General Terms and Conditions of Sales and Purchase for Hermes Exports BV
Article 1: Definitions
The following definitions shall be used in these General Terms and Conditions (“Conditions”):
Hermes Exports BV registered at the chambers of commerce in Amsterdam under number 62263854 with office address
Hermes Exports BV
1071 GP Amsterdam
the Party with whom Hermes Exports BV has concluded an Agreement or with whom Hermes Exports BV negotiates on this matter;
Hermes Exports BV and the Other Party;
any agreement between Parties for the delivery of goods by Hermes Exports BV to the Other Party and/or the provision of services by Hermes Exports BV to the Other Party and/or the performance of any other activities by Hermes Exports BV for the Other Party’s benefit, any amendment or addition to this Agreement and any actual and legal transactions in preparation and for the execution of this Agreement, including offers from Hermes Exports BV;
all items and/or services and/or other activities being the subject of an Agreement
a natural or legal person or company without legal personality.
Article 2: General
These conditions shall apply to all Agreements to the express exclusion of all other general conditions.
Provisions deviating from these conditions shall only be binding if agreed in writing and shall only apply to that specific case.
If Hermes Exports BV omits in specific cases to demand strict compliance with these conditions, this shall not cause Hermes Exports BV to lose its right to demand strict compliance with these conditions in future cases, whether similar or not.
Article 3: Offers, Agreements
All information and specifications issued with offers from Hermes Exports BV are always only approximations. Deviations up to 10% shall be permitted as a matter of course.
All offers from Hermes Exports BV are free of obligation. Hermes Exports BV is entitled to revoke its offer within three working days of receipt of acceptance.
Any acceptance by the Other Party that deviates from Hermes Exports BV’ offer whether or not on subordinate points will in any case be considered a rejection of this offer and as a new offer from the Other Party. An Agreement shall only be concluded in accordance with this new offer following Hermes Exports BV’ acceptance in writing or electronically.
An Agreement shall be concluded at the point when (a) three working days have passed after Hermes Exports BV has received acceptance from the Other Party and Hermes Exports BV has not revoked its offer during this period, or if (b) Hermes Exports BV has confirmed the Agreement in writing or electronically, or (c) Hermes Exports BV has commenced the execution of the Agreement.
Hermes Exports BV is not obliged to implement an offer and/or an Agreement for a stated price if this price is based on a printing and/or a written error.
All Agreements for the delivery of agricultural Products by Hermes Exports BV shall be subject to harvest results. If fewer Products are available than could reasonably be expected upon entering into the Agreement due to a disappointing harvest in terms of volume and/or quality of agricultural Products or due to the Products being rejected by the competent authorities, Hermes Exports BV shall be entitled to reduce the quantities it sells accordingly. Hermes Exports BV shall have fulfilled its obligation to deliver by delivering the quantities for delivery thus reduced. In this case, Hermes Exports BV shall not be obliged to deliver any replacement agricultural Products, nor shall it be responsible for any loss whatsoever.
Article 4: Prices
All prices shall be in euros and exclusive of value added tax and other taxes and levies and exclusive of transport costs and shipping insurance unless the Parties agree otherwise in writing.
The prices shall be based upon the cost price-determining factors at the time of concluding the Agreement. If, nevertheless, a change occurs in these factors after the Agreement has been concluded but before the Products are delivered without Hermes Exports BV being reasonably able to influence this, Hermes Exports BV shall be entitled to charge the resulting costs to the Other Party.
Article 5: Payment
Hermes Exports BV invoices shall be paid within the period stated on the invoices.
Payment shall be made unconditionally without suspension, discount or offsetting for whatever reason. The Other Party shall refrain from imposing an attachment on its own assets in respect of a counterclaim against its creditor.
The Other Party shall be in default by the expiry of the payment term without any notice of default being required.
If the Other Party is in default of making any payment, all Hermes Exports BV’s claims against the Other Party shall be fully and immediately due and payable.
The Other Party will be liable to pay default interest at 1% per month or part of a month during its period of default in paying outstanding debts.
In case of extrajudicial collection, the Other Party shall be liable for the actual collection costs that Hermes Exports BV incurs as well as the principal sum and the late payment interest. The extra- judicial collection costs shall be at least 15% on the first €5,000.00 (with a minimum of €250.00), 10% on the excess up to €10,000.00, 8% on the excess up to €20,000.00, 5% on the excess up to €60,000.00 and 3% on the excess above €60,000.00.
The legal costs shall not be limited to the assessed costs of the proceedings, but shall be borne in full by the Other Party if it loses the legal action entirely or essentially.
