Terms and conditions
These general terms and conditions (hereinafter "Terms and Conditions") shall apply to all Contracts (as defined hereinafter) entered into by CLAREBOUT POTATOES NV (with registered office located at 8950 Heuvelland, Heirweg 26 and registered in the Crossroads Bank of Enterprises with company number 0432.637.717 (hereinafter "Clarebout Potatoes") and the Customer (as defined below).
1 DEFINITIONS
1.1 In these Terms and Conditions, the following terms shall have the following meanings:
"Contract(s)" means (i) any written agreement entered into between, and signed by, Clarebout Potatoes and the Customer, including, but not limited to, agreements for the sale of Goods; (ii) any Quotation accepted by the Customer in accordance with article 3 of these Terms and Conditions during the period of validity of the Quotation; and (iii) any Order accepted by Clarebout Potatoes;
"Customer" means any natural or legal person to whom Clarebout Potatoes sells Goods;
"Force Majeure Event" means any circumstances beyond the reasonable control of Clarebout Potatoes or the Customer which reasonably make the performance of its obligations impossible, including but not limited to fire, explosions, power outages, seismic activity, strikes, delays or interruptions in the supply of raw and/or auxiliary materials, floods, special weather conditions, natural disasters, war, (cyber)terrorism, occupation, governmental measures and pandemic.
"Good(s)" means any goods that Clarebout Potatoes sells, i.e. transfers ownership, to the Customer, including but not limited to potato products;
"Order(s)" means a (written) order from the Customer to supply Goods;
"Quotation" means a written offer by Clarebout Potatoes to supply Goods;
2 APPLICABILITY
2.1 By entering into an Contract with Clarebout Potatoes, the Customer declares that it has read and understands the Terms and Conditions in their entirety, and the Customer irrevocably agrees to the contents of the Terms and Conditions and their application to all Contracts and legal relationships with Clarebout Potatoes.
2.2 Clarebout Potatoes reserves the right to amend its Terms and Conditions at any time, which amended version shall apply to all Contracts entered into with Clarebout Potatoes thereafter from ten (10) calendar days after its notification to the Customer.
2.3 The Customers may, in any event and at all times, consult the Terms and Conditions at https://www.clarebout.com/en/termsandconditions.
2.4 These Terms and Conditions, together with the contents of the Contract, govern the legal relationship between Clarebout Potatoes and the Customer.
2.5 The Customer shall be deemed to irrevocably waive his own (present and future) general terms and conditions and billing conditions, which shall in no event form part of the Contract and by which Clarebout Potatoes shall in no event be bound.
2.6 In case of conflict between the Terms and Conditions, on the one hand, and an Contract, Quotation or Order between Clarebout Potatoes and the Customer, on the other hand, the provisions of the Contract, Quotation and/or Order shall prevail.
2.7 Deviations from these Terms and Conditions are subject to a prior, express and written agreement between Clarebout Potatoes and the Customer.
3 QUOTATIONS AND PRICES
3.1 The sending of price lists, price estimates, brochures, advertisements, newsletters and/or any information on Clarebout Potatoes' website shall not be regarded by the Customer as a binding offer on the part of Clarebout Potatoes. The terms and conditions contained in and more generally the contents (including price indications and price estimates) of the aforementioned documents may be changed by Clarebout Potatoes at any given time at its sole discretion, without prior notice to the Customer.
3.2 Quotations are revocable by Clarebout Potatoes at any time until acceptance by the Customer. Unless expressly stated otherwise in the Quotation and subject to earlier revocation, Quotations are valid for seven (7) calendar days starting from its issuance, upon the lapse of which they automatically expire.
3.3 Clarebout Potatoes shall only be bound upon Customer's acceptance of the Quotation in question (hereinafter the "Acceptance"), without prejudice to the provisions below.
An Order shall only bind Clarebout Potatoes upon receipt by the Customer of a written confirmation by Clarebout Potatoes of the Orders concerned (by letter or electronically) (hereinafter also referred to as "Acceptance"), without prejudice to what is provided below.
The Acceptance of a Quotation by a Customer or of an Orders by Clarebout Potatoes establishes a Contract.
3.4 Nevertheless, Clarebout Potatoes reserves the right, even after Acceptance, to adjust the prices stated in the Contract, Quotation or Orders (or Acceptance thereof by Clarebout Potatoes) (i) in the event that the price of goods purchased by Clarebout Potatoes from third parties is increased or such goods are (temporarily) unavailable; and/or (ii) in the event of any increase in the cost of wages, social security contributions, taxes, the price of raw materials, materials and/or transport costs, energy prices or more generally the prices of goods or services purchased by Clarebout Potatoes, whereby Clarebout Potatoes shall reasonably proportionate and take into account any such price increase. In addition, Clarebout Potatoes also reserves the right to correct material errors in the Contracts, Quotations, Orders or Acceptances.
3.5 Prices appearing in Quotations and/or Contracts only cover the Goods to be supplied by Clarebout Potatoes stated therein.
