1.1.1 The following conditions shall apply in particular (i.e. not exclusively) to the supply of meat, meat products, and other related items. These general terms and conditions of sale shall apply to all agreements entered into by Afrex Fisheries. The general terms and conditions shall also apply to any subsequent agreements and/or other agreements between Afrex Fisheries. and the purchaser. The “purchaser” as used herein will be understood as Afrex Fisheries. contracting party.
1.2.1. No failure by Afrex Fisheries. to invoke any of the present general terms and conditions whatsoever will be construed as a waiver of the right to invoke any of the said general terms and conditions whatsoever at a later stage.
1.2.2. If the purchaser also uses any sale and purchase conditions, such conditions shall be declared void and Afrex Fisheries. terms and conditions of sale will apply.
2.1.1. Even if Afrex Fisheries. has issued a quotation or order confirmation, which has been accepted by the purchaser, an agreement shall not be binding on Afrex Fisheries. until Afrex Fisheries has confirmed the purchaser’s order in writing. The actual commencement of performance of an agreement vis-à-vis the purchaser will also constitute an order confirmation.
2.2 Any offers, quotations, etc. from Afrex Fisheries will at all times be entirely subject to contract.
2.3 Any amendment or addition to the agreement shall not be binding on Afrex Fisheries until accepted and confirmed by Afrex Fisheries in writing.
2.4 In the event of cancellation of an agreement entered into with Afrex Fisheries, Afrex Fisheries shall be entitled to charge the costs incurred and/or to be incurred to the other party, subject to a minimum of 15% of the value of the agreement.
2.5 Afrex Fisheries. reserves the right to outsource items to one of the following Dutch entities: Afrex Fisheries.
3.1. To the extent not expressly provided for or agreed otherwise, a price stated in the offer or agreed between the parties will apply. Delivery will be effected carriage paid, unless expressly agreed otherwise. Any government levies, including VAT, will be charged separately in accordance with the rate applicable to the relevant delivery.
3.2. Any price quoted by Afrex Fisheries will be subject to increase by Afrex Fisheries by the additional costs it incurs as a result of an increase in the factors determining prices, including official market quotations of the items to be delivered or of raw materials for such items, purchase, transport and storage prices, costs of packaging, wages, taxes, and social security contributions, insurance premiums, etc., after the date of the quotation but before formation of the agreement.
3.3. Any costs attached for MAfrex Fisheries. to an obligation to take back and/or process packing material may be charged by Afrex Fisheries to the purchaser.
3.4. Any packing material qualifying for re-use (such as crates) shall at all times remain the property of Afrex Fisheries. and is to be returned by the purchaser to Afrex Fisheries., failing which all costs associated with replacement of such material will be charged to the purchaser. Even if the packing material is not immediately exchanged, the purchaser undertakes to pay the costs of return shipment of the packing material to Afrex Fisheries address.
3.5. For Fresh Meat orders on EXW mode of transportation all trucks of the purchaser and/or carrier must have all appropriate packing and/or storage material or equipment such as hooks and pallets for exchange. In case of usage of Afrex Fisheries packing material the purchaser must return the packing material within two weeks from loading date. Failure of return by the purchaser shall result in all costs associated with replacement of the packing material to be charged to the purchaser.
4.1. The delivery or loading date or week will be the date or week stated in the order confirmation drawn up by Afrex Fisheries On such delivery or loading date or week the risk of the items to be delivered or loaded shall pass to the other party. If a call-off date or week has been determined, such date or week will be deemed to be the delivery or loading date or week.
4.2. In the event that Afrex Fisheries requires advance payment of the price due or provision of security for payment thereof within fourteen (14) calendar days of formation of the agreement, the delivery or loading period will not commence until after such advance payment or security has been received in full.
4.3. Afrex Fisheries may deliver or load in consignments and may also invoice such consignments separately in partial invoices. The purchaser may not suspend its payment obligations if Afrex Fisheries decides to deliver or load in consignments.
4.4. The mere failure to deliver or load within the agreed delivery or loading period shall not constitute default on the part of Afrex Fisheries. Afrex Fisheriesr will be in default only if it still fails, for reasons attributable to it, to deliver or load within a reasonable extension of the delivery or loading period set in writing after the agreed delivery or loading period.
4.5. The purchaser may dissolve the agreement on account of attributable failure by Afrex Fisheries to deliver or load within the agreed term, as a result of which it is in default pursuant to the provisions of Article 4.4, only to the extent that the agreement has not yet been performed and it cannot reasonably be required to continue the part of the agreement not yet performed. In the event of force majeure the delivery or loading obligation will be remitted without charging any costs.
