General Terms and Conditions
Of Saudi European Dates Company B.V. in Haarlem, and of its shareholdings, all hereinafter severally and jointly to be referred to as: “SED”, as determined on 1-1-2019.
Article 1: applicability
1. These general terms and conditions apply to all offers made by SED and to all agreements entered into by SED under whatever name. These conditions particularly also apply to agreements entered into by SED for the delivery of products and services to customers of SED.
2. Where in these general terms and conditions reference is made to “customer” this should be understood to mean any natural or legal person who is in a contractual relationship with SED, pursuant to a purchase agreement or other type of agreement concluded and/or to be concluded with SED. In particular, “customer” is also understood to mean the person on whose account and on whose behalf or by whose act products and/or services are delivered.
3. The provisions of these general terms and conditions can only be deviated from if and insofar as SED has agreed this in writing with SED. If the present conditions have been deviated from one or more times, the customer cannot derive any rights therefrom with regard to subsequent agreements.
4. Where in these general terms and conditions reference is made to (delivery of) products, this also includes the provision of services and activities of any kind.
Article 2: Offers and formation of agreement
1. The order given to SED counts as an offer. This offer has been accepted by SED as soon as SED has confirmed it in writing, or SED has started the actual execution of the offer in a manner that is familiar to the customer.
2. The agreement is concluded as soon as SED has accepted the offer, which acceptance binds the customer. Acceptance may be explicit and tacit. Tacit acceptance is deemed to have taken place if SED has not notified the customer that the order has not been accepted in writing within five days of receipt of an order.
3. Every agreement entered into with SED contains the dissolving or suspensive condition–this at SED’s discretion–that customer will prove to be of sufficient creditworthiness for SED, this solely at the discretion of SED; For this reason, SED has the right to refuse an order from a customer.
4. SED is entitled to demand from the customer that he provides security, for example but not limited to demanding full payment in advance, for the fulfilment of his obligations, in particular also after the conclusion of the agreement. If the security required by SED is not provided, SED may suspend the performance of its obligations and/or terminate the agreement without judicial intervention, without prejudice to any other rights such as those arising for SED from ordinary law.
5. Data concerning the products sold, such as properties, quantity, quality, colour, etc., as well as data in printed documents, drawings, images, samples, etc. provided by SED with the offer are provided to the best of our knowledge and with the greatest care, but will never be considered binding.
6. In exceptional cases, at SED’s discretion, SED may consent to the cancellation of an order. Such permission must then be given in writing. Upon cancellation of an order by the customer, all costs incurred, as well as damages and interests, will be charged to the customer.
7. Agreements and/or promises made by employees of or on behalf of SED only bind SED if these agreements and/or promises have been expressly confirmed in writing by authorised directors of SED.
8. SED reserves the right to refuse orders without giving reasons. Such a refusal never gives any right to compensation.
9. Subject to the express written permission of SED, the customer is prohibited from transferring rights or obligations arising from agreements concluded with SED to third parties, including companies affiliated with customer.
Article 3 Void
Article 4: Delivery, delivery periods, and delivery risk
1. Delivery takes place:
a. by making available to the customer the sold goods at the address of SED
b. by delivery of the goods sold at the location where the business of the customer is located, insofar as agreed in writing.
2. When the goods sold are made available to SED for the benefit of the customer, the customer must, if he does not immediately take the purchased goods, within five days of the date of the message from SED to the customer that the goods sold are available to him, collect the goods sold. If the customer fails to collect the goods sold within the aforementioned period, SED is entitled to charge the customer as demurrage 1% of the goods value per week or part thereof (with a maximum of € 25.00 per week).
3. Upon delivery of the goods sold at the address of the customer, the delivery periods stated by SED will never be regarded as deadlines, unless explicitly agreed otherwise in writing. The delivery periods specified by SED start at the moment the agreement was entered into and all data required for the execution of the order are in the possession of SED. Delay in delivery will not be a reason for the customer to terminate the agreement, unless SED has exceeded the limits of reasonableness. Delivery periods may be extended and/or orders given may be suspended with the time during which the customer has left any amount owed or payable to SED unpaid.
4. For delivery of the products to the address of the customer, the method of transport is determined by SED. The customer must take receipt of the products immediately. The customer is obliged to ensure that there is a sufficient and easily accessible loading and unloading site and to promote the shortest possible waiting time. Transporting or moving the products in any way within the business premises or on the premises of the customer is never included.
5. Delivery of ordered products in parts is permitted. SED is entitled to immediately invoice the already delivered products to the customer.
6. If and as soon as the products sold have been made available to the customer at the address of SED (or, if he does not take the products with him immediately, by the sole notification from SED that the products sold have been isolated for his benefit), the risk shall pass to the customer.
