All sales, transactions, deliveries and purchase orders, as well as any other document relating to the goods to be delivered by Dossche Mills/Dossche Mills Nederland/Dossche Mills France (DM) (the DM Goods), are solely governed by these terms and conditions and any special conditions signed by the parties (which would prevail in the event of inconsistency or contradiction). The customer expressly acknowledges that its own special or general terms do not apply.
All prices, brochures, catalogues, offers or proposals issued by DM are free of engagement on its part and do not imply any commitment as to prices, quantities or periods of delivery and execution, which are in any event always only indicated approximately.
3. Purchase order
All purchase orders received by DM are considered to be final, binding upon the customer and irrevocable.
Unless otherwise expressly agreed in writing, DM's acceptance of a purchase order is limited to acceptance of the express terms set forth in the purchase order insofar as they do not deviate from these terms and conditions or any special conditions signed by the parties.
The price for the DM Goods shall be agreed verbally or in writing by the parties. If no specific price has been fixed, the price of the Dossche Mills price list on the date of delivery of the DM Goods will apply.
Except in case of a sales agreement with take-or–pay quantity, take-or-pay price, take-or-pay period and take-or-pay amount Dossche Mills can adjust its prices at any time to take into account changes of the cost price of the DM Goods as a consequence of changes of (non comprehensive list): price of raw materials, wages, social security or public administration charges, price of electricity, oil, coal, gas or other energy sources.
Unless otherwise specified on the invoice, any DM invoice is payable in cash at the time of delivery, without any invoice amount reduction or discount. All costs, taxes, duties, import duties or any other levies relating to the (delivery of the) DM Goods will be at customer's expense. Invoices shall be issued and paid in euro. The customer expressly waives any right of set-off in its relationship with DM.
If the customer fails to pay any sums when due, DM shall be entitled, automatically and without summons, to:
(i) default interest (calculated at the rate used by the European Central Bank for its refinancing operations plus 10%); and
(ii) a lump-sum compensation payment ('liquidated damages') for damage suffered calculated equal to 10% of the unpaid or overdue paid invoice amount with a minimum of 250 euro.
Without prejudice to clause 11 (termination), the customer's failure to pay an invoice on its due date shall entitle DM to suspend further performance and deliveries to the customer until it receives full payment.
Payment of an invoice, in full or in part, amounts to the customer's unconditional acceptance of the relevant DM Goods.
6. Delivery times
All indicated delivery times are indicative only. A delay in delivery or after an indicated delivery date can under no circumstance give rise to liability on DM's part or be considered as grounds for annulment, suspension or termination of the agreement (partly or entirely).
7. Delivery, shipment and risks
All DM Goods will be delivered to the customer on a DDP (Incoterms 2010) basis and the risk is passed accordingly.
The customer shall implement all necessary measures to ensure that the DM Goods can be delivered properly at the agreed delivery site. These measures relate to, amongst others, the accessibility of the site, the availability of unloading equipment and personnel as required by DM, as well as full compliance with all relevant safety measures. The customer is liable towards DM for any damage caused by non-compliance with this obligation.
8. Retention of title
The DM Goods remain DM's property until DM receives full payment of the price from the customer. The customer is not entitled to sell, process or modify any DM Goods for which title has not passed. Without prejudice to its other rights and remedies, DM shall be entitled, automatically and without summons, to reclaim the delivered DM Goods up to the amount not paid if the customer fails to pay any sums when due. If the customer resells the DM Goods before making payment in full to DM, the retention of title will transfer and apply to the monies representing the resale price.
During the retention of title period, the customer shall be responsible for storing and keeping the delivered DM Goods in good condition, and will be responsible for any loss or damage caused to the DM Goods. The customer undertakes to insure the DM Goods against all risks at its expense and to store the DM Goods in such a way that they cannot be confused with other goods and that they can always be recognised as the property of DM.
DM shall use reasonable endeavours to supply the DM Goods in accordance with the indicated specifications (if any). However, the customer accepts that the DM Goods are natural products for which specifications are always indicative only and may vary from time to time. In no event can any variation in specification give rise to a claim by the customer for any indemnification or price reduction on the grounds of non-conformity or defect; nor shall it entitle the customer to annul, suspend or terminate the agreement (partly or entirely).
