All issues, questions and disputes concerning the validity, construction, enforcement, performance and termination of the GCS shall be governed by and construed in accordance with Belgian law, and no effect shall be given to other choice-of-law or conflict-of-laws rules or provisions (Belgian, foreign or international, including the UN Convention on the Contracts for the International Sale of Goods (if applicable)), that would cause the laws of any other jurisdiction to be applicable. The application of the UN Convention on the Contracts for the International Sale of Goods is entirely excluded.
General Sales Conditions
1. Applicability
These general terms and conditions of sale (“GCS”) shall apply to all quotations, offers, agreements, Sales Confirmations and Delivery Confirmations (as defined below) under which the customer (“Customer”) purchases goods, accessories and/or services of whatever nature (the “Goods”) from ORIGIN2U.EU. The GCS shall supersede, without exception, any and all of the Customer’s terms and conditions. By placing an order, the Customer confirms: (i) to have read and understood the GCS which are sent to the Customer together with the quotation/offer; and (ii) to accept the GCS entirely, without any reservation. The fact that ORIGIN2U.EU did not explicitly object to the Customer’s terms and conditions or other specifications on the Customer’s documents, or made no reservation with respect hereto, does not affect the preceding and the sole application of the GCS.
The provisions of the latest edition of the European Standard Contract for Coffee (“ESCC”) drawn up by the European Coffee Federation are incorporated in this GCS through this reference and will supplement the provisions of the GCS. However, if any provision contained in this GCS is in conflict with, or inconsistent with, any provision in the ESCC, the provision contained in this GCS shall prevail and supersede said provision in the ESCC.
In the event ORIGIN2U explicitly agrees to handle freight, insurance and/or custom duties on behalf of the Customer, despite the fact that such freight, insurance and/or custom duties are not included in the normal scope of the agreed Incoterm, the Customer agrees and acknowledges that the latest edition of the general logistics conditions (“GLC”) drawn up by FEBETRA and the Royal Federation of Managers of Flows of Goods will exclusively apply to such additional logistics services.
If any of the GCS or part thereof shall be determined to be void, unenforceable or illegal in whole or in part, such determination shall not affect the validity of the other terms and conditions contained herein. In such event, the Parties shall, to the maximum extent possible, substitute such invalid provision by a valid provision corresponding to the spirit and purpose thereof.
In case of conflict between the provisions in the Sales or Delivery Confirmation and the provisions in the GCS, the provisions in the Sales or Delivery Confirmation shall prevail.
Unless otherwise specified in the Sales or Delivery Confirmation, references to Incoterms shall have the meaning and significance attached to them in the latest edition of the Incoterms issued by the ICC (International Coffee Corporation).
2. Place of sale – Confirmation
Each sale is only valid after written confirmation by ORIGIN2U
Any comments concerning the written confirmation as mentioned above, must be notified to ORIGIN2U by the other party within two business days after the written confirmation has been sent by ORIGIN2U. After the expiry of this period, silence will be construed as acceptance of the written confirmation.
3. Prices & payment
Each sale is only valid after written confirmation by ORIGIN2U
Any comments concerning the written confirmation as mentioned above, must be notified to ORIGIN2U by the other party within two business days after the written confirmation has been sent by ORIGIN2U. After the expiry of this period, silence will be construed as acceptance of the written confirmation.
Unless otherwise specified in the Sales Confirmation, prices are net cash increased with VAT or any other applicable sales tax, and Customer shall pay all taxes and charges for transportation, insurance, shipping, storage, handling, demurrage, customs clearance and similar items (“Charges”) and in case of the use of Incoterms, Charges shall be paid in accordance with the applicable Incoterm. Any increase in Charges that becomes effective after the date of Sales Confirmation, shall be borne by Customer.
Unless otherwise specified in the Sales Confirmation all invoices shall be due and payable upon presentation without any deductions and all payments shall have to be made prior to delivery of the Goods. If Customer is subject to bankruptcy or insolvency proceedings, then ORIGIN2U shall not be bound by any period of payment stated in the Sales Confirmation.
If Customer fails to pay on the due date, then Customer shall be obligated to pay without prior notification: (i) interest for late payment according to the Act of 2 August 2002 on combating late payment in commercial transactions; and (ii) liquidated damages amounting to 10% of the invoice amount (including VAT and/or other applicable sales taxes) with a minimum of 500 EUR, without prejudice to any other rights of ORIGIN2U. Customer accepts that ORIGIN2U is entitled to a right of detention of any and all relevant documents to guarantee the payment of all outstanding invoices, irrespective of the date of shipment or the Goods involved.