3.6 Unless expressly stated otherwise, prices quoted are always in euros (€) and are exclusive of taxes, duties and costs of any kind, including any import duties and other costs associated with customs clearance, unless expressly stated otherwise.
3.7 In the event that, contrary to article 3.6, the quoted price is expressed in a currency other than the euro (€), any adverse exchange rate fluctuations against the euro after Acceptance shall be borne by the Customer.
If the aforementioned exchange rate fluctuations result in the exchange rate against the Euro being more unfavourable at the time the invoice becomes due and payable than at the time of Acceptance, Clarebout Potatoes reserves the right to charge the resulting difference in the relevant invoices.
4 PAYMENT
4.1 Unless expressly stated otherwise in the Contract, all invoices from Clarebout Potatoes are payable by bank transfer to the account number specified on the invoice and by no later than the due date specified on the invoice or, if no express due date is specified on the invoice, within a period of thirty (30) days from the invoice date. Any other form of payment (including, but not limited to, payment by cheques or bills of exchange) is not permitted.
4.2 The Customer shall not be entitled to suspend its payment obligation to Clarebout Potatoes nor to set off against any amounts that Clarebout Potatoes may owe to the Customer.
4.3 Any protests against Clarebout Potatoes' invoices must reach Clarebout Potatoes by registered mail within eight (8) calendar days from the date of the invoice. After the aforementioned period of eight (8) calendar days, the Customer is no longer entitled to protest the relevant invoice, and the Customer must pay the relevant invoice.
4.4 In the event of full or partial non-payment of the invoice on the due date by the Customer, the Customer shall automatically and without prior notice of default owe the default interest as determined in accordance with the Belgian Act of 2 August 2002 on combating late payment in commercial transactions (in Dutch: “Wet van 2 augustus 2002 betreffende de bestrijding van de betalingsachterstand bij handelstransacties”) on the date the amount becomes due, and this from the day following the due date until full payment. If the period of default is less than one (1) year, such interest shall be calculated pro rata temporis.
Furthermore, in the aforementioned case, the Customer shall automatically and without prior notice of default owe liquidated damages of ten (10) percent on the outstanding amount with a minimum of two hundred (200) EUR per invoice, even if a grace period has been granted and this without prejudice to Clarebout Potatoes' right to claim higher damages.
4.5 Notwithstanding any previously permitted method of payment, in the event of non-payment of any of Clarebout Potatoes' invoices on the due date, all amounts still due to Clarebout Potatoes by the defaulting Customer, including invoices not due, shall become automatically and immediately payable.
4.6 Without prejudice to Clarebout Potatoes' right to claim damages and interest as set out in article 4.4, Clarebout Potatoes further reserves the right, in the event of partial non-payment by the Customer on the due date of the invoice, to discontinue all further deliveries of Goods in respect of such Customer, without prior notice of default, until full payment by the Customer to Clarebout Potatoes of all sums due, and also reserves the right to charge any additional costs to the Customer.
4.7 The payment of any contractual advances established shall, in the event of (partial) non-payment by the Customer, accrue to Clarebout Potatoes as compensation for potential losses on resale.
5 RETENTION OF TITLE
5.1 The Goods delivered by Clarebout Potatoes to the Customer shall remain the property of Clarebout Potatoes until the day of payment in full of the price thereof, including any interest and damages, so that Clarebout Potatoes may claim their return if so required, without prejudice to the fact that the risk of damage and loss in principle transfers to the Customer at the time of delivery as provided in article 7.4.
5.2 In case the Goods have been processed, these processed goods shall replace the delivered Goods. Similarly, in case of pre-sale of the Goods - whether processed or not - the right to the resulting sales price shall also take the place of the Goods.
6 ANNULATION
6.1 In the event the Contract is cancelled by the Customer prior to the time foreseen for delivery of the Goods, the Customer shall owe Clarebout Potatoes liquidated damages of at least 30% of the invoice or quotation amount, without prejudice to Clarebout Potatoes' right to prove higher actual damages.
7 DELIVERY OF GOODS
7.1 Unless expressly stated otherwise in the Contract, delivery shall take place at the location stated in the Contract.
7.2 Unless expressly stated otherwise in the Contract, all delivery dates communicated are indicative and represent an obligation of effort on the part of Clarebout Potatoes.
7.3 Any payment of the contractually provided advance payment shall in no way imply a guarantee by Clarebout Potatoes as to the effective delivery terms. The Customer acknowledges that the effective delivery of the Goods may depend on, and be affected by, a variety of internal (e.g. availability of the Goods, grouped deliveries, etc.) and external (e.g. crop failures, etc.) factors, which are not always controllable in advance by Clarebout Potatoes.
7.4 The risk of loss, damage or destruction of Goods shall transfer to the Customer when the Goods are made ready for collection by Clarebout Potatoes, unless expressly agreed otherwise. The transport risk shall be allocated in its entirety to the Customer.
7.5 The weight of the Goods to be delivered is determined at the time the Goods have been made ready for collection by Clarebout Potatoes. In accordance with article 7.4, loss of Goods in transit shall be the responsibility of the Customer. Accordingly, irrespective of the weight of the Goods on delivery, it will be presumed that the correct weight of the Goods was prepared for collection in accordance with the Contract. Nevertheless, the Customer retains the right to prove the contrary.
