1.1. These Conditions constitute the only conditions on which Cargill NV, Bedrijvenlaan 9, 2800 Mechelen, Belgium or any of its affiliates located in Belgium and identified in the accepted Order (hereafter the “Company“) is willing to offer and supply Veliche Gourmet chocolate products (hereafter “Goods“) to any person who purchases the Goods from Company via Veliche.nl (hereafter a “Customer”). Any variations to or waiver of these Conditions or any additional representation or warranty given in relation to the Goods shall have no effect unless expressly agreed in writing and signed by Company. The Conditions shall prevail over any terms and conditions, which Customer purports to apply under any document issued by the Customer.
1.2. Each order placed by a Customer for the supply of Goods by Company (hereafter an “Order”) shall be deemed to be an offer by the Customer to purchase goods subject to these Conditions, which is subject to acceptance by the Company. Any offering of Goods by the Company shall be non-binding on the Company until the Order is accepted by Company. For the purpose of these Conditions a Contract shall mean any agreement between Company and Customer for the sale of Goods, in the case where an agreement is long term or covers more than one delivery each delivery or call off within such agreement shall be deemed to be a separate Contract.
1.3. Customer agrees that Company may, at its sole discretion, sub-contract the manufacture, supply and/or delivery of the Goods to any of its affiliated or other third party.
1.4. These Conditions and any Contracts are governed by the laws of Belgium and the parties submit to the exclusive jurisdiction of the Brussels courts.
2.1 Prices quoted by Company (whether verbally or in writing) may be withdrawn by Company at any time prior to a Contract being entered into. The price payable for the Goods shall be as agreed between Customer and Company in the Contract and, unless otherwise agreed, are exclusive of VAT and costs of carriage.
2.2. Unless otherwise agreed, the cost of any personalised packaging (which is understood to include labels) which was designed and acquired by Company at Customer’s request will always be for Customer’s account. In the event of this contract being terminated, Customer is obliged to buy, at its own expense, the ordered quantity of personalised packaging (including labels).
2.3. Company reserves the right to increase the prices of the Goods or reduce its supply commitments in terms of volume, whether in relation to a single Contract or a number of Contracts, over a period as necessary to take account of any increase in cost to Company due to (i) any change in law, regulation, tax, duty, levy or other payment imposed upon the Goods after the date of the Contract by the European Union or other national government; or (ii) circumstances of hardship/force majeure or significant increases in prices, or reductions in availability of, raw materials, energy, services or other supplies required by the Company, on giving the Customer one month’s prior notice together with an explanation of the reason for such changes. The Company also reserves the right to terminate, without liability, any Contract the performance of which, as a result of any such change, will have a material adverse effect on the Company, which cannot be resolved by an increase in the price.
3.1. Customer can select one of the payments methods described on the website. Cargill reserves the right to exclude or include particular payment methods at any time. Your payment will be executed by our payment service provider Buckaroo using their discrete secure infrastructure. Buckaroo reserves the right to decline the processing of payments in cases of suspected fraud or other irregularity. Our acceptance of your Order will be subject to receipt of your payment. Payment will be made in full without deduction or delay by way of any set-off or counterclaim.
3.2. The default of payment makes all Company’s claims payable, even if they are not due or if they have arisen from other Contracts and gives to Company the right to cease all deliveries still to be made, without any formality, and to consider, as the case may be, all, one or several contracts with the Customer as having been broken by him. An interest of 12% per year shall be automatically due without notice on the amount of the invoice not paid in due time. Furthermore, a fixed indemnity of 15% of the invoice, with a minimum of € 150.00, shall also be due.
4.1 Unless otherwise agreed in the Contract or these Conditions, delivery shall take place according to Delivered At Place INCOTERM® 2010 rules, at the Customer’s place of business.
4.2 Date or time or period for delivery of the Goods are intended to be estimates. Company shall use its reasonable endeavours to comply with such date or time but Company will not be liable for any loss, damages, charges or expenses caused by any delay in the delivery of the Goods, nor will any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 3 weeks. The Customer undertakes to collect or take delivery of the Goods at the agreed time/date or evenly during the agreed period and agrees to indemnify the Company against any costs or losses incurred by the Company as a result of any failure to do so (including, without limitation, additional delivery costs and demurrage and storage costs), other than where such failure arises as a result of the default of the Company. In such circumstances the Company may sell the Goods and charge the Customer for any shortfall below the Contract price and shall thereafter have no further liability under the Contract.
