General terms of sale and delivery
1. Scope of Applicability
Unless otherwise explicitly agreed in writing these General Terms of Sale and Delivery for the International Sale of Goods (the “Terms”) shall apply to any and all contracts, orders, sales and deliveries of goods or services by the Seller (as defined below).
“the Seller” means the Euro Poultry group consisting of Euro Poultry A/S, Euro Poultry AB, Euro Poultry OY, Euro Poultry Holding B.V., Euro Poultry Procurement B.V. and Euro Poultry Benelux B.V. or any affiliated companies in the Euro Poultry group, including but not limited to subsidiaries that are fully or partly, directly or indirectly, owned or controlled. These Terms can be found on www.europoultry.dk and www.europoultry.eu, attached to the Sellers business agreements and on the Sellers invoices.
These Terms replace all previous terms and constitute together with the offer, orders and deliveries the basis of contract. No conflicting, contrary or additional terms are to be deemed accepted by the Seller until expressly confirmed in writing by the Seller.
2. Offers, order confirmation etc.
2.1 All purchase orders, acceptances etc. shall not be binding on the Seller until a written order confirmation has been issued to the Buyer by either post, e-mail, etc. If an order has been given orally, a written order confirmation will be issued to the Buyer.
2.2 All offers are made subject to the Goods being unsold cf. point 3. All offers made by the Seller are open for acceptance within 7 calendar days from the date of issue, unless otherwise specifically stated therein, and are subject to the availability of the Goods offered. If the order confirmation does not comply with the Buyer’s order, the Buyer must give notice hereof immediately and no later than at the time of the Buyer’s accept. If the Buyer does not give this notice the Buyer is deemed to have accepted according to issued order confirmation.
2.3 If the Buyer terminates the order after a written order confirmation has been issued by the Seller but before delivery has been made the Buyer is liable to cover all the Seller’s costs in connection herewith (reliance damages).
3. Subject of sale
3.1 Until the Seller has received the Buyers accept, the Seller is entitled to enter into agreement with any third-party concerning the Goods offered to the Buyer to the effect that the Seller’s offer will cease to exist. If the Buyers accept of the offered Good is received by the Seller after the Seller has entered into agreement with a third-party concerning these Goods, the Seller shall give the Buyer notice that the offer has ceased to exist without undue delay and the Buyer cannot warrant any claim for compensation in connection hereto.
4. Price, price charges
4.1. The price and currency for Goods shall be those set forth in the [order confirmation] unless otherwise is expressly agreed between the parties in writing.
4.2 All prices are exclusive of taxes, fees, custom duties and other charges, including, but not limited to, sales, use, excise, value added and similar taxes or charges imposed by any government authority.
4.2 The Seller reserves the right to make alterations to pricing, products and service offerings for reasons including, but not limited to, changes in exchange rates, changes in customs duties, taxes including taxes payable to transport, terminal or port authorities, manufacturer price changes, changing market conditions, product unavailability, and product discontinuation to the extent that any such additional costs can be attributed to the consignment in question until delivery. The sales prices of the Goods shall be in accordance with the Seller’s list prices in force at the time in question or in accordance with an offer made by the Seller.
5. Terms of payment, performance guarantees
5.1. Payment terms are set according to the invoice and shall be made in cash no later than on the due date according to the invoice. If no payment date is specified, payment shall be made in cash at the time of delivery.
5.2. Any Buyer approved of credit, will be offered 8 days of credit, net cash.
5.3. If the date of delivery is postponed due to circumstances for which the Buyer is responsible, the Buyer is – unless otherwise is agreed in writing – obliged to pay according to contract as if delivery was made on schedule according to contract.
5.4. Insofar the Buyer does not pay in due time default interest shall accrue at a rate equivalent to 1.5 % per month or part thereof. Payment of interest does not cut of the Seller of any right to claim damages induced by the Buyers default of payment.
5.5. The Buyer has no right to withhold any part of the purchase sums by reason of counterclaims of any kind or offset any counterclaims against the Seller unless expressly agreed to in writing by the Seller. Orders that have not been delivered to the Buyer due to default of payment will be retained at the risk and expense of the Buyer.
6. Retention of Title
6.1. The Goods shall fully remain the property of the Seller and shall not pass to the Buyer until all receivables, on whatever legal grounds, have been paid in full. The Buyer shall thus be prohibited from taking any disposition regarding Goods for which the Seller retains title. The Seller is furthermore to be promptly notified about any hypothecation or other seizure of Goods under retention of title through a third party. All intervention costs will be charged to the Buyer if and to the extent that they cannot be collected from such third party.
6.2. In the case of modification, alteration or processing of the Goods, which does not cause the Goods to lose their characteristics or identity, the retention of title shall persist in such a way that it also covers the modified, altered or processed Goods at the value they had before the modification, alteration or processing.