8 CONFORMITY
8.1 Any detected non-conformity of the Goods must be notified in writing to Clarebout Potatoes no later than eight (8) days after delivery, detailing the detected non-conformity.
If Clarebout Potatoes is not notified of the non-conformity of the Goods within the aforementioned period, the Customer shall be deemed to have accepted the Goods without reservation, and any claim on behalf of the Customer shall irrevocably lapse.
8.2 Complaints for non-conformity shall not suspend the Customer's payment obligation.
8.3 In case of non-conforming Goods, the Customer accepts that one or more of the following measures shall suffice to compensate for any damage in full without additional compensation: (1) crediting the relevant (partial) invoices relating to (the relevant part of) the non-conforming Goods; and/or (2) redelivering (the relevant part of) the non-conforming Goods at no additional cost.
9 LIABILITY
9.1 Notwithstanding any contrary mandatory statutory provisions, Clarebout Potatoes shall only be liable for damage caused by non-compliance with its own obligations, if and to the extent such damage is caused by its own willful misconduct or deceit.
9.2 In no event shall Clarebout Potatoes be liable for indirect damages, including but not limited to loss of profits, insolvency, bankruptcy, business interruption, incapacity to work, loss of morale, loss of reputation, personnel costs, depreciation or damage to goods and damage to third parties. Where appropriate, the Customer shall be obliged to indemnify Clarebout Potatoes in respect of all third party claims for compensation for which Clarebout Potatoes' liability is excluded in these Terms and Conditions.
9.3 Notwithstanding the foregoing provisions and limitations, Clarebout Potatoes' liability shall in any case always be limited to the amount of the last invoice paid by the Customer for the delivery of the Goods.
10 FORCE MAJEURE
10.1 Clarebout Potatoes shall in no event be liable for any loss caused by any failure to perform the Contracts or to perform them on time if it is reasonably impossible for Clarebout Potatoes to do so due to a Force Majeure Event.
10.2 In case of a Force Majeure Event Clarebout Potatoes reserves the right to rescind the relevant Contract without any compensation being due.
11 TERMINATION BY CLAREBOUT POTATOES
11.1 Unless otherwise provided, the Contract between Clarebout Potatoes and the Customer is concluded for a definite term.
11.2 Clarebout Potatoes has the right to terminate the Contract with the Customer with immediate effect, without prior notice of default and without judicial intervention, at Clarebout Potatoes' discretion, in the following cases:
(i) The Customer fails to pay one or more invoices (in full) on the due date;
(ii) The Customer fails to comply (in full or in part) with the Contract and/or these Terms and Conditions;
(iii) The Customer is in a state of bankruptcy, liquidation, judicial reorganization, dissolution or cessation of the activity to which the Contract relates, or the Customer is confronted with a seizure to the detriment of the Customer, an application for judicial reorganization or any other fact indicating (imminent) insolvency of the Customer;
(iv) Change in control of the Customer, being a change in the party or parties having the power, in law or in fact, to exercise a decisive influence on the appointment of the majority of the managers or directors, or on the orientation of the policy.
12 MISCELLANEOUS
12.1 In the event that a fundamental change in economic circumstances results in the execution of the Contract imposing an unreasonable or disproportionate burden on Clarebout Potatoes, the parties shall consult to jointly agree on a fair modification of the Contract, without prejudice to Clarebout Potatoes' right to invoke the provisions of Clarebout Potatoes' article 3.4 where relevant.
12.2 If any provision (or part thereof) of the Contract, including these Terms and Conditions, should be unenforceable or in conflict with any provision of mandatory law, this shall not affect the validity and enforceability of the other provisions of the Contract, including these Terms and Conditions, nor the validity and enforceability of that part of the relevant provision which is enforceable or not in conflict with any provision of mandatory law. In such a case, (the part of) the invalid provision shall automatically be replaced by an enforceable and legally valid provision that is as close as possible to the purpose and purport of the original provision.
12.3 If, in the event of non-performance or improper performance of one or more obligations by the Customer, Clarebout Potatoes does not (immediately) respond or does not (immediately) expressly claim proper performance or any other right arising from these Terms and Conditions, the Contracts or the law, this does not imply a waiver or relinquishment of Clarebout Potatoes' right to later invoke the non-performance, improper performance and/or the unperformed obligation(s) on the part of the Customer.
12.4 In the event that the provisions of the present English version of the Terms and Conditions conflict with the provisions of the original Dutch version of the Terms and Conditions, the latter shall prevail.
13 APPLICABLE LAW AND COURTS
13.1 These Terms and Conditions shall be exclusively governed by and construed in accordance with Belgian law.
13.2 All disputes arising in connection with the formation, validity, interpretation or performance of Contracts with Clarebout Potatoes or these Terms and Conditions shall be settled exclusively and finally by the courts located in Kortrijk (Belgium), without prejudice to Clarebout Potatoes' reserved right to sue as plaintiff before courts of the place of the Customer's registered office.