General terms and conditions of sale and delivery
Article 1 Applicability
1.1 These terms and conditions are applied by Duynie Limited, Unit 10B Blue Ridge Park, Thunderhead Ridge, Glasshoughton, Castleford WF10 4UA, United Kingdom, hereinafter referred to as “Duynie”.
1.2 These terms and conditions apply to all offers made by Duynie, as well as to all agreements with and/or legal acts between Duynie and the (intended) customer, hereinafter referred to as the “Customer”, relating to the sale of goods, services and/or work. The applicability of any other general terms and conditions (of purchase) is hereby expressly rejected.
1.3 These terms and conditions can only be deviated from by written agreement.
1.4 In the event of a conflict between these terms and conditions and written agreements, the written agreements shall prevail over these terms and conditions.
Article 2 Offers, agreement
2.1 All offers made by Duynie are without obligation and the prices stated are exclusive of VAT.
2.2 If Duynie receives an order from the Customer, a purchase agreement will only be concluded after Duynie (i) confirms the order in writing, or (ii) executes the order.
2.3 The values in the material issued by Duynie, including products indicated on the website, product compositions, dry matter contents are indicative and are based on analyses ex works. The stated values are average values in these products. These products are natural products and variations in the composition (values) of these products are therefore possible. Consequently, no rights can be derived from these values. Furthermore, any variations above or below the aforementioned values in these products shall, to the extent legally permitted, not constitute grounds for a breach of contract or wrongful action.
2.4 Duynie reserves the right to require security from the Customer before and/ or during the execution of an agreement.
Article 3 Prices and rates
3.1 Unless expressly agreed otherwise, prices of the goods are based on delivery according to DDP (Delivery Duty Paid) (agreed place of delivery) Incoterms® 2020, at the price and surcharge for the distance travelled to the delivery address as stated in the offer or, if the price is not stated in the offer, the price list valid on the delivery date of the goods and these prices are exclusive of VAT.
3.2 Introduction and/or increase of import duties, levies, turnover tax and/or other taxes on (the delivery of) the goods or on the energy, transport, raw materials and/or auxiliary materials required for this, or any other increase in the (energy, transport, raw materials and/or auxiliary materials) costs, and/or (internal) production costs or expenses, which arise after conclusion of the agreement, may be passed on by Duynie to the Customer and the Customer will immediately reimburse Duynie for such additional costs and/or expenses.
3.3 Duynie determines the prices based on weight units or using the dry matter content and prices are always exclusive of VAT. Unless expressly stated otherwise, prices quoted by Duynie are in GBP.
3.4 If the price has partly been determined based on the dry matter content and the Customer disputes the dry matter content of the delivered product, such dispute needs to be raised in writing (by letter or e-mail) within 3 working-days upon receipt of the statement of the dry matter content. Upon receipt of the Customer’s dispute note Duynie shall re-measure the dry matter content in the control sample. In case of a deviation of the dry matter content of more than 5.0 per cent dry matter content Duynie shall adjust the invoice.
3.5 In the event that the price is calculated per weight unit and nothing else has been agreed, the weighing will take place on a calibrated weighbridge chosen by Duynie. Weighing discrepancies of less than 2% are not settled. Duynie has fully met its obligations if the difference between the contractually agreed quantity and the actual delivered quantity is not greater than 10%. In the event that the difference is greater than 10%, the difference up to and including the corresponding percentage is adjusted in line with the agreed price per weight unit, whilst the difference above these percentages will be adjusted in line with the daily price per weight unit valid that day.
3.6 A consignment note, delivery note or similar document issued upon the delivery shall be deemed to correctly state the quantity of the delivered product, unless the Customer objects to this immediately upon delivery of the product and has noted this on said document.
3.7 A composed quote does not obligate Duynie to carry out a portion of the agreement or to deliver a portion of the products stated in the quote or offer at a pro rata calculated portion of the price or rate stated.
Article 4 Transfer of risk
4.1 Goods have been delivered as soon as they have been made available to the Customer at the location indicated in the agreement.
Article 5 Delivery
5.1 If Duynie is unable to unload the goods made available (on time) due to the Customer, Duynie is entitled to charge the additional costs of transport and storage to the Customer without a notice of default being required.
5.2 The determination by Duynie of the quantity of goods delivered to the Customer in a specific delivery is binding, subject to proof to the contrary.
5.3 All (agreed) delivery times are approximate only. No period communicated by Duynie can be regarded as a strict deadline.
5.4 When ordering, the Customer must state the number and/or name of the silo in which unloading is to take place and ensure that the silo in question is clearly marked. The Customer guarantees that he has sufficient storage capacity available for the quantity ordered.
