Princes Foods B.V. | Conditions

GENERAL CONDITIONS OF SALE OF PRINCES FOODS B.V.

Article 1 – Definitions
1.1 Unless the context shows otherwise, any words and expressions which have been capitalized in these general sales conditions are defined terms to which the following meaning is assigned: "Contract": a contract between Princes and the Purchaser, which is concluded in accordance with article 3.4 of these General Conditions; "General Conditions": these general sales conditions of Princes; "Princes":Princes Foods B.V., having its corporate seat and principle office at (3011 XB) Rotterdam, the Netherlands, at Boompjes 40;"Products": any movable goods and/or services to be delivered or provided by Princes; "Purchaser":the potential counter party or counter party of Princes; "Specification":the technical or other description, whether as to quantity, quality, price, weight or otherwise, of the Products shown or referred to in any Contract and any performance schedules and/or other characteristics and details contained, mentioned or referred to therein or prepared in accordance therewith.
1.2 Whenever "written" or "in writing" is used in these General Conditions it shall mean by fax, e-mail, internet, electronic data transfer or by means of any other usual (electronic) trade medium.

Article 2 - Applicability
2.1.THE APPLICABILITY OF THE GENERAL TERMS AND CONDITIONS USED OR REFERRED TO BY THE PURCHASER IS HEREWITH EXPLICITLY REJECTED.
2.2 These General Conditions are applicable to all legal relationships of Princes acting as potential seller or seller or provider of the Products.
2.3 Stipulations deviating from these General Conditions must be made in writing.
2.4 In case of a dispute between the Dutch text of these General Conditions and translations thereof, the English version will prevail over any translations of this text.

Article 3 – Conclusion of Contract
3.1 Offers made by Princes are without engagement and may be withdrawn or varied at any time prior to acceptance by Princes of the order of the Purchaser.
3.2 Unless agreed otherwise in writing, all offers are based on the assumption that the order of the Purchaser will be executed under normal labour conditions and during normal working time. If the order is not executed under normal labour conditions and conditions and/or under normal working time, the Purchaser is obliged to pay any additional costs related thereto to Princes.
3.3 Princes may terminate its negotiations with the Purchaser at any time without giving reasons and without having to pay any compensation whatsoever.
3.4 Orders for the Products shall be given by the Purchaser to Princes in writing or orally. Verbal orders shall be confirmed by the Purchaser in writing no more than three (3) days after the order is given by the Purchaser, but for the avoidance of doubt, it is agreed and understood that verbal orders shall, upon the acceptance of Princes as set out in Article 3.5 below, be binding notwithstanding any failure of the Purchaser to confirm the same in writing.
3.5 A contract between Princes and the Purchaser is concluded, if Princes confirms the Purchaser's order in writing, or if Princes commences the execution of the order placed by Purchaser (the "Contract").
3.6 If Princes is not able to execute the Contract within reasonable time or not at all, it will inform the Purchaser within reasonable time thereof. In that event no compensation whatsoever shall be due by Princes.
3.7 The Purchaser hereby explicitly releases its right to rescind or reject on the basis of article 6:227c paragraph 2 of the Dutch Civil Code.

Article 4 - Orders and Specifications
4.1 The Purchaser shall be responsible to Princes for ensuring the accuracy of the terms of any order, including any relevant Specification, and for providing to Princes any necessary information concerning the Products within a sufficient period of time to enable Princes to perform the Contract in accordance with its terms.
4.2 If the Products are to be manufactured or processed by Princes in accordance with a Specification and/or design submitted by the Purchaser, the Purchaser shall indemnify Princes and hold Princes harmless from and against (i) any and all damage, losses and costs suffered or incurred by Princes and (ii) any and all claims made against Princes for compensation of damages, losses, incurred costs and expenses and so on relating to (the settlement of any claim for) infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any third party arising out of the Purchaser's and/or Princes' use of such Specification and/or design.
4.3 Princes expressly reserves the right, but accepts no obligation, to make such changes in the Specification of the Products as are necessary to ensure that the Products conform with any applicable statutory requirements and the Purchaser shall not be entitled to object to or reject the Products by reason of any such changes.

