Dallas Netherlands Cooperative, U.A.

General Terms and Conditions of Sale and Delivery Supplier

Article 1: Applicability

  1. All quotations issued by Supplier (Dallas Netherlands Cooperative, U.A.), all agreements reached with Supplier regarding the sale and delivery of items or of services rendered by Supplier are exclusively subject to these General Terms of sale and delivery (hereafter: “Terms”).
  2. If the agreements reached by Supplier conflict with these Terms, the arrangements in the appropriate agreement as determined by Supplier shall prevail.
  3. Applicability of the general Terms used by the Buyer is hereby explicitly dismissed, also in the event of any prior reference to or declaration that Buyer’s own Terms apply.
  4. In these general Terms, “Buyer” shall entail anyone who purchases items and/or services from Supplier or concludes a different agreement with Supplier.
  5. Deviations from the Terms below may be agreed only in writing and shall apply only once they have been explicitly confirmed to Buyer in writing by the legally authorized representative of Supplier.
  6. Supplier reserves the right to amend these Terms at any moment. These amendments shall be applicable from fourteen days after they have been disclosed by Supplier to Buyer. With agreements concluded previously, the Terms shall continue to apply that were in effect on the day that the agreement came about.
  7. If any provision in these Terms is declared void by a court with jurisdiction or otherwise regarded as non-binding, that provision shall be interpreted in such a manner that the conflict or invalidity is reversed. The other provisions in these Terms shall remain in full force in that case.

Article 2: Quotations

  1. Unless agreed otherwise in writing, all quotations by Supplier to the Buyer are entirely free of obligation and valid for thirty days from the date they are sent to the other party.
  2. The term meant in (1) shall be a strict deadline in all cases, meaning that acceptance of the offer shall no longer be possible after that term has lapsed, unless Supplier confirms otherwise in writing to its sole discretion.
  3. Supplier reserves the right to revoke an offer it has made up to five business days after receipt of its acceptance. If Supplier invokes this authority, no agreement shall come about.
  4. If Supplier sends the Buyer a sample for approval, the Buyer has five business days following receipt of the sample to approve it in writing. If no written response is forthcoming from the Buyer within this period, the quotation from Supplier or the engagement entrusted to Supplier shall lapse.
  5. Supplier applies a minimum order quantity of one pallet per order. Additional fees shall be assessed and invoiced for orders less than one pallet.

Article 3: Conclusion of Agreements / Purchase Orders

  1. An agreement or Purchase Order with Supplier is concluded, only if Supplier has confirmed the agreement or purchase order through a confirmation of engagement, such as an Order Confirmation (by e-mail or otherwise). Objections to the content of this confirmation must be submitted by registered letter or by mail no later than three business days following receipt, in the absence whereof the recipient shall be considered to have agreed to the content of the confirmation.
  2. With respect to the content of the agreement between parties, only what is stated concerning the agreement in the confirmation of engagement and in the present Terms shall be decisive.
  3. With agreements, deliveries and engagements for which Supplier has not issued a written quotation or confirmation of engagement, the invoice or delivery note sent by Supplier shall at the same time be regarded as confirmation of engagement, which shall also be considered to reflect the agreement accurately and fully.
  4. The fact that Supplier supplies the Buyer and/or has previously supplied the Buyer or has rendered or renders services to the Buyer does not give Buyer any right to future deliveries by Supplier. A sustained relationship therefore does not result, unless there is a written agreement that explicitly states otherwise. Supplier is not required to provide any reason for refusing to supply the Buyer in the future.

Article 4: Rates

  1. Rates indicated on quotations and rate charts of Supplier do not include VAT and shall apply exclusively to the unit of measure stated there (i.e. kilos, lbs, cases, bags, etc).
  2. The rates in quotations are based on delivery ex Supplier site according to the IncoTerms valid on the date of the quotation.
  3. In the event of changes to rates (charged by vendors to Supplier) and/or (other) factors that determine prices, such as exchange rates, wages, taxes, import and export duties, expenses, freights and the like change after an offer from Supplier or an order from the Buyer, Supplier shall in all cases be entitled to adjust the rates in accordance with and with regard to the mandatory provisions in this case, regardless of whether Supplier could have foreseen the change at the time of the offer or the order. Supplier shall notify the Buyer of stated changes the moment that such changes become known to Supplier.
  4. The rate changes meant in the previous section do not entitle the Buyer to cancel, terminate or dissolve the agreement in any way.
  5. Any leaflets, rate charts or other data issued by Supplier are merely indicative and not binding to Supplier.

