General Terms and Conditions of Sale and Delivery

General Terms and Conditions of Sale and Delivery of RedStar Sales B.V. in De Lier, as filed with the Chamber of Commerce Haaglanden dated 1 July 2015


CLAUSE 1 General

1.1 These Conditions shall apply to all offers, quotations, Contracts and deliveries of Supplier unless they are contrary to the agreements laid down in writing by Supplier and Customer. These Conditions shall also be applicable to all Contracts in the execution of which third parties are involved.

1.2 The general terms of conditions (of purchase), if any, of Customer shall only be applicable in addition to these Conditions if so expressly agreed in writing by the parties. In the event of a conflict between Customer’s conditions and these Conditions, these Conditions shall prevail.

1.3 If one or more provisions of these Conditions are or shall be declared null and void, the remaining provisions of these Conditions shall remain in full effect. Where this situation occurs, Supplier and Customer shall consult in order to agree new provisions to replace the null and void, or voided, provisions, bearing in mind the object and purport of the original provision to all possible extent.


CLAUSE 2 Offers; Customer’s Representative

2.1 All offers and quotations of Supplier are subject to contract and may only be accepted as they are. Offers and quotations that are not accepted within two weeks shall be considered expired.

2.2 The individual who signs a Contract on behalf of Customer declares by doing so that he is authorised to represent Customer and that all necessary formalities in this regard have been fulfilled.


CLAUSE 3 Prices

3.1 All quoted prices are in euros and do not include freight and packaging costs and other possible costs such as crates, cases, packaging, pallet, shipment, transport and insurance  and are exclusive of  VAT, unless expressly agreed otherwise. All levies, surcharges, taxes, extra costs etc. imposed by state and local governments on Supplier in respect of the purchased goods shall be for Customer’s account.

3.2 Supplier is not required to fulfil a Contract at a quoted price if that price evidently represents a printing or typing error.

3.3 Any oral pledges of and agreements with Supplier’s employees are only binding on Supplier after and in so far as these are confirmed in writing by the employee concerned.


CLAUSE 4 Place of performance, manner of delivery, risk

4.1 The location where the goods are to be delivered shall be agreed in each (purchase) contract separately. If no specific delivery terms has been agreed, delivery shall be Ex Works Supplier (ex Works as defined by the latest version of the INCO terms).

4.2 If it has been agreed that the purchased goods shall be transported by or on the instructions of Supplier, delivery shall take place at the time of delivery of the purchased goods at the agreed location.

4.3 If it has been agreed that the purchased goods shall be stored for Customer by or on the instructions of Supplier, delivery shall take place at the time of storing the purchased goods.

4.4 Any reasonable delays in the delivery shall not entitle Customer to terminate the Contract.

4.5 The risk to the purchased goods shall be for Customer’s account at the time of delivery of the goods and if Customer does not cooperate with the delivery, at the time when delivery is refused.


CLAUSE 5 Quantities

5.1 The delivered quantities shall be considered to correspond, as regards number, weight and other requirements stipulated in public and private law, to what has been agreed or what is required, subject to proof to the contrary to be provided by Customer.


CLAUSE 6 Delivery

6.1 The stated or agreed delivery times or dates are not strict deadlines. Default shall only exist upon giving notice of default. A reasonable period for performance shall at least be of the same length as the original delivery period.

6.2 The stated or agreed delivery times or dates are based on the working conditions, expectations as regards production at the time of concluding the Contract, and on the timely supply to Supplier of the stocks, materials and parts ordered by Supplier.

6.3 If delivery is not possible, or if the delivery period is exceeded, irrespective of the cause, Supplier shall not be obliged to pay any damages.

6.4 Customer shall not be entitled to terminate the purchase or suspend his payment obligations or to not fulfil them in time due to the delivery period having been exceeded.