4.6. If the purchaser fails to collect the delivery after the agreed delivery or loading period, it will not be released from its obligation to pay for such delivery.
4.7. Afrex Fisheries may suspend or cancel delivery or loading if the purchaser fails to perform its obligations vis-à-vis Afrex Fisheries for any reason and under any agreement whatsoever.
5.1 Payment will be made by the agreed due date in accordance with the payment condition confirmed in the order confirmation and invoice drawn up and sent by Afrex Fisheries.
5.2 The purchaser may not set off any claims it may have against Afrex Fisheries against any amounts due by it to Afrex Fisheries.
5.3 In the event of late payment of the price due the purchaser shall, by the mere failure to pay within the term set for payment, pay interest equal to the statutory interest of Chile two (2) per cent on the overdue part of the price from the due date until the date of payment in full. Afrex Fisheries. may suspend performance of all its obligations under the agreement until payment of the amounts due has been received in full. If payment of the amounts due is not made in full within an extension of the payment period granted by Afrex Fisheries. , Afrex Fisheries may dissolve all or part of the agreement, all without prejudice to any of its other rights, including in particular its right to claim damages.
5.4 Any judicial and extrajudicial costs to be incurred by Afrex Fisheries in connection with any failure on the part of the purchaser to perform its obligations shall be fully payable by the purchaser.
5.5 In the event of attachment against the purchaser, or if the purchaser is granted a moratorium on payment of its debts, or is declared bankrupt, or in the event of discontinuation or transfer by the purchaser of all or part of its business, any and all amounts due by the purchaser to Afrex Fisheriesr will become immediately due and payable in full.
5.6 If a prepayment and/or deposit and/or down-payment is agreed between Afrex Fisheries and the purchaser and/or the carrier, Afrex Fisheries shall have the right to retain it (once paid) as a guarantee for the due performance of all the purchaser’s and/or carrier’s obligations and in case of any breach of any of the purchaser’s and/or carrier’s obligations towards Afrex Fisheries, as compensation for any loss suffered by Afrex Fisheries as a result of the said breach.
Quality:
6.1. The items delivered shall be deemed to be in sound condition if they meet both the national and European Union statutory veterinary and quality requirements, prevailing at the time of formation of the agreement, and further conform to the expressly agreed specifications, and are fit for the purpose expressly communicated by the purchaser on or before entering into the agreement.
6.2. The purchaser must comply with all obligations in respect of the required labelling and provision of information.
6.3. Afrex Fisheries shall not be liable for any damage and/or loss of weight and/or goods lost in transit and/or defect in quality if the trucks arrive at the unloading place or final destination unsealed.
Complaints:
6.4. Any complaints with respect to invoices are to be reported to Afrex Fisheries in writing within 5 days of the date of the relevant invoice. Filing a complaint does not suspend the purchaser’s payment obligation.
6.5. Any complaints about the items sold by Afrex Fisheries are to be reported in writing by fax or email to Afrex Fisheries as soon as possible, but in any event within the following terms:
for non-frozen meat: within 24 hours of factual delivery;
for frozen meat: within 5 calendar days of factual delivery;
6.6. Any complaints about items sold will be accepted only if accompanied by a report drawn up by a – recognized and sworn – expert. Such report is to state all the defects and shortcomings. The preliminary report must be sent to Afrex Fisheries by fax, email or by registered letter, all – depending on the visibility of the defect – ultimately within the term set in Article 6.4.
Loss of weight:
6.7. Any loss of weight as a result of cooling or freezing shall not be deemed to be a shortcoming.
6.8. If the purchaser is of the opinion that there has been loss of weight as a result of causes other than cooling or freezing, it will report such loss of weight to Afrex Fisheries
by fax or email, accompanied by an official weighing slip, issued after official and recognized weighing, within twenty-four (24) hours of actual delivery of the items.
6.9. If the loss of weight has not been reported to Afrex Fisheries with due observance of the provisions of Article 6.7, the complaint will not be accepted.
Complaint Handling:
6.10. Afrex Fisheries will investigate matters if complaints are filed correctly.
6.11. From the time of filing the complaint until completion of the investigation, the purchaser shall be under an obligation to store the items complained about under perfect conditions. Failure of the purchaser to store the items complaint about under perfect conditions shall result in the immediate rejection of the complaint of the purchaser.
6.12. If Afrex Fisheries deems the complaints justified, it may, at its discretion, either grant a credit to be determined by it for the product or take back the product at its own expense.
6.13. The purchaser shall not be entitled to any compensation if it returns any items complained about without Afrex Fisheries’ written consent.