Any delay in payment or in execution of any obligation entered into by Customer or in the event Customer’s solvency or credit worthiness is compromised and Customer is not able to effect advance cash payment or provide ORIGIN2U with adequate security as requested, then ORIGIN2U shall have the right to suspend or cancel any agreement, or that portion of any agreement, which it has not yet performed, without Customer’s consent. It shall also result in all sums becoming due which are to be paid by Customer, even those which have not yet matured, becoming immediately payable without prior notification on the part of ORIGIN2U. ORIGIN2U reserves the right to compensate any and all amounts due by ORIGIN2U to Customer, irrespective of their maturity date, with all amounts which are due by the Customer to ORIGIN2U including any interest on arrears and costs accrued thereon, in the following order: costs, interest, invoice amounts. Customer shall not be entitled either to withhold payments or to proceed to any compensation even in case of dispute. In any event of payment delay by Customer, Customer shall not be entitled to resell or process the Goods or to take any steps which may affect the Goods.
All bank fees, save ORIGIN2U’s bank fees, shall be borne by Customer.
Where payment is to be made by means of a letter of credit, the credit shall be opened in strict conformity with the terms of the Sales Confirmation and by such means that ORIGIN2U as the beneficiary shall be able to utilise it from the earliest possible day of the period stipulated for shipment or delivery. In all cases the latest date of shipment stipulated in the letter of credit shall be the delivery term increased with a minimum of 30 Days and the transportation lead time and the transit time.
4. Quantity
The quantity of the Goods sold, shall be stated in the Sales Confirmation. A tolerance of 3% in weight, more or less (between the Sales Confirmation and the delivered quantity), shall be permitted and does not give rise to any right of compensation for Customer.
5. Weight
The coffee is weighed in accordance with local customs. Subject to conflicting provisions in the agreement, the coffee will be weighed at the moment the coffee is sent overseas from Antwerp (shipped weight), or when the coffee, if it is transported in containers, is placed into the containers. The invoice will therefore be drawn up based on the weight recorded at the time and place of shipment of the coffee.
6. Tare weight
If the tare weight for the empty bags of coffee has not been determined, 500 grams per bag will be deducted.
7. Quality
If the coffee is sold on the basis of a sample from a specific stock of coffee, the coffee supplied must fully conform with this coffee sample;
(b) If the coffee is sold on the basis of a type or reference sample, the average quality of the coffee supplied must correspond with this coffee sample;
(c) If the coffee is sold by means of certain parameters, the coffee supplied must correspond with this description in all aspects;
(d) If the coffee is sold by a special classification, the coffee supplied must correspond to this classification and the quality must conform with the average quality of the harvest at the place and the time of shipment of the coffee;
(e) Finally, a sale may also be agreed “on approval” of a sample by the buyer if the parties agree to this and explicitly determine this. In this case, ORIGIN2U will submit a coffee sample to the buyer as soon as possible, and the buyer must accept or refuse this sample within 24 hours after receipt. A refusal is only justified if the lot sold does not fully correspond to the predetermined quality, and cannot serve the use for which the buyer intended. Such refusal does not release ORIGIN2U from any further obligations regarding the supply of the coffee. However, ORIGIN2U is free to offer other lots similar to the quality sold within 30 days in full or partial performance of the agreement.
Subject to obvious mistake, gross negligence or wilful intent by ORIGIN2U, the buyer may not invoke a difference in quality between the coffee supplied and the aforementioned sample to annul the agreement or to refuse to accept the coffee which is the subject thereof. Such a difference in quality only entitles the buyer to compensation from ORIGIN2U for the abnormal deviation.
8. Transfer of risk
Unless otherwise specified in the Sales Confirmation, the transfer of risk shall take place at an ORIGIN2U’s or Customer’s designated warehouse before loading and in case of the use of Incoterms, risk shall pass in accordance with the applicable Incoterm. Customer shall insure the Goods as from the date of transfer of risk. Moreover, Customer undertakes: (i) to take a general liability all risks insurance policy, at its own cost, including coverage as to the deterioration and/or theft of all or a part of the Goods and/or of the new goods; and (ii) provide to ORIGIN2U, at its first request, a certificate confirming such insurance coverage and the payment of the insurance premium related thereto. When the Goods are sold ‘in store’ such insurance has to become effective as from the agreed date of delivery.
