General terms and conditions of sale, delivery and payment

Article 1: applicability

These terms and conditions apply to all offers, sales and deliveries by Daily Dairy Holland B.V., hereinafter referred to as Daily Dairy Holland B.V., to a third party, to all activities executed by Daily Dairy Holland B.V. by order of a third party, and to all agreements in the broadest sense of the word entered into by Daily Dairy Holland B.V. with a third party.
These terms and conditions apply in and outside the Netherlands, regardless of the place of residence or registered office of the parties involved in any agreement, and regardless of the place where the agreement has come about or should have been implemented.
If the buyer/client has purchase conditions in place, these purchase conditions will not be binding for Daily Dairy Holland B.V. in so far as they deviate from these terms and conditions of delivery.
Any deviation from these terms and conditions used or allowed by Daily Dairy Holland B.V. at any time to the benefit of the buyer/client can never be construed as the latter’s right to appeal to it later or to claim the application of such deviation for him/her as an established fact.

Article 2: offers

All offers and quotations are non-committal, unless explicitly stated otherwise. They have been made to the best of Daily Dairy Holland B.V.’s knowledge and are based on data that may have been provided on the request for an offer.
The specifications provided by Daily Dairy Holland B.V. on websites, in images, multimedia, catalogues, brochures or drawings or in any other way with respect to size, capacity, performance, colour, material structure, finish or results should be regarded as having been provided as estimates and as having been provided non-committally. Daily Dairy Holland B.V. is not held to comply with these specifications and therefore does not accept any liability for any incorrectness in these data.

Article 3: orders/agreements

An order is understood to mean: every agreement with Daily Dairy Holland B.V., regardless of whether it undertakes to execute activities or make staff, material or space available or carry out any other performance whatsoever, in the broadest sense.
All agreements entered into with Daily Dairy Holland B.V. will only become binding upon a written confirmation by Daily Dairy Holland B.V. or due to Daily Dairy Holland B.V. having commenced the execution of the order. Any supplements or changes to the afore-mentioned agreements will only become binding for Daily Dairy Holland B.V. after and in so far as these have been accepted and confirmed in writing by Daily Dairy Holland B.V.. The buyer/client will be deemed to have accepted changes or supplements to agreements entered into with Daily Dairy Holland B.V., if the buyer/client has not objected in writing against these changes and/or supplements within eight days after he has or could have taken cognizance of these changes and/or supplements. The buyer/client is deemed to have knowledge of the said changes and/or supplements and to have accepted these at the moment at which Daily Dairy Holland B.V. has commenced the activities to which these changes and/or supplements are related. Only the Board of Directors and possibly those explicitly authorised by the Board of Directors to enter into agreements on behalf of Daily Dairy Holland B.V. are allowed to do so.
Unless explicitly agreed on otherwise in writing, Daily Dairy Holland B.V. is entitled at all times to have part of the order or the entire order executed by a third party, on the understanding that these terms and conditions also apply in the favour of this third party, provided that Daily Dairy Holland B.V. authorises such third party in writing – even afterwards, if necessary – to appeal to these terms and conditions without this authorisation causing any obligations for Daily Dairy Holland B.V..

Article 4: liability

Except for the provisions of Article 9 of these terms and conditions, Daily Dairy Holland B.V. is not liable for any damage caused either directly or indirectly by the items delivered – including extra work – not being in compliance with the agreement, unless this is due to Daily Dairy Holland B.V.’s intent or gross negligence. Consequently, Daily Dairy Holland B.V. also does not accept any liability in the event of serious calamities, such as fire, water damage and any outside contingency, such as war and earthquakes.
If Daily Dairy Holland B.V. should be liable for any other reason for any damage under the agreement, the damages payable will not exceed the invoice amount (exclusive of value added tax) with regard to the respective goods and/or services, with a maximum of EUR 10,000.00 (in words: one ten thousand euros).
A claim under these terms and conditions does not suspend the buyer’s/client’s payment obligation towards Daily Dairy Holland B.V..
Daily Dairy Holland B.V. is never liable for damages, deterioration and or loss of quality in any way as a result of the manner in which buyer / client, their customers and or on the part of them engaged third party(s) receive, store and or treat the by or on the part of Daily Dairy Holland B.V. delivered goods; so not within nor outside the warranty period and likewise not before nor past the issued shelf life date.