Further to a relevant request from Hermes Exports BV, which request can be made both prior to and during execution of the Agreement, the Other Party will make a full or partial advance payment or, alternatively, provide sufficient security for its own account for the fulfillment of its obligations. The expression “sufficient security” shall in any case mean a bank guarantee to be produced at Hermes Exports BV’s first request issued by a reputable Dutch bank totaling 110% of the amounts payable by the Other Party (100% of these amounts plus a 10% surcharge for interest).
Hermes Exports BV is entitled to retain items, documents and monies from any person at the Other Party’s expense and risk until such time as the Other Party has fulfilled all its obligations on whatever basis to Hermes Exports BV. All items, documents and monies that Hermes Exports BV has received or will receive for any reason shall serve as security for all claims that it has or will acquire against the Other Party.
Hermes Exports BV shall be entitled at any time to offset any amounts that it owes the Other Party or any of its affiliated legal persons or companies, for any reason, against the amounts that Hermes Exports BV or any of its affiliated legal persons or companies claim from the Other Party or any of its affiliated legal persons or companies. The entitlement to offset within the meaning of this paragraph shall also apply if the payment of the claims is not yet enforceable.
Article 6: Conformity, delivery times, delivery and risk
The conformity of the Products shall be assessed based on the legislation and regulations in the Netherlands at the time of delivery. Hermes Exports BV is not obliged to take account of any other legislation and regulations unless the Parties agree otherwise in writing.
The delivery times stated by Hermes Exports BV are always approximations and shall never be considered final deadlines.
The Products that Hermes Exports BV sells shall be delivered ex warehouse (Ex Works) unless the Parties agree in writing that the Products sold be delivered C&F the Other Party’s business premises or C&F another agreed destination. The risk shall pass to the Other Party at the point at which Hermes Exports BV makes the Products available to the Other Party or, in case of delivery C&F, at the point where the carrier reaches its destination. Hermes Exports BV is never obliged to insure the sold Products for the duration of the transport. The terms “Ex-Works” and “Cost and Freight (C&F)” shall be construed in accordance with the latest version of the Incoterms.
If the Parties agree that Hermes Exports BV is to store Products for the Other Party on either Hermes Exports BV’s premises or those of a third party and these Products have not yet been delivered to the Other Party, the Products shall be considered to have been delivered at the moment of storage. Hermes Exports BV is never obliged to insure the sold Products for the duration of the transport.
The Other Party shall be obliged to accept the Products purchased. The obligation to accept the Products shall consist of: a) the performance of all actions that can reasonably be expected of the Other Party in order to enable Hermes Exports BV to carry out the delivery and b) accepting the Products. If the Products are not accepted within six hours after having been made available to the Other Party or, in the case of delivery C&F, immediately after arrival of the Products at the place of destination, the Other Party shall be in default without any notice of default being required and Hermes Exports BV shall be entitled to dissolve the Agreement and claim compensation from the Other Party without prejudice to its other rights, including the right to store the Products at the Other Party’s expense and risk.
Article 7: Retention of title
Hermes Exports BV shall retain the right of ownership of all Products delivered until the purchase price has been paid in full. Retention of title shall also apply to the other claims stated in article 3:92, paragraph 2 of the Dutch Civil Code that Hermes Exports BV has or shall acquire against the Other Party.
Insofar as ownership of the Products has not passed to the Other Party, the latter may not pledge the Products or grant any third party any rights to these. The Other Party is, however, permitted to sell and transfer to third parties the Products delivered under retention of title in the context of the normal running of its business, on the understanding that the Other Party is obliged to stipulate retention of title based on the provisions of this article if these are resold. The Other Party undertakes to refrain from assigning or pledging claims that it acquires against its customers without prior written permission from Hermes Exports BV. The Other Party is also obliged to pledge any claims against its customers to Hermes Exports BV on Hermes Exports BV’ first request as provided for in Section 3:239 of the Dutch Civil Code for additional security for the fulfillment of its obligations towards Hermes Exports BV on whatever basis.
If the Other Party fails in its fulfillment of one or more of its obligations or Hermes Exports BV has good reason to fear that it shall do so, Hermes Exports BV shall be entitled to take back the Products delivered under retention of title. The Other Party shall provide any assistance in this. The Other Party shall renounce in advance any rights of retention regarding the Products and shall refrain from having the Products seized. After taking back the Products, the Other Party will be credited for the market value, which shall in no case exceed the original purchase price, minus the costs in connection with taking back the Products and any other loss that Hermes Exports BV incurs.
If the country of destination of the Products purchased allows more far-reaching possibilities with regard to the retention of title over and above those stipulated above, the Parties accept that these further possibilities shall be deemed to have been stipulated for the benefit of Hermes Exports BV on the understanding that if it cannot be objectively established what these further rules are, those stated above shall continue to apply.
