GENERAL TERMS AND CONDITIONS OF SALE
NeKo Cruise & Yacht Supply B.V. is a worldwide (yacht) supplier providing the finest food and beverage, professional technique equipment and tailor-made services to yachts, hotels, villas and chalets.
These General Terms and Conditions of Sale have been filed with the Chamber of Commerce, in Rotterdam, the Netherlands on 05-08-2008 under number 24440749.
1.1. Throughout these General Terms and Conditions of Sale, save where the context otherwise requires, the following definitions shall be applied:
– “Chalet” shall mean the onshore location to which Goods or Services are supplied or intended to be supplied by the Supplier. The Customer will nominate the exact address details of the Chalet in the Order;
– “Contract” shall mean any agreement between the Supplier and the Customer pursuant to which the Goods or Services are supplied or are intended to be supplied by the Supplier;
– “Customer” shall mean the person or company placing an order in respect of Goods or Services, and where such person acts as agent of or otherwise for a third party (“the Principal”), such person and the Principal and the Yacht/Hotel/Villa/Chalet to which goods or services are provided shall jointly and severally be the Customer;
– “Goods” shall mean any and all deliverables ordered by the Customer and/or supplied by the Supplier for use on board a Yacht or in a Hotel/Villa/Chalet or similar, or incidental to the operation of the aforesaid;
– “Hotel” shall mean the onshore location to which Goods or Services are supplied or intended to be supplied by the Supplier. The Customer will nominate the exact address details of the Hotel in the Order;
– “Lead Time” shall mean the time between conclusion of a Contract for the supply of Goods and/or Services and the delivery resp. performance of same at the Delivery Location;
– “Services” shall mean any and all services ordered by the Customer and/or supplied by the Supplier to a Yacht/Hotel/Villa/Chalet or similar, or incidental to the operation of the aforesaid;
– “Supplier” shall mean NeKo Cruise & Yacht Supply B.V. of Rotterdam-Albrandswaard, the Netherlands, its legal successors and/or any associated company;
– “Villa” shall mean the onshore location to which Goods or Services are supplied or intended to be supplied by the Supplier. The Customer will nominate the exact address details of the Villa in the Order;
– “Yacht” shall mean the vessel(s) to which Goods or Services are supplied or intended to be supplied by the Supplier. The Customer will declare the name of the Yacht to the Supplier in the Order;
2. Applicability of the General Terms and Conditions of Sale
2.1. These General Terms and Conditions of Sale shall apply to all offers by, orders to, deliveries from and agreements with the Supplier, relating to the delivery of Goods and/or Services provided by the Supplier to the Customer. The Customer shall be deemed to have read and accepted the terms and conditions contained in these General Terms and Conditions of Sale.
2.2. The applicability of the Customer’s General Terms and Conditions is hereby explicitly rejected.
2.3. Any stipulations deviating from these General Terms and Conditions of Sale shall only apply in the event that and insofar as they have been accepted by the Supplier in writing.
2.4. An agreement is concluded in writing if and when the Supplier sends the Order Confirmation to the Customer.
2.5. If any provision of these General Terms and Conditions of Sale or the Contract proves to be void for whatever reason, this does not affect the validity of the other provisions.
3.1. Any offer made by the Supplier shall be without prejudice and subject to Contract and this shall also apply in the event that said offer includes a validity period for acceptance, unless explicitly provided for to the contrary.
4.1. The Lead Time for Goods to be delivered by road transport (trucking) shall be at the minimum 96 (ninety-six) hours before the requested date and time of delivery. The Lead Time for Goods to be delivered by air transport (airfreight) shall be at the minimum 144 (one hundred forty-four) hours including transit time before the requested date and time of delivery.
4.2. After the Customer places an order (whether by email, telephone or fax) with the Supplier for Goods or Services (hereinafter: the “Order”), the Supplier will review the Order. All Orders are subject to acceptance by the Supplier, and the Supplier will confirm such acceptance by sending the Customer an email to confirm that the Order has been accepted and that the Goods and/or Services will be dispatched (hereinafter: the “Order Confirmation”). The Supplier will notify the Customer in the Order Confirmation whether the Goods will be delivered by road transport or by air transport.
A binding Contract between the parties will only come into existence if and when the Supplier sends the Order Confirmation to the Customer, which is subject to these General Terms & Conditions of Sale.
4.3. The Contract will relate only to those Goods or Services expressly confirmed in the Order Confirmation, and the Supplier will not be obliged to supply any other Goods or Services which may have been part of the Customer’s Order until this is confirmed in a separate Order Confirmation from the Supplier.
