Prochamp terms and conditions

Article 1. Applicability

1. These general terms and conditions form part of any agreement relating to the purchase and sale of products to which the seller has declared these terms and conditions to be applicable. These general terms and conditions are furthermore applicable to all offers made by the seller and to all orders received by the seller.

2. The buyer’s general terms and conditions are not applicable unless the seller has explicitly accepted these in writing.

3. These general terms and conditions can only be deviated from if the parties have explicitly agreed to do so in writing.

Article 2. Offers, Confirmations and Prices

1. All offers and quotations are free of obligation unless they include a term of acceptance.

2. Seller is considered to have accepted an order after the buyer has received an order confirmation by the seller, unless explicitly agreed otherwise in writing.

3. Prices quoted by the seller are applicable for delivery according to lncoterms applicable at the time the agreement was entered into and included in the agreement.

4. Any new price quotation invalidates any earlier price quotation.

5. Should any changes take place in factors that determine the price (including wages, taxes, premiums, factory prices, exchange rates) either after the offer or after the agreement has been entered into, the seller is entitled to change the price accordingly. The seller will inform the buyer of this as soon as possible. In case of a price increase required within two (2) months of the agreement being entered into, the buyer reserves the right to have the agreement dissolved. The buyer shall notify the seller of his desire to do so in writing within eight (8) days of being informed about the price increase, in breach of which the increase shall stand.

Article 3. Delivery, risk and shipment

1. All deliveries are made in accordance with the Incoterms included in the agreement.

2. The costs of unloading the products next to the vehicle – if possible on the buyer’s terrain – are for the seller’s account. Waiting periods – before the unloading can start- of up to one (1) hour are for the seller’s account. If the waiting period is longer than one (1) hour, the additional costs in respect of the shipping agent as well as those arising as a result of insurance cover are for the buyer’s account.

3. If the buyer refuses to take delivery or fails to provide the information or instructions necessary for the delivery to take place, the products will be stored at the buyer’s risk. The buyer shall in that case be required to pay all additional costs, including in any event the storage costs.

4. In the case of non-acceptance of the products supplied, the seller shall charge any costs incurred to the buyer.

5. Delivery dates stated are purely for information and are at no time to be considered as firm dates. In the event of delay in delivery the seller should be put into default in writing and the seller should be allowed a reasonable further amount of time to meet his obligations.

6. The delivery time stated by the seller commences only after the seller has all the necessary information at his disposal.

Article 4. Conditions of payment

1. All payments shall be made in accordance with the terms and conditions laid down by the seller, without the buyer being allowed to invoke the right of set-off. These terms and conditions are stated on the invoices. The payments should be credited to the seller’s bank or giro account within the set period. Discounts linked to a period within which payment should take place lapse if the amount owed is not in the seller’s possession within the set period.

2. If the buyer exceeds the payment period, the seller is entitled to demand payment of the full invoice amount without any further reminders being required. If the agreed payment period is exceeded, the buyer becomes legally liable for payment of interest calculated from date of invoice at 1 % a month, with parts of a month counting as a full month, purely as a result of the payment period being exceeded. The seller furthermore reserves the right to defer further deliveries or to stop these entirely.

3. If these conditions are not met, the seller reserves the right to place the collection of the invoice amount in the hands of a third party. All cost – judicial as well as extra judicial – incurred by the seller in the process of collecting the debt are for the buyer’s account. Extra judicial costs will be charged to the buyer’s account as soon as the seller has placed the collection of the debt in the hands of the third party. These extra judicial costs are considered to be at least 15% of the principal sum with a minimum of NLG 100,=.

4. Any payments made by the buyer serve at all times to pay off all interest and costs owed in the first place and in the second place to pay off those invoices that are outstanding for the longest period of time, even if the buyer states that payment is related toa later invoice.

