General Sales Conditions

1. GENERAL

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 SILCO NV, SILCO SA, SILCO GmbH and/or their affiliated companies (“SILCO”). 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 SILCO 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 Contract Rules for Cocoa Beans drawn up by the Federation of Cocoa Commerce (“FCC”) 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. Other contract frameworks which are similar to the ESCC, such as the US Cocoa Contract, are explicitly excluded.

In the event SILCO 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 BELOTRA/Logistics Cell of FEBETRA and the Royal Federation of Managers of Flows of Goods (see https://febetra.be/wp-content/uploads/2014/07/Conditions_for_Provision_of_Logistic_Services_20151.pdf) 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.

The terms Bags, Big Bags (FIBCs), Bulk and all other capitalized terms which are not explicitly defined in these GCS shall have the meaning generally attached to them in trading business related to the Goods or in the ESCC.

The term Day(s) shall mean calendar day(s).

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.

2. SALES CONFIRMATION – DELIVERY CONFIRMATION

The agreement only becomes effective upon SILCO’s written sales confirmation (“Sales Confirmation”). Any specific delivery request by the Customer pursuant to an agreement only becomes effective upon SILCO’s written delivery confirmation (“Delivery Confirmation”). SILCO can and will withhold its Delivery Confirmation and may install a credit block whenever the solvency or credit worthiness of the Customer is compromised in SILCO’s reasonable opinion.
SILCO shall only be bound by the price of the Goods listed in the Sales Confirmation which constitutes the sole and exclusive evidence of an agreement between SILCO and the Customer. Any complaint regarding the Sales or Delivery Confirmation must be notified to SILCO within 24 hours after the electronic transmittance of the Sales or Delivery Confirmation to the Customer. When the Sales Confirmation does not specify the mode of packing, SILCO shall decide about the mode of packing.

3. PRICES – PAYMENT

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 SILCO 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 SILCO. Customer accepts that SILCO 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 SILCO with adequate security as requested, then SILCO 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 SILCO. SILCO reserves the right to compensate any and all amounts due by SILCO to Customer, irrespective of their maturity date, with all amounts which are due by the Customer to SILCO 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 SILCO’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 SILCO 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

5.1 Warrant Weight – Reweight – Unit weight

When the Goods are delivered from an SILCO’s designated warehouse or a warehouse designated by the Customer, the weight of the Goods shall be deemed to be sold Warrant Weight (weight established by SILCO at the time and place of delivery of the Goods at SILCO’s or Customer’s designated warehouse) unless the Sales Confirmation specifies another weight methodology such as Reweight (weight established by SILCO at SILCO’s or Customer’s designated warehouse before departure), Unit Weight, etc. (see below). Upon written request of the Customer, SILCO shall provide Customer with a weight note in case of Warrant Weight or Reweight deliveries.

5.2 Shipped Weight – Loaded Weight

When it is specified in the Sales Confirmation that the Goods are sold Shipped Weight or Loaded Weight (this can be the case both when the Goods are shipped from an SILCO’s or Customer’s designated warehouse, or when the Goods are shipped by SILCO directly from origin), the weight of the Goods is established by SILCO at the time and place of shipment or at the time and place of stuffing whenever the Goods are stuffed into the shipment containers. SILCO shall issue an invoice to Customer and provide Customer with a weight note.

5.3. Landed Weight

When it is specified in the Sales Confirmation that the Goods are sold Landed Weight, then SILCO shall issue a provisional invoice based on the Shipped or Loaded Weight, which shall be stated in the bill of lading, CMR , E-CMR or any other relevant dispatch document. SILCO shall provide evidence of weight. SILCO shall issue a final invoice based on the Landed Weight as determined hereinafter.

When the Goods are sold Landed Weight and packed in Bags the Goods shall be weighed at Customers’ expense immediately and not later than 2 Days from the final date of delivery or discharge at the agreed place of delivery/discharge, in conformity with local custom. Slack bags shall be weighed separately and individually.

When the Goods are sold Landed Weight and packed in Big Bags (FIBCs) the Goods shall be weighed at Customers’ expense immediately and not later than 2 Days from the final date of delivery or discharge at the agreed place of delivery/discharge, in conformity with local custom.
In case Big Bags are unloaded into a silo without prior weighing, Customer shall issue a certified silo weight note stating specifically whether the Goods were weighed before or after cleaning. If the Goods are weighed after cleaning, the weight of the admixture and of the Goods extracted must be shown on the weight note that Customer shall issue to SILCO.

When the Goods are sold Landed Weight and delivered/shipped in Bulk, the Goods shall be weighed either upon discharge into silo or on a weighbridge at Customers’ expense not later than 2 Days from the final date of delivery or discharge at the agreed place of delivery/discharge, in conformity with local custom. A certified silo weight note must specifically state whether the Goods were weighed before or after cleaning. If the Goods are weighed after cleaning, the weight of the admixture and of the Goods extracted must be shown on the weight note. When weighing takes place on a certified weighbridge, the container must be weighed both full and empty on the same weighbridge on the same day. The subsequent certified weight note must state: (i) that the trailer unit was the same on each occasion; (ii) that the tractor unit was disconnected and was not weighed; and (iii) whether the weight of the liner and any packing support is included following discharge of the Goods.

Customer shall forward to SILCO a detailed weight note as quickly as possible but not later than 2 Days from the final date of delivery or discharge at the agreed place of delivery/discharge, in conformity with local custom, failing which the Shipped Weight shall be regarded as final.