Without prejudice to the above, the customer must verify the quality and quantity of the DM Goods upon receipt. Complaints regarding a visible defect or non-conformity are only validly made if (i) notified by the customer to DM in writing immediately upon receipt of the DM Goods (and in any event within 24 hours after delivery) and (ii) the DM Goods concerned still remain unprocessed and available for inspection by DM.
Complaints regarding a hidden defect or non-conformity are only validly made if notified by the customer to DM in writing within 24 hours after the earlier of the time that the non-conformity or defect (i) was discovered or (ii) could reasonably have been discovered, and provided the DM Goods concerned are still available for inspection by DM.
If a complaint is validly made pursuant to the requirements of this clause, DM will suspend delivery and take remedial measures in respect of further delivery, without any (other) liability on its part; in particular, the customer shall not be entitled to annul, suspend or terminate the agreement (partly or entirely). DM shall not be liable for any other complaint, and the customer will be barred from lodging a claim on the basis of such a complaint.
Complaints in relation to (errors in) invoices must be notified by the customer to DM in writing within 15 days after the invoice date. The payment of an invoice, in full or in part, shall be considered to imply acceptance of the invoice and of the DM Goods concerned. A contractual dispute shall not entitle the customer to withhold or suspend payment until such dispute is resolved.
The contractual and extra-contractual liability of DM arising from negligence, breach of contract or otherwise under or in connection with its relationship with the customer shall be limited to the lower of (i) the price of the DM Goods that caused liability, and (ii) EUR 5,000. If DM's liability is established, DM shall at its own discretion either (i) replace the DM Goods concerned at its own expense or (ii) reimburse the customer an amount equal to the price of the defective goods that caused liability, always subject to the limitation of liability as set out above. DM shall under no circumstance be liable for any (i) loss of profit, loss of turnover, loss of clientele, loss of business or revenue, loss of data, loss of goodwill, loss of expended management time or anticipated savings, financial damage, damage to machinery, loss associated with a product recall, directly or indirectly caused to or suffered by the customer; and/or (ii) other incidental or consequential loss of any kind arising out of or in connection with the DM Goods concerned.
The customer shall be liable and undertakes to hold DM harmless, and to defend DM from and against any third party claim (including a claim based on any applicable legislation on product liability), and shall indemnify DM and keep DM indemnified against any losses, damages, costs, charges, expenses and other liabilities (including, without limitation, legal fees), incurred by or awarded against DM as a result of, or in connection with such third party claim; unless such third party claim is based on a contractual default by DM in its relationship with the customer that has been notified in accordance with clause 9.
Nothing in this clause 10 shall operate to exclude or limit any statutory rights which cannot be legally excluded or limited, and this clause 10 is not intended to exclude or limit the liability of DM in respect of intentional default. If this clause 10 is found to be void, invalid or unenforceable, DM's contractual and extra-contractual liability to the customer and any third party shall in any event be limited to EUR 5,000.
11. Suspension and termination
If the customer or any other entity of its group (Customer Group) is in breach of any of the provisions of the agreement with DM, DM shall be entitled to suspend the delivery of DM Goods until such breach has been remedied in full.
DM has the right to terminate the agreement (including any pending delivery) by giving written notice to the customer, with immediate effect and without court intervention, if (i) the customer is in breach of any agreement with DM, and either such breach is not capable of remedy or, if the breach is capable of remedy, the customer has failed to remedy the breach within 5 calendar days of receiving written notice requiring it to do so, or (ii) any entity of the Customer Group is in breach of any agreement with DM, and either such breach is not capable of remedy or if the breach is capable of remedy, such entity has failed to remedy the breach in accordance with the relevant agreement. In the event of a termination of the agreement by DM, the customer will be liable to compensate DM for any damage suffered and expenses incurred, including any consequential loss and loss of profit. The customer shall also immediately settle all outstanding invoices which become immediately payable upon termination.
The agreement (including any pending delivery) shall terminate automatically if the customer becomes insolvent or an order is made or a resolution passed for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a trustee, liquidator, administrator, or similar officer is appointed over all or any substantial part of its assets or anything similar to the foregoing occurs in any applicable jurisdiction.