6.3 The byer is obliged to keep the delivered Goods insured and to keep the Goods separated at all time so that the Goods can be identified as the property of the Seller.
7. Delivery, delivery date
7.1. Unless otherwise agreed in writing between the parties, the delivery dates stated in the order confirmation shall be determinated as the date when the Seller has notified the Buyer that the Goods are ready for delivery and have been placed at the disposal of the Buyer. The risk of loss of or damage to the Goods shall pass to the Buyer in accordance with the delivery.
7.2 Delivery from the place of storage shall be for the risk and account of the Buyer.
7.3 The delivery date in the order confirmation is set by the Seller according to the best judgement, and if this cannot be kept to, the Buyer will be informed accordingly, with when, as far as possible, delivery can be expected to take place. Unless otherwise agreed in writing between the parties – a postponement of the date of delivery with up to 14 calendar days shall always constitute delivery on time and does not give the Buyer the right to annul the sale or contract and/or claim any form of financial compensation from the Seller.
7.4 Both parties are exempt from liability from not fulfilling the contract due to circumstances as mentioned cf. 11.3 If and to the extent the affected party suffers a delay as a result of Force Majeure that Party shall be entitled to an extension for the time of delivery. If delivery is temporarily delayed by one or more of the circumstances cf. 11.3, the delivery date will be correspondingly postponed. The time of delivery shall be extended by a period equal to the period of interruption caused by an event of Force Majeure. If delivery is prevented for more than 12 weeks, the Seller is entitled to cancel the relevant contract without liability.
7.5 The Seller must in any of the above-mentioned situations without undue delay, inform the Buyer about the alterations to the time of delivery.
7.6 In the event that the Buyer does not collect the Goods at the agreed date of delivery, or does not inform the Seller of an address of delivery in due time the Seller is entitled to postpone the date of delivery and arrange for storage of the Goods at the risk and expense of the Buyer or to cancel the order or parts hereof without liability and the Buyer cannot warrant any claim for compensation in connection hereto.
8. Product information
8.1 The Seller retains title and all rights to all documents, pictures or other media made available to the Buyer, which thus remains the property of the Seller. Such documents or other media may be used by the Buyer or disclosed, reproduced, replicated or transferred to third parties only with the express written consent of the Seller making such available.
8.2 The Seller retains all right, title and interest in and to any and all worldwide intellectual property and proprietary rights embodied in the Goods, including, but not limited to, all copyrights, patent rights, trade secret rights, logos and in the trademarks. Thus, the Buyer acknowledges that it will have no rights with respect to any of the foregoing without the explicit written consent of the Seller.
9.1 The Seller reserves the rights, without warning, to make changes to agreed specifications, if it is to no inconvenience for the Buyer.
10. Defective subject of sale
10.1. The Seller warrants that upon delivery the Goods purchased will conform in all material respects to the applicable specifications for such Goods. The warranty does not cover damage resulting from misuse, negligent handling, lack of reasonable maintenance and care, accident or abuse by the Buyer or the Buyer’s representative.
10.2 The Buyer must inspect the Goods immediately on delivery or arrange for inspection of the Goods. Inspection includes counting the delivered amount and control the net weight, before receipt on CMR/delivery note. The Buyer is deemed to have accepted the Goods delivered unless written notice of rejection specifying the reasons for rejection is received by the Seller within:
1) 24 hours for chilled products.
2) 72 hours for frozen products.
3) 10 calendar days for all other Goods.
If the Buyer discovers any defects, the Buyer shall give written notice to the Seller immediately when the Buyer discovers the lack of conformity or ought to have discovered it. It is a condition that notice is given within the stipulated shelf life of the Goods, otherwise, the Buyer will forfeit his rights under the warranty.
10.3 The Seller is entitled to initiate an investigation of the defects. All cost related hereto is covered by the Seller.
10.4 The Seller makes no other warranty, express or implied, with respect to Goods delivered hereunder, and the warranty constitutes the Sellers’s sole obligation in respect of any lack of conformity of Goods delivered hereunder (except title). In particular, we make no warranty with respect to the merchantability of Goods delivered or their suitability or fitness for any particular purpose.
10.5 With respect to Goods which do not conform to the warranty the Seller’s liability is limited, at the Seller’s election, to (i) offer a replacement of such Goods; provided, however, that such Goods must be returned to the Seller, along with acceptable evidence of purchase, within fourteen calendar days after the discovered the lack of conformity or ought to have discovered it, or (ii) offer a reduction of the purchase price.