7. Upon delivery of the products sold to the address of the buyer, the loading, transport and unloading takes place at the risk of SED. As soon as the products to be delivered have been unloaded at the premises of the customer, the risk thereof transfers to the customer. If the customer requests that the delivery of products takes place in a different way than usual, SED may charge the customer for the associated costs.
8. The customer is obliged to take delivery of the ordered and delivered products and to pay immediately in accordance with the agreed payment conditions without any recourse to discount or compensation. By paying the invoice amount or signing a packing slip, the customer confirms receipt of the products. If the customer does not meet his purchasing obligation or payment obligations, SED is entitled to declare the agreement dissolved without judicial intervention.
9. Products incorrectly delivered by SED may only be returned if they meet all of the following conditions:
– when they are accompanied by a
copy of the delivery document, the date of which is not older than 7 days
– they are in the original, unopened packaging
– they have not been priced by the customer
– they are in good condition and can be resold at normal prices.
10. If recall actions initiated by suppliers of SED occur in connection with product defects arising during manufacture or packaging, the customer must act with the relevant products in accordance with the recall procedure announced by SED in those cases.
11. No obligation to deliver may arise for SED if, outside of SED, products are delivered by third parties directly to a business partner of SED, the invoicing of which is effected through SED.
12. If it was agreed upon delivery that the customer shall return empty pallets, the customer is obliged to return the empty pallets which are in his possession to SED as soon as possible, unless expressly agreed otherwise. The obligation of SED to take back pallets only applies if these are in good condition, clean, and contain no waste and residual material and if–insofar as it concerns roll containers and cool boxes–these have been supplied by SED.
13. If customer delivers return pallets poorly or unsorted, SED is entitled to charge the customer for the additional handling costs.
14. If SED is required by the customer or the government to take back packaging, residual material, and the like upon delivery of the products, the associated costs, including any costs of destruction, will be borne by the customer.
Article 5 Complaints and Claims
1. At the time of acceptance of the products, the customer must check whether the delivery corresponds to the order placed. Customer must immediately report visible damage or defects that can already be detected upon purchase in one of the sales areas of SED (including shortages). If the customer opens, breaks or damages packaging or products before they have been paid, the customer undertakes to purchase and pay for the products concerned.
2. Upon delivery of the products to the address of the customer, customer is required to notify SED of visible damage, defects on the consignment note or delivery document or in another direct manner in writing (by email firstname.lastname@example.org), in the absence of which there is full proof that the customer received the products upon delivery in any case in a sound and undamaged condition.
3. Customer is required to notify SED of complaints about deficiencies or defects regarding the delivered goods that are not immediately noticeable, if it regards fresh, refrigerated, or frozen products, immediately but no later than within 48 hours after delivery. If it concerns other products, this must be notified to SED in writing within 48 hours after delivery (by email email@example.com).
4. Any right of claim of the customer against SED relating to errors in the delivery or defects in or to products delivered by SED expires irrevocably as soon as the aforementioned claim periods have expired, as well as in situations where the customer does not sufficiently cooperate with SED with regard to a investigation related to the merits of the complaints. The products to which complaints relate must remain available to SED for inspection, in the condition in which the products were at the time that the defects were discovered. The right to claims expires after the customer has taken the delivered into use, has it treated or processed, or has had it taken into use, has allowed it to be treated or processed, or has passed it on to third parties, unless SED has given explicit permission to do so, or it concerns durable consumables, to which a factory warranty applies.
5. If a complaint is found to be justified and the aforementioned procedures with regard to making notifications of complaints have been met, SED will as soon as possible, at SED’s discretion, either repair the defect or deliver a replacement product or, if the purchase price for the relevant product has already been invoiced, credit the amount corresponding to the complaint. The customer will never be able to claim any compensation for this type of situation from SED; the liability of SED is limited to the value of the products that have been the subject of the complaint.
6. Complaints and claims do not give the customer the right to suspend payment of the related invoice, while compensation is expressly excluded by SED. The complaint period on the invoices sent by SED is no more than five days after the day of receipt. If no objection has been made to the invoice within that period, the invoice will be deemed to correctly represent the underlying transaction(s) with SED and be approved by the customer. 7. SED states the quantities or weights delivered on a delivery document. If the customer has not expressed his objection within 48 hours after receipt, the quantity or weight stated on the delivery document is deemed to accurately reflect the delivered item.
Article 6 Retention of title
1. The products delivered by SED remain the property of SED until full payment of the owed purchase price, including any interest and costs. The products delivered by SED to the customer are delivered under the suspensive conditions of full payment of the purchase price, interest, and costs by the customer. After full payment, ownership of the delivered products is transferred to the customer; payments are hereby deemed to always relate to the longest claimable invoice.
2. All products in the customer’s possession and originating from SED are always deemed to be the same as those stated on the unpaid invoices, insofar as the quantity of products in the customer’s possession does not exceed the quantities by type and composition, which are stated on the unpaid invoices.