Article 5: period and location of delivery

The periods of delivery mentioned in the offers, confirmations and contracts are to the best of Daily Dairy Holland B.V.’s knowledge and will be complied with as much as possible, but they are not binding for Daily Dairy Holland B.V..
If these periods are exceeded due to whatever cause, the buyer/client will not be entitled to damages, dissolution of the agreement or non-compliance with any obligation arising for him from the respective agreement or from any other agreement whether or not connected with this agreement.
If the delivery period is exceeded by a wide margin, at the discretion of Daily Dairy Holland B.V., Daily Dairy Holland B.V. will enter into further consultation with the buyer/client.
Delivery is ex Daily Dairy Holland B.V. company or any other location to be decided by Daily Dairy Holland B.V..
If goods sold or services offered by Daily Dairy Holland B.V. are not accepted after they have been offered to the buyer/client, they will be available to the buyer/client for a period of three weeks. However in order to limit suffered or still to suffer damages to the products and or the marketability of it Daily Dairy Holland B.V. is free to limit the period of availability at their own discretion, this without reducing or nullifying their rights on buyer / client. Throughout this period, the goods are stored for the buyer’s/client’s account. After the period mentioned above, the total amount that would be payable for purchase or compliance, increased with the costs and interest, could be claimed from the buyer/client, even without delivery of the said goods or services. The payment will then be deemed made as damages to Daily Dairy Holland B.V..
If the buyer/client does not comply with any obligation arising from this agreement or any other agreement connected with the order or does not do so in time, Daily Dairy Holland B.V., upon informing the buyer/client in writing that he is default, without judicial intervention, will be entitled to suspend the execution, without Daily Dairy Holland B.V. being held to pay any damages.

Article 6: transport and transport risk

The choice of the means of transport is for Daily Dairy Holland B.V. to decide.
The transport of the goods ordered with Daily Dairy Holland B.V. is for the buyer’s/client’s account.
As from the moment of dispatch, all goods ordered from Daily Dairy Holland B.V. travel at the buyer’s/client’s risk. Also if costs of carriage to the delivery address have been agreed on, the buyer/client will be liable for any damage sustained during transport.
The goods will be delivered only to the ground floor. If goods are to be delivered at another location than at ground-floor level, the additional costs and risks are to be borne entirely by the buyer/client. If at the time of delivery the buyer/client is not present or does not appear to be able to receive the goods or is otherwise in default to receive the goods, Daily Dairy Holland B.V. will be entitled to convert the delivery into an obligation for the buyer/client to collect the goods at the address provided by the carrier after the latter has informed the buyer/client by leaving a written message to such effect.
At arrival or receipt of the goods, the buyer/client has to check the condition of the goods. If it then becomes apparent that the goods or materials have sustained damage, he has to take all measures to obtain damages from the carrier. By signing the receipt provided by or on behalf of Daily Dairy Holland B.V., the buyer/client declares he has received the goods in good condition.

Article 7: prices and costs

Daily Dairy Holland B.V. fixes a price or fee for every order individually. This price or fee is exclusively intended as the amount to be paid for the performance to be executed by Daily Dairy Holland B.V., including the normal costs involved. The prices mentioned in the offer are based on the cost price factors, rates, wages, taxes, rights, expenses, cargo et cetera then known. In the event of an increase of any of these factors, Daily Dairy Holland B.V. will be entitled to change the offered (selling) price accordingly.
Therefore, the price or fee does not include any levies imposed by the government or other bodies, including fines, insurance premiums etc.
Daily Dairy Holland B.V. is entitled to demand down payments, or a deposit or security (in the form of a bank guarantee) in advance.
Daily Dairy Holland B.V. reserves the right to charge shipping costs.