9. Delivery
Unless otherwise specified in the Sales Confirmation, delivery shall take place EXW at an ORIGIN2U’s or Customer’s designated warehouse before loading and in case of the use of another Incoterm, delivery shall take place in accordance with that Incoterm. Customer covenants and agrees to take delivery of the Goods in accordance with the agreed delivery period.
Should Customer fail to take timely delivery of the Goods in accordance with the agreed delivery period, ORIGIN2U is entitled to claim liquidated damages amounting to 2% per month of the invoice amount (including VAT and/or other applicable sales taxes). In any event, ORIGIN2U remains entitled, without any special notice, to resell the Goods and to claim additional damages.
Continued failure by Customer to take delivery of the Goods after having received a written notice of default, shall entitle ORIGIN2U to consider the agreement cancelled and to claim damages including the loss of profit, calculated as follows:
In case the Goods are still at their place of origin:
loss of profit = the difference between the price of the Goods specified in the Sales Confirmation and the market value of the Goods at the agreed date of delivery;
In case the Goods have left their place of origin:
loss of profit = the difference between the price of the Goods specified in the Sales Confirmation and the market value of the Goods at the agreed date of delivery, increased with all costs and Charges incurred by ORIGIN2U as from the shipment of the Goods.
Unless explicitly specified in the Sales or Delivery Confirmation, delivery times shall not be regarded as binding but as indicative, and delays in delivery shall not entitle Customer to claim any damages resulting thereof. Delays in delivery shall only entitle Customer to cancel the purchase of the Goods after having granted ORIGIN2U a reasonable grace period (with a minimum of 30 Days as from the agreed delivery term, increased with the transportation lead time and the transit time) in order to remedy said delay and only after having sent ORIGIN2U a written notice of default.
In any event, ORIGIN2U is entitled not to supply the whole quantity which Customer has ordered in one delivery, but can deliver by several subsequent partial deliveries.
In any event delivery periods shall not begin when Customer fails to fulfil any of its contractual obligations towards ORIGIN2U. The delivery periods shall be deemed to be met on timely notification of readiness to ship if the Goods cannot be dispatched in time through no fault of ORIGIN2U.
10. Acceptance - Claims
Upon delivery of the Goods, Customer shall carry out an inspection of the Goods to check any apparent defect or damage (surface faults, package faults, etc), weight, quality as stated in Sales Confirmation, failing which no claim will be admissible. Any apparent defect and damage shall have to be noted by the Customer on the CMR, E-CMR or any other relevant dispatch document, failing which the defects or damage to the Goods are deemed to be accepted by Customer.
Without prejudice to the foregoing, the Goods shall be deemed to be automatically accepted upon delivery of the Goods to Customer and no claims in this respect will be admissible, when (i) no comments on quality or quantity are made in writing within 14 Days after the delivery of the Goods; or (ii) the Goods are resold or processed.
Any claim of Customer regarding the weight of the Goods shall only be admissible if a detailed weight note certified by an independent recognized weigher/surveyor is attached. Any claim of Customer regarding the quality of the Goods shall only be admissible if an independent evidence by a contradictory survey issued by an independent organisation, which is qualified to investigate the Goods (such as SGS), is attached.
Without prejudice to the aforementioned shorter time limits, all claims as to which Customer, as the case may be , believes to be entitled to indemnification under the GCS, shall: (i) be made in writing, send per registered mail to ORIGIN2U; (ii) state the grounds for the claim and the amount claimed; (iii) include reasonable underlying documentation; and (iv) be made within 1 year after the date of the invoice, otherwise the claim will be inadmissible.
11. Liability
ORIGIN2U shall only be liable for its gross negligence and wilful misconduct. In any event the liability of ORIGIN2U is limited to the value of the Goods as mentioned in the Sales Confirmation, with a maximum amount equal to the lowest amount of: (i) the invoice for the concerned Goods; or (ii) € 25.000 per Sales Confirmation or damage causing event. ORIGIN2U shall not be liable for any indirect damages, such as, but not limited to, economic damage and consequential damage. ORIGIN2U incurs no liability in the following cases: (i) damage caused during the transport of the Goods; and (ii) damage caused by the wrongful or negligent handling of the Goods by the representatives of the Customer or any other third party. In any case, the limitation period shall be one year after the point in time the claim originated and the Customer obtained knowledge of the circumstances giving rise to the claim.