Article 5: Payment

  1. Payment of invoices is due within thirty days of the invoice date, unless explicitly agreed otherwise in writing. Payment is to be deposited or transferred to a bank or giro account indicated by Supplier, in Euros and, when applicable, including VAT. The settlement date indicated on the bank/giro statements of Supplier shall be decisive in determining the date of payment.
  2. The Buyer is not entitled to any suspension or settlement.
  3. If the amount due according to the invoice is not paid on time, the Buyer shall be in default, without any demand or prior notice of default being required and shall owe Supplier the statutory commercial interest pursuant to Art. 6:119a of the Dutch Civil Code from the date the invoice becomes payable to Supplier.
  4. Claims from Supplier against the Buyer, on any ground whatsoever, are in any case payable immediately and in full and without any notice of default or announcement in the following cases:
    • if the Buyer fails to meet any obligation (or fails to do so on time) arising from any agreement concluded with Supplier
    • if the Buyer has been declared bankrupt or has applied for bankruptcy or a suspension of payments, or if the Buyer has suspended payments
    • if the Buyer requests a debt rescheduling arrangement or is declared subject to a debt rescheduling arrangement or has requested to be placed in receivership
    • if any of his items have been seized
    • if the Buyer dies, is being wound up or states that he will discontinue or has discontinued his operations
    • upon the transfer of his business or part thereof, including merging the company in one that is to be established or already exists or (partial) transfer of control in the company;
  1. In the cases mentioned at (4), Supplier is entitled to suspend without any notice of default or judicial intervention all current agreements between the Buyer and Supplier or to demand payment in cash for them, even it was agreed otherwise, or to dissolve agreements entirely or in part, as well as to retrieve items supplied immediately, without Supplier being required to provide any compensation for damages or guarantee and without prejudice to its other rights, such as the right to compensation for damages.
  2. Supplier may at any moment settle by virtue of an agreement with the Buyer anything that is due on demand or otherwise against whatever the Buyer owes it or firms affiliated with it.
  3. All – actual – legal and other costs (of proceedings) incurred by Supplier, arising from or relating to incorrect or untimely fulfilment of obligations by the Buyer, shall be entirely at the expense of the Buyer.
  4. Legal costs are explicitly not limited to the assessed court costs but shall be entirely at the expense of the Buyer, if the ruling is (largely) against the Buyer.
  5. Supplier shall in all cases be entitled to stipulate personal security or security according to property law from the Buyer, at the discretion of Supplier, for compliance with its (future) financial obligations toward Supplier, which applies all the more, if Supplier has good reason to fear that the Buyer will not fulfil his payment obligations toward Supplier on time. If and as long as the Buyer refuses or is unable to provide security in such a case, Supplier shall be entitled to suspend fulfilling its obligations or to terminate (the) agreement(s) immediately, without being required to pay any compensation for damages.

Article 6: Retention of title and transfer of ownership

  1. All items to be and already supplied by Supplier shall remain the exclusive property of Supplier, until the Buyer has fulfilled all his obligations toward Supplier with respect to the corresponding previous and subsequent items supplied by Supplier, activities performed or yet to be performed, as well as regarding the (future) claims by Supplier against the Buyer due to (future) failure by the Buyer to fulfil his commitments toward Supplier.
  2. The Buyer is not entitled to encumber the items in any way at all by limiting the right to security or enjoyment or to remove them in any other way from recovery by Supplier, until ownership has been transferred.
  3. The Buyer is required to treat items that have been supplied subject to retention of title with care and to retain them as identifiably the property of Supplier, until ownership has been transferred to him.
  4. The Buyer may be required to insure the items at his own expense, for the duration of the retention of title, against damage by fire, explosion and water, additional damage or destruction for any reason at all, as well as against theft, and to present the policies for these insurances to Supplier for review at its first request.
  5. If the Buyer is negligent in complying with his payment obligations to Supplier, or if Supplier has reason to fear that he will fail to fulfil these obligations, Supplier, at his sole discretion, shall be entitled to retrieve the items supplied subject to the retention of title immediately. After they have been retrieved, the Buyer shall be credited for the market value, which under no circumstances may exceed the original purchase price, less the cost of retrieval and any damages that Supplier suffers as a consequence of taking the items back.
  6. If Supplier reclaims items as its property supplied according to this provision, Buyer shall indicate to Supplier where the items are located and shall grant Supplier access at any time to its sites and/or buildings to inspect the items and/or to enforce the rights of Supplier.

