Terms & Conditions
Flexitank Solutions also uses a dutch version of these terms and conditions, which version will apply besides this English version of the general terms and conditions. In any conflict between these provisions, the provisions in the Dutch version precedence over the provisions in the English version.
GENERAL (TERMS AND) CONDITIONS OF THE LIMITED LIABILITY COMPANY FLEXI TANK SOLUTIONS BV AT ZAANDAM
1. Definitions and descriptions
1.1 Offer: An offer, in whatever form or by whatever name used by each of the parties.
1.2 Products: Animal and vegetable oils and fats and other solids, liquids, etc. offered to Flexitank Solutions for processing and treatment, or provide by Flexitank Solutions, as well as associations and end products resulting from the working or processing, whatever the form or term.
1.3 Contract: A contract, order, or delivery, in any form or under whatever name done.
1.4 Working or processing: any treatment that the products undergo at Flexitank Solutions, including melting, pouring, storage, packing, loading, editing and marketing.
1.5 Principal: Purchaser or principal or prospective purchaser or principal, whether or not for himself, who instructs Flexitank Solutions to perform work or deliver products.
1.6 Flexitank Solutions: the limited liability company Flexitank Solutions BV, established at Sluispolderweg 7 (1505 HJ) in Zaandam, in the trade register of the Chamber of Commerce under number 52823342 registered, being the user of these terms and conditions. Flexitank Solutions also uses the trade name Pure & Organic, so under Flexitank & Organic should also be understood Pure Solutions.
1.7 Performance of work: The performance of work in the broad sense, including at least partly, but not exclusively, to cover the manufacture and supply of goods, transportation of goods, provision of services, and the conclusion of contracts.
2.1 These terms and conditions apply to all transactions (offers, order confirmations, invoices, order forms) with Flexitank Solutions of whatever type.
2.2 General (purchase) conditions of the principal are not accepted by Flexitank Solutions and are not applicable unless and until these conditions have been declared applicable explicitly and in writing to any specific transaction by Flexitank Solutions, or at least one authorized representative of Flexitank Solutions. Acceptance of applicability of such conditions shall in no case imply that those conditions apply in other transactions between the principal and Flexitank Solutions.
2.3 Acceptance of the applicability of the general conditions of the principal do not affect the applicability of the general conditions of Flexitank Solutions, unless they conflict with the terms and conditions of the principal.
2.4 Deviations from these terms and conditions are only valid provided that these deviations are agreed on in written by Flexitank Solutions, at least one authorized representative of Flexitank Solutions, and are only applicable in this case for the specific transaction for which exemption from these requirements has been agreed.
2.5 If and in so far as a transaction between Flexitank Solutions and the principal contains provisions which deviate from these terms and conditions, without the express written exclusion of the applicability of these terms and conditions, or if it would appear that any provision of these conditions is not valid, the remaining provisions remain unaffected.
2.6 If and to the extent of one or more of the provisions of these general terms and conditions of appear to be void or voidable, this will not affect the validity of the remaining provisions. The void or voidable provision shall be replaced by a provision which suits the scope and meaning of that earlier provision as closely as possible, to be agreed between the parties.
3. Offers / Orders / Contracts
3.1 All offers by Flexitank Solutions are without engagement and can be withdrawn and modified at any time by Flexitank Solutions, as long as Flexitank Solutions has not accepted the order following the offer, in writing.
3.2 Flexitank Solutions is only committed after an order is confirmed in writing by Flexitank Solutions. An order is considered to be confirmed by Flexitank Solutions, when Flexitank Solutions has started carrying out the contract.
3.3 If an offer is not optional, it automatically expires if not accepted by the principal within two months of the date of the offer.
3.4 Size and price quotes, pictures, drawings, etc. in by Flexitank Solutions disclosed information (as catalogues, leaflets, circulars, advertisements) regarding the work to be performed, is never binding for Flexitank Solutions and are intended only to give the principal a general idea of what Flexitank Solutions offers.
3.5 Information and advice given by Flexitank Solutions is only general in nature and without obligation.
3.6 Contracts, however named, are concluded only after express acceptance by Flexitank Solutions. This explicit acceptance is shown by the written confirmation of Flexitank Solutions, or the fact that she carries out the contract. An invoice sent by Flexitank Solutions is equivalent to a written acceptance.