4.3. Unless the pallets are included in the cost price (loss pallets), the pallets used in the delivery of goods and delivered to the Customer remain the property of the Company. These pallets or pallets of equivalent quality and identical type, must be returned by the Customer at his own expense and without expense to the Company within a maximum of 60 days of delivery. If the Customer remains in default thereof, the Company has the right to charge on the Customer the costs of the unreturned pallets at their cost price increased by 25%.
The Goods are at the risk of the Customer from the time of delivery or, if the Customer fails to take delivery pursuant to Condition 3.2, at the originally agreed delivery time.
Company shall remain the sole and absolute owner of the Goods until such time as the price of the Goods and all other monies which are or which become due to Company from Customer have been paid to Company by Customer in cash or cleared funds. Customer is considered to have expressly accepted this clause of retention of title (ownership). Advance payments remain acquired by Company in order to compensate possible losses in case of re-sale.
7.QUALITY AND QUANTITY
7.1. Company warrants that (subject to the other provisions of these Conditions), upon delivery the Goods will comply with the specification for the Goods agreed in writing and signed by the Company and the Customer or, in the absence of an agreed specification, the specification for the Goods provided to the Customer by Company (which may be in the form of a Product Data Sheet), subject to tolerances set out in the such specification. In the event that the Goods do not comply with the express terms of the Contract then Company shall, at its option, either replace the defective Goods free of charge to Customer or refund up to the maximum of the total payments made by Customer to Company under the Contract in respect of the defective Goods. Except for the warranties set out above, the Company does not give any warranties in relation to the Goods. No warranties may be implied.
7.2. Claims with respect to hidden defects concerning the goods need to be notified to Company in writing immediately after discovery and substantiated with underlying proof within maximum 3 months after delivery of the goods to the Customer. Claims with respect to visible defects concerning the goods need to be notified to Company in writing and substantiated with underlying proof immediately after delivery to the Customer. After the lapse of these deadlines, the Customer shall be assumed to have waived its rights to introduce a claim.
7.2. Delivery of a shortage or surplus not exceeding 5% of the quantity or weight of the Goods ordered shall, at Company’s option, be considered to be due execution of the Contract and the Customer shall not be entitled to object to or reject the Goods by reason of such surplus or shortfall and shall pay for such Goods at the pro rata Contract rate.
7.3. Unless otherwise agreed in the Contract, the weight of the delivered Goods shall be determined (i) in relation to packaged Goods: by multiplying the amount of package units by the weight per package unit as indicated thereupon, and (ii) in relation to Goods which are delivered in the Customer’s tank: by weighing the truck used for the transportation of the Goods before and after loading, whereby the difference is deemed the weight of the Goods delivered. The weighing of a truck will take place on a bridge calibrated by a certified expert.
Notwithstanding anything to the contrary in the Contract, Company’s aggregate liability for breach of these Conditions or the Contract (including negligence, misrepresentation and breach of statutory duty) or an unlawful act in relation thereto shall be limited to twice the Contract price for the relevant delivery. Company shall have no liability whether in contract, torts, unlawful act or otherwise for any (i) loss of profit, loss of goodwill, loss of brand or reputation or loss of future sales; or (ii) claims for consequential or indirect loss to a Customer or any other person in connection with the Goods.
9. FORCE MAJEURE
Company is entitled to invoke force majeure if the Contract cannot be performed in whole or in part, whether or not temporary, as a result of circumstances or events which are not imputable to his fault or will, such as (this list being enumerative and not exhaustive): war, act of terrorist, strikes, lock-outs, natural disasters, fire, explosion, machinery breakdown, unpunctual or defective compliance by a third party with his obligations towards Company, as well as all unforeseen circumstances of whatsoever nature which prevent the provisioning of raw materials, auxiliary materials or semi-finished products or the production or dispatch thereof. In the event of force majeure, performance of the contract will be suspended for a period corresponding to the duration of the force majeure, which period may not, however exceed 60 days. After the 60 days have elapsed, each party can, subject to the issue of written notification to the other party, consider the contract as automatically dissolved without judicial intervention and without any compensation. If, as a result of a case of force majeure, the Goods are wholly or partially destroyed before the moment of delivery, the contract will be considered automatically cancelled up to the amount of the destroyed quantity in the absence of written agreement to the contrary.