Article 5 – Delivery and Time of Delivery
5.1 Unless agreed otherwise in writing, delivery of the Products will be done Ex Works (Princes' facility at Rotterdam, the Netherlands) (Incoterms 2000).
5.2 In the event that the Products are stored for the Purchaser by Princes at Princes' premises or elsewhere, delivery of the Products shall be deemed to have taken place at the first day of storage.
5.3 The time for delivery indicated by Princes will only serve as an estimate and is not of the essence. In case of untimely delivery, the Purchaser must give a notice of default to Princes in writing. Princes shall not be in default until Princes is given a notice of default by the Purchaser after the agreed time for delivery has lapsed and Princes has been granted a reasonable time for delivery to fulfil its obligations which has also lapsed without Princes having fulfilled its obligations.
5.4 Princes is entitled to deliver in consignments and to invoice such deliveries separately.
5.5 Instead of delivery Ex Works, Princes may in its absolute discretion deliver the Products to the Purchaser by way of direct delivery from a supplier of Princes or other third party directly to the Purchaser and the Purchaser hereby accepts such direct delivery as delivery in accordance with these General Conditions.
5.6 Weights, measures, numbers and composition of the delivered Products shall be determined by weighing, measurement, counting and analyses in accordance with the methods used by Princes, subject to proof to the contrary.
5.7 Minor deviations with respect to the stated quantities, weight, measures and/or composition, i.e. [10]% or less from the quantities, weight, measure and/or composition per Product stated in the relevant invoice, shall be accepted by the Purchaser.
5.8 Princes is not obliged to make inquiries after the intended use of the Products or the circumstances in which the Products will be used.

Article 6 - Specification and Sample
6.1 All illustrations, drawings, catalogues and descriptive matters are of a generally informative nature only and do not form part of the Specification or description of the Products.
6.2 Notwithstanding that a sample of the Products may be exhibited to and inspected by the Purchaser, such sample is so exhibited and inspected solely to enable the Purchaser to judge for itself the quality of the Products and not so as to constitute a sale by sample.
6.3 Illustrations, catalogues and samples of the Products provided to the Purchaser serve only as an indication to which the delivered Products do not have to conform to, unless agreed otherwise in writing.

Article 7 – Shipment
7.1 If Princes provides for transport of the Products, the following provisions apply.
7.2 The Purchaser shall procure that Princes can deliver the Products at the agreed place of destination on the agreed date of delivery. If the Purchaser does not comply with this obligation, the Purchaser is in default without any further notice of default being required. Princes will in that case store or procure storage of the Products concerned on behalf of the Purchaser for a maximum period of thirty (30) calendar days. If the Purchaser does not collect the Products concerned within said term, Princes is relieved from its obligation to deliver the Products to the Purchaser without any compensation whatsoever being due by Princes.
7.3 Princes or the third party acting on behalf of Princes is entitled to refuse to effect delivery of the Products, if, according to Princes or the third party acting on behalf of Princes, the facilities/equipment for unloading made available by the Purchaser fail to comply with any requirements regarding temperature control, hygiene and cleanliness imposed by any competent authority, Princes and/or the third party which takes care of the transport on behalf of Princes, all such without any compensation being due by Princes.
7.4 The Purchaser warrants that the Products can be unloaded within the agreed time period, or, in the absence of such agreed time period, within the time normally required for unloading by using modern facilities/equipment of unloading.
7.5 The Purchaser is liable towards Princes for any damage, losses, costs and expenses and so on which Princes might incur if the Purchaser does not comply with its obligations pursuant to Articles 7.2, 7.3 and 7.4 of these General Conditions.

Article 8 – Packaging
8.1 If the Purchaser re-sells or otherwise delivers the Products to any third party, such Products must be re-sold or delivered in the packaging in which they were purchased from Princes and with any and all identification or other product numbers and/or marks unchanged and clearly showing, unless otherwise approved in writing by Princes.

