General Conditions of Purchase and Delivery

Of Smedes Fine Food B.V., registered in Bunschoten-Spakenburg, the Netherlands

Article 1. Definitions:

Seller: Smedes Fine Food B.V. in Bunschoten-Spakenburg.
Buyer: The counterparty of seller, also called customer or client.
Agreement: the purchase agreement between seller and buyer.
Chamber of Commerce: These conditions were lodged at the Chamber of Commerce Gooi-, Eem-, and Flevoland in Almere, The Netherlands.
Parties: Both seller and buyer together.

Article 2. General Conditions:

  1. The terms of these General Conditions of Purchase and Delivery (general conditions) apply to every offer and agreement between seller and buyer, to the extent that neither parties have explicitly and in writing deviated from these conditions.
  2. The applicability of general conditions (of purchase) of the buyer is explicitly precluded, unless the parties have agreed otherwise in writing. If the general conditions of both parties are applicable simultaneously, the terms of the general conditions of purchase of seller shall be prevalent (in case of conflicting conditions).
  3. If one or more of the provisions of these general conditions are void or have been nullified by a legal authority, the remaining provisions of these general conditions shall remain fully applicable. The parties shall agree on new conditions replacing the previous general conditions that were void or nullified, taking into account the purpose and intentions of the original provisions as much as possible.

Article 3. Offers:

  1. All offers made by the seller, in whatever form, are without engagement, unless a final term of acceptance is stated in the offer.
  2. If an offer, or quotation, made by seller is accepted by the buyer, the agreement shall not be valid until the order confirmation, as made by the seller, has been signed by both parties. Oral commitments made by sales representatives or field staff of the seller do not bind the seller until buyer has received a written confirmation.
  3. Offers shall not apply to follow-up orders.
  4. The prices in the offers apply to deliveries from factory or warehouse, including packaging costs and excluding VAT or any other government taxes, shipping costs or freight charges, unless otherwise agreed.
  5. Seller reserves the right to charge price increases, when and as far as prices have increased in relation to the exchange rates (unless the offer was made in Euros), salaries, raw material, semi-finished products or packaging material, between the date on which the order confirmation was signed and the date of delivery.
  6. In the case of follow-up agreements between the parties these general conditions continue to apply, even when they have not explicitly been declared as applicable.
  7. Prices given in brochures or price lists are guide prices only, to which the seller is not committed. Therefore, the seller is not obliged to deliver at the prices mentioned therein.
  8. Furthermore, seller reserves the right to refuse an order by the buyer without giving any reasons, or to request cash on delivery.

Article 4. Delivery and passing of risk:

  1. Delivery takes place from factory or warehouse of the seller, unless the parties have otherwise agreed.
  2. If bought goods are delivered by the seller, the seller shall charge the freight costs unless explicitly stated otherwise.
  3. If the seller has stated a time of delivery this is only an indication, unless explicitly stated otherwise in the agreement.
  4. The seller is authorised to charge a deposit fee for packaging and/or pallets, which shall be credited after the buyer has returned the items.
  5. Pallet boxes, containers or similar transport packages that were given on loan shall remain property of the seller and have to be returned to the seller in good condition and within a reasonable time period.
  6. The risk of damage or loss of products that are objects of the agreement, shall be transmitted to the buyer at the moment in which these products have been actually or legally delivered and thus given into buyer’s hands.
  7. If the seller carries out transportation this takes place at the buyer’s risk.

Article 5. Reservation of proprietary rights:

  1. Delivered items shall remain in possession of the seller until the agreed upon purchase price is paid in full.
  2. In case of non-payment of any claimable amount by the buyer or judicial settlement or bankruptcy of the buyer, the seller reserves the right to cancel an order, or part of an order that has not yet been delivered and to reclaim items that were delivered but not yet (fully) paid for without formal notice or judicial intervention.