Article 8: Suspension, dissolution
Without prejudice to its other rights under the law and/or the Agreement and/or these conditions, Hermes Exports BV shall be entitled to suspend its obligations or, without this requiring any notice of default or judicial intervention, to dissolve all or part of the Agreement by means of written notification to the Other Party if: (a) the Other Party fails to comply on time or properly with any commitment under the Agreement and/or (b) Hermes Exports BV has good reason to believe that the Other Party will fall short in fulfilling one or more of its obligations and/or (c) the Other Party has been declared bankrupt, is the subject of bankruptcy proceedings, has been granted suspension of payments, whether provisional or not, or has applied for suspension of payments, or is subject to a statutory debt restructuring programme or if this has been requested, the Other Party’s business is being liquidated or the Other Party’s goods are subject to enforcement or pre-judgment attachment which has not been lifted within one month of the date of attachment.
If the Other Party fails to perform based on both the law and the Agreement and these conditions after it has been placed in default, Hermes Exports BV, in the case provided for in Article 8(1)(a), shall not terminate all or part of the Agreement until it has sent the Other Party a written warning stating a reasonable period for compliance and the Other Party has failed to comply during this period.
Hermes Exports BV is not liable for compensation if it terminates all or part of the Agreement and all its claims against the Other Party shall be payable immediately and in full.
Article 9: Force majeure
The following shall be considered “force majeure” (non-attributable non-performance) for the purpose of these terms and conditions: any circumstance not subjectively attributable to a fault of Hermes Exports BV making it impossible or impractical for Hermes Exports BV to fulfill or to continue fulfilling its obligation or part thereof including but not expressly limited to complete or partial failed harvests, plant diseases, vermin infestation, force majeure and/or breach of contract (“attributable non-performance”) and/or unlawful actions on the part of Hermes Exports BV’ sub- suppliers or carriers or by other third parties involved in implementing the Agreement, abnormal weather conditions, frost, storm damage and other damage caused by natural disasters, strikes, transport difficulties, epidemics, fire, theft, war and danger of war, terrorism, Government measures such as import and export bans, levies, import duties and quota systems.
In the event of force majeure, Hermes Exports BV shall be entitled to suspend fulfillment of its obligation or part thereof without the Other Party being entitled to demand fulfillment or compensation.
If the force majeure exceeds two months, each Party shall be entitled to dissolve all or part of the Agreement without being liable for compensation on the understanding that Hermes Exports BV shall still be entitled to a proportionate share of the price if it fulfils part of its obligation before or after the occurrence of force majeure.
Hermes Exports BV shall also be entitled to invoke force majeure if this occurs after it should have fulfilled its obligation.
Article 10: Inspection and complaints
Immediately following delivery of the Products and therefore prior to the transport, the Other Party shall be obliged to carefully inspect, or have inspected, whether these Products correspond to the Agreement in every way and in particular: whether the correct Products have been delivered; whether the delivered Products satisfy the quality requirements for normal use and/or for commercial purposes; and whether the delivered Products correspond to what the Parties agreed in that case as regards quantity (number, amount, weight). The Other Party shall be obliged to accept the delivery in full for a proportional reduction in the price in the case of short deliveries up to 10% of the total quantity.
Any complaints regarding the quantity delivered and visible defects shall be reported to Hermes Exports BV immediately after the inspection provided for in paragraph 1 of this article and then be confirmed within six hours in writing stating precisely the nature of the shortcoming. Hermes Exports BV shall be notified in writing of any complaints regarding invisible defects within 12 hours after the defects have been discovered or should reasonably have been discovered but no later than within three days of delivery stating precisely the nature of the defects. Hermes Exports BV must be notified in writing of any complaints regarding hidden defects within 12 hours after the defects have or should reasonably have been discovered but no later than within three days of delivery stating precisely the nature of the defects. The Other Party can no longer claim that the Products do not correspond to the Agreement once the stated complaints deadlines have expired.
Complaints regarding slight deviations and/or those normal in commerce and the sector and/or deviations in quality, size, weight, colour, quantity and such like that technically cannot be prevented shall not be admissible.
If Hermes Exports BV does not accept the Other Party’s complaint within 6 hours, the Other Party shall be obliged within 12 hours to have a certified expert carry out an independent assessment, subject to forfeiture of all rights. The deadlines stated in this paragraph shall commence at 07.00 (local time at Hermes Exports BV’s place of business) on the working day following the day on which the Other Party submitted the complaint. The Other Party shall give Hermes Exports BV the opportunity of being present or represented during the assessment. Hermes Exports BV shall be entitled to have a second assessment carried out and in case of transport related damages with a C&F delivery, a third survey may be carried out by the carrier or shipping line.
The Other Party shall provide all necessary assistance for the investigation of the complaint. The Other Party’s complaint is not admissible if it fails to provide assistance or if the investigation is otherwise not or no longer possible.