Without prejudice to any of the provisions of the GCS which limit ORIGIN2U’s liability, the Customer will exonerate and hold ORIGIN2U harmless in the event of a product recall after the resale or processing of the Goods.
12. Retention of title
All delivered Goods shall remain ORIGIN2U’s property until fulfilment by Customer of all payment obligations under the agreement. This entails inter alia:
(i) If Goods are processed, combined, and/or mixed by Customer with other goods belonging to Customer then ORIGIN2U has the entire ownership on the new goods. If Goods are processed, combined, and/or mixed by Customer with other goods not belonging to Customer, then ORIGIN2U has a joint ownership right in the whole value of the new goods (together with the other owners). In such case, ORIGIN2U’s ownership shall be calculated on the basis of the ratio of the invoiced value of the Goods to the invoiced value of all goods, which were used for manufacturing the new goods;
(ii) As long as Customer is not in default and provided that it reserves ORIGIN2U’s property rights, Customer is entitled to resell the Goods but only in its ordinary course of business;
(iii) Customer’s receivables arising out of the resale of Goods are already assigned, for security purposes, exclusively to ORIGIN2U. Customer is entitled to collect such receivables, unless ORIGIN2U withdraws the direct debit authorization in case of any doubt about Customer’s solvency and/or financial credibility or if Customer is in arrears on any of its payments. In the event ORIGIN2U withdraws the direct debit authorization, Customer is obliged (1) to inform its clients immediately about the assignment to ORIGIN2U and that ORIGIN2U is the owner of the Goods, (2) and to give ORIGIN2U all information and documents necessary in order to establish and confirm ORIGIN2U’s rights with respect to third parties. Customer shall be obligated to inform ORIGIN2U without delay about any garnishment and/or any other actions adversely affecting the Goods undertaken by third parties;
(iv) Customer shall have the sole liability for, and shall bear all risks and costs associated with the unloading, correct handling and suitable storage of the Goods and/or the new goods. Moreover, Customer undertakes (1) to take a general liability all risks insurance policy, at its own cost, including coverage as to the deterioration and/or theft of all or a part of the Goods and/or of the new goods and (2) provide to ORIGIN2U, at its first request, a certificate confirming such insurance coverage and the payment of the insurance premium related thereto.
In case this clause or part thereof shall be determine to be void, unenforceable or illegal in whole or in part under local mandatory insolvency law, this clause shall be de iure substituted, to the maximum extent possible, by a valid provision corresponding to the spirit and purpose of this clause.
13. Force Majeure
The buyer expressly waives any recourse it may have against ORIGIN2U due to an event of force majeure (lack of shipping tonnage, war, uprising, blockade, prohibition against import and export, quarantine, strike, lock-out, shortage of man power, destruction of warehouse, fire, flood, frost, wreckage – this list is purely illustrative and not exhaustive), if ORIGIN2U cannot fully or partially perform the agreement, or can only do so with some delay. ORIGIN2U must inform the buyer of the occurrence of a force majeure event as soon as possible after it becomes aware of such event.
14. VAT
In the event that the supply of Goods is entitled to VAT exemption due to intracommunity sales or the export destination of Goods delivered, and Customer takes delivery at his own risk and own expense for the whole or for a part of the carriage or transport (delivery terms EXW, FOB, FCA, etc.), ORIGIN2U shall only be bound to apply for a VAT exemption if Customer provides it with substantial proof (transport document: CMR, bill of lading, CIM, export declaration, etc.) of carriage or transport to the country of destination.
On simple ORIGIN2U’s request, Customer shall send to the ORIGIN2U within 10 Days from the receipt of the ORIGIN2U’s request the following: (i) the copy of invoice for the delivered Goods with the date and legible signature (name and surname) confirming the receipt of the goods delivered to the address given on the invoice in the assortment and quantity defined in the delivery specification and as referred to on the invoice, (ii) the copy of delivery note or transport document on which the confirmation of delivery of goods is placed. In case when the time limit of 10 Days is not respected, ORIGIN2U has the right to charge Customer with fines of one hundred Euro for each day of delay. The fine however, cannot exceed the VAT amount due on the delivery value, expressed in Euro. Customer is obliged to inform the ORIGIN2U immediately (within 1 to 3 Days) about: (i) Change of Customer’s VAT identification number for intracommunity transactions, (ii) Change of Customer’s company’s name and address.
15. Arbitration and applicable law.