Article 9 – Prices and Payment
9.1 The price of the Products shall be the Princes' quoted price or, where no price has been quoted or a quoted price has been withdrawn or is otherwise no longer valid, the price listed in Princes' published price list current at the date of acceptance of the Purchaser's order.
9.2 Unless otherwise agreed in writing, the price of the Products is based upon delivery Ex Works and exclusive of VAT or any other taxes or duties or other costs of delivery. All other amounts due under the Contract or under these General Conditions shall be subject to the addition of any applicable value added or other sales tax.
9.3 Princes may charge to the Purchaser changes in cost price factors relating to the Contract, such as prices of raw materials, labour costs, insurances, freight tariffs, exchange rates, taxes, duties or other governmental measures, which may occur within three (3) months after conclusion of Contract.
9.4 If Princes agrees to deliver the Products elsewhere than at the agreed Ex-Works address and/or by express or other special methods of delivery or shall agree to expedite delivery or if additional charges arise from delivery whether by way of demurrage or otherwise, all additional costs, expenses or charges relating to packaging, transport, insurance, demurrage and any and all other costs, expenses or charges thereby incurred shall be added to the price of the Products and shall be for the account of the Purchaser.
9.5 Princes reserves the right to invoice the Purchaser on an interim basis to cover any instalment of Products delivered and/or any additional charges arising pursuant to article 9.3 of these General Conditions.
9.6 The Purchaser shall pay the purchase price of the Products in the currency set out in the invoice and any costs incurred by Princes pursuant to these General Conditions, without any set-off, discount, deduction and/or suspension and within twenty-eight (28) calendar days of the date of Princes' invoice, notwithstanding that delivery may not have taken place and title to the Products has not passed to the Purchaser. The time of payment of the purchase price shall be of the essence under the Contract.
9.7 All costs relating to payment, including provision of security, shall be borne by the Purchaser.
9.8 In the event of any payment becoming overdue, the Purchaser is obliged to pay the outstanding amount(s) and statutory interest over the outstanding amount(s) until such date that payment in full has been received by Princes, without prejudice to any other rights or remedies Princes may have and without a prior written notice of default having to be served. Any unpaid invoices become immediately due and payable, notwithstanding the provisions of article 9.6 of these General Conditions, and all consequences of non-performance shall become due, effective and/or payable.
9.9 All extra judicial costs, explicitly including costs incurred in respect of drafting and sending demands for payments, conducting settlement negotiations and other acts in preparation of potential legal proceedings as well as all judicial costs which Princes reasonably incurs as a result of the Purchaser's non-performance shall be borne by the Purchaser.
9.10 Payments by the Purchaser shall be deemed to have been made first to settle the costs referred to in article 9.9 of these General Conditions, thereafter they shall be charged to that part of the principal amount indicated by Princes, irrespective of indications made by the Purchaser.
9.11 Each Contract shall be subject to Princes being satisfied as to the Purchaser's credit status both prior to and during the period of the Contract. If Princes becomes dissatisfied with the Purchaser's credit status, it may – at its election – (a) suspend performance of its obligations under the Contract until it is satisfied as to the Purchaser's creditworthiness or is given such security for the price, as Princes shall deem sufficient and appropriate or (b) terminate the Contract with immediate effect, without any compensation whatsoever being due to the Purchaser.

Article 10 – Security
10.1 In case Princes has good reason to believe that the Purchaser will not strictly or timely fulfil its obligations vis-à-vis Princes, the Purchaser is obliged to provide, at Princes' first request, satisfactory security in the form requested by Princes with respect to the fulfilment of Purchaser's payment obligations and other obligations under the Contract(s) or to replace or provide additional security in addition to any security already provided.
10.2 If the Purchaser does not comply with such a request for security within seven (7) calendar days of receipt of such request, all consequences of non-performance shall become due, effective and/or payable.

