Article 1 General
- These general terms and conditions (‘general conditions’) apply to all offers and contracts between Animal Health Concepts B.V. (‘AHC’), a private limited company with registered office in Heino, KvK number 53350472, and the Buyer.
- Any deviation from all or any part of these general conditions is only binding if agreed in writing.
- Once there is a contract governed by these general conditions, all subsequent contracts are likewise governed by these general conditions.
- If any provision of these general conditions proves to be void or is lawfully avoided, this shall not affect the effect of the remaining provisions. AHC then has the right to replace this provision with a provision that is as close as possible to the intent of this provision without being void or voidable.
- Any general terms and conditions of the Buyer do not apply.
- In the case of a translation, or the interpretation of different language versions of these general conditions, the Dutch text and interpretation under Dutch law will always prevail.
Article 2 Creation of a contract
- All offers issued by AHC are free of obligation, with regard to prices, the delivery time and the options for delivery of the products, unless the offer explicitly indicates otherwise. Offers may be revoked until there is a binding contract.
- Contracts are not concluded until accepted in writing by AHC or as soon as AHC has started to carry out the order placed by the Buyer.
- Any supplementary agreements, amendments or promises made subsequently will bind AHC only if they have been confirmed by AHC in writing.
Article 3 Prices
- All prices charged by AHC are in euros and exclusive of VAT, transport costs, packaging costs, import and export levies and other government levies, unless expressly agreed otherwise.
- The price offered shall be valid only for the specific contract and the quantities specified therein.
- Every sale is made under the express condition that the price is based on the cost factors applicable at the date of the contract, such as purchase prices, wages, labour costs, freight, foreign currency settlement and transport costs.
- AHC is entitled to increase the prices by increases that occur prior to the date of delivery. Deviations of up to 10% of the price are considered reasonable.
Article 4 Delivery
- Delivery of the products is made Ex Works, unless another mode of delivery has been agreed in writing.
- Delivery and transfer of risk (such as loss, theft and damage) of the products will be made to the Buyer by AHC making the products available to the Buyer or to the first carrier from AHC’s premises (factory), unless otherwise agreed in writing.
- The Buyer must take delivery of the products at the agreed times and place. By way of supplement to Article 75 of the Vienna Sales Convention, if the Buyer has not taken delivery at the agreed time or place or does not provide information or instructions necessary for delivery, the Buyer shall be in default and the products shall be deemed to have been delivered. AHC may then decide to:
- Keep the products in storage;
- Sell the products to third parties;
- Destroy the products.
- This shall be entirely at the Buyer’s expense and risk and any resulting loss, including transport costs, storage costs and loss of profit, shall be entirely at the Buyer’s expense.
- AHC is permitted to deliver in parts. Notwithstanding Article 73 of the Vienna Sales Convention, each delivery should be regarded as a separate agreement and AHC is entitled to invoice that delivery separately.
- The delivery period is indicative and is not a deadline. In respect of delivery times, AHC will not be in default until it has been issued with notice of default.
- In the event of a delay in delivery due to any change in circumstances, the delivery period shall be extended by the duration of the delay. AHC shall inform the Buyer of any delay in a timely manner. Delayed delivery shall not entitle the Buyer to rescind the contract or to claim compensation.
Article 5 Payment
- The payment term is 14 days after the invoice date.
- If an invoice is not paid within 14 days, the Buyer shall be in default without a demand or notice of default being required. At that time, all outstanding invoices issued by AHC to the Buyer become immediately due and payable in full.
- AHC may require advance payment or other guarantees.
- All payments must be made without any deduction or set-off. The Buyer is not permitted to suspend payments.
- If payment is late, the Buyer will be liable to pay default interest of 1.5% per month.
- If AHC is forced to outsource its claim for collection due to the Buyer’s default, all associated costs, such as administration costs, judicial and extrajudicial costs, including the costs of a bankruptcy petition, shall be borne by the Buyer. The extrajudicial collection costs are set at a 15% of the unpaid amount, or a fixed sum of € 500.00, whichever is more.
- Payments made by the Buyer shall always first be applied to reduce the costs, then the interest due, and finally the principal sum and current interest, irrespective of the instruction/the payment reference stated by the Buyer at the time of payment.
- If the Buyer is in breach of any contract with AHC, or if AHC has any other reasonable doubt about the Buyer’s ability to pay, AHC is entitled to delay delivery of the goods until the Buyer has provided (additional) security for the claims and payment of the goods to be delivered. The Buyer must provide security on first request.
