GENERAL SALES AND DELIVERY TERMS AND CONDITIONS OF Diamond Genetics B.V.
Article 1 - Applicability
1.1 These general terms and conditions are applicable to all the requests, quotations, promotions and (additional) agreements between the private company with limited liability Diamond Genetics B.V. (hereafter called “DIAMOND GENETICS”) and a Client, to which DIAMOND GENETICS has declared these terms and conditions to be applicable, insofar the parties have not deviated from these terms and conditions – or parts of – explicitly in writing.
1.2 In these general terms and conditions, Client means: every legal entity or natural person who has entered into or wishes to enter into an agreement with DIAMOND GENETICS, and except for these, their representative(s), authorised person(s), successor(s) and inheritors.
1.3 Any deviation or change of the general terms and conditions should be agreed on explicitly in writing by the parties. If for particular cases deviant terms and conditions have been agreed on, then these general terms and conditions apply to all the other transactions.
1.4 These general terms and conditions are exclusively applicable to all promotions and agreements of DIAMOND GENETICS, regardless of a possible (prior) reference of the Client to their own or other general terms and conditions. DIAMOND GENETICS explicitly rejects any general terms and conditions declared applicable by the Client and, therefore, has never accepted such terms and conditions in any way.
1.5 DIAMOND GENETICS has the right to amend or supplement these terms and conditions. For recently secured assignments, the terms and conditions, clauses and provisions shall, however, remain valid from the day the agreement is concluded. Such amendments to these general terms and conditions shall be effective from the announced moment of implementation. DIAMOND GENETICS shall send the amended terms and conditions in good time to the Client. When no moment of implementation has been stipulated, the amendments shall become effective to the Client as soon as he has been informed of the amendment or when this has been made known.
1.6 Regarding the (sub)headings as they are applied to the current terms and conditions, no rights – under no circumstances – can be derived from these. The (sub)headings leave unaffected the content and assertion of every (sub)article as used in these terms and conditions.
Article 2 – Quotations
2.1 All promotions, even those made on price lists published by DIAMOND GENETICS, are only voluntary, indicative and non-binding, unless explicitly agreed on in writing.
2.2 DIAMOND GENETICS may up until the time the purchasing party accepts a quotation change the price and/or the terms and conditions.
Article 3 – Concluding the agreement
3.1 An agreement, by whatever name, only comes about after explicit acceptance by DIAMOND GENETICS. This explicit acceptance is clear with a written confirmation from DIAMOND GENETICS, as well as from the fact that they comply to the terms and conditions within 14 days.
3.2 Additional arrangements or amendments regarding the closed agreement, shall only be binding for DIAMOND GENETICS if these are confirmed in writing within a term of 14 days.
3.3 For agreements for which, according to the nature and extent, no quotation is provided, the provided invoice is deemed to provide correct and complete statement of the agreement, subject to an objection amde within 3 business days following the invoice date.
3.4 DIAMOND GENETICS is entitled during or after conclusion of the agreement, and prior to (further) performance, to demand security from the Client regarding the payment obligations as well as other obligations of the Client.
3.5 DIAMOND GENETICS is authorised to, in case this is necessary or desirable for a proper implementation of the order received, engage third parties for the performance of the agreement, of which the Client shall bear the costs conform the quotations provided.
3.6 The Client must, in good time, provide all the information and possible documentation which are required for the proper execution of the agreement correctly.
Article 4 – Prices
4.1 Unless agreed on differently in writing, the prices applied by DIAMOND GENETICS are exclusive of VAT, import and export duties, other taxes and duties, rights and costs.
4.2 Deliveries by appointment are conducted in prices, valid on the day of delivery, unless otherwise is agreed on in writing.
4.3 The prices applied by DIAMOND GENETICS are confirmed by means of order confirmation, and are based on the price-determining factors at the time the agreement was established.
4.4 DIAMOND GENETICS is entitled to charge the client by means of a supplement on the prices referred to in this article, the calculated (additional) costs, rights, expenses and taxes, concerning the import, the production, the providing of services, the processing, the loading, the transport, the unloading or the delivery that have not been included in the prices, insofar these (additional) costs, rights, expenses and taxes were not familiar at the time the agreement with DIAMOND GENETICS was concluded and developed during a normal implementation thereof or were charged to them. If the price increase is more than 15%, the Client has the right to terminate the agreement.
