GENERAL TERMS AND CONDITIONS P. Solleveld Export BV

SALE

ARTICLE 1: APPLICABILITY

  1. Unless expressly otherwise agreed in writing, only the following terms and conditions shall apply to all offers and agreements and their execution, P. Solleveld Export BV concludes with third parties, hereinafter referred to as “the buyer”. The applicability of general terms and conditions of the buyer are hereby expressly rejected by us.
  2. The agreements referred to in paragraph 1 shall include purchase agreements, contracts of sale, commission agreements and related agreements.

ARTICLE 2: OFFER, PRICES

  1. All our contracts of sale shall be deemed to have been concluded in the town where P. Solleveld Export BV has its registered office, as regards both implementation and payment. All our prices shall be quoted in Euro currency (unless otherwise stated) and are exclusive of transport costs. For deliveries inside Germany, the prices are inclusive of transport costs.
  2. We shall not be obliged to satisfy an agreement at a price, which is obviously based on a typing or writing error.
  3. Unless expressly otherwise agreed by the parties, prices stated shall be exclusive of turnover tax (VAT).
  4. Each offer shall be entirely free of engagement. The agreement shall be deemed to have been fully concluded unless P. Solleveld Export BV announces immediately after acceptance that we revoke the offer.

ARTICLE 3: PLACE AND TERMS OF DELIVERY

  1. Delivery shall be made ex warehouse. For deliveries inside Germany, the delivery shall be made at the buyer’s warehouse.
  2. If it is agreed that transport is taken care of by or on behalf of P. Solleveld Export BV, receipt shall be deemed to take place at the moment of delivery at the agreed place.
  3. If the goods are stored for the buyer by or on behalf of P. Solleveld Export BV at P. Solleveld Export BV’s premises or at premises of third parties, delivery shall be deemed to be made at the moment when the goods are stored. Storage costs are charged to the buyer.
  4. The delivery periods stated by P. Solleveld Export BV shall not be binding periods unless otherwise agreed by the parties. Any delays in delivery, in so far as these remain within reasonable limits, shall not entitle the buyer to dissolve the agreement.

ARTICLE 4: RISK

From the moment the goods have been delivered, they shall be at buyer’s risk, and if the buyer fails to cooperate in the delivery, they shall be at buyer’s risk from the moment when the buyer refuses to cooperate.

ARTICLE 5: QUANTITY DELIVERED

The quantity delivered – as regards number, weight and requirements under public and private law – shall be deemed to be in accordance with what has been agreed or prescribed, baring proof to the contrary to be furnished by the buyer.

ARTICLE 6:

APPLICABLE ONLY FOR DELIVERIES INSIDE GERMANY AND/OR TO CUSTOMERS INSIDE GERMANY:

EXTENDED AND CARRIED FORWARD RETENTION OF TITLE

  1. Goods delivered by P. Solleveld Export BV shall remain the property of P. Solleveld Export BV until all claims of P. Solleveld Export BV against the buyer on account of present and future agreements concluded between the parties have been paid in full, including interest and costs. P. Solleveld Export BV’s property is also carried forward onto new items that arise from operating the goods under retention of title. The buyer will manufacture these items on behalf of P. Solleveld Export BV, whilst excluding his own acquiring of property, and he will keep these items for P. Solleveld Export BV. From this he will not obtain claims against P. Solleveld Export BV.
  2. Should P. Solleveld Export BV’s goods under retention of title be processed with goods from other suppliers, whose property rights are also carried forward onto these new items, then P. Solleveld Export BV will obtain, together with these other suppliers – excluding any obtaining of co-property rights of the buyer – co-property of the new thing to its full value (including added value) as follows:

a). P. Solleveld Export BV’s share of property equals proportionally the invoice amount of P. Solleveld Export BV’s goods under retention of title, versus the total invoice amount of all  the processed goods under retention of title.

b). In the case that part of the retention of title is not used, whilst other suppliers have not included buyer’s added value into their retention of title, then P. Solleveld Export BV’s co-property share will be raised with this remaining part.  If however, other suppliers have also extended their retention of title to this remaining part, then P. Solleveld Export BV will claim only the part that equals proportionally the invoice amount of P. Solleveld Export BV’s goods under retention of title, versus the total invoice amount of the processed goods under retention of title from these other suppliers.