5.5 The Customer shall ensure and guarantee to Duynie that silos and other storage locations, in or where Duynie (or the third party or parties engaged by it) must unload the goods, are accessible without hindrance and without risks and that sufficient storage capacity is available for the goods. Duynie (or the third party or third parties engaged by it) is never liable for any damage that may arise when following the instructions given by the Customer in the context of unloading.
5.6 The Customer shall waive the statement of the details and the information as referred to in Regulation (EC) No. 767/2009, article 15, subsections c), and g), and article 16, paragraph 1, subsection b) (as amended by The Animal Feed (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/654). These details therefore do not have to be stated on the accompanying administrative document. By accepting the present terms and conditions the waiver to Regulation (EC) No. 767/2009, article 15, subsections c) and g), and article 16, paragraph 1, subsection b) shall be deemed inclusive for each transaction, whether sole or consisting of several consignments.
Article 6 Force majeure
6.1 Force majeure releases Duynie from its obligation to deliver within a specified period or on a specified date, and gives it the right to suspend, or to wholly or partially terminate the corresponding agreement by means of a written notification to the Customer, without the Customer being entitled to compensation.
6.2 Force majeure means any circumstance or event that cannot be attributed to Duynie, as a result of which Duynie cannot reasonably be expected to fulfil its obligations, including – to the extent not already included – insufficient harvest, crop failure, operational failure, strike or interruption of operation of any nature, fire, railway strike, defective vehicles, transport problems of any nature that impedes, obstructs or delays transport to Duynie and/or from Duynie to the Customer, late delivery by one or more suppliers, cybercrime such as but not limited to cyberattacks, malware, phishing and DDos, malfunctions or failures in the supply of energy, the internet or other (tele) communication facilities or technological systems, civil war or war, epidemic, pandemic, health authority orders related to epidemic or pandemic and conditions in general that disrupt the regular production and/ or operation of Duynie, or the delivery to the Customer.
6.3 Insufficient harvest or crop failure means the complete or partial failure of harvest of the raw materials and/or consumables required by Duynie, as a result of which Duynie cannot obtain the required raw materials and/or consumables, is unable to do so in good time, or only under more onerous conditions.
6.4 Failing, delayed or late delivery by a supplier as mentioned in the aforementioned article 6.2 concerns the raw materials and/or consumables required by Duynie, as a consequence of which Duynie cannot, or not in time, have access to the required raw materials and/or consumables or only under for Duynie more disadvantageous conditions.
6.5 In the event that force majeure occurs while the agreement has already been partially performed, and if the remaining performance will be delayed by more than three months as a result of the force majeure, the Customer shall keep and pay for the goods that have already been delivered.
6.6 In the event that, as a result of force majeure, the delivery is delayed by more than three months, both the Customer and Duynie are entitled to terminate the agreement for the part not yet delivered.
Article 7 Retention of title
7.1 All goods delivered to the Customer by Duynie shall remain the property of Duynie until the Customer has met all its obligations towards Duynie relating to any current, previous and future deliveries of a similar nature and relating to activities performed or yet to be performed by Duynie. Until that moment, the Customer shall be deemed to keep the goods on behalf of Duynie.
7.2 Until the moment the Customer has fully fulfilled its obligations towards Duynie, the Customer is only entitled to process or dispose of these goods, to the extent this is part of the normal conduct of its business.
7.3 The Customer is obliged to inform Duynie immediately if third parties assert or intend to assert rights to the goods subject to the retention of title by Duynie.
7.4 Pursuant to Article 7.1, Duynie shall always be entitled to collect these goods without having to give prior notice. At the first request of Duynie, the Customer will cooperate fully with this, including providing access to the area where the goods are stored and the removal of these goods.
Article 8 Acceptance and complaints
8.1 The Customer is obliged to sufficiently inspect the delivered goods or to have them inspected upon delivery and in any case prior to treating or processing them, to ensure that they are in accordance with the agreement (including the quality and type).
8.2 Complaints relating to the quantity of goods delivered and other defects visible upon delivery must be reported immediately to Duynie on the accompanying documents and by e-mail, including the most detailed possible description of the nature and extent of the alleged defects. Minor deviations from the agreed properties and/or quantities shall not be regarded as defects.
8.3 Complaints relating to defects that were not visible immediately upon delivery must be submitted to Duynie in writing, at the latest within two working days of discovery thereof, with the most detailed possible description of the nature and scope of the alleged defects and preferably with photographic evidence, but in any event within one month of delivery of the goods concerned and before the moment the Customer uses the goods in its production process, processes or repackages the goods or sells the goods.
