1. Applicability of these terms
These terms apply to all offers and agreements of Umios Food Group Europe B.V. and/or subsidiary companies, here Umios Food Europe B.V., with the buyer unless expressly agreed otherwise. In the event of discrepancies between translations, the English version shall prevail. Orders, confirmations and notices exchanged by e-mail, EDI or ERP systems shall have the same legal effect as written documents. Umios Food Europe B.V. is a commercial enterprise specialized in import, export and distribution of frozen fish and food products.
2. Offers and delivery
2.1. All offers are non-binding unless confirmed in writing within 7 days. Prices are exclusive of VAT unless stated otherwise.
2.2. Delivery times and dates are indicative and shall not constitute a strict deadline unless expressly agreed in writing. The buyer must notify us in writing of any delay before holding us liable.
2.3. We are entitled to make partial deliveries and invoice them separately.
2.4. Delivery will be carried out by way of actual transfer of the items. This shall take place in accordance with the agreed Incoterm® and will be applicable the moment the agreement is made. Any agreed Incoterms® shall be interpreted in accordance with the Incoterms® version expressly agreed in writing by the parties. In the absence of such agreement, Incoterms® 2020 shall apply. In the event of any inconsistency between the Incoterms® and these General Terms and Conditions, these General Terms and Conditions shall prevail.
2.5. The buyer shall accept the goods upon delivery. If the buyer fails to accept delivery or to provide the information or instructions necessary for delivery, the seller may store the goods at the buyer’s risk and expense, and all resulting costs, including storage, handling and insurance, shall be borne by the buyer. In such case, risk in the goods shall pass to the buyer when delivery is attempted, and the seller may resell the goods if the buyer fails to take delivery within a reasonable period.
2.6. Products are deemed delivered in conformity if, at the moment of transfer of risk under the agreed Incoterm®, the core temperature does not exceed –18°C (tolerance –15°C during handling), unless otherwise agreed in writing. Temperature measurements are decisive only if performed at delivery according to generally accepted industry standards. Measurements taken later, including but not limited to at the buyer’s premises or after unloading, are not binding. Any temperature deviation after risk transfer and any interruption of the cold chain are at the buyer’s risk. Temperature data logger results are not conclusive evidence unless jointly verified by the parties.
3. Termination of the agreement
3.1. Our claims become immediately due and payable if: after entering into the agreement, circumstances come to our attention giving reasonable grounds to believe the buyer will not fulfil its obligations; if the requested guarantee of fulfilment and/or security for performance is not provided or is insufficient. In such cases, we may suspend performance or terminate the agreement without prejudice to our right to claim damages.
3.2. If circumstances relating to persons or materials used in the performance of the agreement arise that make delivery impossible, impracticable, or unreasonably expensive, such that performance can no longer reasonably be required, we are entitled to terminate the agreement.
3.3. In the event of the buyer’s bankruptcy, suspension of payments, liquidation, receivership or death, we may terminate the agreement with immediate effect by written notice.
4. Ownership restriction
4.1. All goods delivered remain our property until the buyer has fulfilled all obligations arising from any agreement concluded and/or business relationship with us, including the exchange(s) with regard to delivered or deliverable item(s) itself and/or service provided or to be provided by us under the purchase agreement, any possible claims due to non-fulfilment of the buyer of (a) purchase agreement(s), and/or the buyer does not have the right to pawn items in their entirety or partially to third parties or to transfer ownership beyond normal professional practice until complete payment has been made.
4.2. All information, including but not limited to, specifications, product descriptions, photographs, certificates provided by us remain our intellectual property and may only be used for the purpose of resale of the products. Any other disclosure to third parties is prohibited without prior written consent.
5. Express avoidance clause
Should payment not ensue on the due date, we may consider the sale as null and void by operation of law and without having to issue a demand. The goods will remain the property of the seller until the full price has been paid. All risks shall be borne by the buyer. The paid advances shall continue to be in the possession of the seller as payment for possible losses when reselling.
