General Terms and Conditions

General Terms and Conditions

Company Register Rotterdam, number 24173642

Article 1: Aptness of these conditions

The following conditions are applicable to all -and future- sales agreements we enter into and all -and future- services that we provide. They are also applicable to offers we make within this scope, including our acceptance of a (deviating) offer by the buyer. The aptness of the buyer’s conditions, however it may be worded and made known to us is expressly rejected.

Article 2: Making and contents of the agreement and dissolution

1. Our offers are free of obligations. We have the right to recall an offer until three working days after receival of the offer.

2. If we have shown or provided the buyer with a sample, it shall be firmly established between him and us that this sample was only provided for means of indication and that this does not mean that the matter which is to be delivered is to be the same or is to be exactly corresponding with such.

3. If we have rescinded the agreement due to accountable failure by the buyer -or if the agreement is rescinded by a Judge- or if we postpone the execution of such, we have the right to also rescind other agreements which are in force at that time between us and the buyer or to postpone the execution of such, in such a case we also have the right to call in everything that the buyer owes us in one time. In case the agreement is rescinded this rescission will be retroactive unless we declare that the rescission only applies to that which still has to be executed. We shall also retain these rights if the buyer is granted a (temporary) moratorium or if he finds himself in a state of bankruptcy, or if the buyer otherwise loses his freedom to control his capital without restrictions.

4. If we agree with the buyer on quality standards, the (most current) definitions of such apply, as are laid down or developed in the country of origin, unless otherwise agreed upon if this is not the case the definitions which are customary under Dutch trade are applicable. If we have already supplied the buyer with a certain product and if this product was accepted by the buyer, it is understood between him and us (unless otherwise agreed upon) that further deliveries of that same product do not have to meet higher/different quality standards than that of the earlier delivery.

Article 3: Delivery

1. The buyer is obligated towards us to immediately accept the purchased matter as soon as this is delivered to him. He undertakes to take good care of the delivered matter for as long as we (on the grounds of that which is stated in article 4) are responsible for the delivered matter.

2. If delivery conditions are included in the sales agreement which are defined in the Incoterms, issued by the international Chamber of Commerce, these definitions are binding in accordance with the last edition preceding the making of the agreement. However, in respect of the risk transferal of the matter, that which is stated in section 3 of this article applies.

3. The buyer is responsible for all risks connected to a matter from the moment it leaves our storage depot; also if the costs of transport to the place of delivery are included in the purchase price. This also applies if a matter is not accepted or if the purchase was closed on trial.

4. The agreed upon delivery time can -unless the agreement and the information related to the agreement show that this would damage the buyer’s interests disproportionately- be prolonged by us for a one off period of three weeks without us becoming liable for damages.

5. Delivery times are never to be considered as statuary unless agreed upon otherwise. If, to the judgment of the buyer, there is talk of an untimely delivery we are (before we can actually be in default) to be proven of default in writing, in which case we are then to be granted a reasonable term to deliver that which has been sold.

6. We have the right to deliver the sold matter in parts, on the condition that this takes place within the agreed term, c.q. within the term which was prolonged on the grounds of the authority as granted to us under section 4.

7. Unless otherwise agreed, a delivery of ±10% of the amount bought by the buyer is permitted. We have the right to charge the buyer for this surplus delivery.

8. In the case of a demand contract, the demand or (where necessary and applicable) specifications for partial deliveries are to take place so that delivery within the scope of the agreement is possible. That which is stated in articles 4 and 5 applies to every (partial) delivery. We have the right to separately charge the buyer for each (partial) delivery. If in this matter one or more deliveries are not or not timely demanded or specified and/or if no timely payment takes place we have the right, without diminishing our legal right to specifying ourselves, to dissolve the agreement (after ineffective summoning) for that part not executed after written notification, or to postpone the execution of the further deliveries until the buyer has fulfilled his obligations and to charge him for damages.

9. If the buyer has received the matter and if he has the intention to reject such, he has no lien regarding the costs incurred by him.