3.7 Contracts with subordinate staff of Flexitank Solutions do not bind the latter, unless it has not been confirmed in writing. As subordinate staff in this context should be considered all employees and contributors who do not have power of attorney.
4. Providing products by principal
4.1 Flexitank Solutions accepts the products ex tanker, truck, (tank) container, ship or otherwise at its warehouse in the condition it is in.
4.2 Flexitank Solutions is entitled to refuse products that she finds to possibly cause danger or damage to persons, property, land or storage, or severe environmental nuisance, even if already an contract in relation to those goods is conducted.
4.3 With regard to products that are damaged or defective upon delivery in condition, Flexitank Solutions has the right but not the obligation to act on behalf of the principal and to take corrective action, which will be on the account and at the risk of the principal. Regarding these actions, the principal will obtain no right against Flexitank Solutions.
4.4 Flexitank Solutions accepts no liability towards the principal regarding the identity, composition, purity and quantity of the products upon delivery.
4.5 Flexitank Solutions is entitled to damages and/or loss of profit and/or other costs and losses that were caused by the fact that the delivered products did not arrive at the appointed time or if the products do not comply with the law or regulations, among others listed in article 6.4 of these terms and conditions.
4.6 The time of delivery is determined by Flexitank Solutions. Contracts on delivery times can only be approximate and Flexitank Solutions remains entitled to determine the time of delivery earlier or later in time than initially agreed.
4.7 Flexitank Solutions is not liable for costs on the part of the principal caused by the fact that the time of delivery is advanced or delayed.
5. Delivery products by Flexitank Solutions
5.1 Flexitank Solutions delivers products from her premises. Flexitank Solutions is at no time owner of the products and is not a producer as mentioned in article 6:185 Burgerlijk Wetboek.
5.2 The principal is obligated to collect the products on the day the contract ends, no later than 2 days after finishing the working and/or processing - all this unless otherwise agreed in writing. The same applies in the event of premature termination.
5.3 If under 5.2 above obligation is not met, Flexitank Solutions is authorized to evacuate the relevant storage area at any time, including to transfer the products to another warehouse on account of and at the risk of the principal, and without prejudice to the right to public sale of the products on the go or on his behalf to execute and/or destroy, if the costs of the sale exceed the benefits, such without notice and without judicial intervention, all at the expense of the principal.
5.4 Flexitank Solutions is entitled to damages and/or loss of profit and/or other costs and losses due to reclaiming the products not within the set time period.
5.5 The time of delivery is only determined by Flexitank Solutions. Arrangements concerning can only be approximate and Flexitank Solutions remains entitled to an earlier or later delivery time than initially agreed.
5.6 Flexitank Solutions is not liable for any costs or damages on the part of the principal caused by early or delayed delivery.
6. Control of products
6.1 For all the products offered manufacturing and processing the principal provides written information concerning their nature, type, quality, composition, temperature, weight, volume, value, origin, hazard class, and furthermore all other properties and characteristics, which could be of importance for Flexitank Solutions is. The contract and the bill of lading are of importance.
6.2 The principal is responsible for the written submission of information as set out in article 6.1, as well as for the integrity of the safety of the supplied and delivered product. Flexitank Solutions is not liable for the (in)correctness and (in)completeness of such information and/or the consequences arising from the Principal's written description of the products.
6.3 Flexitank Solutions is entitled to reject products after inspection if they do not meet:
(i) the regulations mentioned in article 6.4 or other regulations that apply to the products;
(ii) the description of the principal needs and/or;
(iii) the conditions applied by Flexitank Solutions,
such without prejudice to her right to claim from the principal the costs already incurred and damages resulting from loss of profits.
6.4 The principal is obligated to comply with regulatory rules, including:
(i) authorization and labeling of GGO�s and genetically moderated food and feed;
(ii) listing of ingredients of food that are on the list of allergenic products and/or;
(iii) sealing and certification of organic products.
6.5 If it appears that the principal in any way has made a false statement, then the principal is liable for all damages, including consequential damages and damages suffered by other principals of Flexitank Solutions.
7. The taking of samples
7.1 From each offered product for working or processing Flexitank Solutions is entitled to take at least two samples before storage at the expense of the principal.
7.2 If differences arise about the quality of the supplied products, the possible samples and subsequent analysis taken by Flexitank Solutions will be binding.
