ATLANTAL GENERAL TERMS AND CONDITIONS OF SALE
AtlantalDairy, Lda (Portugal)
ARTICLE 1 – SCOPE OF APPLICATION
1.1 - A contract of sale is formed by the Vendor's proposition (in its final incarnation) and the acceptance of this proposition by the Client with respect for the conditions set out in Article 2.
All references to numbers of days made in these TCS should be understood as working days, i.e. excluding Saturdays, Sundays and National holidays.
1.2 - By placing an order, the Client fully and unreservedly accepts the clauses and conditions of these TCS, notwithstanding any clauses included in other commercial documents such as order forms, and particularly the Client's terms and conditions of purchasing.
ARTICLE 2 – PROPOSITION - ORDER
2.1 - The Vendor's sales propositions are valid only for the duration of the reflection/confirmation period specified on each quote. Unless otherwise specified, this period is set at 7 days.
2.2 - By placing an order in response to a proposition made by the Vendor, the Client fully and unreservedly accepts this proposition.
In all cases, including in the event of a cancellation of modification accepted by the Vendor, the Client will bear sole responsibility for the consequences of these changes, and accept all associated costs.
In the event of a delay extending beyond the delivery period specified in the commercial proposition, the Vendor reserves the right to apply penalty charges equivalent to 1% of the total value of the affected products for every 10 days overdue, up to a maximum of 5% of the total value of the affected products.
If the delay should last for more than 2 months, the Vendor reserves the right to terminate the contract.
ARTICLE 3 – PRICES - INVOICING
3.1 - The price is concluded in the contract and will be reported in the exact terms in the final invoice.
3.2 - In order to be considered valid, all disputes concerning invoices (price, quantities etc.) must be addressed to the Vendor by recorded post with proof of delivery, or else by fax or email, within no more than fifteen (15) days following the issuing of the disputed invoice.
Registering a complaint regarding an invoice in the correct format does not guarantee that the complaint will be upheld, as it remains subject to analysis by the Vendor.
Complaints and queries regarding invoices cannot be used by the Client to justify the suspension, postponement or total or partial cessation of payment with regard to the invoice in question and/or any other invoice issued by the Vendor.
ARTICLE 4 – DELIVERY - RECEPTION
4.1 - The transport and delivery terms employed in quotations, contracts of sale or confirmations of purchase shall be interpreted in accordance with the description provided in the INCO terms applicable at the time of the contract, in so far as not otherwise provided in said documents and/or these conditions.
4.2 - The deadlines mentioned in the proposition (Estimated Time of Departure 'ETD' and Estimated Time of Arrival 'ETA') are estimates given purely for information purposes.
Failure to meet these deadlines is not sufficient cause for termination of the contract of sale, nor for penalty charges and/or compensation of any kind, and in no way affects the Client's obligation to pay for the Products.
These deadlines will be calculated starting from confirmation of the order, i.e. the date on which the Vendor receives all of the elements required to process/execute the order (e.g. opening of a credit account, advance payment etc.).
If the shipping of the Products by the Vendor is delayed as a result of the Client's actions or wishes, the Products will be stored and handled at the Client's expense and risk, with the Vendor declining all liability during this time. The Client thus assumes full liability for all risks relating to the Products' best-before date, arising from delays caused by the Client's own actions
4.3 - Reception, Inspection of the merchandise upon delivery and Complaints. If the Client feels that the Products delivered do not comply with his expectations, he should make these objections known to the Vendor immediately.
In all such cases, the Client must notify the Vendor in writing (recorded post with proof of delivery, fax or email) as soon as possible, providing a precise and detailed account of any abnormalities detected:
As soon as the issues are detected or as soon as it is possible to detect them, in cases where the Products are found to differ from the specifications given in the contract of sale (quantity, weight, product types etc.), or where there are visible defects (external appearance of the Products, odour etc.) damage and/or Products missing. Problems must be reported within no more than 7 calendar days following delivery of the Products.
In other cases (defects which are not visible/detected upon delivery), with the exception of problems which only become apparent when the products are used, complaints must be made within 37 calendar days of the products being delivered and 7 calendar days of the defect being discovered.
With regard to problems which only become apparent with use, all instances of defective goods must be reported before the expiry date of the products in question. (...)
Any non-visible defects found in the materials or fabrication process, and which render the Products unfit for their intended purpose, are guaranteed subject to the conditions set out in this document, as long as the Products have been kept in their original packaging, sealed and unaltered, and stored in a cool, dry place as per the Vendor's recommendations.
4.4 - Returns or destructions of defective Products must receive the prior written approval of the Vendor (...)
Returned products will not be refunded by the Vendor in any way whatsoever unless they have been stored, conserved and/or handled according to the Vendor's recommendations.
ARTICLE 5 – PAYMENT
5.1 - Terms of payment
Payment must be made within the deadline stipulated on the sale proposition and indicated on the invoice. Unless otherwise indicated, the payment deadline is set at 30 days starting from the date of the invoice, provided that the Vendor has sufficient guarantees of the Client's solvency.
There will be no discount for early payment.
As part of the company's client risk management policy, the Vendor reserves the right to request, even after the contract of sale has been agreed upon, payment in full in advance of delivery and/or any other guarantee which he deems to be necessary.