CLAUSE 7 Inspection of the goods by Customer upon delivery; complaints

7.1 Upon delivery, the Customer shall inspect whether the delivered goods are in conformity with the Contract (irrespective of the delivery address and the conditions under which they are delivered), specifically:

a. whether the correct goods have been delivered;

b. whether the delivered goods satisfy the quality requirements for normal use;

c. whether the delivered goods correspond, as regards quantity (number and weight), with what was agreed. If the quantity of the delivered goods is 3% or less of what was agreed, the delivered quantity shall be considered to be in conformity with what was agreed.

7.2 Any complaints about defects, including differences in quantity or quality, must be reported to Supplier as soon as possible after the moment when the defects could reasonably have been detected, but not later than 24 hours after delivery, and must be confirmed in writing within 8 hours thereafter, accompanied by pictures and traceability codes. Supplier shall not be liable for non-recognisable defects to fresh produce, unless Customer provides evidence that Supplier or his producers were aware of this.

7.3 In the event of defects, Customer shall retain all goods and allow Supplier or a third party to be instructed by Supplier to inspect the delivered goods, unless the parties agree otherwise.

7.4 Customer shall ensure as a good debtor that the goods are properly preserved at all times.

7.5 Submitting a complaint does not release Customer from his payment obligations as set forth in Clause 8 of these Conditions, unless Supplier has accepted the complaint and has released the Customer from his payment obligation in writing.

7.6 If Supplier has accepted the complaint, Supplier may, at his own discretion, either take back the goods against repayment of the purchase price or replace the goods. However, Customer shall not be entitled to any damages. If a complaint is accepted, specifically if delivery has taken place outside Europe, the costs of taking back the goods and of repayment of the purchase price and/or of replacing the goods shall be equally shared between Supplier and Customer.

7.7 Customer may only return goods subject to Supplier’s written consent. All return shipments shall be for the account and risk of Customer.


CLAUSE 8 Payment

8.1 All amounts due must be in Supplier’s possession within fourteen days after the invoice date, unless expressly agreed otherwise.

8.2 Any payment of outstanding invoices are considered to be in respect of the longest outstanding items.

8.3 Customer shall only be deemed to have fulfilled his payment obligation, also if he has paid in another manner, after the invoice amount has been credited to Supplier’s bank account. If the credit date is later than the agreed payment date, Supplier may submit an interest invoice in respect of this late payment.

8.4 Any costs paid by Supplier in relation to legal action in connection with a failure to perform the Contract shall be for Customer’s account. Extra-judicial collection costs shall be at least 15% of the total amount due, with a minimum of €20. The interest payable by Customer due to late payment shall be equal to 3% of the invoiced amount for each month or part of a month with which the payment date has been exceeded.

8.5 Customer shall in no event be entitled to any payment discount, nor to deduct or set off any amounts from or with the invoiced amount due on any ground. Only Supplier’s credit notes are eligible for set-off.

8.6 Complaints, the preparation of a credit note, or failure to perform by Supplier shall in no event constitute a reason not to pay the disputed part of an invoice when it is due. Clauses 8.3, 8.4 and 8.5 shall consequently continue to fully apply to that part of the invoice.

8.7 Failure to pay an amount that is due and payable, filing an application for suspension of payment, filing a winding-up petition, a debt rescheduling scheme, liquidation of Customer’s business, or seizure of Customer’s assets shall entitle Supplier to terminate the Contract or the non-performed part of it and to take back the unpaid goods, without prejudice to his right to claim compensation of the loss of profit (if any) and/or of the direct and/or indirect loss he has suffered. In these instances any amount the Customer owes Supplier shall become immediately and fully payable.

8.8 Supplier may at all times demand a bank guarantee or comparable security from Customer for the purchase price, or part of it.


CLAUSE 9 Retention of title

9.1 The goods delivered by Supplier shall remain the property of the Owner until the moment when all amounts due to Supplier by Customer under all Contracts are paid in full, including interests and charges.

9.2 All goods delivered by Supplier subject to retention of title, as set forth in paragraph 1, may only be sold on by Customer in the normal course of his business activities.