Article 11 – Retention of Title
11.1 Princes retains title relating to the Products delivered or to be delivered, until the Purchaser has fulfilled its payment obligations and other obligations with respect to all Products delivered or to be delivered under the Contract, all services to be performed or performed under the Contract as well as all claims based on breach of the Contract.
11.2 If and to the extent that the Products are or are to be exported to Germany, German law shall govern the property law rights with respect to retention of title to the Products.
11.3 In the event that Princes produces new movable goods out of inter alia the products referred to in article 11.1 of these General Conditions, these movable goods will be regarded as having been produced for Princes itself as owner and the Purchaser will hold possession of these movable goods until the Purchaser has fulfilled all of its obligations referred to in article 11.1 of these General Conditions.
11.4 Until the Purchaser has fulfilled its payment obligations in full, the Purchaser is neither entitled to pledge or to otherwise encumber the Products. Disposal of the Products to third parties other than in the normal course of its business is only permitted when the Purchaser acts as undisclosed agent ("lasthebber in eigen naam") of Princes in its own name but for the account of Princes.
11.5 The Purchaser shall notify Princes immediately if third parties exercise rights to the Products referred to in article 11.1 of these General Conditions or if the Purchaser becomes aware of the fact that third parties wish to do so.
11.6 In case the Purchaser fails to fulfil any of its obligations under the Contract, Princes has the right, without prior notice being required, to repossess the Products delivered and owned by it. The Purchaser herewith irrevocably authorises Princes or any third party designated by Princes to enter those premises of the Purchaser where the Products have been stored. All costs relating to the repossession of the Products by Princes shall be borne by the Purchaser.
11.7 Risk in respect of the Products shall pass to the Purchaser at the time of delivery as referred to in articles 5.1 or 5.5 of the General Conditions or, in the event delivery of the Products is not accepted by the Purchaser, at the time of refusal of such delivery.

Article 12 – Warranty
12.1 Princes warrants that at delivery the Products are of such quality as required for human consumption and comply with any requirements regarding food safety imposed by any competent Dutch governmental and/or European Union authority, effective at the date of conclusion of Contract. Princes does not give any further warranty.
12.2 The Purchaser cannot claim under this warranty after its has processed, confused all or part of the delivered Products with products delivered by third parties or other products delivered by Princes, or has delivered the Products to third parties.

Article 13 – Duty to inspect
13.1 If a claim of the Purchaser under this article 13 is considered to be justified by Princes, Princes is, at its sole discretion, only obliged to either deliver the lacking part or quantity, replace the Products delivered or to credit the Purchaser the amount paid for the relevant Products. The Products in question shall remain available to Princes in their state at the time Princes receives a written notice referred to in article 13.2 of these General Conditions. The Purchaser is obliged to follow Princes' instructions with respect to the storage and/or return of the Products to be replaced.
13.2 The Purchaser is obliged to inspect the Products at delivery in order to evaluate whether they conform to the Contract and are free from defects. If defects cannot be directly detected after delivery, the Purchaser is obliged to inform Princes immediately after detection thereof in writing by giving reasons. The Purchaser looses its right to claim that the Products do not conform to the Contract or are defective, if it has not informed Princes thereof as soon as possible in writing by giving reasons, and in any case within five (5) business days after delivery of the Products to the Purchaser or after such moment that the defect or deviation should reasonably have been detected. If visible defects have not been immediately notified to Princes after delivery to the Purchaser, the Purchaser looses its right to claim that the Products do not conform to the Contract or are defective.
13.3 Any claim and/or defence, based upon facts that would justify the claim that the Products delivered do not conform to the Contract or are defective, expires one (1) year after the date of delivery.

Article 14 – Limitation of Liability
14.1 Without prejudice to Article 12 of these General Conditions and except in case of gross negligence and wilful intent of Princes or its management, Princes shall only be liable, irrespective of the legal basis on which a claim is based, to compensate for damages, losses, costs and expenses and so on up to an amount which is equal to the amount paid by the Purchaser for those Products that caused the damage.
14.2 Princes shall never be liable, irrespective of the legal basis on which a claim is based, for consequential losses or damages, including but not limited to loss of profits, incurred losses, costs and expenses, loss of contracts, loss of savings or losses caused by disruption or stoppage of the production and/or the business.
14.3 The limitation of liability referred to in article 14.1 of these General Conditions does not apply if and to the extent that Princes' liability for damages, losses and costs is insured under an insurance policy of Princes. In that case Princes shall only be liable to compensate for any damages, losses and costs to the extent such damages, losses and costs are covered by the insurance concerned in the matter concerned. For the avoidance of doubt, the provisions of article 14.2 of these General Conditions shall remain in full force and effect.
14.4 Princes is not liable, irrespective of the legal basis on which a claim is based, for damages and losses caused by gross negligence or wilful intent of its employees ("ondergeschikten") and/or agents ("niet-ondergeschikten").
14.5 Princes stipulates all legal and contractual defences that it can invoke in respect of its liability towards the Purchaser also for the benefit of its employees ("ondergeschikten"), agents ("niet-ondergeschikten") and other third parties involved in the performance of Princes' obligations under the Contract.
14.6 Princes may sub-contract, involve and instruct any third party to carry out Princes' obligations under the Contract and may invoke any limitations of liability of these third parties against the Purchaser.

