In these terms, the following words shall have the following meanings: “Buyer” means any person, firm or company to whom Rodanco sells Product. “Contract” means any contract between Rodanco and the Buyer for the sale and purchase of product incorporating these conditions. “Rodanco” means Rodanco BV whose registered office is at Marsmanstraat 17, 1822 JE Alkmaar, The Netherlands. “Incoterms” means the terms of trade for international sales of goods published by the International Chamber of Commerce applicable at the date of the formation of a contract of sale between Rodanco and Buyer. “Product” means goods sold to Buyer by Rodanco together with the container containing such goods. “Returnable Containers” means intermediate bulk containers and isotanks, except for those which Rodanco informs Buyer are not returnable. “Specification” means Rodanco’s specification for the Product agreed in writing between Rodanco and Buyer or, in the absence of such agreement, Rodanco’s specification prevailing from time to time or, if there is none, the normal standards of industrial quality.
2. Application of Terms
The contract of sale shall be on these terms and conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specifications or other document). Variations to these terms and conditions shall have no effect unless expressly agreed in writing by Rodanco. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by Rodanco which is not set out in the contract of sale. Nothing in this condition shall exclude or limit Rodanco’s liability for fraudulent misrepresentation.
3.1 Delivery shall be made in accordance with any terms agreed between Rodanco and Buyer but otherwise shall be made ex-works (Incoterms).
3.2 Risk in Product shall pass to Buyer on delivery, unless agreed otherwise in writing or unless any of the Incoterms applicable provide otherwise.
3.3 Buyer shall, unless agreed otherwise in writing, accept Rodanco delivering an excess or deficiency up to 10% of the weight or quantity of Product ordered and shall pay pro rata for the actual weight or quantity delivered.
3.4 Where Product is the subject of more than one delivery each delivery shall be treated as a separate contract. Failure to make a delivery or any breach of contract by Rodanco relating to a delivery shall not affect any remaining deliveries.
3.5 Failure to deliver on time shall not constitute a breach of contract.
4. Retention of Title
4.1 Ownership of Product shall not pass to the Buyer until Rodanco has received in full (in cash or cleared funds) all sums due to it in respect of:
4.1.1 Product; and
4.1.2 all other sums which are or which become due to Rodanco from the Buyer on any account.
4.2 Until ownership of Product has passed to the Buyer, the Buyer shall:
4.2.1 hold Product on a fiduciary basis as Rodanco’s bailee;
4.2.2 store Product (at no cost to Rodanco) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Rodanco’s property;
4.2.3 not destroy, deface or obscure any identifying mark or packaging on or relating to Product; and
4.2.4 maintain Product in satisfactory condition and keep them insured on Rodanco’s behalf for their full price against all risks to the reasonable satisfaction of Rodanco. On request the Buyer shall produce the policy of insurance to Rodanco.
4.3 The Buyer may resell Product before ownership has passed to it solely on the following conditions:
4.3.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
4.3.2 any such sale shall be a sale of Rodanco’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
4.4 The Buyer’s right to possession of Product shall terminate immediately if:
4.4.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
4.4.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between Rodanco and the Buyer, or is unable to pay its debts within the meaning of section 123 of the
Insolvency Act 1986 or the Buyer ceases to trade; or
4.4.3 the Buyer encumbers or in any way charges any of Product.
4.5 Rodanco shall be entitled to recover payment for Product notwithstanding that ownership of any of Product has not passed from Rodanco.
4.6 The Buyer grants Rodanco, its agents and employees an irrevocable licence at any time to enter any premises where Product is or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
4.7 Where Rodanco is unable to determine whether any Product are the goods in
respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by Rodanco to the Buyer in the order in which they were invoiced to the Buyer.
4.8 On termination of the Contract, howsoever caused, Rodanco’s (but not the Buyer’s) rights contained in this condition 4 shall remain in effect.
5.1 The price quoted or accepted by Rodanco is exclusive of value added tax and all other governmental taxes, duties or levies relating to sale, possession or use of Product, which shall be paid by Buyer. Where Product is supplied to Buyer free of tax or duty but such tax or duty shall subsequently be or become payable, then Buyer shall forthwith pay to the relevant authority the full amount of tax or duty due in respect of such Product and shall indemnify Rodanco against all liability in respect thereof.
