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Terms and Conditions

General Conditions of Sale, Supply and Payment
Agro “de Arend” B.V.

Article 1. General Terms

All quotations, (any element of) sales agreements, the provision of advice and deliveries by Agro “de Arend” B.V. are made on the basis of these General Conditions of Sale, Supply and Payment unless the parties agree otherwise in writing. A (general) reference by the buyer to his terms and conditions is not accepted by the seller and does not affect the exclusive applicability of these terms and conditions.

Article 2. Formation of the Agreement

All offers and quotations by the seller are non-binding unless expressly stated otherwise. An agreement is only effected when the seller has confirmed an order in writing or has actually executed the order. Furthermore the buyer and the seller cannot derive rights from (part of) an agreement insofar as (that part of) the agreement conflicts with statutory provisions or statutory legislation, and specifically those that are based on or arise from the Dutch Controlled Substances Act (Bestrijdingsmiddelenwet) and the Dutch Manure Law (Meststoffenwet).

Article 3. Prices

In the event of factors that determine costs at home and abroad changing after the agreement has been concluded, the seller retains the right to amend prices accordingly until the time of delivery. All prices are exclusive of VAT and other taxes or fees imposed by the government.

Article 4. Delivery

1. Delivery takes place in compliance with the provisions of or under respectively the Dutch Controlled Substances Act and the Manure Law and decisions based on the law, as well as other governmental measures specifically intended for this industry.
2. Stated delivery dates shall never be deemed to be strict deadlines unless expressly agreed otherwise. In the event of late delivery the seller should therefore be given written notice of default.
3. Failure by the seller to meet the stated deadlines shall only result in the default of the seller, if, after the stated deadline, the seller is given written notice of default by the buyer, allowing a reasonable grace period for fulfilment, and the seller still does not fulfil his obligations within the indicated reasonable period.
4. If delivery is carriage-paid, the seller shall determine the means of shipping. The shipping does not have to go any further than the point that the vehicle can access via a paved road, at which point the buyer is obliged to take receipt of the goods. The goods shall be deemed delivered to the buyer when offloading is completed. The purchased items shall only be offloaded in consultation between the buyer and the seller, however this shall always be within a reasonable period determined by the seller, and in this case the buyer – if he is either not present or not represented at the delivery – shall ensure that the party in charge of the delivery of the goods has access to the enclosed area where the goods are to be stored. If the buyer does not fulfil the obligations in this clause, the extra costs necessary as a result of this shall be at his expense.
5. If delivery is not carriage-paid, the goods shall be deemed delivered to the buyer at the time that they are loaded at the seller’s business onto the means of transport sent by or on behalf of the buyer.
6. After delivery in accordance with Points 4 or 5 the goods shall be at the expense and risk of the buyer.
7. If, for reasons attributable to the buyer, the goods are not delivered on or around the agreed time, they shall nevertheless be deemed stored by the seller on behalf of and at the risk of the buyer.
8. In the case of force majeure (including strike, fire, destruction of goods in transport, water damage, crop failure, governmental measures, export ban, war, mobilisation, restrictions on transport, export or import, and lock-out) the seller shall, after written notification to the buyer, be entitled to extend the delivery period for the duration of the hindrance. If the seller is unable to fulfil his duty of delivery on account of force majeure, the buyer has the right, unless the duration of the force majeure does not justify it, to terminate the agreement in full or in part without judicial intervention.
9. In the event that the sale takes place on the basis of delivery on call, the buyer must arrange the delivery on call so that all the goods are called for within three months of the agreement entering into force, unless a different call period has been agreed in writing. If the buyer fails to do so then the seller is entitled, after written reminder to the buyer, to offer the remaining goods to the buyer and demand immediate payment, or to dissolve the agreement without the requirement for further written reminder or judicial intervention, and to claim reimbursement of all losses he incurs.

Article 5. Packaging

1. If packaging is charged for, it shall be settled together with the payment for the principal sum, as stated in Article 6 (1). Payments made to the seller in accordance with this article shall only be repaid for carriage-paid return of packaging that is suitable for reuse.
2. The buyer is prohibited from using the packaging for other products and/or purposes.
3. The buyer is obligated to exempt and indemnify the seller for all losses the seller may incur as a direct or indirect consequence of the buyer violating the provisions in this article.

Article 6. Payment

1. Unless otherwise agreed in writing, payment should be made within 30 days of invoice date without any offset or discount. Payment shall be deemed made at the time that the amount owed is received by the seller.
2. If after written reminder the buyer still fails to make full payment of the amount owed within the period set in the payment reminder, then, notwithstanding any other rights of the seller, the consequences shall be:
- All other outstanding claims of the seller against the buyer shall be immediately due;
- From the due date to the date of settlement of the amount owed, the seller has the right to charge interest on arrears for the amount stated in the reminder at a rate equal to the statutory interest plus 4% on an annual basis;
- The seller has the right without any further notice and without judicial intervention to unilaterally terminate the agreement in full or in part, and possibly other agreements with the buyer, or to reduce their fulfilment in full or in part without being obliged to make any compensation;
- All the costs of the seller, including costs of collection, for the full or partial collection of his claims against the buyer shall be at the expense of the buyer.
3. If, before or during fulfilment of an agreement, the seller receives indications that the buyer’s creditworthiness may have deteriorated, then the seller is entitled to demand further security, or not to deliver or to cease delivery, if the buyer does not agree to cash on delivery or advance payment.