Article 7: Supply and delivery times

  1. The Buyer is required to take receipt of the items that Supplier presents to him.
  2. Unless agreed otherwise in writing, delivery shall be FCA (“Free Carrier”), Eikenlaan 32-34, 2404 BR Alphen aan den Rijn, Netherlands, pursuant to the IncoTerms 2010. The risk transfers to the buyer in accordance with these INCO terms.
  3. Deviating from the provision in the previous section, parties agree the responsibility for risk and the costs of storage, loading, transportation and unloading shall be determined in accordance with the agreed IncoTerm.
  4. Supplier shall notify the Buyer in writing (order confirmation) the date that the items are ready to be delivered from the warehouse. The Buyer is then required to take (or arrange for) receipt of the items to be supplied to him on this confirmed date.
  5. If, following the expiration of the agreed term of delivery, the Buyer has not taken receipt of the products, Supplier shall be entitled to store the products at the expense and risk of Buyer (if the storage facilities of Supplier accommodate this). If delivery is not taken in time, Supplier shall be entitled from fourteen days after the term of delivery has lapsed to dissolve the agreement, without prejudice to the right of Supplier to compensation for damages and the right of Supplier to sell the products to third parties.
  6. Supplier shall always be entitled in agreement with Buyer to deliver in sections, which sections may be invoiced separately. The Buyer is required to pay all partial deliveries as provided in Article 5 of these Terms.
  7. Stated delivery times of items or services are never to be regarded as strict deadlines for Supplier, unless agreed otherwise in writing.
  8. Only if a delivery time has explicitly been agreed in writing as strict, is the Buyer entitled to dissolve the agreement, if Supplier has not supplied the items ordered according to this deadline, but only after the Buyer sends a registered letter giving Supplier a reasonable period to meet its obligations after all.
  9. If Supplier has provided or has had a third party provide pallets, packing boxes, crates, containers and the like (“packaging materials”), the Buyer is required, unless such packaging can be used only once, to return stated packaging materials at his own expense to the address indicated by Supplier, in the absence whereof Supplier may invoice Buyer for the costs of these packaging materials.
  10. Unless otherwise indicated, the Buyer is ultimately responsible to pay all freight costs related to shipments. Should a discrepancy arise whereas the freight forwarder submits a claim for non-payment, the Buyer is the responsible party to settle such a claim.

Article 8: Inspection and complaints

  1. The Buyer is required to visually inspect the items and the quantity of the items or services immediately after they have been delivered. Any visual defects to the items and/or or incorrect quantity of items are to be reported in writing within 24 hours of delivery, listing the nature and scope of the complaints. Other complaints must in any case reach Supplier as soon as Buyer knows or should have reasonably known after the items have been received, or within thirty (30) days, whichever comes first. Without any written notice, the Buyer shall be considered to have approved the items in terms of visible defects and/or volumes delivered or the services, and supplier is no longer obliged to accept complaints about them.
  2. Except if evidence is provided to the contrary, Supplier shall regard the quantities indicated on the consignment notes or other delivery documents as accurate.
  3. Supplier will not accept return of product that has been damaged, tampered with, contaminated or transported in a manner that is not consistent with transporting food grade material or with shipping or storage instructions as stated in the material data safety sheets supplied by the Supplier and as a result makes the product unsaleable. In such a case, the damaged product must be disposed of, in a manner that meets all environmental requirements and at the sole expense of the entity responsible (i.e. transportation company). In addition, Supplier requires that evidence of such disposal be provided to the Supplier in the way of pictures to be taken, both before and after disposal takes place. In any case, this event does not relieve the Buyer of his financial or any other responsibility pertaining to the shipment.
  4. In the event of complaints regarding damage from contaminants, such as insects or other foreign objects, Supplier shall not be liable for damages arising thirty days after delivery.
  5. The Buyer is required upon the first such request from Supplier to return, if possible, considering the nature of the defect, to Supplier the allegedly defective items within five business days after sending the complaint and at its own expense and risk, packaged in the same manner as by Supplier.
  6. Submitting a complaint shall never be any ground for suspending or settling the payment obligations the Buyer has toward Supplier or for dissolving (the) agreement(s).
  7. The Buyer, after discovering any defects, may no longer use or sell that item, except after receiving written permission to do so from Supplier. Should the Buyer do so nonetheless, complaints shall not be accepted.
  8. If a complaint is deemed justified by Supplier, Supplier shall supply substitute items or services, if such is possible, or, if that is not possible, the Buyer shall be credited the amounts invoiced to him. Supplier shall not be required to perform other services or to pay compensation for damages.
  9. Supplier shall not be required to supply substitute products or to reimburse the invoice value, if the defective products have not been provided to Supplier on time, and/or the Buyer has not strictly observed the instructions for storing the products delivered, either causing spoilage or having made it possible and/or as a result of which the accuracy of the complaints expressed by the Buyer can no longer be investigated.

