GENERAL SALES AND DELIVERY CONDITIONS
Terms and Conditions OYESTER B.V.
“Goods” means any goods and/or services provided by the Company as ordered by the Client
“Company” means OYESTER44 B.V. incorporating Prime Prospects.
“Client” or ‘’Buyer’’ means the person, firm or company placing an order with the Company.
These terms and conditions apply to any provision of services or materials by the Company to the Client.
3. FORMATION OF CONTRACT
All Goods sold by the Company are sold subject to the Company’s standard terms and conditions (as detailed below), which form part of the Client’s contract with the Company. Terms and conditions on the Client’s order form or other similar document shall not be binding on the Company.
The prices, quantities and delivery time stated in any quotation are not binding on the Company. They are commercial estimates only, which the Company will make reasonable efforts to achieve.
Orders shall only be valid if accepted in writing by the seller’s Amsterdam office. The buyer’s purchase conditions are expressly excluded, unless and to the extent the seller has confirmed their applicability.
5.a. Agreements and modifications will only be binding if the seller’s office has confirmed these in writing.
The seller will respect the stated term of delivery whenever possible. If the term of delivery is exceeded the buyer will not be entitled to any compensation, nor will such non-compliance with the term of delivery constitute any ground for refusal of the goods and/or non-payment.
7. RISK OF LOSS
In case of force majeure and/or any circumstances beyond the seller’s control (in particular – without limiting the foregoing general conditions – in case of any incident, fire, embargo, explosion or flood, partial or complete lack of shipping space, theft and any delayed or non-delivery of materials, etc. by its supplier(s)), the term of delivery will be extended by the equivalent of the period of time of the delayed delivery as referred to in article 3, or the seller will, at its discretion, be entitled to cancel the agreement(s), in which case it cannot be held liable for any damages.
7.a. If the seller has made a commitment to insure the goods (product and packaging), an independent surveyor of the buyer will – in case of any damage to goods delivered – have to submit to the seller or its insurer a detailed written description of such damage, no later than 7 days after the arrival of the goods at the port of destination, or at the agreed delivery address. Furthermore the buyer shall be held to inform the local Lloyd’s agent within the same period of time.
7.b. If the buyer is able to demonstrate that the goods the seller has delivered are not in conformity with the purchase/sale agreement, the buyer must submit its claim no later than 7 days after the arrival of the goods at the port of destination, or at the agreed delivery address, by means of written report of the non-conformity to the seller’s Amsterdam office, without prejudice to the buyer’s obligation to receive the goods.
7.c. After the expiry of the period of time stated in sub-para b. the buyer shall be deemed to have approved the delivered goods, and the delivery shall unconditionally be accepted.
8.a. New clients or other clients out of terms may be expected to pay at least 50% in advance for their services.
8.b. All other invoices issued by the Company shall be paid by the Client within fourteen (14) days of the date of invoice unless otherwise agreed in writing by the Company. In the event of late payment, the Company may charge interest on the amount outstanding before and after judgment at the rate of five (5) percent above the Base Rate of Rabobank (Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A) in force from the due date until the date of payment. In addition, invoices unpaid for more than 60 days after the invoice date will incur a surcharge of either €30 or 5% of the outstanding amount, whichever sum is greater.
8.c. If any amount of an invoice is disputed then the Client shall inform the Company of the grounds for such dispute within seven days of delivery of the goods and shall pay to
the Company the value of the invoice less the disputed amount in accordance with these payment terms. Once settlement of the dispute has been agreed, any sum then outstanding shall also be payable in accordance with these payment terms.
9. PRODUCT QUALITTY
The seller shall guarantee that the product it has sold will preserve its quality for the period as indicated on the product, being the best before date, provided the goods have – after the risk is transferred to the buyer – been handled and stored in a responsible way, taking into account their nature or destination, and any relative claims have been received in writing at the seller’s Breda office within 7 days after expiry of this period.
9.a. The buyer shall keep the goods pertaining to any claim at the seller’s disposal at a designated place, and safeguard them in an appropriate way.