4.5 In case the parties agree on a discount, of any nature and under any name, on the prices as referred to in this article, DIAMOND GENETICS has at all times the right to revoke or amend this discount without consideration of a term. The same arguments apply, mutatis mutandis, to agreed on turnover bonuses.
Article 5 – Delivery and transport
5.1 Embryos and sperm are sold as standard according to IncoTerms Exit Works.
5.2 Male and female livestock are sold as standard according to Inco Terms Exit Works.
5.3 Bulls meant for artificial insemination outside of the Online Bulls Auction are purched from customers according to Delivery Duty Paid (DDP). The risk and the expenses of the quarantine, the transport to the quarantine are thus for the seller.
5.4 Bulls meant for artificial insemination within the Online Bulls Auction (www.onlinebullsale.com) are sold under Inco Terms Ex Works purchasing conditions
5.5 The Client is obligated to take delivery of the purchased goods at the moment these are made available to them conform the content of the agreement, or at the moment these are delivered to them.
5.6 If the Client refuses or is negligent to provide information or instructions necessary for the instalment or delivery, the goods shall be stored at the expense and risk of the Client. The Client shall in that case also be liable for all additional costs, including in any event the storage costs.
5.7 The time of delivery is the moment an offer has been presented to deliver the purchased item, or the moment the purchased item, conform the content of the agreement, is made available.
5.8 DIAMOND GENETICS is permitted to deliver sold goods in parts. This does not apply if a partial delivery does not have an independent value. In case the goods are delivered in parts, DIAMOND GENETICS is authorised to invoice every part separately.
5.9 If the nature of the goods cannot be stored, DIAMOND GENETICS is authorised to resell the goods, without prejudice to the agreements made with the Client to full compensation.
Article 6 – Delivery time
6.1 The delivery time specified in the agreement and the promotion can never be considered as so-called ‘fatal’ terms, unless explicitly agreed on differently.
6.2 Exceeding the delivery time, however caused, does not give the Client the right to any compensation, termination of the agreement, refuse reception of the products and/or not making payment. The Client does have the right to set a new reasonable deadline for DIAMOND GENETICS, which is under no circumstances less than 14 days, failure to comply of which the Client is exclusively eligible to terminate the agreement insofar as it has not been executed. Also in this case, the Client does not have the right to compensation of any suffered damage.
Article 7 – Sample collection
7.1 If DIAMOND GENETICS has displayed or supplied a design, sample or example, this shall be assumed to have only been displayed or supplied as an indication: the characteristics of the goods to be delivered may deviate from the sample, design or example, unless it was expressly stated that delivery would be in accordance with the sample, design or example displayed or supplied.
Article 8 – Changes and cancellations
8.1 Changes in the performance of the agreement are only possible if the desired changes have been disclosed to DIAMOND GENETICS in writing by the Client and DIAMOND GENETICS subsequently has approved in writing of the changes. Expenses and possible damage as a result of these changes may be charged by DIAMOND GENETICS to the Client.
8.2 In case the Client, after an agreement has been concluded, cancels this or a part thereof, 20% of the order price (including VAT) is charged as cancellation fee, and without prejudice DIAMOND GENETICS’ rights to claim full compensation from the Client.
Article 9 - Payment
9.1 Unless otherwise stipulated in writing in the agreement, all invoices should be paid for by a legal tender, at the latest within 30 days after the invoice date without any discount or settlement. All payment deadlines are considered fatal terms. The Client shall consequently by operation of law be defaulted without the requirement of a separate notice of default.
9.2 The amount due by the Client is in any event immediately claimable, without this requiring any warning or proof of default, if an agreed instalment is not paid promptly on the due date; when the Client has gone bankrupt, goes in administration, a suspension of payment has been requested or the receivership has been requested; when items or parts of the items or claims of the Client are attached; when the Client dies, is placed under guardianship, goes into liquidation, or is terminated; does not meet the responsibilities observed by law or of these terms and conditions; discontinues or transfers the company or an important part thereof, including the incorporation of the company in a company to be founded or already existing, or considers to change the objectives of the company. Without prejudice to DIAMOND GENETICS’ rights to compensation of expenses, damage and interests.
9.3 The payments effected by the Client shall be allocated towards fulfilment of any interest, fine(s) and costs owed and subsequently of claimable invoices that have been outstanding the longest, even if the Client states that the payment relates to a later invoice.