6. Extended ownership restriction
6.1. We reserve for ourselves the right of ownership of the goods supplied until payment in full of all claims due to us from the business relationship, and to claims still to arise, on the basis of any legal grounds whatever.
6.2.The buyer is entitled to process our products or to combine them with other products within the context of the proper operation of their business. By way of security for our claims as stated in 1. above, we acquire co-ownership of the items resulting from processing or combination, with the buyer ceding this co-ownership to ourselves at this present juncture. The buyer will hold the items under our co-ownership in safekeeping, free of charge. The level of our co-ownership is determined by the ratio of the value of our product to that of the items resulting from the processing or combination undertaken.
6.3. We irrevocably grant our buyer the right of resale in the course of their normal business. This right shall expire in the event of any default on payments due. At this juncture, the buyer cedes to ourselves all claims and secondary rights arising to them from resale. The ceded claims shall serve to secure all claims arising in accordance with 1. above. The buyer is entitled to collect all ceded claims, as long as we have not rescinded this authorisation. The authorisation to collect claims shall also expire, without requiring to be expressly rescinded, if the buyer should default on payments due. At our request, the buyer must notify us, without delay and in writing, of the party to which they have sold on the goods, and of the claims arising from this sale, and at their own cost issue us with publically authenticated deeds on the cession of the claims.
6.4. The buyer is not entitled to proceed to any other dispositions in respect of the items covered by our right of retention or co-ownership. The buyer must notify us immediately of any pledging or other compromising of rights to the items belonging solely or partly to ourselves.
6.5. We are at any time entitled to demand the issue of the goods belonging to us if the Buyer should fall into arrears with any payment due, or if the situation of their assets should significantly deteriorate. If we should exercise this right, then - without prejudice to any other essential legal conditions - we shall be withdrawing from the contract only when we expressly so declare.
6.6. If the value of the securities in place for ourselves should in total exceed the value of our claims by more than 20%, then at the request of the buyer we shall release securities of our choice to this extent.
7. Defaults; complaints; returns
7.1. The buyer shall immediately inspect the products upon delivery to verify that the delivery conforms to the agreement, including whether the correct products and quantities have been delivered and whether the products meet the agreed quality requirements. If no quality requirements have been agreed, the buyer shall verify that the products are suitable for normal use and/or business purposes.
7.2. If defects are observed, the buyer must notify us within 48 hours and confirm the complaint in writing within 7 days. In any other case, the products shall be deemed accepted and in full conformity with the agreement.
7.3. Complaints relating, but not limited, to quality, temperature, quantity or condition of the products do not suspend the buyer’s obligation to pay in full and on time.
7.4. Any recall, withdrawal, destruction or reprocessing of products shall only be carried out after prior written consultation with us. We shall only bear recall costs to the extent the recall is directly and exclusively caused by a demonstrable defect attributable to us and if applicable, proven by an official competent authority. Our products are produced according to relevant EU legislation.
7.5. We shall under no circumstances be liable for recall costs resulting from: improper storage, handling or transport after delivery; re-labelling, repacking or processing by or on behalf of the buyer; non-compliance with local regulations applicable in the buyer’s country outside of the EU. All indirect costs, including loss of profit, reputational damage, customer penalties and administrative fines, are expressly excluded.
7.6. Any inspection, sampling or laboratory analysis of the products shall only be binding if carried out in accordance with generally accepted industry standards and, where reasonably possible, in the presence of both parties or their appointed representatives or after confirmation of counter-analysis by a sample and laboratory of choice of us.
7.7. Any claim by the buyer arising from or related to the products delivered shall lapse if legal proceedings have not been initiated within twelve (12) months from the date of delivery. Claims relating to hidden defects shall lapse unless legal proceedings have been initiated within six (6) months after discovery, and in any event no later than twelve (12) months after delivery.