5. If the buyer fails to meet any of the obligations arising from the agreement entered into with the seller, or fails to do so properly or in time, as well as in the event of the buyer’s bankruptcy or application for a moratorium or closure or liquidation of the buyer’s company, the buyer shall be deemed to be legally in default and the seller shall have the right to, if he so desires, without any notice of default or legal intervention being required, either suspend the agreement, or have the entire agreement or part of the agreement set aside, without the seller being obliged to pay any damages or to give any guarantees and without prejudicing the seller’s right to demand payment in respect of the goods already supplied and/ or in respect of work carried out by the seller, and without prejudicing the seller’s right in connection with the agreement being suspended or being set aside to claim compensation for damages, costs and interest. In the above stated case any claims the seller might have on the buyer are immediately due and payable.

6. During the execution of the agreement the seller reserves the right to suspend his obligations, until such time as the buyer has provided the seller with securities at the seller’s request and to the seller’s satisfaction, in respect of his ability to meet all of his obligations arising from the agreement. This agreement also applies if a credit has been stipulated. Refusal from the part of the buyer to provide the required securities entitles the seller to consider the agreement to be dissolved without any legal intervention and to take back the goods supplied without prejudicing the seller’s right to compensation for work already carried out and without prejudicing the seller’s right to compensation, costs and interest.

7. The buyer is only entitled to any allowances in respect of discounts agreed with the buyer, additional discounts turnover bonuses and so forth, if he has met all his payment obligations indue time.

Article 5. Force Majeure

1. Force majeure is taken to include, in addition to the definitions stated in Dutch legislation and jurisprudence, all external factors, foreseen or unforeseen over which seller can exercise no control, and as a result of which seller is not able to meet his obligations. This includes strikes at the seller’s company and delays in supplies from abroad.

2. The seller also has the right to invoke force majeure, if the circumstances preventing further compliance occur after the seller should have fulfilled his obligation.

3. Seller’s obligations are suspended during force majeure. If the period during which force majeure prevents the seller to meet his obligations lasts longer than thirty (30) days, the seller reserves the right to dissolve the agreement unilaterally without any obligation to pay damages.

4. If force majeure occurs and the seller has already partially fulfilled his obligations, or is only able to meet his obligations partially, he is entitled to invoice the part already carried out or the part that can be carried out separately and the buyer is obliged to pay this invoice as though it involved a separate agreement.

Article 6. Labels

1. If the agreement is dissolved labels produced by the seller, by order of the buyer, are at the buyer’s disposal at cost price for a period of fourty (40) days.

2. If the buyer refuses or neglects to purchase these labels within the term set in paragraph 1 of this article, the seller shall invoice the buyer for all costs incurred for the production and storage of these labels. The invoice amount shall subsequently be credited to the seller’s bank or giro account within a period of thirty (30) days.

3. If the buyer continually refuses to buy the labels produced by his order, or to reimburse the costs incurred by the seller within the set term, the seller reserves the right to market products with these labels at his own discretion.

Article 7. Retention of title and right of pledge

1. The buyer only becomes the owner of the goods supplied or to be supplied by the seller under the suspended reservation that they are first paid for. The seller shall remain the owner of the goods supplied or to be supplied as long as the buyer has not paid the full amount owed in respect of the consideration of the agreement or a similar agreement to the seller. The seller furthermore remains the owner of the products supplied or to be supplied as long as the buyer has not paid for the work performed or to be performed as a result of such agreements and as long as the buyer has not settled any debts in respect of his failure to fulfil such agreements, including debts in respect of fines, interest and costs.

2. The products supplied by the seller, which by virtue of paragraph 1 fall under the retention of title, may only be resold toa third party as part of the normal course of business and can never be used as a tender.

3. The buyer is not authorised to pledge any goods that fall under the retention of title or to encumber these in any other way.

4. The buyer undertakes to insure the goods supplied under retention of title and to keep these insured against fire, explosion and water damage, as well as against theft and to present the insurance policy to the seller on first request.

5. In the event that the buyer does not fulfil any of the obligations arising from the agreement relating to the goods sold, the seller is entitled to take back the products originally supplied well as newly made ones and to repossess them from the buyer. The buyer irrevocably undertakes to fully cooperate to this repossession, to point out the products to the seller en grants the seller the irrevocable right to enter all areas in which the products could reasonably be stored. The costs of the repossession will be fully charged to the buyer.