If the Other Party’s complaint is founded, also taking into account the provisions in this article, Hermes Exports BV, after consultation with the Other Party, shall ensure delivery of the missing Products, repair or replacement of the Products delivered or adjustment of the price. Hermes Exports BV shall have no further obligation or liability. Hermes Exports BV approval shall be required for full or partial dissolution of the Agreement including reduction of the price.
The Other Party shall at all times ensure that the Products are maintained as expected of a careful debtor.
The Other Party is not free to return the Products until Hermes Exports BV has agreed this in writing. If Hermes Exports BV puts the returned Products into storage or take these in by different means, this shall be for the Other Party’s expense and risk. Such measures shall never constitute approval or acceptance of returns.
If the Other Party fails to comply with the provisions of this article and Hermes Exports BV nevertheless deals with a complaint, Hermes Exports BV’ efforts shall be considered a courtesy without implying acceptance of any obligation or liability.
If a complaint turns out to be unfounded, Hermes Exports BV is entitled to charge the Other Party for the internal and external costs it incurs when dealing with the complaint.
Any legal action shall be instituted no later than one year after the timely reporting of a complaint failing which all rights shall be forfeited.
Article 11: Liability and indemnity
Without prejudice to aforementioned provisions in these terms and conditions, the following rules shall apply regarding Hermes Exports BV’ liability for damage sustained by the Other Party and/or third parties and regarding the indemnity of Hermes Exports BV by the Other Party.
Hermes Exports BV’ overall liability for whatever reason shall be limited to the amount which is paid out in the particular case under the liability insurance that it has concluded, increased by the amount of the deductible for which the insurers shall not be liable under the policy conditions. If no payment is made under this insurance policy for any reason whatsoever, Hermes Exports BV’ overall liability for whatever reason shall be limited to the net invoiced amount of the Products in question, namely the price excluding value added tax and other taxes and charges and excluding transport costs.
Hermes Exports BV shall only be obliged to compensate damage to persons and property as described in the conditions of its liability insurance policy. Hermes Exports BV shall therefore not be liable for – and the Other Party shall be required to insure itself against – among other things consequential damage, trading losses, business interruption losses, loss of profits, lost savings, loss due to claims from the Other Party’s customers, loss of customers, reduced goodwill and damaged reputation.
Without prejudice to the aforementioned provisions in this article, Hermes Exports BV’ liability for Products that it purchased from third parties shall not exceed the liability of these third parties towards Hermes Exports BV.
Hermes Exports BV shall not be liable for any shortcomings of third parties that it engages for carrying out this Agreement.
Insofar as fulfillment by Hermes Exports BV is not permanently impossible, Hermes Exports BV shall only be liable for an attributable shortcoming in fulfilling a obligation if the Other Party has declared Hermes Exports BV to be in default without delay and in writing stating precisely the nature of the shortcoming and has set a reasonable deadline to remedy the shortcoming and Hermes Exports BV also remains in attributable default in fulfilling its obligation after expiry of this deadline.
A condition for the right to compensation shall at all times be that the Other Party informs Hermes Exports BV of the damage in writing without delay, but no later than 14 days after the Other Party has become aware or should reasonably have become aware of the damage.
Any legal action shall be instituted no later than one year after the timely reporting of the damage, subject to forfeiture of all rights.
The Other Party shall indemnify Hermes Exports BV against any type of liability that may rest on Hermes Exports BV vis-à-vis third parties with respect to Products that Hermes Exports BV has delivered or shall deliver. The Other Party shall reimburse Hermes Exports BV for the reasonable costs of defending against third-party claims.
Hermes Exports BV shall refrain from invoking any limitation on its liability and the Other Party is not obliged to indemnify Hermes Exports BV insofar as the damage results directly from willful intent or deliberate recklessness on the part of Hermes Exports BV or its executives.
This provision does not apply insofar as provisions of mandatory law prevent this.
Article 12: Applicable law, disputes
Without prejudice to the contents of article 7, paragraphs 4 and 5 of these terms and conditions, the legal relationship between the Parties shall be governed by Dutch law with the inclusion of the Vienna Convention on Contracts for the International Sale of Goods.
Except where this is opposed by mandatory law, all disputes that may arise between the Parties in relation to or in connection with an Agreement and/or these terms and conditions shall in the first instance be settled exclusively by the Amsterdam Court (proceedings on the merits) or the Preliminary Relief Judge of the Amsterdam Court (summary proceedings and other preliminary relief), without prejudice to Hermes Exports BV’ right to submit such a dispute to any other competent court.
Without prejudice to paragraph 2 of this article, Hermes Exports BV shall be entitled at all times to have such a dispute settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut). The arbitral tribunal shall be composed of three arbitrators. The place of arbitration shall be Amsterdam. The arbitral procedure shall be conducted in English. The arbitral tribunal shall make its award in accordance with the rules of law.