7.8. Returned products shall only be accepted after prior written approval by us. We reserve the right, at our sole discretion, to decide whether rejected products shall be returned, destroyed, reprocessed or otherwise disposed of. All costs related to inspection, storage, transport and destruction of products shall be borne by the buyer if the complaint is unfounded.
8. Payment
8.1. Payment has to be made within the set term of payment. After the set term of payment expires the buyer is deemed to be in default: from the moment the buyer is deemed to be in default he will owe a legal interest of +12% over the payable amount.
8.2. In case of liquidation, bankruptcy or suspension of payment of the buyer the obligations of the buyer will be due immediately.
8.3. All payments shall be made without deduction, suspension or set-off, unless the buyer’s claim has been finally established by a competent court or expressly acknowledged by us in writing.
8.4. Payment made by the other party always serves to settle in the first place all outstanding interest and costs, and in the second place the receivable invoices that have been outstanding the longest, even though the other party states that the payment relates to a later invoice.
9. Collection fees
9.1. If the buyer is declared liable or in default in the fulfilment of one or more of his obligations, all reasonable costs of collection shall be borne by the buyer. Extrajudicial collection costs are fixed at 15% of the outstanding invoice amount, without prejudice to our right to claim higher actual costs.
9.2. All reasonable legal and collection costs incurred in enforcing these terms and our rights shall be borne by the buyer to the extent permitted by applicable law.
10. Liability
10.1. We can only be held liable by the buyer for damage caused with proven intent or gross negligence by us.
10.2. Our total liability, including liability for any additional services, shall in all cases be limited to 10% of the invoice value of the relevant delivery, with an absolute maximum of EUR 5,000. Any liability for indirect damage, consequential loss, loss of profit, loss of turnover, loss of contracts, reputational damage, or penalties imposed by third parties or authorities is expressly excluded.
10.3 The provisions of these terms and conditions, including any limitations or exclusions of liability, shall not only apply to us, but shall also extend to and be enforceable by its directors, employees, affiliates and any third parties engaged in the performance of the agreement, whether or not such persons are subordinate to us. The buyer shall indemnify and hold harmless these persons against any claims by the client or third parties arising from or in connection with the performance of the agreement.
10.4. The buyer represents and warrants that the products shall not be sold, exported, re-exported or otherwise supplied in violation of applicable sanctions, export control laws or trade restrictions imposed by the European Union, the United Nations or any other competent authority. Any breach of this clause shall entitle us to immediately terminate the agreement without judicial intervention and without liability for damages.
11. Force majeure and hardship
11.1. Force majeure means any circumstance beyond our reasonable control preventing or hindering performance, including but not limited to supplier failures, shortages of raw materials, strikes, transport disruptions or governmental measures.
11.2. We have the right to refer to force majeure when the circumstances that impede (further) fulfilment take place after the time we were supposed to fulfil our commitment.
11.3. During force majeure our delivery and other obligations will be suspended. In case the time it takes us to fulfil our obligation is longer than forty-five days due to force majeure, both parties have the right to terminate the agreement, without obligation to compensate damages.
11.4. If delivery and/or fulfillment has already been partially completed or can only be partially completed due to force majeure, we may invoice the delivered or deliverable part separately, provided such part has independent value.
11.5. In the event of hardship, understood as extraordinary and unforeseeable circumstances beyond our control, including but not limited to extreme increases in freight costs, governmental measures, trade restrictions, quota limitations or currency disruptions, which substantially affect the economic balance of the agreement, we shall be entitled to request renegotiation of the agreement. If no agreement is reached within a reasonable period, we shall be entitled to terminate the agreement without liability.
12. Disputes and applicable law
12.1. Dutch law applies to any and every agreement between us and the buyer, The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to any agreement between the parties.
12.2. All disputes shall be submitted to the competent court of Overijssel, Zwolle, the Netherlands, without prejudice to our right to bring proceedings before any other competent court.
