GENERAL TERMS AND CONDITIONS MAXIMA SEAFOOD B.V.
General Terms and Conditions of Maxima Seafood B.V. in IJmuiden (The Netherlands) ('Maxima'). These general terms and conditions have been deposited with the Kamer van Koophandel (Dutch Chamber of Commerce) in Amsterdam (The Netherlands) on 3-4-2018.
1. General
a. These General Terms and Conditions, further 'the General Terms and Conditions', apply to all legal relationships with Maxima, under any name (expressly including those that consist and/or arise from invitations to place an order with Maxima in the form of the sending of price lists by Maxima, placing an order with Maxima and agreements concluded with Maxima), concerning deliveries to be made and/or services to be performed by Maxima. This is unless and insofar as derogated therefrom, expressly and in writing, by Maxima, which derogation(s), unless expressly provided otherwise, will not apply to other legal relationships than those for which they are agreed.
b. The General Terms and Conditions can be found on Maxima's website, www.maximaseafood.nl, and will be sent to anyone free of charge upon first written request.
c. The applicability of the (purchasing) terms and conditions of the (legal) person with whom a legal relationship described under 1.a is established, hereinafter referred to as 'Buyer', is expressly excluded.
d. Maxima is entitled to unilaterally change the General Terms and Conditions. In that case, the amended terms and conditions apply to the legal relationship with Buyer from the moment that Buyer has been able to review the change(s).
e. Buyer agrees in advance with the applicability of the General Terms and Conditions to every legal relationship with Maxima described under 1.a which is established after the first applicability declaration.
f. If one or more of the provisions of the General Terms and Conditions and/or the agreement(s) concluded or to be concluded between Maxima and Buyer are wholly or partly null or void, the remaining provisions shall remain in full force. Null and void provisions shall be replaced in accordance with the original intention of the parties, by Buyer and Maxima in consultation with valid new provisions, which differ as little as possible from the provisions that are replaced.
g. The legal relationship between Maxima and Buyer described under 1.a shall be governed by Dutch law. The applicability of the Vienna Sales Convention is expressly excluded.
h. Unless Maxima sues Buyer before the competent civil court of the place of residence of the Buyer, all disputes between Buyer and Maxima shall be settled by the competent civil court of the place of residence of Maxima (North Holland, Haarlem, The Netherlands).
2. Price list, order and creation of agreement
a. Maxima sends to one or more of its potential customers one or more price lists applicable to them which show which fish products may be purchased from Maxima by the relevant purchaser(s) as specified on that day at what price per unit from Maxima; further referred to individually and collectively as 'the Price list'.
b. The Price list is a non-binding invitation from Maxima to Buyer to place an order with Maxima at the price per unit stated on the Price list for one or more certain fish products, further referred to as 'an Order'.
c. An Order is an offer from Buyer, binding on Buyer, to Maxima to enter into an agreement, on the grounds of which Maxima will, in case of acceptance, be able to deliver to the Buyer the units and fish products stated in the Order for payment of the price according to the Price List. Maxima is always entitled to refuse an Order without giving reasons.
d. No rights under any title can be derived from an Order by Maxima and Buyer, if the Order is not accepted by Maxima, no later than one business day after it has reached Maxima.
e. An agreement, further referred to as 'the Agreement', is first created between Buyer and Maxima by means of timely acceptance by Maxima of the Order from Buyer, while oral, telephone, digital or written agreements can also be created in other ways, without prior Price list and/or Order. Acceptance of the Order by Maxima is apparent from the execution of the Agreement by Maxima and/or sending by Maxima to Buyer of the invoice and/or packing slip related to the Agreement.
f. The Agreement or Order is deemed to have expired if and insofar as the fish products in question are entirely no longer available from Maxima for delivery. The Agreement or Order is deemed to have been established/placed for smaller quantities if and insofar as the fish products in question are available from Maxima but not in sufficient quantities to be able to accept the Order, if Maxima is able to deliver at least 85% of the Order to Buyer. The Agreement or Order is deemed to have been established/placed for a larger amount of weight than stated in the Order, if and insofar as it concerns a minor deviation in the weight usual in the industry. The Agreement or Order is also considered to be created/placed, if there are small variations in quality usual in the industry.
