These general terms and conditions of AQUAMARINE SEAFOOD BV, hereinafter referred to as ‘the seller’, are applicable in every relationship between the parties, regardless of their nature, with the exclusion of all terms and conditions to the contrary, such as the buyer’s own terms and conditions. Deviations are only possible if explicitly accepted in writing by the seller.
2. QUOTES, ORDERS AND AGREEMENTS
2.1 All the seller’s offers are without obligation. The seller is only bound by his written acceptance of the order or the execution thereof. 2.2 The customer is bound by his order.
2.3 The seller strives to work with GFSI certified suppliers. However, in certain circumstances and/or for certain products or product categories this might not be possible. The customer must inform the seller in writing of any specific certification requirements when requesting an offer or when or before placing an order.
3.1 The price applies for deliveries EX WORKS. This is a net price and exclusive of VAT.
3.2 If the seller is also responsible for the loading, transport, unloading, insurance, without an explicit price agreement having been reached, the seller is entitled to charge the customer the actual costs and/or usual prices.
3.4 The price is based on the cost price at the time the agreement was reached. In the event of a later increase of the cost price as a result of government regulations or changes in the exchange rate or any other cost price factor, the seller is entitled to charge the customer a corresponding price increase.
4. DELIVERY PERIOD AND DELIVERY
4.1 The delivery period specified by the seller is always approximate and only comes into force when an agreement was reached and after the seller has received all the information and documentation from the customer and when – if applicable – the agreed advance payment has been received and/or the agreed payment guarantee has been provided.
4.2 The customer is only entitled to dissolve the agreement in writing if the seller is unable to deliver the goods within a reasonable period of time after receiving a demand from the customer to do so. In any case, the delivery period is extended for the time of the delay caused by force majeure, without prejudice to application of article 6.
4.3 Except in the event of fraud or deliberate misconduct on the part of the seller, a delay in the delivery or the dissolution specified in 4.2. does not give rise to any compensation or damages.
4.4 Unless otherwise agreed, the delivery is EX WORKS.
4.5 The seller is entitled to make partial deliveries and draw up partial invoices.
5. TRANSFER OF RISK AND OWNERSHIP
5.1 The loading, shipment or the transport, the unloading and the insurance of the goods to be delivered is at the customer’s risk, even if these actions are executed by the seller.
5.2 All delivered goods remain the seller’s property until the customer has complied with all his obligations vis-à-vis the seller in full. The customer is obliged to clearly set apart and identify all goods on which a retention of title rests. The customer bears all risks related to this. The customer is not permitted to resell the goods when the price has not yet been paid to the seller.
5.3 In any case the retention of title, when the customer, despite the provisions in article 5.2, has resold the goods, changes to the resale price.
6. FORCE MAJEURE
6.1 The seller has the right to invoke force majeure if the performance of the agreement wholly or partly, possibly temporarily, is prevented or impeded by circumstances, regardless of the fact whether this is due to third parties and which in all reasonableness are deemed to be beyond his control. 6.2 In that case the seller’s obligations are suspended. If the force majeure lasts longer than two months, both the seller and the customer are entitled to dissolve the parts of the agreement that cannot be carried out in writing, without prejudice to what was specified in article 4.3 and article 10. 6.3 As the customer’s obligation in essence comprises a payment obligation, force majeure is explicitly excluded on the part of the customer.
7.1 The customer is obliged to notify the visible defects at the latest on delivery and the invisible defects within 72 hours after he discovered them or was able to discover them, to the seller.
7.2 The seller is entitled to inspect the goods – subject of the customer’s complaint – possibly with intervention of a third party, with the aim of determining the (alleged) inferior quality. The customer undertakes to collaborate with this.
7.3 Any warranty is revoked if:
a. the customer has not respected the conditions of articles 7.1 and/or 7.2.
b. the goods were incorrectly stored, handled or processed.
c. the customer did not comply with all obligations in pursuance of the agreement with the seller.
7.4 In the event of a legitimate claim submitted on time, the seller, at his discretion, shall replace the goods free of charge, or take back and credit the goods and without – except in the event of fraud or deliberate misconduct – the customer being able to claim any compensation or damages.
8. LIABILITY AND INDEMNITY
8.1 The seller’s obligations relating to the non-conforming goods are restricted to compliance of the warranty specified in article 7. 8.2 With the exception of fraud or deliberate misconduct, the seller is not liable for, or obliged to compensate, intangible, indirect or consequential damages such as but not limited to loss of profit, loss of turnover, loss of income, loss of clientele or claims of third parties.
8.3 In all cases when the seller is obliged to pay damages, they shall never be higher than either the invoice amount of the delivered goods as a result of which or in connection with which the damage was caused, or, and if the damage is covered by the seller’s insurance, the amount that with regard to this is effectively paid by the insurer.
8.4 Any claim against the seller, unless recognised by the seller, expires after a period of 12 months from the moment the claim arose. 8.5 The seller guarantees that the goods supplied conform to applicable Belgian and European legislation. The customer is responsible for notifying the seller in writing of any additional conditions his local legislations may require.
9.1 Unless otherwise agreed, invoices are payable at the latest 30 days after the invoice date at the seller’s registered office. 9.2. In case of non-payment of an invoice on the due date, all other not yet fallen due claims on the customer shall be due and payable by operation of law and without prior notice of default.
9.3 In the absence of prompt and full payment of the invoice, an interest is owed of 10% a year by operation of law and without notice of default. Also by operation of law and without notice of default, a fixed fee shall be owed to the amount of 15% of the invoice amount, with a minimum of EUR 150.00. 9.4 The customer is not entitled to invoke setoff, nor the exception of non-execution, to suspend payment of the invoice.
10.1 If the customer fails to respect one or more of his obligations, or fails to respect them on time or adequately, is declared bankrupt or has gone into liquidation, the seller has the right to suspend the performance of the agreement or to wholly or partly dissolve it, without prior written notice of default, without prejudice to his right to payment of all costs, lost income, damage suffered and interest.
10.2 The customer is only permitted to terminate the agreement on the grounds of what has been described in articles 4.2 and 6.2 of these terms and conditions, and only then on full payment to the seller of all existing claims of the seller, regardless of whether they are due or not.
11. DISPUTES AND APPLICABLE LAW
11.1 Any disputes between the parties shall solely be handled by the competent courts at Antwerp, department Antwerp. 11.2 This agreement is governed by Belgian law.