9.4 If the Client fails to meet one or more payment commitments, or fails to do so on time, the Client shall owe DIAMOND GENETICS an interest of 2% per month or a part of the month for all overdue payments as from the final day, in which a part of the month is being treated as a full month. In addition, the Client shall owe the judicial and extrajudicial collection costs of a minimum 15% of the amount of the overdue payment. Extrajudicial collection costs are all the costs incurred by DIAMOND GENETICS to for the collection of the amount the Client owes according to the agreement, such as lawyer and public prosecutor claims, bailiff, fiduciaries and collection agencies.
9.5 If DIAMOND GENETICS, for instance, receives financial or corporate unfavourable notices from the Client, DIAMOND GENETICS is eligible to, even if this situation takes place after a written confirmation of the assignment, demand an advance, a cash payment or security for payment. Refusal bij the Client to provide the security of payment entitles DIAMOND GENETICS to terminate the agreement, without prejudice to DIAMOND GENETICS’ right to compensation of expenses and for loss of earnings.
9.6 If the assignment has been granted by more than one Client, then all Clients are severally liable for the full compliance with the obligations as have been described in this article as well as in this agreement, regardless of the ascription of the invoice.
Article 10 – Complaints
10.1 During the delivery and receiving of goods and/or services, the Client should verify if the delivery of the order or the assignment correspond, failing which he is obligated to immediately – at least 8 days after delivery – report this in writing to DIAMOND GENETICS.
10.2 Complaints must be submitted to DIAMOND GENETICS directly after the complaint is discovered or reasonably could have been discovered by the Client or customer, failing which the Client is deemed to accept the goods unconditionally.
10.3 If the Client complains, he is obligated to leave the goods in an unaltered condition, until DIAMOND GENETICS has investigated the complaints.
10.4 Claims should have reached DIAMOND GENETICS in writing within the term(s) as mentioned in this article after the delivery of the corresponding goods, specifying in detail the nature and grounds of the complaints, together with the invoice number and the packer’s number. Every right to claim lapses if the goods have been used by the Client (or a third party), which has changed in nature, appearance or composition due to treatment, storage or transport.
10.5 Complaints do not give the Client the right to suspend payment while settlement is explicitly excluded.
10.6 Complaints about invoices must also be submitted in writing to DIAMOND GENETICS and must have been done at the latest within 14 days after the invoice date.
10.7 If it has been agreed upon that the Client samples goods from DIAMOND GENETICS or has these samples and he does not use this right within 8 days after DIAMOND GENETICS on behalf of DIAMOND GENETICS has been given the opportunity to do so, the Client must accept the goods.
10.8 In the event of a timely submitted and founded complaint, DIAMOND GENETICS shall of their own choice deliver the agreed performances, repair, replace or credit the goods.
10.9 Returning what had been delivered by the Client may only take place after DIAMOND GENETICS has given written consent beforehand, in accordance with conditions to be determined by DIAMOND GENETICS.
Article 11 – DIAMOND GENETICS’ obligations
11.1 DIAMOND GENETICS shall make every reasonable effort to adhere to the legal demands with respect to the goods sold by them. The goods shall only be offered for sale after they have technically been analysed and the agreed characteristics are in accordance with the associated descriptions.
11.2 Data mentioned in newsletters, advertisements, documents and at lectures, or statements made by DIAMOND GENETICS employees, are not binding and may at no time be regarded as equivalent to a guarantee. DIAMOND GENETICS, furthermore, does not accept liability for any errors or deviations therein.
Article 12 – Force Majeure
12.1 DIAMOND GENETICS is not obligated to fulfil any obligations if they are prevented from doing so due to a circumstance which is considered beyond their fault, and for which they cannot be held accountable for by law, legal act nor generally accepted opinions.
12.2 If DIAMOND GENETICS is unable to meet its contractual commitments, or is unable to do so on time due to force majeure or among others, but not limited to, the delayed delivery by Clients of DIAMOND GENETICS, then DIAMOND GENETICS has the right to suspend their obligations as described in the agreement and still perform the agreement within a reasonable time, or, if fulfilment within a reasonable time is not possible, terminate the agreement entirely without being required to pay compensation.
12.3 The Client, on the other hand, does not have the right to terminate the agreement, unless the Client can show that early on compliance is essential for him within his business operation. In this case, termination must be effected in writing within 5 days after the expiry of the deadline of a month.