4.4. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 7 (seven) running days from its date of issue. Quotations and price lists provided by the Supplier for fresh, perishable and/or seasonal produce are estimates only for guidance purposes, and prices payable by the Customer are determined by the Supplier at the time of purchase by the Supplier, based upon prevailing market prices.
4.5. Once an Order has been received and an Order Confirmation has been sent by the Supplier, it is only possible to cancel the Order at least 4 (four) running days (in respect of an Order to be delivered by road transport) respectively 6 (six) running days (in respect of an Order to be delivered by air transport) in advance of the requested delivery date without the Customer incurring costs for preparations already made, however, subject to payment of a cancellation fee of 10 (ten) percent of the value of the Order cancelled.
In case the Supplier has already taken care of the issuance of the certificates necessary to meet the relevant import requirements upon cancellation of the Order, the Customer will have to reimburse the Supplier for all costs involved with the issuance of these certificates.
5. Deliveries – general
5.1. The Supplier shall ensure that the Goods delivered are accompanied by a delivery note which shows the Order reference number(s), the type and quantity of the Goods and, if the Goods and/or Services are being delivered in parts then the same shall apply for the outstanding balance of Goods remaining to be delivered.
5.2. Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by force majeure or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions, documentation or information that are relevant to the supply of the Goods.
5.3. If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods as agreed with the Supplier. With due observance of article 12 hereinafter the Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by force majeure, or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods, or any relevant instruction, or documentation related to the supply of the Goods.
5.4. All Orders and delivery notes will be signed by a crewmember of the Yacht.
5.5. In the event that the Supplier is in default in respect of delivery of the Goods and provided the Customer has given written notice thereof and allowing the Supplier a reasonable period for performance which shall not be less than 7 (seven) running days, the Customer’s only remedy shall be to dissolve the respective Contract, or part thereof that has not yet been executed and request the compensation provided for under article 5.3.
6. Deliveries via road transport
6.1. The Supplier shall deliver the Goods via road transport (trucking) to the location set out in the Order Confirmation (“Delivery Location”) and the Supplier may use agents or sub-carriers for such purpose at its discretion. Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location and handover to the Customer (or the Customer’s agent or representative). A delivery to a Yacht via road transport shall take place alongside the Yacht, on the quay side.
The Supplier’s responsibility for transportation of the Goods shall end at arrival of the Goods at the Delivery Location.
6.2. The Customer acknowledges that Goods ordered may often be perishable in nature, and accordingly if the Customer fails to immediately accept delivery of the Goods upon arrival of the Goods at the Delivery Location, then the Supplier may resell part or all of the Goods (where this is reasonably practicable) or otherwise dispose of them. In these circumstances, the Supplier shall charge the Customer for the price of the Goods, together with reasonable additional transportation and insurance costs, storage and selling costs, any relevant import duties and taxes (after deducting the price of any Goods resold by the Supplier) and costs of disposal of the Goods, if necessary.
6.3. The cost of transportation of Goods to the Delivery Location shall be invoiced and payable by the Customer. The Customer shall pay to the Supplier any costs or expenses incidental to any waiting period beyond 3 (three) hours after arrival of the truck at the Delivery Location.
6.4. Risk in the Goods (but not title thereto) shall, in all respects, pass to the Customer upon delivery at the Delivery Location (“Place of Delivery”).
7. Deliveries via air transport
7.1. Deliveries by airfreight shall take place via air transport to the location set out in the Order Confirmation (“Delivery Location”) subject to the provisions of this article 7.
7.2. The Supplier shall deliver the Goods to its freight forwarder at its warehouse, both to be nominated by the Supplier in the Order Confirmation (“Place of Delivery”). Upon receipt of the Goods by the freight forwarder at its warehouse, the risk in the Goods (but not title thereto) shall, in all respects, pass to the Customer.
7.3. The Supplier’s obligations in respect of transport and delivery of the Goods shall be completed upon the Goods’ arrival at the warehouse of the freight forwarder to be nominated in the Order Confirmation. The freight forwarder shall transport the Goods to Schiphol Airport in Amsterdam. The Customer shall be responsible to arrange and pay for the transportation of the Goods from Schiphol Airport to the Delivery Location and he shall arrange and pay for transport insurance on conditions not less than the Dutch Bourse Cargo Policy 2006.
7.4. The Supplier shall not be liable for any delay in delivery of the Goods at the Delivery Location after he has delivered the goods to its nominated freight forwarder.
7.5. If the Supplier fails to deliver the Goods at the aforementioned warehouse of its nominated freight forwarder, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by force majeure, or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods, or any relevant instruction, or documentation related to the supply of the Goods.