Article 6. Warranty:

  1. The products delivered by the seller shall meet the requirements and specifications made by the Dutch legislator, where appropriate.
  2. The warranty is limited to manufacturing errors thereby, does not include damage following misuse or incompetent use by the buyer or a third party.
  3. The warranty expires in case of resale (unless explicitly stated otherwise).
  4. As long as the buyer is or remains negligent and fails to fulfil his obligations he shall be unable to appeal for any form of warranty.

Article 7. Liability:

  1. If the seller delivers defective products his liability towards the buyer shall remain limited to the provisions of warranty as defined in these general conditions.
  2. If the seller is responsible for direct damage, his liability is limited, at most. to the amount of payment paid by the seller’s liability insurer, at least at most the invoiced amount, at least that part of the agreement to which the liability applies.
  3. The limitations of liability for direct damage as defined in these general conditions of purchase and delivery do not apply in case of damage owing to wilful and gross negligence of the seller or his subordinates.

Article 8. Research and Reclamation:

  1. The buyer can no longer appeal to a defect in the seller’s performance if he does not reclaim with the seller, in writing, within 14 days of discovering the defect, or within the time period in which he should reasonably have discovered the defect.
  2. If the complaint turns out to be legitimate the seller shall either repair or replace the delivered products or deliver any products as yet undelivered.
  3. Product advise by or on behalf of the seller as well as product descriptions by the seller do not count as guaranteed qualities.

Article 9. Payment:

  1. Unless otherwise agreed, payment of the invoice sent by the seller to the buyer shall take place within 14 days of the invoice date. The invoice shall be paid into the account as designated by the seller. Objections against the received invoice have to be made within 14 days of the invoice date, in the absence thereof the seller shall deem that the buyer has accepted the invoice.
    Note; a complaint about an invoice does not postpone payment of the relevant invoice.
  2. If the buyer fails to pay on-time, he shall legally – thereby without the need for a formal notice – be in default. Thereafter he owes the seller, apart from the full payment of the invoice, an interest of 1% per month, or a part thereof from the moment he is in default until the moment of full payment.
  3. If the buyer should fail to fulfil his payment obligations, thereby remaining in default, all reasonable collection fees shall be chargeable to the buyer. These collection fees will be calculated in accordance with the collection rates as maintained by the Dutch Law Society.

Article 10. Suspension and cancellation:

  1. The seller is authorized to suspend the fulfilment of his obligations if the buyer does not fulfil his obligations, or if he does not fulfil them in time or in full. Furthermore, suspensions are permitted, if the buyer, due to circumstances that were not to be expected at the closing of this agreement and that were beyond his influence, is temporarily unable to fulfil his obligations.
  2. Furthermore, the seller is authorized to cancel the agreement if circumstances occur that are of such a nature that fulfilment of the agreement has become impossible or can no longer be reasonably demanded.

Article 11. Force majeure

  1. The seller is not bound to fulfil any obligations if such a fulfilment would hinder him due to circumstances that are not caused by guilt, gross intent or negligence for which he is accountable according to law or reason.
  2. In addition to what is understood as force majeure in law and jurisprudence, in these general conditions force majeure is understood to be all external causes on which the seller cannot exert any influence, but which prevent him from fulfilling his obligations. This includes strikes actions in the seller’s company.
  3. During the period of force majeure both parties can suspend their obligations. If the length of this period is longer than two months either party is authorised to cancel the agreement without being obliged to pay the counterparty any compensation.

Article 12. Disputes and applicable law:

  1. The judge of the district court of the seller (Court of Utrecht, The Netherlands) is exclusively authorised to be informed of any disputes between the parties. Nonetheless has the seller the right to submit the dispute to a legally competent judge (judge of the buyer’s place of residence).
  2. The Dutch Law is applicable to any agreement between seller and buyer.
  3. The Vienna Convention (C.I.S.G.) is not applicable, nor any other international agreement from which exclusion is permitted.
  4. Parties can agree upon another form of dispute settlement, such as arbitration or mediation.

Article 13. Registration:

  1. These general conditions of purchase and delivery have been registered at the Chamber of Commerce and Factories Gooi-, Eem-, and Flevoland in Almere, The Netherlands.

Drawn up in Bunschoten-Spakenburg, October 2011.