  1. As a security, the buyer transfers in advance to P. Solleveld Export BV, all his amounts receivable by selling goods under retention of title from present and future deliveries by P. Solleveld Export BV, including all additional rights upto the value of P. Solleveld Export BV’s property share. When the goods under retention of title are being processed within the framework of any agreement including labour, the amounts receivable from labour will be transferred in advance to P. Solleveld Export BV, up to the value of the processed goods under retention as invoiced by P. Solleveld Export BV.
  2. As long as the buyer punctually fulfils his obligations from the agreement with P. Solleveld Export BV, he will be allowed to use the goods under P. Solleveld Export BV’s property in the proper way of conducting business, and collect the amounts receivable transferred to P. Solleveld Export BV himself. If the buyer fails to fulfil his obligations or if there are good reasons to suspect that he will not fulfil his obligations in the future, P. Solleveld Export BV shall be entitled to remove any goods delivered for which the retention of title is claimed pursuant to paragraph 1 from the buyer’s premises or from the premises of third parties possessing the goods on the buyer’s behalf, or to have them removed. The buyer has an obligation to co-operate with the returning of the goods immediately and without limitation.
  3. The invocation of the retention of title and/or the seizure of the delivered goods by P. Solleveld Export BV cannot be considered as a withdrawal from the agreement, as long as this is not expressly stated in writing by P. Solleveld Export BV.
  4. Should the value of the securities reserved by P. Solleveld Export BV exceed the amounts receivable with more than 10%, then P. Solleveld Export BV will, upon request by the buyer, release securities for that part, by selection of P. Solleveld Export BV.
  5. Payments by cheque/draft will be considered as paid after redemption by the buyer and not yet at the moment that the cheque has been handed over.
  6. Mortgaging or transferring securities of P. Solleveld Export BV’s goods to third parties are excluded. If third parties wish to encumber the goods delivered subject to retention of title with any right or if they wish to exercise such right, the buyer shall be obliged to inform P. Solleveld Export BV thereof as soon as may reasonably be expected.
  7. The buyer undertakes to cooperate, within reasonable limits, in all measures which P. Solleveld Export BV wishes to take to protect its proprietary rights to the goods delivered.

ARTICLE 6:

APPLICABLE ONLY FOR DELIVERIES OUTSIDE GERMANY AND/OR TO CUSTOMERS OUTSIDE GERMANY

RETENTION OF TITLE

  1. Goods delivered by P. Solleveld Export BV shall remain the property of P. Solleveld Export BV until all present and future claims of P. Solleveld Export BV against the buyer on account of agreements concluded between the parties have been paid in full, including interest and costs.
  2. Goods delivered by P. Solleveld Export BV for whom the retention of title is claimed pursuant to paragraph 1 may only be sold on within the framework of the buyer’s normal conduct of business.
  3. If the buyer fails to fulfil his obligations or there are good reasons to suspect that he will not fulfil his obligations in the future, P. Solleveld Export BV shall be entitled to remove any goods delivered for which the retention of title is claimed pursuant to paragraph 1 from the buyer’s premises or from the premises of third parties possessing the goods on the buyer’s behalf, or to have them removed. The buyer has an obligation to co-operate with the returning of the goods immediately and without limitation.
  4. The buyer is not allowed to use the goods for pledging purposes or as a security for claims from third parties.
  5. As a security for the correct payment of all claims, P. Solleveld Export BV will hold an additional right of pledge on all the goods, in which goods delivered by P. Solleveld Export BV have been processed. The buyer’s confirmed order and the succeeding confirmation in writing from our side will act as a written private charter according to Dutch law.
  6. If third parties wish to encumber the goods delivered subject to retention of title with any right or if they wish to exercise such right, the buyer shall be obliged to inform P. Solleveld Export BV thereof as soon as may reasonably be expected.
  7. The buyer undertakes to cooperate, within reasonable limits, in all measures which P. Solleveld Export BV wishes to take to protect its proprietary rights to the goods delivered.

ARTICLE 7: FORCE MAJEURE

  1. In the event of force majeure the obligation to deliver and other obligations of P. Solleveld Export BV shall be suspended. The obligations shall revive when fulfilment of the obligations is reasonably possible again. Force majeure shall be understood to mean unforeseen circumstances with respect to persons

and/or materials employed or usually employed by P. Solleveld Export BV when carrying out the agreement, which are of such a nature that as a result thereof implementation of the agreement becomes impossible or problematic and/or disproportionately expensive to such a degree that it cannot reasonably be required any longer that the agreement be carried out. As force majeure are considered a/o.: war or thread of war, revolt, sabotage, boycott, total- or partial damage to our installations or those of our suppliers, or malfunction of these installations, restrictions or strike, occupation, blockade, transportationproblems, state measures, nature disasters, fire, explosion and in general, all circumstances that our outside our control.