9.3 Customer is required to insure the goods delivered subject to retention of title against theft, fire, explosion, and water damage.

9.4 If Customer fails to fulfil his obligations or if there are good grounds to fear that he shall do so, either the Owner or Supplier on his behalf shall be entitled to repossess the goods that are delivered subject to retention of title as set forth in paragraph 1, or have them repossessed, from Customer or from third parties who have the goods in their possession on Customer’s behalf. Customer and the party who has the goods in his possession on Customer’s behalf shall be obliged to fully cooperate with such repossession.

9.5 If third parties wish to create or assert any rights to goods that are delivered subject to retention of title, Customer shall notify Supplier of this as soon as he may be reasonably expected to do so.

9.6 Customer agrees to cooperate, in so far as he may be reasonably expected to do so, with all measures the Owner, or Supplier on his behalf, may wish to take to safeguard his ownership rights to the delivered goods.

9.7 Customer undertakes to keep the goods that are delivered subject to retention of title with all due care and as the recognisable property of Owner.


CLAUSE 10 Force majeure

10.1 If a permanent instance of force majeure occurs, Supplier may terminate the Contract with immediate effect without being obliged to pay any compensation.

10.2 If a temporary instance of force majeure occurs, Supplier may suspend the performance of the Contract or terminate the Contract with immediate effect without being obliged to pay any compensation.

10.3 A permanent or temporary instance of force majeure shall in any event include: all circumstances that prevent the performance of the Contract, also if these circumstances were foreseeable at the time of concluding the Contract, like storm damage and other adverse weather conditions or their effects, fire, war and danger of war, state of siege, mobilisation, hostilities, lockouts, shortage of labour, transport problems, import, export and transit bans, non-delivery or late delivery by our suppliers, delays in port or during transport, strikes and any other circumstances that Supplier is in reason unable to prevent.


CLAUSE 11 Supplier’s Liability

11.1 Apart from what is provided in Clause 7.6 Customer shall have no claim against Supplier due to defects in or in respect of the goods delivered by Supplier.

11.2 Supplier shall in no event be liable for direct or indirect loss or damage, including consequential loss (trading loss and/or loss due to delays and/or lost savings), loss of profit, personal injury, property damage and/or damage to third-party property (including damage to goods that are worked on, or that are located in the vicinity of the place where work is taking place), goodwill, or non-material damage, regardless of the cause, unless this is the result of the intent or gross negligence on the part of Supplier.

11.3 Nor shall Supplier be liable in the sense referred to above for any acts of his employees or other individuals for whom he is responsible.

11.4 Supplier shall in no event be liable for instances of force majeure.

11.5 Damage to products caused by damaged or destroyed packaging shall be for the account and risk of Customer.

11.6 Supplier shall in no event be liable for advice or recommendations given by Customer.

11.7 Supplier shall not be liable for any damage whatsoever in the event that Customer has failed to properly fulfil his obligations under the Contract, these General Conditions, or his legal obligations.

11.8 Supplier cannot be required to compensate any loss or damage that is directly or indirectly the result of an act or omission on the part of Customer or his employees or any other individuals that are employed by or on the instructions of Customer.

11.9 If Customer or a third party to whom Customer has passed on the goods delivered by Supplier conducts a recall or has it undertaken, Supplier may only be held liable for the related costs, or part thereof, if:

it is established that Supplier is liable for the circumstance that prompted the recall, and

Supplier has been consulted and was able to give his views before the recall was conducted, and

it is established that Customer has acted as a reasonable acting and reasonably competent professional and has endeavoured to limit the costs related to the recall as much as possible.

11.10 In all instances in which Supplier is obliged to pay compensation, such compensation shall in no event be more than the invoiced value of the delivered goods and/or provided services that caused the loss or damage or in connection with which the loss or damage occurred. In addition, if the damages are covered by a business or product liability insurance taken out by Supplier, the compensation shall in no event be more than the amount that shall be paid out in the specific instance under the policy.