6. If third parties take possession of the products supplied under retention of title or wish to establish or exercise rights on these products, the buyer is obliged to inform the seller of this as soon as reasonably can be expected.

Article 8. Packaging

1. The packagings used by the seller will at all times, unless explicitly agreed otherwise in writing, remain the seller’s property. It is only made available on a temporary loan basis and should be returned within sixty (60) days of delivery.

2. If the buyer fails to return the packaging, the seller is entitled to charge the buyer for the replacement costs per pallet.

Article 9. Liability

1. The seller is only liable towards the buyer on the grounds of an attributable failing and/ or unlawful act that is the typical and foreseeable result of the attributable failing and/ or unlawful act. This does not include loss of turnover/ profit, consequential loss, indirect damages at the buyer’s part or damages to third parties.

2. The seller’s liability is limited to the amount to be paid by the seller’s insurance in the case in question.

3. In the event of the insurer not paying any damages or the damages not being covered by the insurance, the user’s liability is limited to twice (2x) the invoice amount of the agreement, at least that part of the agreement liability is related to.

4. The seller indemnifies the buyer against claims from consumers on the Dutch market or another market to be agreed upon for damages as referred to in Section 6:185 onwards of the Netherlands Civil Code, that are suffered by the consumer as a result of a product’s defect unless the cause of such damage cannot reasonably be attributed to the seller.

5. If the nature and/ or composition of the products are changed after delivery, any rights, which the buyer may have under the conditions set in paragraphs 2, 3 and 4 of this article, shall be void.

6. If the products arrived at the place of delivery are either fully or partially damaged or if some or all of the products were lost, the buyer has the exclusive right still to demand delivery or improved or supplementary delivery. The seller is obliged to make the improved or supplementary delivery within the shortest possible period of time. In case the seller is responsible for damage of products the buyer shall keep the damaged products at his disposal.

7. The buyer shall not exercise any additional rights other than those mentioned in paragraph 6 of this Article on the account of losses and/ or damages arising during transport or damages caused by delays in delivery of that transport.

Article 10. Guarantees

1. The seller guarantees that the products supplied meet at least the requirements set in Dutch legislation, particularly those included in Regulation PGF 1981 Preserved Vegetables with annexes and the applicable Exemption and Implementation decrees.

2. The seller guarantees the good quality and shelf life of the products throughout the BBE term stated on the products. Once this term has expired the buyer will have no claim whatsoever against the buyer.

3. If the product displays a design, material or manufacturing fault, the buyer is entitled to a replacement of the product.

4. Guarantee does not apply in the event of careless or incompetent storage by the buyer.

5. Guarantee is only valid if the buyer has fulfilled all his obligations towards the seller.

Article 11. Complaints

1. As soon as the buyer receives the products, the buyer will need to establish whether or not all aspects of the goods are in good order and whether or not they are in accordance with the order placed.

2. Possible complaints with regards to products supplied by the seller and the amount of products supplied as well as with regards to work performed by the seller and invoice amounts should be submitted and received by the seller in writing within eight (8) days after receipt of the products, respectively after receipt of the invoice, with an accurate account of the facts the complaint refers to.

3. Complaints do not entitle the buyer to suspend payment or to suspend other orders and they cannot be used as a debt statement either.

4. Products supplied by the seller that have been processed are considered to be approved.

5. The buyer forfeits all rights and qualifications he had based on defectiveness if he did not submit a complaint within the term mentioned above and/ or if he did not give the seller the opportunity to correct the defects.

Article 12. EAN code

As far as the symbol referred to in the International Article Number Association (EAN) regulation is concerned, the seller shall at no time be liable unless he did not adhere to the EAN regulations.

Article 13. Competent court and applicable law

1. Any agreements entered into with the seller covered by these terms and conditions are exclusively subject to Dutch legislation.

2. Applicability of the United Nations Conventions on Contracts for the International Sale of Goods (CISG) is explicitly excluded.

3. Any disputes resulting from agreements with the seller or other agreements resulting from such agreements or that arise from offers made the seller, may exclusively be submitted to the competent court in ‘s-Hertogenbosch, unless the seller applies to another court.