5.2 Rodanco reserves the right to vary quoted or accepted prices at any time prior to delivery by giving notice in writing to Buyer, in which event Buyer may elect in writing within fourteen days of receipt thereof whether Buyer wishes to take delivery of Product at the new price.
6.1 Rodanco may require payment on or before delivery. If Rodanco does not do so, then unless otherwise agreed in writing, payment shall be made to Rodanco in
The Netherlands in the currency in which Product is invoiced free of all charges within thirty days of date of invoice (or of despatch or collection of the quantities of Product to which such invoice relates, if such despatch or collection occurs after the date of invoice). In the event of non-receipt of payment, Rodanco reserves the right (without prejudice to any other right or remedy) to suspend any deliveries due until such time as payment shall have been received.
6.2 Rodanco reserves the right to charge interest at an annual rate of 4% above ABN AMRO’s base lending rate for the time being, to accrue on a daily basis, on any sum owed to Rodanco which is not paid by the due date. Buyer may not withhold payment or make any set-off on any account, but Rodanco may set-off any sums received from Buyer against any debt Buyer owes to Rodanco.
6.3 Accounts beyond agreed credit terms will be passed to a debt recovery agency and will therefore be subject to a surcharge of a minimum of 15% plus VAT to cover the costs of recovery.
7. Description, Quality and Purpose
7.1 Rodanco warrants that Product will comply with the Specification but gives no other warranty and makes no representation as to description or quality. Any such warranty or representation implied (whether by statute or otherwise) is excluded, so far as legally permissible.
7.2 If Buyer is a consumer, Buyer hereby agrees that the Specification represents a satisfactory quality for Product and is reasonable in all the circumstances.
7.3 Any suggestion or representation concerning any possible use of Product made by Rodanco in literature or in any response to specific enquiry is given in good faith, but it is entirely for Buyer (and Buyer’s customers) to satisfy themselves fully as to the suitability of Product for any particular purpose. No warranty or representation relating to such possible use shall be implied (whether by statute or otherwise) and shall be excluded, so far as legally permissible.
7.4 Buyer shall examine Product as soon as reasonably practicable after delivery.
Buyer shall notify Rodanco within ten days of delivery, (which the Buyer agrees is a reasonable time) of any incomplete or failed delivery and of any loss or damage during carriage, failing which Buyer shall be treated as having waived all claims connected with such incomplete or failed delivery and all claims connected with such loss or damage.
7.5 If any delivery of Product materially fails to comply with the warranty given by Rodanco in clause 7.1, unless Buyer so notifies Rodanco within sixty days of
delivery, Buyer shall be deemed to have waived all claims connected with such failure.
7.6 If, following notification by Buyer to Rodanco in accordance with the provisions of clause 7.5, it is shown to Rodanco’s satisfaction that any delivery of Product materially fails to comply with the warranty given by Rodanco in clause 7.1; Rodanco shall be given a reasonable opportunity to correct such failure. If Rodanco does not or is unable to do so, Rodanco will, at Rodanco’s sole option, either refund the price of the particular delivery (or, if Product has been used or put into a process, a reasonable part of that price), or replace the delivery in question (if reasonably practicable) within a reasonable time, free of charge. Replacement Product shall be supplied subject to these terms. Any delivery which is alleged not to comply with the
Specification shall as far as possible be preserved for inspection by Rodanco.
8. Limitation of Liability
8.1 Rodanco shall use all reasonable endeavours to supply Product but shall not be liable to Buyer in any way for shortfall or delay in delivery due to Product being unavailable for whatever reason (including the acts and omissions of Rodanco, its employees and agents).
8.2 Without prejudice to any other limitation of Rodanco’s liability which may exist:
8.2.1 in no circumstances whatever shall Rodanco be liable whether contractually or otherwise for indirect, economic or consequential loss, loss of profits, increased cost of working or use, process disruption or any third party claims howsoever arising in connection with the Product or its supply;
8.2.2 Rodanco’s aggregate liability in respect of any claims arising in connection with the Product or its supply whether contractually or otherwise shall be limited to the price of Product supplied.
8.3 Buyer shall indemnify Rodanco against all claims and liability for death, injury, damage and loss arising directly from the supply of Product to Buyer or from Buyer’s breach of its obligations to Rodanco and against all expenses (including legal and experts’ expenses) incurred in connection therewith.