11.11 Any claim brought against Supplier shall become time-barred 12 months after the claim originated, unless Supplier has acknowledged the claim.

11.12 Customer agrees to indemnify and hold harmless Supplier, his employees and any ancillary people he has hired in connection with the performance of the Contract against any third-party claims (including claims based on product liability), in connection with the performance of the Contract by Supplier, irrespective of the cause, and against any costs Supplier incurs in this connection.

11.13 All limitations and exclusions of liability stipulated in the foregoing paragraphs for Supplier himself, as well any indemnifications, are also stipulated on behalf and for the benefit of his employees, and any individuals whose services Supplier uses in connection with the Contract, and of anyone from whom Supplier acquires delivered goods and/or matters, except in the event of intent or gross negligence.


CLAUSE 12 Supplier’s rights in the event of breach by Customer

12.1 Supplier may suspend the (remaining) performance of the obligations, including those in respect of warranty, or terminate the Contract with immediate effect in each of the following instances:

- Customer fails to fulfil, or to fully fulfil, any obligations under a Contract or on any other ground towards Supplier;

- circumstances come to Supplier’s knowledge after concluding an Contract that gives him good grounds to fear that Customer shall not fulfil his obligations;

- Customer has been requested to provide security for compliance with his obligations under a Contract and fails to provide such security or to provide sufficient security;

- Customer does not or not fully comply with statutory requirements, regulations, or the instructions of Supplier, such to the discretion of Supplier;

- Customer is declared insolvent, applies for a (provisional) suspension of payment, the statutory debt restructuring scheme is declared applicable to him, Customer’s business or part of it is dissolved, Customer ceases his business activities or part of them and/or the assets and/or receivables of Customer are attached;

12.2 Supplier shall furthermore be entitled to terminate the Contract or have it set aside if circumstances occur that are of such nature that it becomes impossible to perform the Contract or he may in reason no longer be required to do so or if other circumstances occur of such nature that it can in reason not be expected to continue the Contract unchanged.

12.3 In the event of termination of a Contract all amounts Customer owes Supplier shall become immediately due and payable. If Supplier suspends the fulfilment of his obligations he shall nevertheless retain his statutory rights and those arising from the Contract.

12.4 Supplier shall at all times retain the right to damages, including but not limited to those in respect of lost profits, incurred losses, damage to products, costs, interest, transport damage, commission, legal and extrajudicial costs, and any other direct and indirect loss or damages and/or costs related to the (intended) sale.


CLAUSE 13 Intellectual property rights

13.1 Supplier expressly reserves any and all intellectual property rights (including trade mark rights) to the products he delivers.

13.2 Customer shall only be entitled to sell on the delivered goods in their original packaging and state and using Supplier’s brand names and marks.

13.3 Customer shall in no event be entitled to supplement the delivered goods with goods that do not originate from Supplier with the intention to sell them on as one product under the brand names or marks of Supplier.

13.4 The provisions of paragraphs 1, 2 and 3 may only be departed from with Supplier’s express and written consent, which consent shall at all times specify the allowed deviation and the period for which the consent is given.


CLAUSE 14 Governing law; competent court

All Contracts are governed by and shall be construed in accordance with Netherlands law. The applicability of the Uniform Laws of Sale and the Vienna Sales Convention (CISG) is expressly excluded.

14.2 In the event of a dispute about the interpretation between a translation of these Conditions and the Dutch text of these Conditions, the Dutch text shall prevail.

14.3 Any disputes arising from or that are in any way connected to an offer or quotation issued by Supplier or to a Contract concluded with Supplier or the performance thereof, shall in the first instance be subjected to the competent court in the place where Supplier has his registered office, unless another court has mandatory jurisdiction. In departure from the foregoing Supplier may also submit the dispute to the competent court in the place where Customer has his registered office or residence.