- Once the Buyer has fulfilled its obligations and/or provided sufficient security, AHC shall be at liberty to deliver within the delivery period necessary for delivery of those products, taking into account the possibilities existing at that time within the business operations AHC and/or its suppliers.
- If the Buyer fails to meet its payment obligations on time, AHC may at any time terminate the contract with the Buyer without further notice of default and without the need for court approval. In such a case, the Buyer shall be liable for any resulting loss suffered by AHC, including loss of profit, transport costs and costs of default notice.
Article 6 Retention of title
- Delivery is made subject to a comprehensive retention of title. Title to sold and delivered products, including those already paid for, is retained until all claims arising from the contract(s) and related services – including interest and costs – have been settled. Until that time, the Buyer must keep the products delivered by AHC separate from other goods and clearly identified as the property of AHC, and keep them properly insured at all times.
- If the Buyer is late in making payment or if there is good reason to assume that the Buyer will not make payment or will be late making payment, AHC is entitled to recover possession of its property.
- Until the ownership of the delivered goods has been transferred to the Buyer, the Buyer may not pledge the goods, transfer ownership or grant third parties any other right to them. In the event of a breach of this provision, the purchase price becomes immediately payable in full.
- AHC must be allowed access to the products it has supplied, failing which the Buyer is liable to an immediately payable penalty of €1,000.00 per day without AHC having to give notice of default.
- The costs occurred by AHC in exercising its retention of title are the liability of the Buyer.
- If and insofar as the country of destination of the Products offers more extensive options with regard to the retention of title, these more extensive options shall apply.
Article 7 Inspection and complaints
- The Buyer must inspect the delivered goods for visible defects immediately upon receipt. The term ‘visible’ pertains to matters including, but not limited to, quantity, packaging material, external condition, article code and labelling. Complaints based on visible defects will lapse if the Buyer has not reported the defect to AHC in writing within 5 days of receipt of the products, accurately stating the nature and ground of the complaint, accompanied by photographs.
- All possible defects other than those described under section 1 of this article should be reported to AHC in writing within 10 days after the Buyer has detected, or at least could reasonably have detected, a defect, stating the precise nature and ground of the complaint, together with photographs. After this period, the Buyer can no longer claim in respect of a defect in performance.
- The delivered products are sound if they comply with the specific legal requirements applicable within the European Union and applicable within the Netherlands.
- No complaints will be accepted in respect of products where the best-before date has expired.
- If there is a complaint with regard to the quality of the products, the Buyer is obliged, at AHC’s request, to keep the products in good condition and to store/safeguard them properly and in accordance with European regulations for further examination. The Buyer must give AHC the opportunity to investigate the complaints (or have them investigated) on their merits.
- Any legal rights will lapse if a claim is not brought before a court with jurisdiction under the general conditions within 12 months after the delivery date, unless rights under applicable treaties, laws and regulations have lapsed sooner. Any claim for compensation shall lapse after this period.
- If the complaint is justified, AHC will must choose either to pay fair compensation not exceeding the invoice value of the part of the delivery complained of, or replace the products once the original delivery has been returned. Non-pecuniary loss, loss caused by third parties, and any other loss not being direct property loss will not be compensated.
Article 8 Liability
- AHC will not be liable for loss suffered by the Buyer, except and insofar as there is intent or gross fault and/or deliberate recklessness on the part of the board or managing supervisors of AHC.
- ‘Loss’ here includes all loss resulting from the event giving rise to liability (breach of contract), loss from termination of contract, loss arising from a breach of a statutory obligation and loss based on tort.
- AHC is in no event liable for pure financial loss, personal injury, death, loss of profit, loss of turnover, missed savings, loss of goodwill or similar losses, however caused, labour costs, loss due to business interruption, repair costs, transport costs, interest costs and fines, suffered by the Buyer, its subordinates and persons employed by or on behalf of the Buyer, regardless of whether this loss is direct, indirect, or consequential loss.
- Any liability of AHC will lapse if the Buyer has not fulfilled its obligations and the complaint periods as described in Article 7 (Inspection and Complaints) have not been complied with.
- AHC is not liable for loss caused by use and/or application of the products contrary to AHC’s instructions. The Buyer is deemed to be familiar with these instructions.
- The cumulative liability, on whatever legal basis(s), is explicitly limited in its entirety, at the choice of AHC, to either:
- the replacement or repair of the product to which the complaint relates; or
- the amount paid out by the insurers in the case in question plus AHC’s excess. If, for whatever reason, no payment is made under the insurance policy, the liability for loss shall be expressly limited to 50% of the invoice value of the products in respect of which the loss has been assessed or to which the loss relates. Any further liability on the part of AHC is expressly excluded.
