CAPESPAN

1. The English terms and conditions of sale (“the Conditions”) reproduced in English on the back of the invoice apply to all sale transactions (each a Contract) in respect of or in relation to the Produce and shall override any contrary or different terms or conditions (if any) of any other document, including your own general terms and conditions and including this summary of the Conditions, which is for information purposes only.
2. No variation of the Conditions will be legally binding unless expressly accepted by us in writing and nothing in this summary shall vary the Conditions.
3. We are deemed to accept your Order when we send you an Order Confirmation or when we commence the execution of your Order. We agree to supply the Produce in accordance with the quality, quantity and description (if any) expressly set out in the Order Confirmation. No other specifications, warranties, undertakings, written or oral representations or correspondence shall form part of the Contract between us, and are hereby expressly excluded.
4. The sale price is our quoted price or the price specified in the Order Confirmation or the invoice. We may invoice you for any extra expenses incurred if you request changes to your Order, including changes of delivery/collection details.
5. Orders are deemed irrevocable. You may only cancel an Order with our consent and if you indemnify us against all loss, costs, damages, charges and expenses incurred by us as a result of your cancellation.
6. You are responsible for payment of VAT or any other appropriate duties, taxes or penalties imposed on the price, even if not included in this invoice.
7. If you hold an Approved Credit Account with us, payment must be made in full, without any set off against amounts owed by us, within the agreed credit terms. If you do not hold an account, payment is due on presentation of this invoice. If you fail to make payment on time or fail to timely remedy a default further to our notice of default, you are automatically deemed to be in default without any further notice required and:
   • all outstanding invoices under any existing Contract, regardless of whether they are due, and any amount still owed by you will immediately become due and payable together with statutory interest in business transactions; and
   • we may cancel any existing Contract (without court intervention); and
   • we may suspend any existing Contract, further sales or deliveries to you;
   • where any amount is owed by us to you, whether owing in terms of these Conditions or in terms of or arising out of any other agreement or transaction between us, we shall be entitled to set off such amounts against any amounts owed by you in terms of these Conditions.
8. If we have requested you to provide a bank guarantee and you have not yet done so, any Produce supplied is without prejudice to our right to terminate the Contract for non-fulfilment of this condition.
9. Unless otherwise stated in the Order Confirmation, the Produce is sold on an FCA basis (Free Carrier terms of trade to the named place of delivery (FOT )) and all costs of delivery are for your account.
10. Any dates estimated for delivery of the Produce are approximate and you may not reject the Produce if delivered before or after the estimated date. Delay in delivery or early delivery does not entitle you to claim damages, except in the event we wilfully caused the delay or early delivery.
11. If you fail to take delivery of the Produce or to give us proper delivery instructions within 24 hours after notification that the Produce is ready for collection, then we may either store the Produce on your risk and account, or dispose of the Produce in any manner we see fit, without any compensation due by us. You will indemnify us for all loss, costs, damage, charges and expenses incurred by us as a result of your failure to take delivery.
12. Risk in the Produce shall pass to you on the delivery date. We retain title to the Produce delivered until full payment of all Produce delivered. You undertake to store the Produce in such a way that it cannot be confused with other goods and that it can always be recognised as our property. You herewith irrevocably grant us the right to enter the premises where the Produce is located and undertake to ensure this right on our behalf for sites of third parties.
13. If you fail to timely fulfil your payment obligations, we are entitled to retake, sell or otherwise deal with the Produce to which we retain title.
14. We will not be liable for failure to perform any of our obligations under a Contract if such failure is due to “Force Majeure”, which means any event or circumstance which is outside our reasonable control including, without limitation, fire, explosion, flood, lightning, or other severe adverse weather conditions, Act of God, procurement problems, act of terrorism, war, rebellion, riot, sabotage, official strike or labour dispute.
15. All trademarks relating to the Produce are the property of Capespan and you may not tamper with or remove them whether attached to the Produce or their packaging or labelling.
16. All confidential trade or commercial information must be kept confidential at all times.
17. Without prejudice to clause 18, you will be deemed to have received the Produce in good order and accepted its conformity with the Contract on the delivery date.
18. You must examine the Produce on delivery for damage or spoilage. Any claim for non-conformity or damage or spoilage in relation to the Produce must (whether or not you refuse delivery) be notified to us in writing within 24 hours from the date of delivery, otherwise we will have no liability and you shall be bound to pay the price as if the Produce had been delivered in accordance with the Contract.
19. If you reject the Produce you must return the Produce to our premises within 3 days of the notice under paragraph 18 in the state it was delivered. Otherwise we will have no liability and you shall be bound to pay the price as if the Produce had been delivered in accordance with the Contract.
20. If a claim is considered justified by us, we shall replace the relevant Produce free of charge, without any compensation due. You are not entitled to withhold payment in respect of the entire amount payable under the invoice but only for an amount equal to the invoiced value of the Produce that is damaged, spoiled or not in conformity with the Contract.
21. Without prejudice to clause 20 and except in the case of (i) wilful intent or (ii) mandatory product liability, our liability is limited to the amount invoiced (excl. VAT) under the Contract relating to the Produce which caused the damage. Except in the event of wilful intent, we shall not be liable for consequential or indirect damage, including but not limited to loss of profit, business, contracts, revenues or anticipated savings, or losses caused by disruption or stoppage of the production and/or business.
22. If you (i) become insolvent or suffer a material and adverse change in your financial standing, or (ii) if you are declared bankrupt or if you file an application for bankruptcy (or such application is filed in your regard), or (iii) if you cease to carry on business, all Contracts between us will terminate automatically, without notice, and without court intervention. You shall immediately inform us if any of these circumstances occurs and if attachment is laid on any Produce.
23. In addition to any right of lien which we may have in law, we shall (in the event of your payment default) be entitled to a general lien on any of your Produce which is in our possession (even if such Produce or some of it may have been paid for) in respect of all sums due or owing by you on any account whatsoever.
24. Any notices sent under any Contract must be in writing and delivered at the address given on the Order Confirmation.
25. Any waiver by us of any breach of any Contract shall not be considered as a waiver of any subsequent breach of the same or any other provision.
26. The Conditions and the Contract shall be governed by the Laws of Belgium and the Parties submit to the exclusive jurisdiction of the courts of Antwerp, Belgium.