12.4 Force majeure shall be understood to include, but is not limited to: war, state of siege, riots, sabotage, natural disasters, government measures, fire, strike, shortage of resources, shortage of workers, failures in the power and/or water supply and/or communication measures, traffic congestion, breakage of machines and/or tools, contagious livestock diseases, reasonable unforeseen poor quality, productivity and health of the cattle, sperm and embryos in the performance of the agreement used and to be used (including the presence of undesirable – as well as the absence of desirable – genes, disappointing gestation results and unexpected excessive duration of gestation), as well as non-fulfilment of obligations of third parties towards DIAMOND GENETICS, irrespective of cause, without DIAMOND GENETICS having to demonstrate the impact thereof on its business.
12.5 The party that believes to enter or believes to have entered a force majeure situation, is obligated to notify the other party immediately thereof in writing.
Article 13 – Industrial and intellectual property
13.1 Unless differently agreed on in writing, DIAMOND GENETICS retains the copyrights, as well as the other rights of intellectual and industrial property on the goods, designs, sketches, pictures, drawings, models, samples and invoices provided by them. These goods remain the property of DIAMOND GENETICS and may not, without their express permission and on the forfeiture a penalty of € 25,000.00 for every infringement to DIAMOND GENETICS, be copied, showed to third parties or used in any other way, regardless if the cost has been charged to the Client.
Article 14 - Liability
14.1 For defects in the delivered goods as well as (additional) provision services, DIAMOND GENETICS’ liability is restricted up to an amount equal to the amount of the invoice, or an amount not exceeding the honorarium that DIAMOND GENETICS has charged the Client under the terms of the agreement. This restriction does not apply if the damage is due to gross negligence or wilful misconduct of DIAMOND GENETICS or their management or subordinates.
14.2 The only types of damage eligible for compensation are those for which DIAMOND GENETICS is insured, or, considering the prevailing practices in the industry, reasonably should have been insured. The following restrictions should therefore be observed:
- not eligible for compensation are: consequential damage, business damage and loss of profits, whatever the reason. Client should take out insurance to cover such damages;
- DIAMOND GENETICS is not liable for damage (of whatever kind) adopted by or inflicted during the performance of the agreement to property (including movable and immovable property) or persons, to the Client as well as third parties.
14.3 DIAMOND GENETICS is in any case not liable for damage arising from or caused by acts of works, such as performed by the Client or third parties after delivery, or the incorrect use of the delivered or because of the inadequacy as a result thereof for the goal, for which the Client has purchased it.
14.4 More specifically, DIAMOND GENETICS is under no circumstances liable for the damage due to reasonably unforeseeable and reasonably uncontrollable contagious livestock disease(s), (duration of the) gestation, poor quality, productivity and health of the sperm, embryos and/or cattle used in the agreement. DIAMOND GENETICS is consequently not liable for damage connected in any manner to the presence of (respectively, absence) of undesired (respectively, desired) hereditary characteristics (such as in relation to recessive genes) of the cattle, sperm and embryos used or to be used under the agreement.
14.5 DIAMOND GENETICS is neither liable for damage the Client suffers from applying (additional) advice, or work activities, unless there is evidence of gross negligence or wilful misconduct by DIAMOND GENETICS.
14.6 From the moment of delivery of the goods to the Client, DIAMOND GENETICS is indemnified from all claims by third parties, including the payment of compensation, regardless if the damage is due to the composition and/or manufacturing defects or due to any other cause.
14.7 DIAMOND GENETICS cannot be liable for mistakes made by the embryo transplantation specialists and/or IVF laboratory specialists. Specifically, DIAMOND GENETICS rules out any form of liability when sperm(s) or oocytes could get swapped by employees of DIAMOND GENETICS.
14.8 The liability limitations described in the previous clauses do not apply if there is evidence of gross negligence or wilful misconduct by DIAMOND GENETICS or their subordinates.
14.9 In case the performance of the assignment requires a third party, then DIAMOND GENETICS is not liable for the damage because of the treatment or negligence of this third party. The Client indemnifies DIAMOND GENETICS of claims from or by third parties.
Article 15 – Retention of title
15.1 The right of ownership of all the products sold by DIAMOND GENETICS to the Client remains with DIAMOND GENETICS as long as the Client has not satisfied any claims arising from this or a similar agreement, as long as the Client has not yet paid the claims from the conducted or still to be conducted works or from this or a similar agreement, and as long as the Client has not yet paid the claims due to failure to meet the requirements, including claims relating to penalties, interest and costs.