- AHC shall be entitled to have the loss assessed by such independent expert as it shall appoint. AHC must therefore receive full cooperation with any investigation into the nature, scope and cause of the loss, failing which the right to compensation is lost.
- The period within which AHC can be held liable for loss is in all cases limited to a period of 1 month after the event giving rise to the loss has occurred, failing which all rights are lost. Any compensation claim will expire 12 months from the date of issue of notice of default, if not brought before the court within this period, unless rights under applicable treaties, laws and regulations have expired earlier.
- The Buyer indemnifies AHC against (all consequences of) third-party liability in respect of products supplied to the Buyer by AHC. Third-party claims are therefore not accepted by AHC.
- To the extent that AHC has engaged third parties, it expressly excludes liability under Book 6 Article 76 of the Dutch Civil Code.
- AHC will not be liable for any incorrect application of the products supplied by the Buyer or third parties.
Article 9 Force majeure
- Force majeure within the meaning of this article is defined in Book 6 Article 75 of the Dutch Civil Code. Force majeure on the part of AHC shall in any case, but not exclusively, exist if AHC is prevented from fulfilling its obligations under the contract or its preparations to comply with the contract as a result of (civil) war, war damage, threat of war, insurrection, blockade, boycott, natural disasters, epidemic, pandemic, lack of raw materials, hindrance and interruption of transport, acts of war, fire, flood, ash cloud(s), strike and industrial action (both organised and unorganised), import and export impediments, government measures, defects in machinery, disruptions in the supply of energy, internet, data network or telecommunications failures, default by suppliers, illness among staff and/or absence of employees, equipment or facilities that are crucial for the delivery, (cyber)crime and (cyber)vandalism, whether within AHC’s business or that of third parties, such as suppliers, from whom AHC is required to wholly or partly obtain the required materials, as well as during storage or transport, whether or not under its own management. This list is not exhaustive.
- During force majeure, the delivery and other obligations of AHC are suspended. If delivery is delayed by more than 3 months due to force majeure, either AHC or the Buyer may terminate the contract without the need for a court order and without any obligation to pay compensation for loss thereby arising.
- If AHC has already fulfilled part of its obligations when the force majeure situation arises or can only fulfil part of its obligations, AHC is entitled to separately invoice the part delivered or the part that can be delivered and the Buyer must pay this invoice as if it were a separate contract.
Article 10 Packaging
- Reusable packaging will be taken back at the price charged only if this is expressly agreed and the packaging is returned to AHC in undamaged condition.
Article 11 Termination of contract
- AHC is entitled to terminate all or part of a contract, without the need for judicial intervention or any notice of default, if the Buyer is in breach of its obligations under the contract, is declared bankrupt, applies for a moratorium, is granted a statutory debt rescheduling arrangement, or otherwise loses the power to dispose of all or part of its assets. In such cases, any claim AHC may have against the Buyer shall become immediately due and payable in full.
- Except for the situation described in Article 9 (force majeure), the Buyer is not entitled to terminate the contract.
- Upon termination, the existing mutual claims of the parties become immediately due and payable. The Buyer is liable for the loss suffered by AHC, including loss of profit and transport costs.
- If AHC and the Buyer contract with each other more than once, each contract should always be regarded as a separate contract and does not form a continuing performance contract requiring termination, unless expressly agreed otherwise.
- If and insofar as a continuing performance contract does exist between AHC and the Buyer, it may always be terminated in writing subject to a notice period of three-months (counting from the last working day of the month) without any obligation to pay damages thereby arising on either side, unless the parties have agreed in writing on a different termination arrangement. In any event, there can be no question of a continuing performance contract if the Buyer has not made any purchases from AHC for a period of 6 months or longer.
Article 12 Applicable law and competent court
- Contracts between the parties are governed by Dutch law.
- All disputes relating to and/or arising from a contract will be settled by the Court of The Hague, the Netherlands, unless Dutch mandatory provisions stipulate otherwise, regardless of the right of AHC to submit the dispute to another competent court under Dutch law, European regulations or International treaties.
- If the Buyer is located outside the European Union, Norway, Iceland, Liechtenstein or Switzerland all disputes shall be settled by the Netherlands Arbitration Institute (NAI) in accordance with the arbitration regulations adopted by the NAI. Such a tribunal will consist of one arbitrator. The proceedings will be conducted in the Dutch language. The place of arbitration will be at the NAI in Rotterdam.