7.3 The information that was obtained from the samples taken by Flexitank Solutions can be used as the basis for the calculation of the fee.
7.4 If the principal timely and in advance has expressed the desire to be present at the taking of samples, he or a person designated by him, shall be entitled.
8.1 If certain products require special storage, the principal must give prior written notice. In case this obligation is not met, Flexitank Solutions will never be liable for loss and/or damage resulting from any defective storage.
8.2 The costs associated to the particular storage method are the sole responsibility of the principal.
8.3 Quality or quantity loss, caused by prolonged storage, it is not for the account of or at the risk of Flexitank Solutions.
8.4 Storage costs will be accounted in full months, with a portion of a month counts as a full month.
8.5 Products should be fully insured by the principal for the entire duration of the time of the providing of the products by the principal to the moment of delivery of the product by Flexitank Solutions. The products must at least be insured against fire, (bio) terrorism etc.
9. Working and/or processing
9.1 If certain products require special processing, the principal must give prior written notice. In case this obligation is not met, Flexitank Solutions will never be liable for loss and/or damage resulting from any defective working or processing.
9.2 The special processing costs are the sole responsibility of the principal.
9.3 The loss of quantity inherent to the working or processing will not be for the account of and at the risk of Flexitank Solutions.
9.4 By-products released during working or processing shall not be stored separately, but mixed with other products already stored. Unless otherwise agreed in writing or Flexitank Solutions reports the principal before the delivery that the principal must pay for the removal of by-products, Flexitank Solutions will become the owner of the by-products on the day of delivery and from that moment Flexitank Solutions is allowed to choose to sell these products.
10.1 Unless otherwise agreed, the principal delivers the packaging freight paid to Flexitank Solutions.
10.2 If it is agreed that Flexitank Solutions will take care packaging, the costs of this will be charged to the principal including a surcharge. The same applies to all other additional packaging activities and related costs to be incurred.
10.3 Flexitank Solutions offers only new and unused packaging materials. If the products require special packaging and or packaging techniques, the principal is obligated to inform Flexitank Solutions timely. In case this obligation is not met, Flexitank Solutions will never be liable for loss and/or damage resulting from any defective or contaminated packaging.
10.4 If the principal wants to use or reuse used packaging materials, Flexitank Solutions will not be liable for loss and/or damage resulting from any defective or contaminated packaging.
11.1 Unless explicitly stated otherwise, all quotations and prices are excluding sales tax matters and other cost-increasing taxes.
11.2 Provisional cost-increasing factors, including any unforeseen work and all costs associated with carrying out the contract, may be charged to the principal at the prices, which Flexitank Solutions normally uses.
11.3 Prices in the order confirmation are only estimated and are only related to the working or processing mentioned in the order confirmation.
12.1 All payments shall be made within 14 days of invoice date - unless stated otherwise on the invoice reported - by crediting the account stated on the invoice of Flexitank Solutions without any deduction to take place. The right of the principal to any claims on Flexitank Solutions for settlement is expressly excluded. More particularly, but not exclusively, the principal is not permitted to deduct bank charges and/or cash discounts.
12.2 Each payment will first be accounted to the amount which the principal is due to Flexitank Solutions regarding interest and costs, regardless of the cause of such interest and expenses as well as regardless of whether the principal specifically intended the payment for a particular purpose.
12.3 If the principal does not pay the invoice amount within 14 days, the principal will be in default by law, that is without prior warning or notice. In that case the principal is due statutory commercial interest over and above the principal amount to Flexitank Solutions on the unpaid portion of the principal amount of the due date until the date of full payment. As far as Flexitank Solutions then also has performed extrajudicial collection activities, the principal is also due an amount for extrajudicial collection costs, estimated at an amount of 15% of the amount to be collected, without prejudice to the right to claim the excess and other incurred costs.
12.4 When the invoice amount is not paid in time, even the non-expired portion thereof, becomes immediately due and payable.
12.5 Flexitank Solutions is entitled to demand payment of the periodic existing work or deliveries and invoices accordingly, even if a total price has been agreed, in which case the payment is made as part payment of the agreed total price. On the invoices referred to in this paragraph, the provisions in respect of (final) invoices are fully applicable.