Article 9: Obligations of the Buyer in general

The Buyer guarantees that he:

  1. Shall advertise or resell the brands or products of Supplier only in a manner that has been approved in writing by Supplier.
  2. Shall refrain from making negative statements about the name, brands and products of
  3. For each violation or failure to comply rigidly with the obligations stated in this article, the Buyer shall pay a penalty not eligible to be reduced or offset of € 10,000 (in words: ten thousand euros) and in such case shall accept that Supplier has the right to cancel or dissolve (a) concluded purchase agreement(s) and/or to exclude the Buyer from additional delivery of items and/or services, all with the right to compensation for damages, without prejudice to the right of Supplier to demand compliance at a later date, together with compensation for damages or otherwise.
  4. Buyer shall not advertise any material safety data sheets, technical data sheets, or any other product information sheets provided by Supplier or generated by Buyer with the express written consent of Supplier.

Article 10: Liability and indemnification

  1. Except in cases of intent or recklessness on its own part or that of its supervisors, Supplier is not liable for any damages, of any nature at all, that the Buyer, his employees or other agents, or a third party might suffer as a consequence of the items supplied or services rendered by Supplier not being fit for their purpose, of the items supplied or services rendered by Supplier being defective and for damages resulting from any advice by Supplier concerning those items or services rendered by Supplier, as well as for damages arising from untimely, incorrect or incomplete delivery of the items or services concerned.
  2. In the event that it is established by law that Supplier, despite the provision in the previous section, is liable for the damages meant there, its liability shall at any rate be limited to the amount that its Insurance would pay out or, if there is no insurance cover, for whatever reason at all, to the invoice value of the items or services it provided that relate to its liability.
  3. The provisions in (1) through (2) concern both the contractual and the non-contractual liability of Supplier, including product liability.
  4. The Buyer shall indemnify Supplier from any claims by its agents, including its employees or representatives, and/or third parties, concerning damages for which Supplier has excluded and/or limited liability toward the Buyer.

Article 11: Guarantee

  1. Guarantees for items purchased elsewhere by Supplier shall be given, only if and to the extent that the manufacturer/supplier concerned actually issues a guarantee, unless explicitly agreed otherwise in writing between the Buyer and Supplier.
  2. Unless agreed otherwise in writing, the guarantee shall cover only replacement of the items or services concerned or crediting of the invoice amount as meant in Article 8.6. All damages, both direct and indirect, arising from the items supplied or services rendered by Supplier being unfit for their purpose or defective, are excluded from the guarantee.
  3. Claims under a guarantee shall lapse, if the items have not been used according to the instructions from the Supplier, if what is supplied is used for purposes other than the normal ones, or if what is supplied is treated, stored or used improperly.
  4. If the Buyer fails to fulfil his obligations, Supplier shall be relieved of its (guarantee) obligations as a consequence.
  5. Guarantees lapse in the event of untimely or improper inspection or complaint, as meant in Article 8.

Article 12: Implementation by third parties / Transfer of rights

  1. Supplier shall be entitled to make use of services rendered by third parties in carrying out the agreement.
  2. Supplier may at any time transfer its rights and/or duties arising from the agreements with the Buyer entirely or in part to a third party or offer them as security in some way, for which the Buyer already grants permission in such an event.
  3. The Buyer is not authorized as meant in (2) above, pursuant to Article 3:83 (2) in the Dutch Civil Code.