8.4 If no complaints about defects have been made in good time regarding the goods, in accordance with Articles 8.2 and 8.3, or if the Customer uses the delivered goods in its production process, processes or repackages the goods or sells the goods, the goods will be regarded as accepted and the Customer has granted Duynie full discharge in respect of those goods. Any claim of the Customer in respect of any defects will therefore lapse and complaints in this respect will not be dealt with.
8.5 Complaints will not be dealt with and any claim by the Customer will lapse if, after delivery, the nature and/or composition of the goods have been changed, are damaged in whole or in part, are repackaged, the shelf life has expired, the goods have not been stored in the prescribed manner or the goods have been used for a purpose other than that for which they are intended.
8.6 Costs associated with any sampling and investigation of samples will be borne by the party who will be unsuccessful on the basis of the outcome of this investigation.
8.7 In the event of a timely complaint, in accordance with Articles 8.2 and 8.3, the Customer is obliged to adhere to the instructions of Duynie concerning keeping the goods available or returning them.
Article 9 Liability
9.1 The liability of Duynie is limited to direct damage and will not exceed the invoice amount (exclusive of VAT) of the goods delivered to which the liability relates.
9.2 In no event shall Duynie be liable for any indirect damage, including any damage which is not the direct result of failure, loss of goodwill, loss caused by business interruption, reputational damage, loss of profits and loss of sales, loss of savings, costs relating to removal from the market and/or withdrawal (including recall) of goods delivered by Duynie and/or processed goods which include goods delivered by Duynie, compensation (including fines and penalties) payable to third parties, and losses caused by delays.
9.3 Notwithstanding the foregoing, the liability of Duynie is in any event limited to a total liability of GBP 175,000 (one hundred seventy-five thousand GBP) per agreement or – if this amount is lower – the amount paid out under the liability insurance of Duynie, plus any deductible that may be due, as long as the value of the deductible does not exceed the invoice amount (exclusive of VAT) of the goods delivered to which the liability relates.
9.4 The limitations of liability specified in this article shall not apply if and insofar as the damage is the result of wilful intent or gross negligence on the part of Duynie or the management of Duynie.
9.5 If the Customer removes or modifies the packaging of goods intended for consumers and delivered by Duynie, if it fails to treat the goods in accordance with the instructions or otherwise treats them carelessly, or if it sells and/or supplies goods directly to consumers which are not intended for this purpose, Duynie shall not be liable for any resulting damage.
9.6 All recommendations provided by Duynie and its employees regarding the use of goods, rations to be provided and feeding schedules are always given to the best of its knowledge and ability. These recommendations are always without obligation and Duynie can in no way be held liable for the consequences of whether or not following them.
9.7 To the extent that a relationship between Duynie and the Customer could be regarded as a continuing performance contract, the Customer expressly waives any right to compensation (such as – but not limited to – unearned investments and accrued goodwill) in the event that this relationship ends for any reason whatsoever.
9.8 The Customer indemnifies Duynie against all third-party claims for compensation of damage for which Duynie is not, or would not be, liable under the provisions of the foregoing paragraphs of this article.
Article 10 Returns
10.1 Returns are only permitted if Duynie has agreed to such in writing in advance or if such returns are executed by or on behalf of Duynie.
10.2 Returns are at the expense and risk of the Customer.
Article 11 Packaging
11.1 All reusable packaging, including but not limited to barrels, containers and pallets, remains the property of Duynie. It is given on loan to the Customer and the Customer must immediately return it to Duynie at the expense and risk of the Customer. Unless agreed otherwise in writing, Duynie only takes back this packaging if it is undamaged. The Customer is not authorised to sell or otherwise dispose of this packaging.
11.2 Unless the Customer can prove otherwise upon receipt, it is assumed that the Customer has received the reusable packaging in good condition. Duynie will charge the Customer for the repair costs of any damaged reusable packaging. Loss of the reusable packaging shall also be charged to the Customer at the additional charge stated in the offer. The reusable packaging is considered lost if the Customer has not returned it within three months of receipt.
11.3 The disposable packaging is part of the delivered goods and will not be collected by Duynie.
Article 12 Payment
12.1 Payment must be made within the payment terms specified in the offer of Duynie and in the manner stated on the invoice. In case no payment term is specified in the offer, payment must be made within 8 days of the date of invoice. Duynie reserves the right to charge a penalty of 2 % per month for each month, or part thereof, during which an invoice remains unpaid after the applicable payment term, without a notice of default being required. This fine will commence on the first calendar day after the applicable payment term. Without prejudice to all its other rights, in the event of late payment, Duynie can stop the delivery of goods, set off the unpaid amount against any amount that Duynie or a company affiliated with Duynie owes the Customer and/or gain access to all sites to remove, preserve and/or sell delivered goods. In addition, Duynie is entitled to compensation for all damage suffered, including attorney's fees.