Article 8: terms and conditions of payment

Unless explicitly agreed on otherwise in writing, payment of invoices sent by Daily Dairy Holland B.V. must be made within 8 (eight) days upon invoice date, without deduction of discounts and without any form of compensation.
Daily Dairy Holland B.V. is entitled to charge a credit limitation surcharge of at least 2%, but only if this is explicitly stated in the invoice. Deduction of this surcharge from the invoice amount will be allowed, if the invoice amount is paid within 8 (eight) days upon invoice date.
All payments, without deduction or settlement of debt, are to be made at the offices of Daily Dairy Holland B.V. or into a bank or giro account to be designated by Daily Dairy Holland B.V..
Discounts can only be granted upon mutual consultation between Daily Dairy Holland B.V. and the buyer/client. Unless explicitly agreed on otherwise in writing, these are one-off discounts. With subsequent transactions no appeal can be made to previous discounts.

Article 9: complaints

Any complaints about the delivery of goods, the services provided and invoice amounts, must be submitted to Daily Dairy Holland B.V. explicitly in writing within 24 hours upon receipt of the products, services or the respective invoices, with the facts to which the complaints are related carefully stated. The buyer’s/client’s right to complain lapses with respect to the goods and/or services used, edited and/or processed by or on behalf of the buyer/client.
Complaints with respect to the stipulations in these terms and conditions as referred to in, inter alia, Article 6:233, under a, of the Dutch Civil Code (voidness regarding one or multiple stipulations on the grounds of being unreasonably onerous) must also be submitted to Daily Dairy Holland B.V. in writing by registered letter within eight days upon taking cognizance of these terms and conditions or the time at which these could reasonably have been taken cognizance of, with the facts to which the complaints are related carefully stated. The right to complain lapses at the moment at which the agreement is brought about. The buyer/client refrains from making an appeal afterwards on the grounds of one or multiple stipulations in these terms and conditions being unreasonably onerous, in so far as the stipulations felt to be unreasonably onerous are not imperatively prescribed by law.
If the complaints submitted do not comply with the provisions above, they can no longer be received, and the buyer/client will be deemed to have approved the delivered goods and/or performed services. If in Daily Dairy Holland B.V.’s opinion a justified complaint has been submitted, it will have the right to pay to the buyer/client a sum in damages to be decided in mutual consultation, or to proceed to making a new delivery while keeping the current agreement unchanged, under the buyer’s/client’s obligation to return to Daily Dairy Holland B.V. the incorrect or faulty good(s) delivered carriage paid, at the discretion of Daily Dairy Holland B.V..
Daily Dairy Holland B.V. will only be held to take cognizance of complaints submitted, if at the moment at which the complaints are submitted the buyer/client involved has integrally complied with all his existing obligations towards Daily Dairy Holland B.V., regardless of what these obligations consist of and from whatever agreement they arise.
Return shipments insufficiently packed or bearing insufficient postage will be refused by Daily Dairy Holland B.V.. All return shipments from buyers or clients are for their account and risk.

