General terms and conditions

FKL BV (VAT and company registration number BE 0804.991.122),
Fertimass TC BV (VAT and company registration number BE 0804.991.320),
Comgoed Kallo BV (VAT and company registration number BE 0804.973.405),
Comgoed Maaseik BV (VAT and company registration number BE 0741.690.407),
Comgoed België Transport BV (VAT and company registration number BE 1002.077.108),
Comgoed België BV (VAT and company registration number BE 0804.550.761)
Comgoed Beheer Oude-Tonge BV (VAT and company registration number BE 1025.734.418) (hereinafter jointly referred to as: Seller)

 

1. General

1.1 These general terms and conditions apply to all offers, agreements and deliveries of goods and/or services between Seller and the client, unless specifically agreed otherwise in writing by the parties.

1.2 Unless agreed otherwise in writing, the client shall be assumed to have taken note of these general terms and conditions, including the fact that they apply to their order, and to have accepted all parts of it.

1.3 The client acknowledges that their own general terms and conditions shall be specifically excluded and not be applied. Any condition or stipulation made by the client that contravenes these general terms and conditions shall only be valid with specific prior approval in writing from Seller, and shall solely apply to the order which is the subject thereof.

1.4 The potential invalidity, nullity or unenforceability, in whole or in part, of one or more clauses of these general terms and conditions shall not affect the validity and enforceability of the remaining clauses or the remaining part.

 

2. Orders & quotations

2.1 Unless stated otherwise, all offers and quotations submitted by Seller, with respect to price, content, execution and delivery, shall always be without obligation and subject to sufficient stock being available. Any offer or quotation shall be void if the product to which the offer or quotation relates is no longer available.

2.2 Prices quoted by Seller shall be in euro and shall exclude VAT, direct or indirect taxes, surcharges or excise duties.

2.3 Seller shall only be obliged to execute an order submitted by the client following written acceptance of the order by Seller. Any order placed by the client shall bind them to the contract. The contract shall replace any previous verbal and/or written agreements.

2.4 Any contract between Seller and the client shall be concluded at the registered office of Seller, located at Molenweg – Haven 1938, 9130 Beveren (Kallo), Belgium.

 

3. Cancellation

3.1 Any cancellation of an order by the client shall always be in writing and shall only be valid if accepted in writing by Seller and after the client has paid Seller for the full amount of damage specified by Seller. In the event of cancellation by the client within 7 days prior to the scheduled date of transport, the client shall be liable to pay fixed compensation of 40% of the total amount of the order, without prejudice to Seller’s right to claim actual damages if they exceed the agreed fixed amount. Without prejudice to the foregoing, Seller shall be entitled to demand the forced execution of the contract at all times.

3.2 If the order/contract is changed at the request of the client, any resulting costs shall be borne by them.

3.3 Without prejudice to the foregoing, Seller shall be entitled to demand the forced execution of the contract at all times.

 

4. Delivery, transport costs and transfer of risk

4.1 Unless agreed otherwise in writing, delivery shall take place at the registered office of Seller. The client shall be responsible for the goods as soon as they leave the premises of Seller.

4.2 If, and insofar as, Seller is responsible for the transport of the goods, this shall not detract from the stipulations in article 4.1. The mode of transport shall be determined by Seller. The client shall be obliged to accept the goods at the agreed delivery location, at the agreed time and shall unload them immediately.

4.3 If the goods were sold subject to one of the conditions of the Incoterms in force on the day of the agreement, the obligations of the buyer and Seller shall also be subject to this condition. Incoterms stipulated in the agreement concluded between Seller and the client shall always prevail over these general terms and conditions, in so far as these general terms and conditions deviate from them.

4.4 The goods shall only be insured, at the client’s expense, once the client has submitted written instructions to do so. Once the goods are at the client’s expense and risk, they shall provide adequate insurance for the goods against any possible risks, including – but not limited to – loss, theft, damage and/or destruction of the goods.

4.5 If the actual delivery date is postponed at the request or on account of the client, the client requests delivery in instalments and/or the goods are not collected, the risk associated with the goods shall nevertheless transfer to the client at the time the goods are identified as ‘the client’s goods’ at the premises of Seller. From that moment on, Seller shall be entitled to invoice the client for the goods. Any additional transport, storage, insurance and/or other costs and damages shall be at the client’s expense.

4.6 The delivery date specified by Seller shall only be a target date. Delayed delivery shall never result in a reduction in the agreed price, compensation, cancellation of the order or dissolution of the contract at the expense of Seller. Under no circumstances shall there be an obligation to deliver the desired result on the part of the latter.

4.7 Any changes to the order shall automatically cancel the proposed delivery date.

4.8 Under no circumstances shall Seller be liable for delays caused by the default of Seller’s suppliers, the client or any other third party.

 

5. Payment

5.1 The amount due shall be invoiced, including VAT, to the client. Unless agreed otherwise,
Seller invoices shall be payable on their due date.