Article 15 - Product recall and consumer complaints
15.1 In the event that at the requirement, instruction, instigation, recommendation or suggestion of any governmental body, whether local or national, examination of any of the Products is required to be undertaken to investigate the fitness for human consumption purposes of such Products and/or the parties otherwise agree that any of the Products should be withdrawn from sale and/or recalled after sale, Princes and the Purchaser shall bear in equal shares all costs, charges and expenses properly and reasonably incurred by either or both of them arising out of such examination, withdrawal and/or recall but excluding any consequential losses and/or damage thereby incurred by either or both of them. Consequential losses shall have the meaning set forth in article 14.2 of these General Conditions. In the event that any such examination, withdrawal or recall is carried out at the sole instigation of Princes or, as the case may be, the Purchaser, the costs, charges and expenses thereof shall be borne by that party, unless otherwise agreed in writing by the parties or unless and to the extent that the reason for such examination, withdrawal or recall was attributable to (the act or default of) that other party in which case such costs changes and expenses shall be borne by that other party.
15.2 The Purchaser shall maintain a proper and efficient procedure for reporting and dealing with consumer complaints but shall not settle any such complaints or otherwise compromise the position of Princes in respect thereto without Princes' prior written consent. Full details of al such complaints must be referred to Princes forthwith, failing which no complaint shall be considered.

Article 16 – Force Majeure
16.1 In case Princes cannot properly perform its obligations in whole or in part, whether temporarily or permanently, as a result of one or more circumstances which are not at Princes' risk, including those circumstances mentioned in Article 16.2, Princes is entitled to rescind the Contract(s) with the Purchaser, in whole or in part, without any compensation being due by Princes.
16.2 Circumstances which are in no event at Princes' risk are: crop failure or crop shortage or harvest of crop producing less than expected volumes or yields for whatever reason, power failure or breakdown in machinery, governmental regulations or orders which prohibit or restrict the use of the delivered Products or the Products to be delivered, strike or lock-out, labour shortage, shortage of the Products, shortage of raw materials and auxiliary materials for the production of the Products, transportation problems, limitations/prohibitions of in- and/or export; non- or untimely performance by Princes' suppliers or transport undertaking, disruption in the production process of the Products, nature-/nuclear disasters; war, danger of war, terrorist activities, threats of terrorism and any other circumstances which are beyond Princes’ reasonable control and which will be regarded as an event of force majeure under Dutch law.
6.3 Princes shall notify the Purchaser in writing forthwith of the event of force majeure and to what extent Princes will be able to continue to deliver the Products. Princes shall never be obliged to purchase additional products from third parties in case of shortage. In case the Products available with Princes are not sufficient to deliver to all its customers, Princes is entitled to allocate the deliveries in such a way which seems appropriate to Princes.

Article 17 – Applicable law / Competent Court
17.1 Dutch law shall - with the exception of the provisions of the United Nations Convention on the International Sale of Goods (1980) - be applicable to all legal relationships between Princes and the Purchaser. German law applies to the property law rights with respect to retention of title to the products, if and to the extent that these Products are exported to Germany. 17.2 All disputes arising under or in connection with any Contract or the performance of any Contract as well as any disputes regarding these General Conditions shall be exclusively settled by the competent court in Rotterdam, the Netherlands.

Article 18 – Conversion
18.1 If any provision of these General Conditions is invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of these General Conditions which shall remain in full force and effect. Princes and the Purchaser agree to substitute any invalid or unenforceable provision with a valid and/or enforceable provision which achieves to the greatest extent possible the objectives of the invalid or unenforceable provision.

Article 19 - Filing
19.1 These General Conditions are filed with the Trade Register of the Chamber of Commerce in Rotterdam, the Netherlands, registration number 32045886.