12.2 Payment must always be made in the currency as stated in the offer of Duynie. In case no currency is stated in the offer payment must be made in GBP.
12.3 Duynie has the right to demand payment in advance, if it considers it appropriate, as well as to suspend further delivery as long as payment for previous deliveries is still outstanding. The Customer is at all times obliged to lodge the security deemed necessary by Duynie for payments due, upon first request. For deliveries in parts or instalments, the terms and conditions of payment apply for each partial delivery or each instalment.
12.4 Duynie is entitled to set-off debts or receivables owed to the Customer against the debts or receivables owed by the Customer to Duynie or other group members that are part of Coöperatie Koninklijke Cosun U.A.
12.5 All the costs incurred by Duynie, both judicial and extrajudicial, including collection costs, in order to recover its claims against the Customer will be borne by the Customer. The extrajudicial costs are set at a minimum of 15% of the principal amount due with a minimum of GBP 750.
12.6 The Customer is not entitled to suspend its payment obligations or to fulfil its payment obligations by invoking set-off.
Article 13 Dissolution
13.1 In the event that the Customer has in any way failed to comply with any obligation (on any account whatsoever) to Duynie or a group company of the Coöperatie Koninklijke Cosun U.A., if the Customer ceases operations, if the Customer requests a suspension of payment, if a request for a suspension of payment was filed against the Customer, if the Customer is in a state of suspension of payment, if the Customer has applied for bankruptcy, if an application for bankruptcy was filed against the Customer, if the Customer is in a state of bankruptcy, or if the Customer offers an agreement with its creditors or in other comparable circumstances, without prejudice to the right of Duynie to claim for failure to perform and/or damages, Duynie is entitled to fully or partially dissolve the agreement with the Customer and/or claim compensation without legal intervention and without any compensation being owed to the Customer and in the event of a partial dissolution, the delivery to the Customer may be suspended.
13.2 In the event that the agreement is dissolved on one or several grounds specified in the previous paragraph, any claim that Duynie has against the Customer will become due and payable immediately, provided that it has not yet been paid.
13.3 The Customer expressly waives its right to dissolve the agreement.
Article 14 Recall measures
14.1 If there are indications that the goods delivered by Duynie to the Customer are unsafe or otherwise do not comply with the applicable statutory standards and Duynie decides to take corrective measures, including withdrawing these goods from the market and/or recalling them, the Customer will provide all reasonable cooperation in this respect.
14.2 The Customer shall not, without the prior consent of Duynie, take corrective measures in respect of goods delivered by Duynie or processed goods which include the goods delivered by Duynie if, in the opinion of the Customer, the reason for those corrective measures relates to defects in the goods delivered by Duynie. Duynie will not withhold this permission on unreasonable grounds.
14.3 The Customer shall inform Duynie immediately if it becomes aware that the goods are (possibly) unsafe or contrary to statutory standards.
14.4 The Customer is obliged to keep proper records in order to be able to trace immediately to whom it has resold the goods in the event of a possible product safety problem.
Article 15 Confidentiality
15.1 Each of the parties will treat as confidential all information received from the other party that is designated as confidential, or the confidential nature of which should reasonably have been evident (hereinafter referred to as "Confidential Information"). Confidential Information in any event includes the existence, the nature and the contents of the agreement, as well as other business information of Duynie.
15.2 Article 15.1 does not apply to Confidential Information which a) is already publicly known, b) has been independently developed by one party, without the use of the Confidential Information of the other party, c) was received from a third-party who was under no obligation to keep such information confidential, d) was already in the possession of the receiving party without an obligation of confidentiality. Article 15.1 does also not apply when the receiving party is forced by competent authorities to disclose such information, in which case the receiving party will - if and to the extent legally permitted - immediately notify the providing party about this.
15.3 Confidential Information may only be used within the context of the agreement and may only be copied or reproduced insofar as this is necessary in order for the receiving party to perform its obligations under the agreement.
15.4 Each party shall treat the Confidential Information of the other party in the same manner as it treats its own Confidential Information and similar data, and they are at all times required to take the necessary precautions to maintain the confidentiality of such Confidential Information.
15.5 The obligations set forth in this article shall remain in force for five years after the end of the agreement.
Article 16 Intellectual property rights
16.1 All intellectual property rights which are owned by Duynie or its supplier(s) shall remain the property of Duynie or, as the case may be its supplier(s), at all times. The Customer shall not in any way acquire any rights of intellectual property in relation to intellectual property rights (the ownership of which is) resting with Duynie or to any information received from Duynie in any form whatsoever.