7.1. Title to the items delivered shall not pass to the purchaser until the purchaser has fully paid all amounts due by it to Afrex Fisheries pursuant to, or in connection with, any agreement for the supply of items entered into with Afrex Fisheries.
7.2. The purchaser shall be under an obligation to store any items where title still vests in Afrex Fisheries, clearly separated from other items and otherwise under proper conditions.
7.3. The purchaser may not dispose of any items where title still vests in Afrex Fisheries, save in the normal course of its profession or business. This will not include the use of such items for the provision of security.
7.4. In the event of failure by the purchaser to perform all or part of any obligation pursuant to, or in connection with, any agreement for the supply of items entered into with Afrex Fisheries, the latter shall be entitled to take back any items where title still vests in Afrex Fisheries without any liability arising on its part to pay damages. The purchaser shall thereby be under an obligation to render all required cooperation and, to that end, authorize Afrex Fisheries to access, or cause third parties to access, the rooms used by or for the purchaser. All costs involved with taking back items will be payable by the purchaser.
8.1. The risk of damage to, or loss of all or part of, items to be supplied shall pass to, and continue to vest in, the purchaser upon arrival of such items at the place of delivery. If Afrex Fisheries presents items for delivery to the purchaser, but the purchaser fails to take delivery of such items for reasons not attributable to Afrex Fisheries, any damage to, or loss of all or part of, such items will also pass to the purchaser upon presentation for delivery.
9.1. In the event that the purchaser fails, fails properly, or fails punctually, to perform any obligation ensuing for it from the agreement, as well as in the event of bankruptcy, moratorium on payment of debts, appointment of a liquidator, discontinuation or winding-up of the purchaser’s business, Afrex Fisheries may, at its discretion, without any liability arising on its part to pay damages, and without prejudice to any of its other rights, dissolve all or part of the agreement, or suspend further performance of the agreement. Furthermore, in such event all claims that Afrex Fisheries may have against the purchaser shall become immediately due and payable.
9.2. In the event of failure on the part of Afrex Fisheries to perform any obligation vis-à-vis the purchaser, such failure cannot be attributed Afrex Fisheries if it is the result of any circumstances that are unusual or unforeseen for Afrex Fisheries.Such circumstances will in any event include, at least to the extent that Afrex Fisheries is not at fault in that respect: war or a similar situation, riot, sabotage, fire, lightning strike, explosion, discharge of hazardous substances or gases, failure in energy supply, serious operational breakdown, sickness of staff on an unusual scale, strike, lockout, blockage, boycott, shortage of raw materials, transport obstacles, government measures, including import, export, transit, production or delivery bans, failure, or failure punctually, in the performance of a third party engaged in the performance by Afrex Fisheries, including a supplier, or the occurrence of epidemic animal diseases.
9.3. Afrex Fisheries will notify the purchaser in the event of a situation of force majeure.
9.4. Without prejudice to the parties’ other rights, force majeure will entitle both parties to dissolve the agreement for the non-performed part, after the situation of force majeure has continued for a period of two months, without any liability arising on the part of either party to pay damages to the other.
9.5. The purchaser may dissolve the agreement on account of failure on the part of Afrex Fisheriesr. only to the extent that Afrex Fisheries, even after written demand to that effect, fails to remedy the default acceptably within a term that is reasonable given all the circumstances, and the purchaser cannot reasonably be required to continue the agreement.
10.1 Afrex Fisheries will be liable only for damage that is the result of its will full misconduct or gross negligence.
10.2 In no event will Afrex Fisheries be liable to pay damages exceeding the amount that Afrex Fisheries itself can recover from its insurers in respect of the damage for which it is held liable. If insurers fail to pay, or if the damage is not covered by the insurance, the liability shall be limited to one time the net invoice value of the relevant delivery, but in any event to a maximum of EUR 5,000. If a series of damage claims are the result of the same cause or the same group of causes, the foregoing shall also apply, provided that Afrex Fisheries’ total liability to the relevant purchaser shall be limited to EUR 25,000, which amount will be paid out on a pro rata basis.
10.3 Any damage must be reported to Afrex Fisheries .Afrex Fisheries risk of forfeiture of the right to damages.
10.4 Afrex Fisheries. will stipulate all statutory and contractual defenses that it may invoke to avert its liability vis-à-vis the purchaser, also for subordinates, the non-subordinates for whose acts Afrex Fisheries would be liable by law, and the suppliers of Afrex Fisheries.
11.1. The nullity of any provision of these conditions shall not affect the validity of the other provisions of these conditions.
11.2. To the extent that the conditions refer to items and goods, the relevant provisions shall, in terms of substance and purport, apply mutatis mutandis to the performance of services.