Article 13: Force majeure

  1. Force majeure on the part of Supplier shall in any case entail: any circumstance beyond its control that impedes fulfilment of the obligations to which these Terms apply, permanently or temporarily.
    To the extent not already included in the previous description, force majeure shall similarly include: bans on transport, import and/or export, industrial actions, sit-down strikes, absenteeism due to sickness of staff, transport problems, turmoil, acts of war, fires, water damage, defective machinery, interruptions in the power supply, government measures (including in any case import and export restrictions), sales prohibitions, anything at Supplier or at its vendors, as well as breach of contract by the suppliers of Supplier that renders Supplier unable to (continue) fulfil(ling) its obligations toward Buyer.
  1. If in the view of Supplier the force majeure is temporary, it is entitled to suspend carrying out the agreement until the circumstance causing the force majeure no longer occurs.
  2. If in the view of Supplier the force majeure is permanent, it is entitled without any judicial intervention to adapt the agreement, to dissolve it entirely or in part or to cancel it immediately, without being required to provide any compensation for damages to the Buyer.
  3. If Supplier has already fulfilled part of the agreed obligations at the start of the force majeure situation, it shall be entitled to invoice the activities performed separately and in the interim, and Buyer is required to pay this invoice, as if it concerned a separate transaction.

Article 14: Intellectual and/or industrial ownership rights

  1. All intellectual and/or industrial ownership rights, of both Supplier and its vendors, on all items supplied or services rendered, shall be retained by Supplier. The Buyer agrees not to violate or infringe upon these rights in any way, directly or indirectly, through use or in other respects, and acknowledges Supplier as the entitled party in the matter.

Article 15: Cancellation

  1. Cancellation by the Buyer of an agreement concluded with Supplier is possible exclusively with consent from Supplier. If Supplier consents to the cancellation, and at the sole discretion of the Supplier, the Buyer shall owe Supplier any cost incurred by Supplier in preparation of the completion of the agreement.

Article 16: Dissolution

  1. Supplier shall be entitled by the simple occurrence of the circumstances below, without any warning or notice of default or judicial intervention being required, either to dissolve the agreement entirely or in part and to reclaim what was supplied as its property, and/or to demand full payment of any amount that the Buyer owes Supplier, all without prejudice to the right of Supplier to compensation for damages, if:
    • the Buyer fails to comply, does not comply in time or does not comply correctly with any obligation he has toward Supplier
    • the Buyer is declared bankrupt, or an application has been submitted to this effect, applies for suspension of payments, or has suspended payments
    • the Buyer requests a debt rescheduling arrangement
    • all or part of the assets of the Buyer are or have been seized
    • the Buyer proves to be insufficiently creditworthy in the opinion of Supplier to fulfil its obligations toward Supplier
    • the company of the Buyer is dissolved or wound up
    • the Buyer proceeds to cease or has already ceased his operations, the transfer of his company or part thereof, including merging his company with a company to be established or already existing, and (partial) transfer of control in the company, with the Buyer not yet having fulfilled all his obligations toward Supplier.

Article 17: Notice

  1. In the event that an agreement is concluded for an (in)definite period, despite the provision in Article 3 (4) of these Terms, Supplier shall in all cases be entitled to give notice, for whatever reason, subject to a reasonable term. In no case shall Supplier be required to pay compensation for damages.

Article 18: Settlement

  1. Supplier shall in all cases be entitled to settle all claims from the Buyer against Supplier with a monetary value against claims from Supplier and firms that are in any way affiliated with Supplier with the Buyer.
  2. If the Buyer is in any way part of a group of firms, the Buyer shall also be perceived in the sense of this article as all firms belonging to that group in any way.

Article 19: Applicable law and jurisdiction

  1. All agreements concluded with Supplier to which these Terms apply are exclusively subject to Dutch law. The United Nations Conventions on Contracts for the International Sale of Goods and similar conventions are not applicable.
  2. Any disputes arising from the agreements concluded between Supplier and the Buyer, including these Terms, shall be brought before the court with jurisdiction where Supplier is registered as doing business. If the dispute falls within the jurisdiction of the sub-district court, statutory jurisdiction rules shall apply.
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