  1. If P. Solleveld Export BV has already partially fulfilled its obligations when the situation of force majeure arises or can only partially fulfil its obligations, it shall be entitled to send a separate invoice for the goods already delivered and/or the part which can be delivered, and the buyer shall be obliged to pay this invoice as if it concerned a separate contract.

ARTICLE 8: OBLIGATIONS OF THE BUYER

  1. When a delivery is made by P. Solleveld Export BV (as referred to in article 3, paragraph 2) the buyer must inspect the goods delivered in the presence of the driver. On that occasion the buyer is to ascertain whether the goods supplied are in accordance with the stipulations of the agreement, i.e.:
  2. whether the correct goods have been delivered;
  3. whether the goods delivered meet the quality requirements, which may be set for normal use and/or for trade, purposes;
  4. whether the quantity of the goods delivered (number, weight) is in conformity with the agreed quantity. If the difference between the short delivery and the agreed quantity is less than 10% of the total quantity, the buyer shall be obliged to fully accept the goods delivered, in which case the price shall be reduced proportionately.
  5. If the goods are delivered in the sales room (as referred to in article 3) the buyer shall immediately inspect the goods in conformity with paragraph 1.
  6. If the goods are delivered to a third party who keeps them for the buyer, the buyer shall be obliged to carry out the inspection referred to in paragraph 1 (or to have such inspection carried out) on the day of delivery.
  7. If the buyer intends to lodge a complaint he shall notify P. Solleveld Export BV thereof as soon as possible after the failure is detected or after he could reasonably have detected the failure, but in any case not later than 8 hours after delivery. If this notification was an oral one it must be confirmed to P. Solleveld Export BV in writing (telex, fax, letter, writ).
  8. The shipment must remain present in its entirety and the buyer must give P. Solleveld Export BV the opportunity to inspect the goods.
  9. The buyer shall be obliged to take care of the goods as a prudent debtor at all times.
  10. Returning goods is only allowed after written approval from P. Solleveld Export BV. The buyer carries charges and risk on the returned shipment.

ARTICLE 9: LIABILITY OF  P. Solleveld Export BV

  1. Except in case of force majeure P. Solleveld Export BV shall only be liable for loss and/or damage if non-fulfilment or late fulfilment is due to intent or gross negligence on its own part or on the part of its employees, up to an amount not exceeding the invoice amount of the goods. P. Solleveld Export BV shall never be liable for any other loss or damage, regardless of how it is called, for example consequential damages, with the exception of those damages, for which P. Solleveld Export BV is by law liable for compensation.
  2. The buyer shall indemnify P. Solleveld Export BV against all costs, damage and interest resulting to P. Solleveld Export BV from claims of third parties on account of any defect in the products delivered on account of transactions entered into by P. Solleveld Export BV with the buyer.

ARTICLE 10: PACKAGING

  1. The packaging supplied by P. Solleveld Export BV, including pallets, crates and boxes, for which a deposit has been paid shall be taken back at the invoice price applying at the time when the packaging is returned, possibly increased by a fixed packaging fee in accordance with the relevant regulations. The container to be returned must be so clean and fresh that it is suitable for fresh edible horticultural products. In case the returned container is not clean and fresh, P. Solleveld Export BV will have the right to send the buyer a separate invoice for these costs and the buyer is obliged to pay this invoice.
  2. When packaging is returned using P. Solleveld Export BV’s own means of transport, the packaging must be sorted and ready for transport.
  3. Packaging not delivered through P. Solleveld Export BV shall only be accepted in so far as P. Solleveld Export BV’s assortment includes the products concerned.

ARTICLE 11: PAYMENT

  1. The goods delivered must be paid within four weeks of the date of the invoice relating to the delivery in question, on a bank account specified by P. Solleveld Export BV, unless this rule is deviated from by means of an agreement in writing. The value date mentioned on P. Solleveld Export BV’s bank statement is decisive and will therefor be considered as payment date.
  2. Each payment for outstanding invoices shall be deemed to have been made in settlement of the oldest unpaid items.
  3. A set-off against any claim which the buyer has or thinks to have against P. Solleveld Export BV shall not be permitted, unless P. Solleveld Export BV has sent the buyer a credit note or has been ordered by the court to pay the buyer a sum of money.
  4. If the period mentioned in paragraph 1 is exceeded the buyer shall owe a default interest of 1% per month, without prejudice to P. Solleveld Export BV’s right to claim legal compensation.