5.2 - Late or missed payments
5.2.1 - Failure to pay an invoice before the payment deadline will automatically render all other outstanding invoices payable immediately. Furthermore, the Vendor will be entitled to suspend or cancel all outstanding orders and refuse any new orders, without sacrificing the right to take other forms of actions including those described in Article 7 "Transfer of Ownership'.
5.2.2 - All outstanding sums remaining unpaid at the expiry of an invoice's payment deadline will be subject to late payment interest charges, calculated on the basis of the base interest rate of the European Central Bank as of the payment deadline, plus 10%
5.2.3 - If an invoice remains unpaid after the expiry of the stated payment deadline, a standard charge of 40 Euros will be automatically applied to cover the costs of recovering the outstanding sums (...)
ARTICLE 6 – COMPLAINTS AND LIABILITY
6.1 - Clients accept sole responsibility for the manner in which they use these Products. The Vendor accepts no responsibility in such matters.
Generally speaking, the Client will be held liable for the consequences of all mixtures, transformations and/or modifications involving the Products supplied by the Vendor, with the Vendor declining all responsibility for these consequences.
The Vendor's responsibility can only be invoked in cases where the Products are found to be defective in a manner which is wholly attributable to the Vendor, and which causes genuine damage to the Client (...)(...)
In all cases, the Vendor's liability will be limited to the direct, clearly-proven material damages occasioned by the defect, excluding all other forms of damage, including but not limited to: immaterial damage, indirect damage, operating losses and/or loss of revenue.
Under no circumstances shall the Vendor's liability exceed the total value of the defective Products plus the cost of destroying them, with an upper limit equivalent to 120% of the original sale price of the Products.
6.2 - The goods delivered shall meet any requirements that may reasonably be expected. If, upon delivery, an item delivered does not meet the standards set out in the contract because it displays a defect in quality and/or composition, any complaints about it shall only be taken into consideration if submitted to the seller in writing within four weeks of delivery.
If a defect only becomes apparent sometime after delivery, the buyer may only invoke non-compliance of the item with the standards set out in the contract if he notifies the seller thereof within 7 days after (ARTICLE 4 – Paragraph 3) he has detected or reasonably should have detected said defect; in assessing whether and when a buyer reasonably should have detected a defect, the buyer’s obligation to observe the standards of supervision and care dictated by practice and statutory regulations in respect of the storage of the goods shall be taken into account.
6.3- Without prejudice to the provisions of paragraph 2 of this article, the seller shall only have to take a complaint into consideration if the buyer has paid the relevant invoice or has placed the item in question at the seller’s disposal.
ARTICLE 7 – TRANSFER OF OWNERSHIP
Ownership of the Products is transferred immediately once the Client has paid the full price and all associated sums (inc. VAT).
In the event that the Client should fail to make a payment in full and within the stated deadline, the Vendor will be fully entitled to demand the return of the products without prior warning.
Products in the Client's possession which are identical or similar to the Products sold by the Vendor will be deemed to correspond to the unpaid Products.
ARTICLE 8 – SAMPLING AND ANALYSIS:
8.1- The buyer may, at the time and site of delivery, have an attested sampler take samples in triplicate in the customary manner. The buyer and the seller may stipulate that said sampling be monitored. If the buyer and the seller fail to reach agreement on designating an attested sampler, the buyer shall undertake to have the samples taken by one of the following controlling authorities:
- SGS: Société Générale de Surveillance;
- Bureau Veritas;
- Caleb Brett.
8.2 - Inspections of quality and/or composition shall be conducted in accordance with the methods prescribed at the time of the inspection if no other methods are agreed upon.
8.3 - If no samples are taken at the time of delivery, sampling may take place at a later date. Assessment and analysis can then only provide an indication of the quality at the time and site of the delivery. The provisions of paragraphs 1 and 2 of this article shall apply mutatis mutandis to this sampling.
8.4 - In the event of any disputes about quality and/or composition, one of the samples referred to in paragraph 1 or, as the case may be, paragraph 3 shall be subjected to an analysis by an accredited laboratory as soon as possible and in any event within seven days. The findings of the analysis shall be binding, without prejudice to each of the parties’ right to demand a reappraisal within 10 working days of publication of the findings, which reappraisal shall consist of an analysis of a sample other than the one taken as specified in paragraph 1 conducted by an impartial laboratory that may be the same laboratory as hereinbefore referred to. The findings of the reappraisal shall be binding upon both parties. The associated costs shall be borne by the party ruled against as evidenced by the final findings of the analyses referred to.
ARTICLE 9 – PREMATURE CANCELLATION
If any of the parties should default or continue to default on fulfilling any of their obligations towards the other party with regard to the term of delivery or credit term, or in the event of their moratorium, bankruptcy, death or liquidation, the other party shall be entitled to cancel the contract in whole or in part without any notice of default or intervention of the court by means of written notice being required, without prejudice to the right to claim damages and without prejudice to the provisions of article 6
ARTICLE 10 – APPLICABLE LAW - COMPETENT COURTS
The present TCS, and all contracts of sale concluded between the Vendor and the Client, are subject to Portuguese law, including the terms of the Vienna Convention on Contracts for the International Sale of Goods of 11th April 1980.
Any dispute relating directly or indirectly to the execution of these terms and conditions and/or the relationship between the Vendor and Client established by the contracts of sale, and which cannot be settled amicably by the parties, will fall under the exclusive jurisdiction of the Courts of Lisbon, including disputes over the validity of the contract itself, and even in cases where multiple defendants or third party guarantors are invo