7.6. The Customer acknowledges that Goods ordered may often be perishable in nature, and accordingly if the Customer fails to immediately accept delivery of the Goods upon arrival of the Goods at the Delivery Location, the Supplier may resell part or all of the Goods (where this is reasonably practicable) or otherwise dispose of them. In these circumstances, the Supplier shall charge the Customer for the price of the Goods, together with reasonable additional transportation and insurance costs, storage and selling costs, any relevant import duties and taxes (after deducting the price of any Goods resold by the Supplier) and costs at disposal of the Goods, if necessary.
8. Quality and Packing
8.1. The Goods shall be of standard or prime quality as rated at the time and Place of Delivery.
8.2. The Supplier meet the requirements of ISO 9001 and has implemented a HACCP plan.
8.3. The Supplier shall pack the Goods with proper care. The Goods shall be supplied in the packing customary at the time and Place of Delivery. At the time of placing his order, the Customer shall inform the Supplier of any special packing requirements in view of the agreed Delivery Location of the Yacht/Hotel/Villa/Chalet and/or Goods. Any additional expenditure incurred in complying with such requirements shall be chargeable to and payable by the Customer.
8.4. Packaging – either for single use or reusable packing material – shall not be taken back by the Supplier. The Customer shall have the obligation to destroy the packaging material and dispose of it in a suitable and environmentally responsible manner.
9.1. All invoicing for Goods and Services will be digitally processed. The Supplier will provide the Customer with the relevant invoice by email. The Customer shall settle each invoice submitted by the Supplier:
(a) within a strict credit term of 7 (seven) running days of the date of the invoice; and
(b) in full, either by cash payment, via bank transfer or by credit card (Eurocard/Mastercard, Diners Club, Visa, American Express). In case of payment by credit card a fee of 2.5 percent will be charged upon the invoice amount.
9.2. All amounts payable under the Contract are inclusive of value added tax chargeable from time to time (VAT), unless stated otherwise.
9.3. The Customer shall not be entitled to withhold or offset payment of any sums after they have become due in the ordinary course for payment by reason of any claim, right of set-off or counterclaim which the Customer may allege or for any reason whatsoever.
9.4. If payment is not made within the stipulated period of the credit term the Customer shall pay the Supplier interest on all overdue or unpaid sums at a rate of 1.5% per month or part thereof, or the equivalent to the commercial prime lending rate customarily charged at the time by the Supplier’s bank in the Supplier’s country, whichever may be the higher. Interest shall be calculated from the due date until actual date of payment.
9.5. Regardless of any allocation stipulated by the Customer upon making any payment, the Supplier shall be entitled to apply payments received from the Customer in any way that it considers appropriate, including allocation firstly to interest that has accrued in accordance with 9.4 or costs incurred in accordance with 9.6.
9.6. The Supplier shall be entitled to recover from the Customer any and all costs and/or expenses which may be incurred by the Supplier in recovering or seeking to recover from the Customer any overdue or unpaid sums whether or not formal legal steps (including but not limited to the arrest of a Yacht)
have been undertaken. Such costs include both internal costs and costs and expenses incurred to external advisers, lawyers or debt collectors instructed for such purpose. Such costs shall be payable by the Customer to the Supplier upon demand on a full indemnity basis and may be included in the claim for which a Yacht is arrested or other assets of the Customer frozen.
9.7. Notwithstanding delivery and the passing of risk, property in and title to the Goods shall remain with the Supplier until the Supplier has received payment of the full price of (a) all Goods and/or Services which were the subject of the Contract and (b) all other Goods and/or Services supplied by the Supplier to the Customer under any contract whatsoever. Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between the Supplier and the Customer.
10. Import duty and import documentation
10.1. In relation to Goods ordered for delivery to a Delivery Location outside the Netherlands, the Customer will be responsible for payment of any import duties and taxes which are levied when the Goods cross borders or reach Delivery Location. The Customer will be responsible for payment of any such import duties and taxes. It is understood that the Supplier has no control over these charges and cannot influence or predict their amount, and the Customer should contact its local customs office or a customs agent or representative for further information before placing an Order.
10.2. The Customer must comply with all applicable laws and regulations of the country for which the Goods are destined and delivery to a Yacht/Hotel/Villa/Chalet takes place. The Customer is also obliged to arrange for the necessary Health Certificates, if applicable. The Supplier will not be liable for damages or delays caused by any breach by the Customer of any such laws.
11.1. The Supplier warrants that on delivery at the Place of Delivery the Goods shall conform in all material respects with their description and are of the quantity, quality and description required by the Contract. Subject only to the provision contained in article 11.2 below, by taking delivery of the Goods and signing the accompanying receipt-note, the Customer shall be deemed to have approved and accepted the Goods in every respect.
