not provided or is insufficient. Once security has been provided, the right to suspend shall lapse, unless such provision unreasonably delays performance;
  2. If the agreement is terminated, our claims against the buyer shall become immediately due and payable. If we suspend performance of our obligations, we shall retain the rights afforded to us under the law and the agreement;

ARTICLE 12: INTELLECTUAL PROPERTY AND COPYRIGHT

  1. Without prejudice to the other provisions of these terms and conditions, we reserve the rights and powers vested in us under the Copyright Act and intellectual property law;
  2. All documents, advertising brochures, documentation, agreements, designs, sketches, drawings, software, etc. provided by us are intended solely for use by the buyer and may not be reproduced, sold, rented, made public or disclosed to third parties by the buyer without our prior consent, unless the nature of the documents provided indicates otherwise;

ARTICLE 13 APPLICABLE LAW AND COMPETENT COURT

  1. The competent court of the East Brabant District Court, located in 's-Hertogenbosch, shall have exclusive jurisdiction to hear disputes relating to the agreement entered into, unless mandatory law provides otherwise. Nevertheless, we shall have the right to submit the dispute to the court having jurisdiction under the law.
  2. Dutch law applies to this agreement and to the agreements arising from it.