12.6 Flexitank Solutions is at all times entitled to an advance payment or security deposit by the principal, before the delivery or further delivery will proceed. If the principal is in default with the required advance payment or security deposit, the delivery obligation of Flexitank Solutions expires, without prejudice to the right of Flexitank Solutions to compensation for all damages, costs and interest caused by the principal.
13.1 Flexitank Solutions guarantees that working and/or processing activities will be performed to the best effort. This in itself is not a guarantee that the estimates defined in advance regarding the losses and quality expectations due to working and/or processing will be met.
13.2 If it is that the working and/or processing losses are higher and the quality is less than expected, then this is for the account of and at the risk of the principal Flexitank Solutions and is not liable for damages.
14.1 The Principal is obligated to inspect the goods immediately after delivery. Faults and/or defects which the principal discovers upon inspection or should have discovered, must be reported to Flexitank Solutions within 48 hours after delivery, stating the nature of the defects and/or flaws. Defects that the principal could not have detected during inspection, must be reported to Flexitank Solutions within 7 days after discovery, at least within 7 days after the time at which discovery is reasonably possible, stating the nature of the defects and/or flaws.
14.2 The Principal is obligated to grant Flexitank Solutions the opportunity to inspect the claimed defects and/or flaws.
14.3 Deviation from the foregoing means that the principal cannot claim on grounds of the defects and/or flaws.
14.4 In the event the product is defective, Flexitank Solutions obligated to urgently supply new (if the defect is the amount concerned, supplementary) goods at the agreed place of delivery in exchange and replace (supplement) of the defective goods or, at the discretion of Flexitank Solutions, repair the defect.
14.5 Complaints do not give the principal the right to dissolve the contract or to suspend payment. The principal waives the possible right to clearance of mutual claims.
Orders can only be cancelled if all the following conditions are fully met:
I. Flexitank Solutions expressly agrees in writing with the cancellation;
II. The cancellation has taken place before Flexitank Solutions in any form has started with carrying out the contract.
III. The principal who cancels a contract, is due by way of damages a sum equal to 50% of the work to be performed for the agreed amount, unless Flexitank Solutions shows that the actual damage is higher. Already made (part) payments are then deducted.
16. Liability / exoneration
16.1 Flexitank Solutions is not liable for damages flowing from improper use of the products, nor for any damage as a result of working and/or processing not performed by Flexitank Solutions.
16.2 All storage, packaging, working and/or processing is for account of and at the risk of the principal, unless the principal proves that the damage was caused by intent or gross negligence of Flexitank Solutions. Flexitank Solutions prepares and processes many products, therefore she cannot exclude that products mix with products from other principals.
16.3 To the extent that faults in the working and/or processing process are a result of intent or gross negligence the liability of Flexitank Solutions is limited to the price in the relevant contract and loss of value of the products, which value loss is finally determined by the insurance expert of Flexitank Solutions. Flexitank Solutions is not liable for loss of profits or other consequential damages.
16.4 The principal shall compensate Flexitank Solutions completely for all damages caused by the presence, use, on and off, for the working and/or processing of products of the principal, unless the principal proves that the damage was caused by a wrong treatment by Flexitank Solutions.
16.5 Flexitank Solutions shall not be liable for any consequential damages, business damages, lost time damages, matter and/or injury damages or any damages whatsoever, unless intent or gross negligence and unless the damages are subject to article 16.6. The principal must indemnify Flexitank Solutions with respect of claims by third parties.
16.6 Flexitank Solutions has proper insurances against matter and personal injury regardingt the self-produced products. Regarding the damage the liability of Flexitank Solutions extends no further than the amount that is paid by the insurer, if necessary extended by the amount Flexitank Solutions does not receive because the contractual own risk under the insurance policy.
16.7 The principal shall indemnify Flexitank Solutions for all claims of third parties against Flexitank Solutions related to the products entrusted by the principal, or the processing and handling of these products. This disclaimer also applies to claims of third parties in connection with article 6:185 Burgerlijk Wetboek.
16.8 Flexitank Solutions guarantees that the delivered goods meet the usual requirements and standards that can be made and are free from any defects. This warranty is valid for a period of six months after delivery.
16.9 If the product delivered does not correspond to what was agreed and this non-conformity is a defect in the sense of the legal requirements, or Flexitank Solutions has not met its obligations, then Flexitank Solutions is not liable for the resulting consequential damages. The liability for direct damages is limited to the invoice amount and can only be requested after the principal Flexitank Solutions has provided the opportunity to follow up her obligations, with a period of at least fourteen days.