Article 10: cancellation/dissolution and suspension

If the buyer/client is or remains in default in any way with respect to complying with his obligations regarding deliveries or activities executed or to be executed by Daily Dairy Holland B.V. previously, or pursuant to other obligations, Daily Dairy Holland B.V. has the right to suspend its obligations towards the buyer/client or to cancel/dissolve the underlying agreements in whole or in part, without being held liable by the buyer/client in any way and without prejudice to the rights to which Daily Dairy Holland B.V. is entitled. Daily Dairy Holland B.V. will also have this right, if the buyer/client is declared bankrupt, has petitioned for suspension of payment, the Debt Rescheduling Private Individuals Act (Wettelijke Schuldsanering Natuurlijke Personen – WSNP) is declared applicable, other forms of debt supervision or winding-up of the company or business activities occurs, or if – to the standards of Daily Dairy Holland B.V. – these circumstances threaten to occur. All claims Daily Dairy Holland B.V. has on the buyer/client will then be immediately due and payable.
If the buyer/client wants to dissolve or cancel the agreement(s) he has entered into with Daily Dairy Holland B.V., Daily Dairy Holland B.V. will also be entitled to demand compliance with the agreement(s) entered into, or – at the discretion of Daily Dairy Holland B.V. – the buyer/client will have to pay cancellation costs of at least 30% of the selling value.

Article 11: compensation in the case of non-payment or late payment

If payment of the invoices sent by Daily Dairy Holland B.V. has not taken place within 8 (eight) days upon invoice date, the buyer/client will be deemed to be legally in default and Daily Dairy Holland B.V. will have the right to charge to the buyer/client interest on the full payable amount as from the expiry date equal to the statutory interest rate with a minimum of 1% per month or a part of this, without prejudice to the other rights to which Daily Dairy Holland B.V. is entitled, including the right to recover all costs under the claim, such as court costs and extrajudicial collection costs that can be liquidated, the latter of which are fixed in advance at 15% of the amount to be claimed, with a minimum of EUR 250 (in words: two hundred and fifty euros), all of the above without notice of default. NB: As from the moment at which the legislator has established by law the extrajudicial collection costs to be passed on to the buyer/client, the buyer/client is held to pay extrajudicial collection costs pursuant to the respective provisions of the law.

Article 12: retention of title

As long as the buyer/client has not made full payment to Daily Dairy Holland B.V. for goods, parts and installations delivered to him by Daily Dairy Holland B.V. and/or activities executed for him by Daily Dairy Holland B.V., these goods and/or materials, which are for the buyer’s/client’s account and risk, will remain the undisputed property of Daily Dairy Holland B.V..
If a buyer/client does not comply with any obligation from the agreement with respect to the goods sold and/or activities executed, Daily Dairy Holland B.V., without any notice of default being required, has the right to take the goods or materials back, in which case the agreement will be dissolved without any judicial intervention, without prejudice to the right of Daily Dairy Holland B.V. to claim compensation at law or extrajudicially for any damage suffered or yet to be suffered by Daily Dairy Holland B.V., including loss suffered, lost profit, interest, transport costs etc.
Daily Dairy Holland B.V. reserves the right to actually retain goods, tools, materials, vehicles, money, negotiable instruments, (financial) documents et cetera which it has obtained from the buyer/client under whatever title, until the buyer/client has fully complied with his financial and other obligations towards Daily Dairy Holland B.V..
For transactions with a buyer/client established in a country where prolonged retention of title applies, Daily Dairy Holland B.V. has the right to declare the prolonged retention of title as it applies in the respective country applicable at any moment of its choosing

Article 13: force majeure

In the event of force majeure Daily Dairy Holland B.V. is no longer held to comply with its obligations towards the buyer/client. Force majeure includes such events and situations which have a clearly identifiable and direct influence on the company Daily Dairy Holland B.V., such as serious interruptions of its production process, war (also outside the Netherlands), riot, epidemic, fire, traffic disruption, strike, exclusion, loss or damage during transport, contamination of goods for import or contamination of imported goods which becomes evident upon arrival, accident or sickness among its staff, import restrictions or other limitations imposed by governments etc. Daily Dairy Holland B.V. will be discharged from its obligations, regardless of whether force majeure occurred in its own company or elsewhere, such as in the companies of suppliers, carriers, wholesalers etc.
In the event of impediments to executing the agreement due to force majeure, Daily Dairy Holland B.V. will be entitled, without judicial intervention, to suspend the execution of the agreement for a period not exceeding six months, or to dissolve the agreement in whole or in part, at the discretion of Daily Dairy Holland B.V.. The buyer/client will receive a written notice of such decision made by Daily Dairy Holland B.V..