Article 4: Expiry term and liability

1. Except for during the period that the buyer had to, and could check the delivered matter immediately upon delivery, we can be addressed (undiminished our right based upon the Act for rightful means of defense) for no longer than one year after the date of delivery of the matter, for reason of accountable shortcoming or ascribable wrongful act.

2. During this period we shall, if the delivered goods or a part thereof do not comply with the agreement and if in such a case it can be ascribed to us, re-supply the defective matter free of charge unless the defect is too small to justify such and unless the buyer has dissolved the agreement in a lawful manner. If we thus move on to re-delivery, the buyer has no right to compensation and he has to return the earlier delivered matter in the same state as it was when he received it from us, at the moment that he receives the new delivery. Up until that moment the buyer bears all risk.

3. For the implementation of that which is stipulated in this article and in article 5, it is determined that we will not be answerable for deviations relating to or resulting from natural contamination (pebbles, twigs, strange fruit, etc.) unless the description of the goods to be delivered expressly says otherwise.

4. We are not liable for damage suffered by the buyer or by third parties, however worded, which results from an accountable shortcoming on our part in the execution of an agreement with the buyer, or which results from a fault in a product which is supplied by us in any other way the result from an error that we made or by someone called in by us for the execution, unless we were notified about the destination of the matter or if this destination is clearly shown from the nature of the matter before the agreement was closed. In this case our maximum obligation for compensation is equal to the size of the agreed purchase price. That which is stated in this section is not applicable if the accountable shortcoming can be ascribed to our intention.

Article 5: Checking and complaints

1. Immediately after receiving the delivered matter this is to be checked by the buyer for weight, the state of the packing and if applicable, whether or not it is sufficiently cooled down. If things are not in order, the buyer has to make a remark on the forwarding note and has to inform us immediately of such in writing (preferably by telefax) specifying the complaint. The buyer is obliged to give us the opportunity to investigate the complaint and, if we desire to do so, to immediately have an expert’s assessment made. The buyer is put under the same obligation in the case of a complaint on the basis of the following two sections of this article.

2. The buyer has to immediately -but at the latest within 10 working days after delivery- check the delivered matter thoroughly for any possible deviations from that which was agreed upon, on other properties than those which are mentioned in section 1. Any deviations have to be reported to us in writing and specified within this time period.

3. In the case of deviations which under no circumstances could be discovered within the aforementioned time periods the buyer is to object to us in writing within 10 working days after the discovery of such. This regulation also applies when the matter misses characteristics that it should have according to us, or if the deviation is related to facts that we know or should know and which we have not reported.

4. The onus of proof that the matter which the buyer complains about is the same as that which was delivered by us and that the state in which it was checked is the same as it was when it was delivered, rests with the buyer. If such is not the case the right to appeal against any possible shortcomings lapses unless the deviation of the original state of the sold matter is too small to justify this result.

5. If complaints are made after the abovementioned time period and/or after the time period as mentioned in article 4 section 1, the buyer can no longer appeal against any possible shortcomings. The same applies when the matter is processed and when prior to that, the matter was not carefully and completely checked for deviations on that which was agreed upon and when no complaints were made in writing within the time period as meant in the preceding sentence. However, if we do consider such a complaint our efforts are to be considered as lenient and without acceptance of any obligation of liability in the matter. If it is shown that the complaint is voiced wrongfully and when we have carried out work activities within the scope of that complaint c.q. if we have supplied replacement matters, we have the right to charge the buyer with the (extra) costs of such.

Article 6: Security

If prior to, or during, the execution of the agreement we receive indications about the buyer that he is not so creditworthy that we in all fairness may fear that the buyer shall not completely fulfill his obligations, we have the right to demand from the buyer that he gives (extra) security of our choice and/or that the buyer pays cash for further deliveries at, or even prior to, the delivery. If he -in spite of proof of default- falls short of such, we may dissolve the agreement entirely or for that part which has not been executed up until then by a single written notification or postpone the fulfillment of all our obligations until security has been given or if payment in full has taken place and to call in one time all that the buyer owes us.