5.2 Invoices to clients in Europe that are not contested by registered letter with appropriate motivation within 30 days of the invoice date shall be considered final and irrevocable.

5.3 Invoices to clients outside Europe that are not contested by registered letter with appropriate motivation within 60 days of the invoice date shall be considered final and irrevocable.

5.4 Non-payment on the due date of a single invoice shall result in the balance of all other invoices, including those that are not yet due, being due immediately and legally payable, and where applicable any permitted payment conditions shall be considered not to have been written (void). Seller also reserves the right to suspend the execution of any current agreements and/or to terminate any current agreements without prior notice of default.

5.5 Any sum owed by the client, but not paid or not paid on time on the due date, shall be increased by law and without reminder, with a fixed and indivisible compensation of 10 %, with a minimum of € 250.00, and with interest on arrears at the rate of 1 % per month, with each month started being considered fully expired.

5.6 Any discounts granted shall expire in the event of failure to comply with the contract and these general terms and conditions.

5.7 If the client has several due and payable debts, Seller shall be entitled to charge payments on a debt of its choice.

5.8 Seller reserves the right to draw up an advance invoice or demand payment guarantees. In the event of non-payment of an advance invoice on the due date and/or not giving the demanded payment guarantees, Seller reserves the right to discontinue the execution of the works or deliveries pending full payment, without the client being able to demand compensation for this.

 

6. Inspection & complaints

6.1 Upon delivery the client shall check that the goods comply with the agreement (correct product, quality, quantity, absence of damage, etc.). Complaints pertaining to the delivered goods shall be notified to Seller by registered letter with substantiation, at the latest within 14 days of receipt of the invoice and before the product left the storage of Seller at Beveren, under penalty of forfeiture of any right to compensation, price reduction or refund.

6.2 The clients shall be obliged to reimburse any costs incurred as a result of unjustified complaints.

6.3 A deviation of up to 10% from the agreed weight and/or content and/or quality standards is permitted and in accordance with the contract.

 

7. Liability

7.1 Seller’s  liability shall be limited to compensating the client for foreseeable, direct damages, with the exclusion of any indirect or immaterial damages. Any damages owed by Seller, with the exception of intentional damage, shall be limited to the amount that Seller has invoiced the client for or may be contractually entitled to for the goods that gave rise to damage incurred by the client. The client specifically and unconditionally agrees to waive any further claim for damages at the expense of Seller.

7.2 If hidden defects are identified, the client shall notify Seller by registered letter at the latest within 5 working days of their discovery, failing which the client shall no longer be able to make any claim for compensation, price reduction, refund, repair or replacement. Any damages owed by Seller shall be limited to the amount that Seller has invoiced the client for or may be contractually entitled to for the goods that gave rise to damage incurred by the client. The client specifically and unconditionally agrees to waive any further claim for damages of any kind.

7.3 Seller is insured for product liability to the amount of € 3.000.000,00. This amount includes the following compensation limits: € 250,000.00 for purely immaterial damage and € 500,000.00 for environmental damage and its consequences. The client considers the standard insurance sufficient and accepts that the compensation for any damage they incur shall be limited to the amount for which Seller is insured. In case the damage is not covered by insurance and/or the insurance company refuses to pay out, the liability of Seller is limited to a maximum amount of €10,000.00.

 

8. Retention of title

8.1 Seller shall retain exclusive ownership of any goods they have delivered until all amounts due in respect of the delivery, including any fixed compensation, default interest and costs due as a result of late payment, have been paid in full.

8.2 As long as the delivered goods are subject to a retention of title, the client shall not be entitled to process or dispose of the goods or impose any kind of security upon them.

 

9. Force majeure

9.1 In the event of force majeure, Seller shall be released from any obligation without the client being able to claim compensation or reimbursement of any sums paid.

9.2 Force majeure includes any circumstances not attributable to a fault on the part of Seller that make the execution of their obligations impossible, difficult, slower or more expensive, including, but not limited to, fire, machine failure, accidents, strikes or lockouts, exceptional traffic disruption, exceptional weather conditions such as storms, snow or floods, import and export restrictions, increases in taxes, fees, levies, duties, customs and excise duties or other government measures, exchange rate fluctuations, inflation, pandemic or epidemic, insurrection or war, errors, delays, price increases. The unaccountable and unavoidable nature of the aforementioned circumstances shall always be deemed to have been acquired.

 

10. Disputes

10.1 All offers, quotations and agreements between Seller and the client shall always be governed by Dutch law. The Court of Rotterdam (The Netherlands) shall have sole authority to arbitrate in any disputes arising from the agreements with Seller.

10.2 One year after the dispute has arisen, the right to involve Seller in legal proceedings is forfeited. All claims against Seller expire twelve months after the relevant claim(s) has/have arisen.

 

11. Prices/rates

11.1 Seller is entitled to adjust the agreed prices/rates accordingly as a result of changes in circumstances beyond its control.