11. Compensation, limitation of liability
11.1 Each party is liable for his own actions and non-performance according to this contract and present law. The Seller’s liability shall be limited to direct loss that the Buyer may suffer. The Buyer’s recovery from the Seller for any claim shall not exceed the purchase price in the invoice for the Goods giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
11.2. The Seller shall not resume liability for any indirect or consequential loss or punitive damages such as but not limited to loss of goodwill, loss of business, business interruption costs, loss of customers, loss of income, loss of profit or loss of anticipated profits arising out of or in connection with the contract or any transaction between the Seller and the Buyer. Thus, the Seller is not in any event liable for loss of use, loss of data, removal and/or reinstallation costs, loss of/or damage to property or claims from third parties.
11.3 The following circumstances are intended as examples of events resulting in exemption from liability should they prevent fulfilment of the contract: Industrial disputes, strikes, lockout or any other circumstances beyond the control of the parties, such as fire, war, mobilisation, unforeseen military call-up, acts of sabotage, requisitioning, confiscation, currency restrictions, import ban, export ban, riots, unrest, fuel shortage, general scarcity of goods, restrictions in power supplies and defects in deliveries from sub-suppliers or delays with such deliveries as a result of any of the aforementioned circumstances. It should be specifically noted that the above mentioned is not an exhaustive list of examples, and there may be other examples that come under limitation of liability. The aforementioned circumstances which have occurred before the formation of contract does only give rise to exemption of liability if the aforementioned circumstances’ influence on the fulfilment of contract could not have been foreseen at the time of formation of contract.
11.4 If the Seller claims Force Majeure the Seller is obliged to give notice to the Buyer without undue delay upon Force Majeure being foreseen or becoming known to the Party. The Seller is furthermore obliged to endeavour to overcome the Force Majeure and to continue to perform its obligations according to the contract if reasonably practicable and in accordance with good operating practices. If and to the extent the Seller suffers a delay as a result of Force Majeure the Seller shall be entitled to an extension for the time of completion. The time of completion shall be extended by a period equal to the period of interruption caused by an event of Force Majeure. If fulfilment of the contract or parts hereof is prevented for more than 12 weeks, the Seller is entitled to cancel the relevant contract without liability.
12.1. Sold Goods can only be returned by previous written consent from the Seller.
12.2. If the Buyer is entitled to return the Goods to the Seller, the Goods in question are to be returned in their original packaging and shipped at the Buyer’s own risk and expense. In the event that transportations costs are imposed upon the Seller, the Seller is entitled to demand these costs reimbursed by the Buyer and set off the costs against any potential counterclaim the Buyer has.
13. Product liability
13.1 The Buyer is to indemnify the Seller to the extent the Seller is held liable to any third-party for any injury or loss for which the Seller is not liable the Buyer according to this contract’s 13.2 and 13.3.
13.2 The Seller is not liable for any damage to real estate or chattel which occurs while the Goods are in the Buyers possession. the Seller is furthermore not liable for damage to products produced by the Buyer or products where the Buyers products figure as a part hereof.
13.3 Thus the Seller is not in any circumstances liable for indirect loss such as loss of business, loss of profit or loss of anticipated profits arising out of or in connection with the contract or any transaction between the Seller and the Buyer, business interruption costs, loss goodwill or any other economic consequential loss. If any third-party raises a claim towards either party of this Contract either party is to immediately notify the other party.
14. Assignment and obligations
14.1 The Seller is entitled to assign, pledge or otherwise transfer any of its rights, interest or obligations according to his contract. If the Seller assigns, pledge or otherwise transfer any of it’s rights according to this contract to any third-party the Buyer shall subsequently only be entitled to make claims for breach of contract against that third-party.
14.2 The Buyer shall not assign, pledge or otherwise transfer any of its rights, interest or obligations according to his contract with the Seller without the prior express written consent from the Seller.
14.3 The Buyer will keep all confidential and business information received from the Seller. This confidentiality provision shall continue to apply indefinitely after termination of any delivery contract no matter the cause of the termination. The confidentiality obligation does not apply to information that (i) the Buyer had already obtained legitimately at the time of disclosure, provided such information was not subject to a confidentiality obligation or (ii) that the Buyer later obtained independently and legitimately without being obliged to keep such information confidential, or (iii) that is or becomes generally known without any breach of contract by the Buyer.
15. Applicable law. Arbitration and legal venue
15.1. Provided the Parties are not able to agree upon an amicable settlement within a reasonable time and no later than 60 calendar days after initiation of settlement discussions any controversy or claim arising out of or in relation to a contract with the Seller (whether contractually or in tort) including regarding the interpretation and validity of any part of the contract, shall be settled by the Maritime and Commercial Court of Denmark situated in Copenhagen as the sole and exclusive venue. The Seller shall nevertheless always be entitled in lieu hereof to bring an action against the Buyer at the Buyer’s venue.
15.2 Any contract with the Seller shall be governed by Danish law, CISG does not apply. The language of the proceedings shall be English, unless otherwise agreed by the parties.