11.2. Subject to article 11.3, if:
(a) some or all of the Goods do not comply with the warranty set out in article 11.1, the Customer must give written notice (by email) to the Supplier as soon as reasonably possible following delivery and discovery of the defect or failure (and in any event within 24 hours after delivery where the defect or failure was or should have been apparent on reasonable inspection). Exception is made in the case of fresh products and perishable Goods, for which claims must be notified in writing at the time of delivery. In the absence of such written notification the Customer shall be deemed to have approved and accepted the Goods in every respect; and provided:
(b) the Supplier is given a reasonable opportunity (where reasonably practicable) of examining such Goods or cause them to be examined; and provided:
(c) the Customer (where reasonably practicable and if asked to do so by the Supplier) returns such Goods to the Supplier, then the Supplier shall, at its option, repair (where appropriate) or replace the defective Goods, or refund the price of the defective Goods in full.
11.3. In the event of a claim pursuant to article 11.2 the Customer shall be required to prove that, since delivery, the Goods were continuously handled, treated and stored by the Customer as a prudent administrator in keeping with the nature of the Goods and their propensity to deteriorate and that any alleged deficiency is not attributable to Customer’s fault or negligence. The Customer shall be required to make the Goods under claim available for inspection.
11.4. Any complaint by the Customer with regard to the Supplier’s invoice will be absolutely barred unless lodged in writing by the Customer with the Supplier within seven (7) running days of receipt of the invoice which shall be the date on which the invoice was despatched by the Supplier.
12. Limitation of Liability
12.1. Save for claims for death or personal injury and fraud or fraudulent misrepresentation, any damages/compensation shall be strictly limited to a refund of the price paid to or charged by the Supplier for the affected Goods or Services.
12.2. The Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any direct, indirect or consequential loss, damage or injury arising out of the supply, or late supply or failure to supply, of any Goods or Services.
12.3. The compensation of the sums due in accordance with this article shall be in full satisfaction and discharge of all rights, remedies and claims howsoever arising in contract or in tort or otherwise in law on the part of the Customer against the Supplier.
12.4. This article shall survive termination of the Contract.
13. Title to the Goods
13.1. Title to the Goods shall not pass to the Customer until the Supplier has received payment in full for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due.
14.1. Without prejudice to accrued rights hereunder, the Supplier shall be entitled to dissolve or to terminate the Contract in the event of:
(a) any application being made or any proceedings being commenced, or any order or judgment being given by any court, for:
(i) the liquidation, winding up, bankruptcy, insolvency, dissolution, administration or re-organization, or similar event, or
(ii) the appointment of a receiver, liquidator, trustee, administrator, administrative receiver or similar functionary of the other party or all or a substantial part of its assets (otherwise than for the purpose of a reconstruction or amalgamation);
(b) the Customer suspending payment, ceasing to carry on business or compounding or making any special arrangement with its creditors;
(c) any act being done or event occurring which, under the applicable law hereof, has a substantially similar effect to any of the said acts or events described in this article 14.
14.2. On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15. Force Majeure
15.1. The term force majeure in these General Terms and Conditions of Sale shall mean any and all circumstances beyond the Supplier’s control or conditions and events for which the Supplier cannot be held responsible, whether or not foreseeable at the time of conclusion of the Contract, which permanently or temporarily prevent fulfilment of the Contract, and, insofar as these are not yet included, Acts of God, including, but not limited to fire, flood, typhoon, earthquakes, or by reason of riots, wars, dangers of war, revolts, hostilities, government restrictions, trade embargoes, strikes, lockouts, labour disputes, boycotting of Goods, freight problems, manufacturer’s non-performance, bankruptcy, delays or damage in transportation or other causes beyond Supplier’s control.
15.2. If the Supplier is unable or prevented to make delivery to the Delivery Location, or to make delivery in good time, in part or all, owing to force majeure, the Supplier may, at its option, perform the Order or the unfulfilled portion thereof within a reasonable time from the removal of the cause preventing or delaying performance, or rescind unconditionally and without liability the Contract or the unfulfilled portion thereof.
16.1. The Supplier is committed to protecting the privacy of the Customer.
17. Law and Jurisdiction
17.1. With regard to any and all disputes arising out of or in connection with the Contract, or with further contracts arising out of or resulting from or in connection with said Contract, the Rotterdam District Court shall have exclusive jurisdiction in the first instance, unless the Supplier explicitly opts for the competence of the court of the domicile or in the place of business of the Customer.
17.2. The Contract, as well as any and all further contracts arising or resulting from or in connection with said Contract, shall be governed by and construed in accordance with the laws of the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods (Vienna UNCITRAL Convention on International Trade Law, also known as the Vienna Treaty or CISG) is excluded from application.