8.4 The only rights and remedies of Buyer in respect of any Product supplied are set out in clause 7.
9. Force Majeure
9.1 Rodanco shall not be liable for any failure to comply with its obligations to Buyer owing to any circumstances which Rodanco cannot control by taking such action as can be reasonably expected or owing to storm, flood, lightning, fire, explosion or escape of toxic or corrosive matter.
9.2 Rodanco may, without liability, where reasonable in all circumstances, suspend or terminate (in whole or in part) its obligations to Buyer if Rodanco’s ability to manufacture, supply or deliver Product or to acquire materials for the production of Product, in each case by Rodanco’s normal means, is impaired or if any government measure is taken or threatened which may prevent, hinder or delay the receipt by Rodanco of the full price of any Product or which may result in Rodanco bearing any expense or loss which Rodanco would not otherwise have borne.
10. Termination and Suspension
10.1 Rodanco may (without prejudice to any other remedies) terminate or suspend forthwith Rodanco’s performance of the whole or any part of its obligations to Buyer, if:
10.1.1 Buyer is a corporation and has a receiver or administrator appointed or passes a resolution for winding-up or suffers an order of court to that effect or applies to a court for an interim order in connection with a voluntary arrangement with its creditors or if Buyer is a partnership and the partnership is dissolved or, if Buyer is an individual and a bankruptcy order is made against Buyer or, whether Buyer is a corporation, partnership, individual or other entity, Buyer is subject to any similar actions or proceedings in any jurisdiction outside The Netherlands; or
10.1.2 Buyer becomes unable to pay debts as they fall due, or if an encumbrancer or creditor takes any steps to enforce a security given by Buyer; or if Buyer enters into any composition or arrangement with creditors;
10.1.3 Buyer fails to take delivery or pay for Product on the due date or is in material breach of any obligations to Rodanco; or
10.1.4 Rodanco has any reasonable ground for suspecting that any of the circumstances set out in sub-clauses 10.1.1 to 10.1.3 have occurred or may occur.
11. Health and Safety
11.1 Rodanco shall provide Buyer with health, safety and environmental information concerning Product.
11.2 Buyer shall ensure that all appropriate health, safety and environmental information is distributed to its employees, contractors and customers and is observed by those of its employees who require it for handling or use of Product.
12. Returnable Containers
Returnable Containers belonging to Rodanco shall remain the property of Rodanco. Buyer shall return them to Rodanco as soon as possible at Buyer’s cost (unless
otherwise agreed), ensuring that they comply with all relevant national and international legal requirements pertaining to the labelling and carriage of dangerous
substances (if applicable). Buyer shall ensure that Returnable Containers are securely closed and in a safe condition for transit in accordance with all such legal
requirements and are safely, securely and correctly packed, despatched and carried to Rodanco. Any Returnable Containers not returned or not returned in good condition within a reasonable period shall be paid for by Buyer at Rodanco’s standard rate.
13.1 These terms together with any terms agreed in writing by Buyer and Rodanco’s authorised representative supersede all prior representations or understandings made in good faith and contain the entire agreement between the parties in connection with Product. Buyer irrevocably waives any right to claim damages for any innocent misrepresentation or non-disclosure or for breach of any collateral obligation. Unless Rodanco’s authorised representative otherwise agrees in writing, these terms prevail over and exclude all other terms capable of being lawfully excluded, including but not limited to any terms contained in any documents issued by Buyer.
13.2 No contract between Rodanco and Buyer shall be assigned by Buyer without Rodanco’s prior written consent.
13.3 Buyer shall be responsible for all storage, demurrage and other costs arising from Buyer’s failure to comply with its obligations or refusal to accept Product complying with Specification.
13.4 No failure by Rodanco to enforce any of its rights shall be construed as a release of that right or of any other right nor shall such failure by Rodanco sanction any failure by Buyer to comply with its obligations.
13.5 Notices shall be in writing and sent by letter or facsimile message addressed
to a party at its given address. Any letter notice shall be deemed to have been received at that time at which the letter would have been delivered in the ordinary course of post, or at the time of delivery if the notice was delivered personally, or at the time of receipt if transmitted by legible facsimile message with confirmation of receipt.
13.6 If any provision to the Contract is found by any court or tribunal to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable, it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14. Law and Jurisdiction
All disputes arising between Rodanco and Buyer in connection with the supply of Product shall be settled in accordance with the laws of The Netherlands and the courts of the Netherlands shall have exclusive jurisdiction to settle such disputes.