Article 14: intellectual property rights, design protection

The intellectual property rights to all products manufactured, services provided etcetera by Daily Dairy Holland B.V. (also for the benefit of the buyer/client) belong to Daily Dairy Holland B.V.. The use or alternative use of these rights, designs and/or ideas of Daily Dairy Holland B.V. is strictly prohibited, unless Daily Dairy Holland B.V. has granted explicit approval in writing and all conditions stipulated by Daily Dairy Holland B.V. in this respect have been fully complied with.
If the buyer/client dos not comply with the provisions as set out under 14a, Daily Dairy Holland B.V. will be entitled, without any further notice of default and/or judicial intervention being required, to claim a fine of at least EUR 11,500 (in words: eleven thousand five hundred euros) per day or a part thereof as long as this non-compliance continues.

Article 15: guarantees

Daily Dairy Holland B.V. will exclusively grant a guarantee in accordance with the provisions of the guarantee clause, if such provisions have been delivered together with the products. In such cases, the guarantee will only take effect after the buyer/client has informed Daily Dairy Holland B.V. of his request in writing by registered letter.
If a guarantee is provided by Daily Dairy Holland B.V. but if no guarantee clause has been provided, the guarantee term will not exceed three months after delivery of the respective goods. The buyer/client will also need to inform Daily Dairy Holland B.V. of his request in writing by registered letter. NB: Guarantee on goods is in any case not applicable to damages, deterioration and or loss of quality as a result in any way of the manner in which buyer / client, their customers and or on the part of them engaged third party(s) receive, store and or treat the by or on the part of Daily Dairy Holland B.V. delivered goods. This also applies to the issued shelf life period. Where there is disagreement about the cause of the damage, deterioration and or loss of quality the burden of proof rests with buyer / client.
The guarantee includes repair or replacement of the goods delivered, at the discretion of Daily Dairy Holland B.V.. Outside contingency can never lead to Daily Dairy Holland B.V. being held to provide any guarantee.
The goods taken in for repairs by Daily Dairy Holland B.V. or with a therefore engaged third party remain in all cases for risk of buyer/client.

Article 16: consignments on approval

Only upon prior written confirmation by Daily Dairy Holland B.V. to the buyer/client, the goods delivered by or on behalf of Daily Dairy Holland B.V. can be considered consignments on approval for shows, exhibitions, trade fairs and/or other purposes to be indicated by Daily Dairy Holland B.V.. These general terms and conditions also fully apply to goods on approval and on consignment.

Article 17: applicable law and competent court

The laws of the Netherlands apply to all offers, orders and agreements to be entered into with Daily Dairy Holland B.V.. However, Daily Dairy Holland B.V. has the possibility at any desired moment to appeal to the applicable law of the country where the buyer/client is registered/has his registered office or to the Vienna Sales Convention. In such case, contrary to the provisions set out under b, the dispute will be submitted to the court that is competent ratione materiae in the buyer’s/client’s jurisdiction. Daily Dairy Holland B.V. does not need to inform the buyer/client about this in advance.
All disputes will be submitted to the Subdistrict Court of Midden-Nederland that is competent ratione materiae or to another competent judicial authority, at the discretion of Daily Dairy Holland B.V..
If any article or paragraph of these general terms and conditions becomes invalid, the other articles will remain valid.

Concluding provisions:

These terms and conditions have been prepared and filed for the benefit of Daily Dairy Holland B.V. by De Incassokamer B.V. and have come about under the applicability of its current and future general terms and conditions of sale, delivery and payment, with due observance of Book 6, Title 3 of the Dutch Civil Code. These general terms and conditions are also subject to the © copyright of De Incassokamer B.V.