16.2 All documents provided by Duynie, such as reports, advices, agreements, designs, sketches, drawings, etc. are solely intended for use by the Customer and for the project for which they are intended. These documents may not be reproduced, published, edited or processed, nor may they be communicated to third parties without prior permission from Duynie, unless the nature of the document suggests otherwise.
16.3 The designs, sketches, drawings, samples, etc. created by Duynie in the context of the agreement shall remain the property of Duynie, regardless of whether these have been made available to the Customer or to third parties, unless the agreement expressly states otherwise.
16.4 The Customer is not permitted to change the delivered goods, wholly or in part, or to provide them with a different brand name and/or packaging, or otherwise to remove or change any indication of copyright, trademarks, trade names or other intellectual or industrial property rights of Duynie.
16.5 The Customer is not permitted to use any name, trade name, trademark, logo or any other reference to Duynie in any external press release, advertising materials, publicity materials or other, without the prior written permission of Duynie.
16.6 The Customer indemnifies Duynie against any claims of third parties relating to the use of designs, materials, samples, brands and the like that have been provided to Duynie by or on behalf of the Customer for the performance of the agreement. This indemnification also includes the full costs incurred by Duynie in defending these claims.
Article 17 Data privacy protection
17.1 Duynie processes personal data in accordance with all applicable data protection legislation, both within the UK and the EU (“Applicable Legislation”).
17.2 If Duynie processes personal data for or on behalf of the Customer in the course of its performance under the agreement, Duynie can be qualified as data processor and the provisions in this Article 17 will also qualify as a data processing agreement as stipulated in the Applicable Legislation. Duynie will solely process received personal data further to documented instructions from the Customer and will not in any way use (or cause to be used) such personal data other than as necessary for its performance under the agreement.
17.3 Duynie will implement appropriate technical and organisational security measures to ensure confidentiality and protection against loss or unlawful processing. The Customer is allowed, at its own expense, to periodically examine and evaluate whether Duynie complies with this obligation. Duynie will at the choice of the Customer, delete or return all personal data after the end of the provision of services relating to processing, unless storage is required by law or for the protection of Duynie’s legal interest.
17.4 At its first request Duynie will assist the Customer and provide all information available which enables the Customer to comply with its own statutory obligations and to demonstrate this. The Customer acknowledges and agrees that in the course of its performance under the agreement, Duynie may use further processors or sub-processors. Duynie will impose upon such further processors the same data protection obligations as stipulated in this article.
17.5 To the extent permitted by law, Duynie hereby excludes all liability resulting from or related to the processing of personal data under the agreement, including the actions and omissions of third parties engaged by Duynie in that context. The limitation of liability as referred to above does not apply insofar as the damage is the result of wilful intent or gross negligence on the part of Duynie or the management of Duynie. The Customer will indemnify Duynie against all costs incurred and damages suffered by Duynie, which are the result of: (i) the Customer not complying with the Applicable Legislation (or not complying with it in a timely, correct or complete manner); and/or (ii) a claim of a third party (also including a data subject) that the processing of the Personal Data by Duynie in accordance with this agreement infringes the rights of the third party concerned or is otherwise unlawful.
Article 18 Disputes and applicable law
18.1 Subject to Article 18.2 the Courts of England and Wales in the first instance have exclusive jurisdiction to hear any disputes between the Customer and Duynie.
18.2 By way of derogation from Article 18.1, the parties may agree to have the dispute referred to and finally settled by arbitration under the rules of the London Court of International Arbitration. The number of arbitrators shall be one and the place of arbitration shall be Leeds, England.
18.3 The legal relationships between Duynie and the Customer (including, but not limited to, those pursuant to an offer and/or agreement) are governed exclusively by English law. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Article 19 Final provisions
19.1 Each party is an independent contracting party and neither party is authorised to represent or bind the other party. Nothing in the agreement establishes or will have established a joint venture, a partnership or an agency relationship between the parties.
19.2 The Customer is not entitled to transfer, assign or encumber any claim against Duynie to third parties. This prohibition has property law implications. Nor is the Customer entitled to transfer its rights and obligations under the agreement to third parties.
19.3 In the event that one or several provisions of these general terms and conditions would appear to be non-binding, wholly or in part, the other provisions of these terms and conditions remain in force. Duynie reserves the right to replace the non-binding provisions with provisions that are binding and that differ as little as possible from the replaced provision, taking into account the objective and the purpose and intent of these general terms and conditions.
Version 01-10-2024