15.2 The delivered goods by DIAMOND GENETICS that fall under the retention of title in the aforementioned sub-article, may only be sold on within the framework of the normal conduct of business. The Client is not authorised to pawn the referred to goods or establish any other (limited) right on them.
15.3 If the Client fails to fulfil its obligations or there are well-founded fears that it will not fulfil its obligations, DIAMOND GENETICS is eligible to remove or have removed the delivered goods to which the retention of title rests with the Client or third party/parties as referred to in clause 1 of this article. The Client is committed to render all assistance subject to a fine of 15% of the amount due of the (invoice) amount or a share thereof.
15.4 The Client is, at first request of DIAMOND GENETICS, obligated to:
- insure the delivered goods subject to retention of title and to keep them insured against fire, damage caused by explosion or water, and against theft, and to submit the policies of such to DIAMOND GENETICS;
- pledge all the Client’s claims to insurances in relation to the delivered goods subject to retention of title to DIAMOND GENETICS conform article 3:239 Civil Code; - pledge the claims the Client obtains towards his customers during resale of delivered goods subject to retention of title to DIAMOND GENETICS conform article 3:239 Civil Code;
- submit without delay the names and addresses of all third parties to which the Client has forwarded the goods delivered by DIAMOND GENETICS subject to retention of title, as well as all the rights the Client has obtained in relation to that forwarding to the third parties;
- label the delivered goods subject to retention of title as owned by DIAMOND GENETICS;
- cooperate with all reasonable measures that DIAMOND GENETICS wishes to take to protect its retention of title in relation to the delivered goods and which do not unreasonably hinder the normal course of business.
15.5 If after the summons by DIAMOND GENETICS, the Client remains in default on compliance in accordance with the aforementioned clause of this article, he shall forfeit immediately a payable fine amounting to 25% of the outstanding claim towards the Client, as well as an immediately payable fine amounting to 5% of the outstanding claim for every subsequent day for which the absenteeism of the Client continues, without prejudice to the DIAMOND GENETICS’ right to claim compliance or full compensation.
Article 16 – Subrogation
16.1 For the concluded agreement with the Client as well as for the performance of that agreement, DIAMOND GENETICS is authorised to allow another party to take its place. The Client grants DIAMOND GENETICS for that purpose approval for this subrogation. The subrogation takes place as soon as DIAMOND GENETICS has, also on behalf of the party taking its place, notified this in writing.
Article 17 – Suspension and termination
17.1 If the Client does not or not decently comply with any obligations resulting from this or any other agreement entered, if he has been declared bankrupt or has filed an application therefor, if he has applied for suspension of payment, if he goes into liquidation, if all or part of the essential parts of his company have been confiscated or cessation of the company, or any related situation related to the Client’s company, then DIAMOND GENETICS as the right to suspend the agreements or the parts that have not been executed yet, even if the works have been started, without the requirement of any judicial intervention, without prejudice to all other rights of DIAMOND GENETICS. Only then shall all the Client’ outstanding claims be claimable.
Article 18 – Applicability justice and litigations
18.1 On all the invoices, agreements resulting from them and the performance thereof, is governed exclusively by Dutch law. The Vienna Convention (United Nations Convention on Contracts for the International Sale of Goods in Vienna 11 April 1980, treaty series, 1981, 184 and 196,61), does not apply to this agreement.
18.2 All litigations, including those that are only considered as such by one party, resulting from or relating to the agreement to which these terms and agreements apply, or the terms and conditions themselves and the explanation or execution thereof, of factual as well as judicial nature, shall be settled by the competent civil court in the district of Gelderland. Subject to insofar mandatory rules of relative competence should stand in the way of this choice.
18.3 In case of litigations in relation to the quality of the delivered products or services, the parties are, albeit a single written request, authorised to subject these to a binding advice from an unbiased expert, i.e. the Gezonde Dieren (GD Animal Health) organisation in Deventer. The decision made by this appointed service is binding on both parties. The designated service shall decide, after both parties have been given the opportunity to clarify once in writing and once orally their point of view and after witnesses have been called upon to be interviewed. The service decides also which party should borne all or part of the expenses in relation to the advice.