3. The customer does not have the right to pledge the non-paid products, to (have) establish(ed) a property right, or to (have) establish(ed) any other business right thereon for the benefit of a third party.
4. The customer is permitted to sell the products that have not yet been paid, this exclusively in the context of his normal business operations, unless SED has ordered the customer in writing to make the delivered products immediately available to SED.
5. The customer already grants SED the right to enter all those places where the products delivered by SED are located in order to enable SED to exercise its ownership rights and to take back the unpaid products. The retrieval of its goods in this way does not affect SED’s right to demand compensation from the customer for damage suffered or costs incurred as a result of the non-compliance attributable to the customer.
Article 7 Void
Article 8 Liability
1. SED only accepts the legal obligation to pay compensation if and to the extent that the customer conclusively proves that the damage was caused by serious fault or gross negligence on the part of SED. The resulting liability for damage is expressly limited to the amount of the order that led to damage.
2. Any further liability for SED for damage, including but not limited to liability for employees and auxiliaries, is excluded, on whatever grounds, including all direct and indirect damage, such as consequential or commercial damage. Furthermore, the customer indemnifies SED against all claims from third parties with regard to any damage or loss suffered by this third party or parties, with due observance of all that is stipulated in this article.
3. SED does not accept any liability for the possible consequences of not having products in stock.
4. During the (internal) transport and storage of products delivered by SED, the customer must act in accordance with the applicable laws and regulations, including the HACCP standards and the storage regulations, failing which no liability can be accepted for (damage due to) defects in the products.
5. If, in its opinion, SED is forced to take measures or to cooperate in recall actions initiated by producers to prevent (further) damage as a result of claims by consumers due to a defect to products supplied, the customer undertakes to cooperate in such measures and, if this proves necessary or desirable, to join the determination of liability of the producer by SED.
6. Insofar as the products supplied by SED are provided with an expiry date (best before code) SED does not accept any liability for consumption or use of these products after the expiry date. The customer must guarantee that products on which an expiry date is stated will no longer be processed or sold after the expiry of that date. The customer expressly indemnifies SED against claims from third parties for damage resulting from consumption or the use of products supplied by SED if they have been treated or processed, used, consumed, or sold by the customer after the expiry date.
7. The customer is liable for all damage to the products that occurs or has arisen after or due to the treating or processing of the products.
Article 9 Force majeure
1. Force majeure should be understood to mean any circumstance beyond the control of SED which is of such a nature that compliance with the agreement cannot reasonably be expected of SED (so-called non-attributable shortcoming in performance). Force majeure also includes: mobilisation, war and threat of war, riot, strike, acts of terror, demonstrations, lack of personnel, business and transport disruptions of any kind, non-performance by
suppliers, epidemics, obstacles caused by measures, laws or decisions of international, national, or regional (government) authorities, fire, explosion, frost, snow, flood, storm damage, failed harvests, and other natural disasters.
2. If, due to force majeure, SED cannot fulfil the agreement in time, SED has the right to execute the agreement at a later date, or to consider the agreement dissolved, such at the discretion of SED. In these or similar cases, SED is entitled, entirely at the discretion of SED, to dissolve the agreement after a reasonable period of time without any obligation to pay compensation or to demand that the agreement be adapted to the circumstances.
Article 10 Void
Article 11 Conversion provision
1.If any provision of these terms and conditions is wholly or partially qualified by the court as unreasonably onerous, it will be deemed to have been converted into a provision that, to the extent possible while retaining its content and purpose, is not considered unreasonably onerous.
2. In case any provision of these conditions is qualified by the court as unreasonably onerous and paragraph 1 of this article cannot be applied, this does not affect the validity of the other provisions of these general terms and conditions.
Article 12 Transfer and lapse of rights
1. SED is authorised to transfer all or part of its rights from agreements to third parties.
2. Any claim against SED lapses if SED is not involved in legal proceedings within 12 months of receiving the claim relating to that action.
Article 13 Applicable law, disputes and competent court
1. Only Dutch law applies to the agreements concluded between SED and the customer. The applicability of The Vienna Convention on the Sales of Goods is explicitly excluded.
2. If a dispute arises between SED and the customer about the formation, the interpretation, the execution, or the non-performance or incorrect execution of an agreement or other legal relationship concluded between the parties, or if one of the parties believes that such a dispute exists, the parties are obliged to try to reach agreement through negotiation, before submitting the dispute to the civil court.
3. The competent court in Amsterdam has exclusive jurisdiction to hear disputes arising from agreements concluded with SED. Nevertheless, SED has the right to submit a dispute for decision to the competent court in the place of residence of the customer.
Article 14 Place of filing of the General Terms and Conditions
1. These general terms and conditions have been established as of 1-1-2019 and have been filed with the Chamber of Commerce in Amsterdam. The most recently filed version or the version that applied at the time of the conclusion of the agreement with SED always applies.