Article 7: Prices and Payment

1. Our prices do not include (unless indicated otherwise) sales tax, import duties, E.C. charges and/or other government charges. These are therefore for the buyer’s account, unless agreed upon otherwise. If these charges and/or costs influence the cost price of our products -such as purchase prices and salaries payable by us- and when they are raised after the agreement is entered into, we have -undiminished our other legal rights- the right to adjust the agreed price to that raise/those raises in that case where the delivery takes place more than two months after the agreement is entered into. The time period of two months as mentioned in the preceding sentence does not apply in the case of alteration of the sales tax or other government charges.

2. That which the buyer owes us is to be paid without the right of deduction or settlement. Settlement can take place with us by a specified statement to the buyer of this payable balance.

3. Unless otherwise agreed upon, payment of the purchase price is due immediately upon delivery. If payment of the total sum of the invoice which is to be issued by us has not taken place in the manner that we are to indicate within 30 days after the invoice date, the buyer is -without the necessity of a summons/proof of default- immediately in default and from the 31st day after the invoice date he shall be liable to an interest over the total sum of the invoice equal to the legal interest applicable in the Netherlands, increased by 2% on a yearly basis.

Each time after one year has passed the amount of money over which the interest is calculated is increased with the interest due over that year. Disputes about the delivery leave the buyer’s obligation for payment intact. Our office in Rotterdam is at all times the place of payment and if payment takes place by bank, the office of our bank.

4. If the buyer does not pay a sum of money owed by him, he owes us -undiminished the legal costs- all extra-judicial costs we make with third parties.

These are to be paid as soon as we have put our claim in the hands of third parties for collection. The extra-judicial costs are calculated on the basis of the collection tariff which is advised by the Dutch Bar, increased with the costs of appraisal and experts. If we litigate abroad and/or another legal system than the Dutch one is declared applicable to be legal relationship with the buyer, the buyer also owes the costs to be determined by the foreign judge or that other legal system. Besides that, the buyer also owes the costs of any bankruptcy petition that may be due.

5. Unless we inform the buyer in writing within five working days otherwise, payments are always firstly accounted to those debts of security of which we can not exercise the ownership conditions as included in article 10.

Article 8: Circumstances beyond control

Circumstances beyond our control have the result that we -according to our choice- do not have to fulfill our contractual obligations and that we can dissolve the agreement entirely or for that part which is not executed by written notification, without being liable for any damages to the buyer. Circumstances beyond our control are considered to include among other things strikes and/or employer sickness, failure and/or circumstances beyond the control of our suppliers, transporters or other third parties connected with the agreement; stagnation of traffic, natural disasters, war and/or mobilization, hampering regulations from any governing body whatsoever, fire and other accidents within our company and in general such circumstances that (further) execution of the agreement cannot in all fairness be expected from us due to a circumstance which cannot be accounted to us.

Article 9: Ownership conditions

All deliveries shall take place under our delivery conditions. The ownership of the items delivered by us and which are yet to be delivered by us passes only over to the buyer when all our claims -also those due to any shortcoming from the buyer- are paid in full on the basis of existing and future purchase agreements, including all claims resulting from work activities which are or are to be executed in accordance with such agreements. The conditional ownership will not pass on to the buyer if we relinquish any claim on him. The buyer irrevocably authorizes us, if he has passed on the goods to a third party, to inform the third party that he from that moment on must keep the goods for us and, if we so wish, that he must hand the goods over to us. The buyer also irrevocably authorizes us in the case that he fails to carry out the payments as meant in this article, to take the goods to which an ownership condition applies without legal intervention and that we are allowed to enter the premises belonging to him.

Article 10: Applicable right and authorized judge

1. The Dutch law applies to all the agreements with the exception of the Treaty of the United Nations concerning international purchase agreements or the treaty right, which shall come into force in place of such, in the Netherlands.

2. All disputes which occur between us and the other party shall be, undiminished the legal authority of the magistrate, settled by the district court of Rotterdam.

Article 11: Content

We have reviewed the content of this website with the utmost care. However, the website is provided for informational purposes only. Santos Enterprise Food B.V. does not guarantee that the content of the website is accurate, current and complete. Besides it cannot be warranted that the website will operate without interruption and / or will be error free.