SILCO shall not accept a weighbridge weight note as evidence for the weighing of the Goods in Bags or Big Bags (FIBC’s) or in Bulk. At any time and upon prior notice to Customer, SILCO can require the weighing to be supervised by a certified weigher at port of destination.

Customer’s failure to abide by all of these provisions shall permit SILCO to regard the Shipped Weight as final.

A tolerance of 3% between the Loaded Weight and the delivered Weight, incurred in transit, shall be permitted and does not give rise to any right of compensation for Customer.

6. TARE

When the Goods are delivered in Bags the invoiced weight shall be the net weight (gross weight minus the actual or customary tare). The tare shall be ascertained where necessary by taking the average of 5 empty bags chosen at random.

When the Goods are delivered in Bulk or Big Bags (FIBCs) the invoiced weight shall be the net weight (gross weight minus the fixed indicated weight of the mentioned packing material).

When the Goods are delivered per unit (as packed goods), the invoiced weight will be the fixed net weight and indicating a fixed weight of the mentioned packing material (together with the net weight totalling the gross weight).

7. QUALITY

Quality shall be in accordance with the description in the Sales Confirmation. Nevertheless, all Goods contracted for shall be of sound normal merchantable quality unless otherwise stated in the Sales Confirmation or show to the contrary by the sale sample(s).

In the event the Customer believes the Goods are unsound and/or there is radical difference in quality, the Customer will inform SILCO upon delivery of the Goods. In the event the Parties are unable to resolve their differences and no amicable solution can be reached between the Parties within 7 Days after delivery of the Goods, the Customer will provide SILCO with the independent evidence by a contradictory survey that the Goods are unsound and/or there is radical difference in quality. The survey must be executed by an independent organisation which is qualified to investigate the Goods (such as SGS). Failure to respect this leads to the inadmissibility of the quality claim.

Samples for quality issues shall have to be drawn and sealed by an independent qualified organisation, not later than 5 Days from the date of delivery of the Goods at Customer’s cost. When the Goods are shipped in Bags and/or Big Bags (FIBCs) samples shall have to be drawn and sealed in conformity with local custom. When the Goods are shipped in Bulk a 2 kilo average sample, taken by an independent qualified organisation, shall have to be drawn and sealed (i) by hand whilst the container is being discharged, or (ii) by a mechanical automatic system prior to cleaning of the Goods. Each quality of the Goods shall be represented by a separate sample. SILCO can at any time require the drawing and sealing of samples by an independent qualified organisation to be supervised at its own expense, provided that SILCO gives notice thereof to Customer in due time.

If the Customer succeeds in providing the independent evidence by a contradictory survey issued by an independent organisation which is qualified to investigate the Goods (such as SGS) that the Goods are unsound and/or there is a radical difference in quality and SILCO cannot prove the contrary, the Customer may opt for one of the following remedies: (i) a financial compensation which takes the quality difference into account or (ii) the annulment of the order by invoicing back the Goods, provided that the Goods are further re-delivered to SILCO in the same weight and condition as they have been delivered to the Customer.
If SILCO establishes that the re-delivered Goods are of different weight or condition as they have been delivered to the Customer, SILCO is entitled to claim damages.

8. TRANSFER OF RISK

Unless otherwise specified in the Sales Confirmation, the transfer of risk shall take place at an SILCO’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 SILCO, 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 – DELIVERY PERIODS

Unless otherwise specified in the Sales Confirmation, delivery shall take place FCA at an SILCO’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, SILCO 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, SILCO 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 SILCO 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 SILCO 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 SILCO 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 SILCO a written notice of default.

In any event, SILCO 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 SILCO. 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 SILCO.

10. ACCEPTANCE – CONFORMITY – 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 SILCO; (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

SILCO shall only be liable for its gross negligence and wilful misconduct. In any event the liability of SILCO 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. SILCO shall not be liable for any indirect damages, such as, but not limited to, economic damage and consequential damage. SILCO 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 SILCO’s liability, the Customer will exonerate and hold SILCO 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 SILCO’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 SILCO 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 SILCO has a joint ownership right in the whole value of the new goods (together with the other owners). In such case, SILCO’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 SILCO’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 SILCO. Customer is entitled to collect such receivables, unless SILCO 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 SILCO withdraws the direct debit authorization, Customer is obliged (1) to inform its clients immediately about the assignment to SILCO and that SILCO is the owner of the Goods, (2) and to give SILCO all information and documents necessary in order to establish and confirm SILCO’s rights with respect to third parties. Customer shall be obligated to inform SILCO 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 SILCO, 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

SILCO’s shipment and delivery of Goods hereunder shall be subject to, and SILCO shall not be liable for, any delay in or impairment or performance resulting in whole or in part from any war (whether or not declared), strike, pandemic, labour conflict, accident, fire, flood, Acts of God, delay in transportation, shortage of materials, hurricane, earth quake equipment breakdowns, cyber-attacks, mill conditions, laws, regulations, orders or acts of any governmental agency or body, or any cause beyond the reasonable control of SILCO, or rendering performance by SILCO impracticable due to the occurrence of a contingency the non-occurrence of which was a basic assumption on which this Sales Confirmation was issued. In any such event, SILCO shall be entitled to such additional time to perform as may be reasonably necessary, and shall have the right to apportion its production among its customers in such manner as it may deem equitable.

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.), SILCO 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 SILCO’s request, Customer shall send to the SILCO within 10 Days from the receipt of the SILCO’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, SILCO 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 SILCO 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. APPLICABLE LAW AND JURISDICTION

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. All disputes concerning the validity, construction, enforcement, performance and termination of these GCS shall be submitted to the exclusive jurisdiction of the Antwerp courts, Antwerp division.