Expiration or termination of the agreement for whatever reason shall be without prejudice to any rights or obligations which shall have accrued before expiration or termination and shall not destroy or diminish the binding force of any of the provisions of the agreement which are expressly provided to come into force on, or continue in force after such expiration or termination, including clauses 1, 5, 8, 9, 10, 11, 12 and 17.
If a take-or-pay quantity (a TOP Q) is provided in the special conditions, to be taken by the customer within a specific period (the TOP Period) and for a specific amount (the TOP Amount), the customer shall either take the TOP Q within the TOP Period, and pay the TOP Amount, or pay the TOP Amount less the price effectively paid for the contracted DM Goods that have been taken by the customer within the TOP Period (the TOP Shortfall Amount).
DM shall invoice the TOP Shortfall Amount after expiry of the TOP Period, and the customer shall pay such invoice in accordance with clause 5 (payment).
An extension of the TOP Period can only be agreed in writing.
DM is entitled to investigate the customer's creditworthiness or its ability to fulfil its obligations under the agreement at any time during the term of the agreement. The customer shall provide DM with all relevant information in this regard as requested by DM. If DM considers that there are reasonable grounds to question the customer's creditworthiness or that its ability to fulfil its obligations under the agreement is impaired, DM is entitled to suspend performance of the agreement and to require that customer, within three business days, provides or increases in amount: (i) a letter of credit, (ii) cash, or (iii) other security (including a bank or parent guarantee) in a form and amount reasonably acceptable to DM. Failure to timely comply with this requirement will be considered a material breach.
Upon the occurrence of an event beyond DM's reasonable control which negatively affects DM's position (including price arrangements) for the procurement of raw materials (eg the insolvency of a supplier of raw materials) and hence the contractual balance for DM under the agreement, the customer shall renegotiate, at DM's first request, the agreed contract price with DM in good faith. If the parties cannot agree on a new price within 15 business days following DM's request, DM shall be entitled to terminate the agreement, with immediate effect, without court intervention and without owing any compensation to the customer.
The customer is not entitled to assign, transfer or otherwise dispose of any of its rights and/or obligations under its agreement with DM without the prior written consent of DM. In any event the customer shall remain jointly and severally liable with the assignee or transferee for the proper performance of the agreement.
16. Force majeure
Neither party shall be liable to the other for any delay or non-performance of its obligations under the agreement (other than an obligation to pay money) arising from an event beyond its reasonable control (an FM Event). An FM event includes, without limitation, any of the following: war, civil war, revolt, mobilisation, confiscation, embargo, industrial conflicts, strikes and lockouts, transport difficulties, raw material supply difficulties, energy supply restrictions or difficulties, machinery accident, import or export measures or restrictions imposed by government, serious currency exchange rate changes, bad weather making it impossible to work, fire, floods or other natural disasters, even if it is one of DM's suppliers or subcontractors that suffer from these circumstances, as well as any unforeseeable circumstance as a consequence of which the performance of the agreement by DM leads to unreasonable loss, damage or costs.
DM shall also be deemed affected by an FM Event if a delay or non-performance of its obligations results from a business decision following a distortion of or reduction in its production capacities for any type of product which in itself was beyond DM's reasonable control.
Where an FM Event continues for a period of 30 continuous days or more, either party may by written notice to the other terminate the affected agreement with immediate effect and without court intervention. In such event, no indemnity or costs of any kind will be owed by the terminating party for such termination.
17. Applicable law – competent court
Any agreement entered into between DM and the customer and all underlying purchase orders and deliveries shall be governed by and interpreted in accordance with the laws of the country where the contracting DM entity has its registered office, each time with the express exclusion of the United Nations Convention on Contracts for the International Sale of Goods, Vienna, 11 April 1980.
Any controversy, dispute or claim in connection with or arising out of the existence, validity, construction, performance, non-performance, breach or termination of this agreement (or any terms thereof), including any claim based on contract, tort, statute or constitution, shall be finally settled by the courts of Ghent (Belgium) if the contracting DM entity is a Belgian entity; the courts of Lille (France) if it is a French entity; and the courts of the province of Limburg (the Netherlands) if it is a Dutch entity.