9.b. Also, in case a claim is adjudicated the seller’s obligation shall in no case exceed replacement of the goods for which the claim is adjudicated; no award will take place for partially or fully operated or processed goods. The seller shall in no case be held liable to any other compensation for damages or claims in whatever form, directly or indirectly resulting from or in connection with any deliveries by the seller to the buyer. Furthermore the seller will not be liable for any consequential damage to the buyer, including trading loss, nor for damage incurred by any third party, unless it legally is for its own risk. The buyer shall guarantee the seller against any third party claims.
The products are designated for consumption in their country of destination as stated in the Bill of Lading or the freight letter.
10.a. All goods the seller has delivered shall remain the seller’s property until the buyer has paid the purchase price for all goods. However, the buyer will be entitled to resell or process the goods in the framework of its normal business operations. The seller shall at any time be entitled to revoke this right.
10.b. Without prejudice to its other rights the seller shall be entitled to recover any goods to which the retention of title is still in force if the buyer fails to pay. The buyer must enable the seller to enforce its proprietary rights.
10.c. The seller will reserve the right – in case the agreed term of payment is exceeded – to charge 1% interest per month to the buyer, in which case any partial month shall be considered to be a full month without prejudice to the buyers obligation to make immediate payment of the principal amount. In case no term of payment has been
agreed, or the invoice does not state a term of payment, payments must take place within 14 days after delivery. By exceeding the term of payment the buyer is deemed to be in default without the need of any summons or notice of default.
10.d. All collection costs, both judicial and extra-judicial, shall be borne by the buyer.
If, between the moment the purchase/sale agreement is concluded and the actual delivery, any changes were to occur in the elements that are decisive for determining the selling price, the seller will reserve the right to charge the then established selling price to the buyer, of which fact the seller will notify the buyer in writing.
The seller will reserve the right to immediately demand any of its outstanding amounts, to cancel any agreements it has concluded and/or to claim any indemnification in case the buyer fails to meet its obligations towards the seller, or the seller would have sound reasons to fear the buyer will not be meeting them, inter alia but not limited to the case where the buyer would; lose its unrestricted control of its capital, become deceased, be proceeding to liquidation or disposal of its business, or fail to meet any other obligation towards the seller on whatever grounds; and such without the need of any notice of default or summons.
In view of the nature of the service, any order – once confirmed by the Company – is not cancellable. Cancellation of the Order by the Client will only be accepted on condition that any costs, charges and expenses already incurred, including any charges that will be levied by a sub-contractor on account of their expenses, work or cancellation conditions will be reimbursed to the Company forthwith.
13.a. The seller stipulates for the purpose of, and in so far as is necessary, also on behalf of the other companies to which the seller is directly or indirectly associated by more than half of the ordinary share capital, that it will severally be a co-creditor as to any and all the seller claims or may be claiming from the buyer, in which case each of the several creditors will reserve the right to compare the relevant claim with any claim the buyer could have against this creditor.
Both parties shall maintain strict confidence and shall not disclose to any third party any information or material relating to the other or the other’s business, which comes into that party’s possession and shall not use such information and material without written permission by the other party. This provision shall not, however, apply to information or material, which is, or becomes, public knowledge by means other than by breach by a party to this clause.
14.a. Dutch law shall rule all agreements with the seller. The Treaty of Vienna (CISG) is expressly excluded.
14.b. All litigations will exclusively be submitted to the Judge of the Court of Amsterdam. Only the Dutch text shall be deemed authentic.
15. DISPLAY AND SAMPLES
Any display product or sample inspected by the Customer is solely for the Customer’s convenience and does not constitute a sale by sample.
16. FINAL PROVISIONS
Terms and conditions changes or additions shall be recorded in written form.
If any clause of the terms and conditions shall not be effective, this shall not affect the validity of the entire terms and conditions. The parties agree to replace the invalid provision by a clause that most closely approximates the target with their economic purpose.