g. The Price list is not binding for Maxima and is prepared subject to availability of the fish products listed in the Price list. Mistakes and errors in the Price list and/or the Agreement do not bind Maxima.
h. In the event that the Order differs from the Agreement, Buyer and Maxima enter into an agreement based on the Agreement, even if the differences are minor.
i. The Agreement, insofar as not otherwise provided in paragraphs 2.f and 2.g, can only be changed by means of written notice from Maxima to Buyer.
3. Price
a. The prices stated in the Price List and the Agreement, unless expressly stated otherwise, are in euros and exclude the VAT owed by the Buyer and any costs for customs clearance and handling at the border or at the delivery address.
b. The prices stated in the Price list and the Agreement by Maxima are carriage paid including rights, so including the costs of transport to be done by or on behalf of Maxima, in, with consideration of the delivery address, the way most commonly used by Maxima and to the address/addresses specified by the Buyer in the Order and any import charges.
c. The prices stated in the Price List and the Agreement exclude any needed packing for multiple use required. If a deposit payment scheme applies to this packing, Maxima will charge this deposit fee to Buyer, in addition to the agreed price. If no deposit payment scheme applies to the packing, the packing remains the property of Maxima and Buyer must make it available to Maxima at Maxima's first request.
d. On the grounds of that provided under 3.a, certain changes in the VAT percentage and exchange rate changes in currency that arise between the time of the placement of the Order and the execution of the Agreement are at the expense and risk of Buyer. In addition, increases in the costs of tolls and/or fuel that are charged to Maxima and that arise between the time of the placement of the Order and the execution of the Agreement are at the expense and risk of Buyer.
4. Delivery, suspension and retention of title
a. The intended date of actual delivery stated by Maxima to Buyer in advance is no more than a target date, from which Buyer cannot, in the event of later actual delivery, derive any rights, whatsoever, against Maxima.
b. As the place of actual delivery, the address/addresses stated by Buyer in the Order applies for delivery of the fish products ordered by Buyer, and as the time of the actual delivery, the moment of handing over/making available by Maxima to Buyer of the fish products ordered by Buyer applies.
c. Maxima is entitled to suspend the performance of the Agreement if and for as long as Buyer has not timely fulfilled the payment obligations to Maxima under the Agreement/other Agreements, as well as if Buyer is, in the sole judgement of Maxima, possibly not able to meet the payment obligations under the Agreement and Buyer does not provide sufficient security therefor at Maxima's request to Maxima's satisfaction. If the suspension lasts more than 48 hours, Maxima is entitled - but not required - to dissolve the Agreement with the Buyer by means of written notice to Buyer and to not execute the Agreement any further.
d. All products delivered by Maxima to Buyer remain the property of Maxima until Buyer has fulfilled all the obligations to Maxima, under any title, expressly including but not limited to payment of the price under other Agreements, including interest and expenses
e. As long as Maxima is the legal owner under 4.d of the fish products delivered to Buyer, Buyer is not authorized to pledge or otherwise encumber these products and/or to mix them with inventory from coming suppliers other than Maxima. Buyer is exclusively authorized to process and/or modify and/or sell and deliver these products to third parties in the ordinary course of business.
f. Buyer is obliged to immediately inform Maxima of any possible or threatened breach of the property right of Maxima under 4.a, and to take all measures at Buyer's own expense to safeguard the property rights concerned and to ward off the threatened breach(es).