ARTICLE 12: DISSOLUTION OF TREATY AND LIABILITY OF THE BUYER

  1. If the buyer fails to fulfil his obligation set out above (or fails to fulfil them on time), P. Solleveld Export BV shall have the right to suspend further delivery. In that case the buyer shall be in default. P. Solleveld Export BV shall then be entitled to dissolve the agreement without any court intervention by means of a written declaration, and the buyer shall be liable for any loss or damage sustained by P. Solleveld Export BV, including loss of profits, other financial losses, product damage, costs and interest, transport costs, commission, legal and non-legal expenses, as well as all other costs directly or indirectly relating to the purchase.
  2. All non-legal expenses incurred by P. Solleveld Export BV in case of late or inadequate fulfilment by the buyer shall be entirely for account of the buyer. The non-legal expenses incurred by P. Solleveld Export BV shall amount to 15% of the total sum the buyer owes P. Solleveld Export BV, with a minimum of EUR 150.

PURCHASE

ARTICLE 13: APPLICABILITY

  1. These terms and conditions shall apply to all purchase agreements to which P. Solleveld Export BV is a party as buyer, as well as to all requests and orders of P. Solleveld Export BV where an order is also regarded as an offer.
  2. For the purposes of these terms and conditions “supplier” shall be understood to mean each (legal) person with whom P. Solleveld Export BV has concluded or wishes to conclude an agreement, and also his representative(s), successor(s) in title, heir(s) and attorney(s)-in-fact.
  3. These terms and conditions shall also apply if P. Solleveld Export BV explicitly accepts an offer made by a supplier, referring to these terms and conditions and by which any conditions of sale are expressly declared inapplicable.
  4. Deviations from these terms and conditions must always be agreed with the supplier in writing; the supplier shall not be able to invoke any deviations agreed upon in an earlier contractual relationship with P. Solleveld Export BV

ARTICLE 14: OFFERS, AGREEMENTS

  1. All requests, orders and offers made by P. Solleveld Export BV or its employees in any form whatsoever shall always be free of engagement, unless otherwise stated.
  2. An agreement shall only be effective if P. Solleveld Export BV confirms it within 48 hours after the supplier has sent his acceptance, or if the supplier makes the offer by accepting this offer.
  3. The supplier shall be obliged, also after the agreement has been concluded, to make all such non-fundamental changes thereto as P. Solleveld Export BV may require.

ARTICLE 15: PRICES

The supplier cannot increase an agreed price, even if the reason is a cost increase (regardless of the reason), unless P. Solleveld Export BV expressly agrees thereto.

ARTICLE 16: DELIVERY

  1. The delivery periods stated by the supplier shall be binding periods unless otherwise agreed by the parties. In case of late delivery the supplier shall immediately be in default and P. Solleveld Export BV shall be entitled to dissolve the agreement and/or to claim damages.
  2. If the supplier suspects that the delivery period which he has undertaken to meet cannot be met, he shall inform P. Solleveld Export BV thereof forthwith, stating the relevant circumstances. If the supplier fails to do so, his exceeding the term cannot be excused later, not even in case of force majeure.
  3. In case of cancellation on account of late delivery P. Solleveld Export BV shall be entitled to return any goods already supplied for account and risk of the supplier.
  4. Without prejudice to its right to legal compensation, P. Solleveld Export BV shall be entitled, in case of late delivery and cancellation of treaty, to demand reimbursement of any extra expenses incurred to reasonably substitute the goods that are not received.
  5. Unless otherwise agreed, the supplier shall deliver goods to P. Solleveld Export BV’s address, free of extra charges (transport, insurance etc.)

ARTICLE 17: TRANSFER OF OWNERSHIP

  1. The ownership of goods, as well as the risk of the goods shall only be transferred as a result of delivery.
  2. If any other rights than the supplier’s ownership rights encumber the goods, the supplier shall inform P. Solleveld Export BV thereof forthwith.

ARTICLE 18: TERMINATION OF THE PURCHASE AGREEMENT

  1. Solleveld Export BV shall be entitled to unilaterally terminate/dissolve the agreement, without further notice of default being required, in the following cases:
  2. in case of late or inadequate fulfilment by the supplier of his obligations under the contract or relating to the contract;
  3. in the event that the supplier is adjudicated bankrupt or applies for a moratorium or in case of discontinuation or liquidation of his business.
  4. In case of a circumstance as referred to in paragraph 1, the supplier shall be in default by operation of law and P. Solleveld Export BV shall be entitled to claim legal compensation.
  5. All claims P. Solleveld Export BV has against the supplier shall become due and payable forthwith as a result of this.
  6. Under the above-mentioned circumstances P. Solleveld Export BV may choose to cause all or part of the goods ordered to be produced or completed by third parties, for account and risk of the supplier, provided the supplier is notified thereof in writing in advance.