16.10 Notwithstanding the above, Flexitank Solutions is not liable if the damage is due to intent and/or gross negligence and/or imputable actions, or by incorrect or improper use of the principal.
17.1 Force majeure means circumstances or events beyond the control of Flexitank Solutions, which prevent the fulfilment of the contract permanently or temporarily.
17.2 In the event of an impediment to performance of the contract due to force majeure, Flexitank Solutions is entitled, without judicial intervention, to suspend the execution of the contract for a maximum period equal to the delivery, either to terminate the contract in whole or in part without being liable for any compensation whatsoever.
17.3 After the expiry of the extended delivery period, as referred to in the previous paragraph, both parties are entitled to terminate the contract, without Flexitank Solutions being liable for any compensation whatsoever.
17.4 If after the conclusion of a contract Flexitank Solutions cannot fulfil her obligations due to circumstances not known at the conclusion of the, Flexitank Solutions is entitled to require that the content of the contract is altered to enable performance. The principal in that case has the right to refuse this change, within seven days after changing the contents, then the contract is regarded to be dissolved. The principal is obligated to inform Flexitank Solutions in writing of her refusal.
17.5 In addition, Flexitank Solutions has the right to suspend the fulfilment of her obligations, in which case she won�t be in default, if she cannot fulfil her obligations temporarily as a result of changes in conditions which were reasonably not to be foreseen and outside its sphere of influence, at the time of conclusion of the contract.
17.6 If Flexitank Solutions partially fulfilled her obligations, she is entitled to a proportionate part of the price agreed on the basis of the work, already performed and costs made.
18. Suspension and termination
18.1 If the Principal does not properly or timely fulfil any obligation arising from any of contract with Flexitank Solutions, or if it is doubtful whether the principal is able to meet its contractual obligations towards Flexitank Solutions, and in case of bankruptcy, suspension of payments, suspension, theft or liquidation of the principal, Flexitank Solutions is entitled, without notice and without judicial intervention, either to suspend carrying out any contract and/or claim fulfilment by the principal, or terminate the contract entirely or partly, without Flexitank Solutions becoming liable for any compensation or guarantee, and without prejudice other rights.
18.2 Flexitank Solutions is entitled to reserve goods of the principal, t to the satisfaction of all costs Flexitank Solutions has made in carrying out the orders from the same principal. In case of cancellation of by Flexitank Solutions on behalf of the principal ordered products, the following articles are applicable:
18.3 Entire or partial termination of the contract takes place by a written statement of the entitled. Before the principal sends a written declaration of dissolution to Flexitank Solutions, he shall at all times first provide Flexitank Solutions in writing with a reasonable term to fulfil her obligations or restore the claimed failures, which failures the principal should express accurately in writing.
18.4 The Principal is not entitled to terminate the contract in whole or in part or to suspend his obligations if he was already in default with the fulfilment of its obligations. If Flexitank Solutions agrees to termination, without default by her side, she always has the right to compensation for all financial losses as well as expenses, lost profits and reasonable costs of determining damages and liability. In case of partial termination, the principal is not entitled to cancellation of work already done by Flexitank Solutions and Flexitank Solutions has full right to payment of work that has been done.
18.5 If the contract is terminated, the claims of Flexitank Solutions on the principal are immediately payable. If Flexitank Solutions suspends fulfillment of her obligations, Flexitank Solutions reserves her rights under the law and the contract.
18.6 Flexitank Solutions always retains the right to compensate for damages.
19. Customs and excise provisions
19.1 The Principal shall provide all information and documents in respect of products which are subject to customs and excise regulations or tax regulations to enable Flexitank Solutions to submit the corresponding assignments.
19.2 Any clearing costs are for account of the principal. The principal indemnifies Flexitank Solutions for any incorrect and/or incomplete information provided by anyone with the relevant authorities concerned.
20.Toepasselijk law / Jurisdiction
20.1 All contracts to which these conditions apply in whole or in part, shall be governed by Dutch law.
20.2 All disputes that could arise between Flexitank Solutions and the principal shall be settled by the competent court in Amsterdam, notwithstanding the right of Flexitank Solutions to summon the principal before the competent court of his domicile.