Article 7. Liability/complaints

1. The seller only vouches for the quality of the goods in the condition that they are found at the time of leaving the seller’s warehouse.
2. The buyer is obliged to observe strictly the instructions for storage and care of the delivered goods.
3. The buyer is obliged to check the goods and packaging on receipt or else as soon as possible and to the extent that can reasonably and/or normally be expected. Defects in the goods and packaging that are identified in these checks and defects that are only found later in use should be notified to the seller no later than five working days after the time at which the buyer should reasonably have identified the defect. Any claim against the seller with regard to defects lapses if this period is exceeded. Complaints do not give the buyer the right to reduce his payments or demand compensation. The seller’s liability lapses if the buyer does not comply with one of these obligations and the obligation stated in Article 7 (2). The buyer is obliged to take steps to minimise the damage as far as possible. The buyer shall hereby specifically follow the instructions of the seller in relation to the goods and packaging.
4. If the seller is liable, this liability shall be limited to the stipulations of this provision.
5. The seller is exclusively liable for direct losses.
6. Direct losses exclusively means:
- The reasonable costs for establishing the cause and extent of the loss, insofar as establishing this relates to losses as defined in these conditions;
- Any reasonable costs incurred to ensure the defective performance of the seller complies with the agreement, insofar as they can be attributed to the seller;
- Any reasonable costs incurred to prevent or limit loss, insofar as the buyer shows that these costs led to the limitation of direct losses as defined in these General Conditions.
7. The seller is never liable for indirect losses, these include crop damage, consequential losses, lost profits, lost savings, and losses from business or other slowdown.
8. The liability of the seller as a consequence of an attributable deficiency in performance shall never exceed the net sale price or where relevant the net invoice amount of the goods in question.
9. The liability of the seller is in any case always limited to the amount of the benefit paid by his insurer in the case in question.
10. If the seller supplies products outside the Netherlands, the seller is not liable for losses of whatever kind if the products do not satisfy the requirements, standards or regulations imposed by law or other provisions and regulations of that country.
11. The liability of the seller in relation to advice, observing the provisions in this article, is limited to advice given in writing.
12. The limitation of liability stipulated in this article shall not apply:
- If the defectiveness or improper composition is attributable to wilful action, gross fault or gross negligence of the seller;
- If the loss has occurred as a consequence of use of a product wrongly supplied by the seller, but where the differing properties of that product could not have been perceived by the buyer from its appearance.
13. Complaints on account of presumed losses must be made – on penalty of loss of rights – within five working days of the time at which the loss could first reasonably have been identified.

Article 8. Retention of ownership

1. The seller retains ownership of the goods until the time at which the buyer has settled all his financial obligations to the seller arising from or under the agreement for all goods supplied or to be supplied and/or work done or to be done by him, and regarding claims for shortcomings in the performance of such agreements.
2. In the case of late payment by the buyer, the seller shall have the right to reclaim the goods without written reminder, notice or judicial intervention, notwithstanding the seller’s other rights in connection with late payment.
3. The buyer is obliged as far as possible to prevent the seller’s goods being affected by seizure. If this nevertheless occurs, then the buyer shall immediately inform the seller of this.

Article 9. Suspension, dissolution and premature cancellation

1. The seller is entitled to suspend fulfilment of the obligations, including the delivery of goods or documents to the buyer or third parties, or to dissolve the agreement immediately and with instant effect, if:
- The buyer does not fulfil his obligations under this agreement, or does not do so fully or promptly;
- If, after concluding the agreement, the seller learns of circumstances that give good reason to suspect that the buyer shall not fulfil his obligations;
- The buyer is requested on conclusion of the agreement to provide security for the satisfaction of his obligations under this agreement and this security is not provided or is insufficient;
- If delays on the part of the buyer mean that the seller can no longer be expected to fulfil the agreement under the conditions originally agreed;
- If circumstances arise that by nature mean that fulfilment of the agreement is impossible or that maintaining the agreement unchanged cannot reasonably be expected of the seller.
2. If dissolution is attributable to the buyer, the seller is entitled to compensation of losses, including the costs that arise from this directly and indirectly.
3. If the agreement is dissolved, the claims of the seller against the buyer shall be immediately due. If the buyer suspends fulfilment of the obligations, he retains his entitlements under the law and the agreement.
4. If the seller proceeds to suspend or dissolve the agreement, he shall not on this account be obliged in any way to reimburse losses and costs that arise from this in any way.
5. In the case of liquidation, (a request for) protection from creditors or bankruptcy, seizure – if and insofar as the seizure is not removed within three months – at the expense of the buyer, or the debt rescheduling of natural persons or another circumstance whereby the buyer can no longer freely dispose of his assets, the seller is free to cancel the agreement immediately and with instant effect, or to annul the order or agreement, without any obligation on his part to pay any compensation or indemnification.
6. If the buyer annuls all or part of an order, then the items ordered or prepared for this, plus any forwarding, disposal and delivery costs and the work hours allocated for realisation of the agreement, shall be invoiced fully to the buyer.

Article 10. Applicable law

The law of the Netherlands is applicable to all quotations, deliveries or agreements to which these terms of sale apply.

Article 11. Differing terms or conditions

Supplementary or differing terms or conditions are only effective if they are confirmed by the seller in writing.

Article 12. Disputes

All disputes that arise as a result of an agreement to which these conditions apply in full or in part, or as a result of further agreements that derive from this agreement, shall be settled exclusively by the authorised judge of the place of the registered office of the seller, unless the buyer and the seller agree to pass the matter to arbitration. In the event that the parties to the dispute decide to go to arbitration, then the dispute shall be adjudged in the manner determined in the arbitration rules established by the Dutch Federation of Distributors of Pesticides (Netherlands Federatie van Distribuanten van Bestrijdingsmiddelen), unless the parties have agreed otherwise in writing.