5. Claim
a. Buyer is obliged to examine (or have this done) the fish species/products delivered by Maxima immediately after actual delivery and to determine whether the delivery is in accordance with the Agreement.
b. Small variations usual in the industry in the quantity and/or quality as stated in the Agreement do not lead to the conclusion that the delivery does not meet the Agreement. Defects in a portion of the delivered amount of fish products do not give Buyer the right to reject the full amount of fish products delivered.
c. If Buyer, upon first inspection at or after actual deliver, notes visible defects, Buyer must note these defects upon signing the packing slip, or immediately thereafter inform Maxima in writing. If and insofar as Buyer cannot be reasonably expected to note the visible defects before or upon the signing of the packing slip, Buyer must, as soon as possible thereafter, but not later than 24 hours after the actual delivery has taken place, report the defects to Maxima.
d. Given the nature of the products delivered by Maxima, fresh (i.e. perishable) and frozen fish (products), and the nature of the Buyer's business in the context of which these products will be processed and/or sold within a very short period of time and delivered to third parties, a period of 24 hours after the actual delivery has taken place applies for Buyer with Maxima, within which Buyer must make any claim.
e. If Buyer does not fulfil the notification requirement(s) described in this Article under 5.c and/or 5.d, claims against Maxima expire, insofar as these are wholly or partly based on the defects in question. Buyer must make known any complaints described under 5.c and/or 5.d about the delivered products, in writing (by e-mail or fax), substantiated and with evidence to Maxima.
f. Following the expiry of the 24-hour period described under 5.b. or as much earlier as the products delivered by Maxima to Buyer are processed and/or sold to third parties, the products delivered by Maxima are irrevocably and unconditionally - without the possibility of Buyer to providing evidence to the contrary - deemed to have been received by Buyer in good condition and in accordance with the Agreement.
g. If, in the judgement of Maxima, a claim by Buyer has been properly made by the Buyer in accordance with the provisions of 5.c, 5.d and 5.e, Maxima will, at the option of Maxima or at the expense of Maxima, deliver any missing or delivery rejected by Buyer to be replaced, or to lower and to credit the agreed price in proportion to the missing and/or rejected delivery. Maxima is, in the event of proper claims by Buyer, never liable to Buyer or to third parties more than that provided below in 5.g.
h. Buyer may only return the products rejected by Buyer to Maxima after prior written permission from Maxima and must keep the rejected products available to Maxima pending further instructions of and/or inspection by or on behalf of Maxima.
6. Payment, interest and costs
a. Buyer must have satisfied to Maxima amounts owed on the grounds of the Agreement within 14 days after the invoice date in the manner described by Maxima on the invoice.
b. In the event of partial deliveries under the Agreement, Maxima is entitled to invoice per partial delivery to Buyer.
c. Buyer is not entitled to any discount and/or settlement, for any reason whatsoever, with the payment of the amount owed by Buyer to Maxima on the grounds of 6.a.
d. After expiry of the period stated under 6.a, Buyer shall automatically be in default, without further reminder and/or notice of default being required. In that case, from the due date to the date of full payment, Buyer owes the statutory interest over the invoiced amount to Maxima. In that case, Maxima is also entitled to dissolve the Agreement by means of a single written notice to Buyer. Buyer must compensate Maxima for all damages that Maxima suffers as a result of the failure of the payment and/or the dissolution of the Agreement, as well as all costs that Maxima in that case incurs for the collection its claim(s), including any incurred in relation to dissolution of the Agreement.
7. Liability and indemnity
a. Maxima's liability, including below in 7.a, 7.b and 7.c the Directors and employees of Maxima and any third parties engaged by Maxima in the context of the execution of the Agreement, as a result of fish products delivered to the Buyer under the Agreement, Buyer and/or third parties is limited to the amount paid in the relevant case by the liability insurance of Maxima, increased by the deductible borne by Maxima under the policy conditions of this insurance.
b. If, for any reason other than intent or gross negligence of Maxima, no payment of the insurance described under 7.a takes place, then Maxima's liability to Buyer and/or third parties is limited to at most € 25,000.00 or, if it is more, the amount of the invoice/invoices relating to the Agreement in question.
c. Buyer is - unless and insofar as there is intent or gross negligence - required to indemnify Maxima in and out of court from all third-party claims in respect to the products delivered by Maxima to Buyer under the Agreement.