ARTICLE 19: PAYMENT

  1. Payment shall be made on the basis of an invoice within 30 days of receipt of the goods and after these are found to be correct without reservation. Payment shall not release the supplier from the obligation to provide any guarantee and/or to pay any compensation, which he must provide and/or pay by virtue of the agreement or the law.
  2. P. Solleveld Export BV shall at all times be entitled to set off any outstanding invoices against its own claims against the supplier.

ARTICLE 20: INSPECTION

  1. The goods delivered must meet the agreed requirements, specifications and all conditions which P. Solleveld Export BV may expect with respect to the goods, both as regards quality and as regards quantity, and they must also meet the statutory requirements and be in accordance with other governmental provisions.
  2. After the goods have been delivered P. Solleveld Export BV shall have the right to inspect or test the goods for its own account before accepting them.
  3. If the supplier has not received any notice regarding this 48 hours after delivery, he may assume that the goods have been accepted.
  4. If P. Solleveld Export BV rejects the goods, it shall inform the supplier thereof in writing within 4 days of delivery, stating the option it has selected in accordance with the following paragraph.
  5. If the goods delivered are rejected, P. Solleveld Export BV shall have the following options:
  6. to return the goods delivered, for account of the supplier, and to demand proper fulfilment, possibly in combination with damages claim;
  7. to proceed to dissolution in conformity with the provisions of article 16 of these terms and conditions;
  8. to proceed to partial dissolution/partial fulfilment, possibly in combination with damages claim;
  9. to propose a reduction in price;
  10. to have third parties complete and/or produce the goods in conformity with the provisions of article 16, paragraph 4.

ARTICLE 21: LIABILITY

  1. Without prejudice to the other relevant provisions of these terms and conditions, P. Solleveld Export BV can always claim damages if the supplier has not delivered the goods, has not delivered them on time or has not delivered them properly.
  1. If the supplier has not delivered the goods, has not delivered them on time or has not delivered them properly, and, as a result, P. Solleveld Export BV sustains any loss or damage because of claims of third parties/clients, the supplier shall be liable for such loss or damage. If P. Solleveld Export BV sustains any loss or damage because of the presence of unwanted residues or because the norms for certain substances in the product are exceeded (e.g. chemicals, minerals) and, for that reason, fines are imposed on P. Solleveld Export BV by the authorities or claims are filed by third parties/clients, the supplier shall be liable for such loss or damage.
  2. The supplier can never be obliged to pay damages other than prescribed by law.

GENERAL

ARTICLE 22: GENERAL

  1. The Dutch text shall prevail. In the event of transactions with foreign parties, the applicability of the Convention on the International Sale of Goods (CISG) is expressly excluded.

ARTICLE 23: INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS

  1. P. Solleveld Export BV reserves any industrial and intellectual property rights (trademarks) in connection with products supplied by P. Solleveld Export BV
  2. Goods supplied to P. Solleveld Export BV may not infringe on any patent, licence, copyright, registered drawing or design, trademark or trade name. The supplier indemnifies P. Solleveld Export BV and its client against all and any claims of such a nature and it shall compensate any loss or damage caused thereby.

ARTICLE 24: GOVERNING LAW

  1. All negotiations, agreements, including purchase agreements, contracts of sale and other agreements and their execution, concluded with P. Solleveld Export BV inside Germany, shall exclusively be governed by the laws of Germany. All negotiations, agreements, including purchase agreements, contracts of sale and other agreements and their execution, concluded with P. Solleveld Export BV outside Germany, shall exclusively be governed by the laws of the Kingdom of the Netherlands. Decisive, for the definition if the negotiations, the agreements and their execution take place inside or outside Germany, is the establishment of the treaty party.

ARTICLE 25: DISPUTES

  1. Regarding all negotiations, purchase agreements, contracts of sale and commission agreements and their execution, concluded with P. Solleveld Export BV inside Germany, the court in the town where the buyer or supplier has its registered office is competent.
  2. Regarding all negotiations, purchase agreements, contracts of sale and commission agreements and their execution, concluded with P. Solleveld Export BV outside Germany, the court in the town where P. Solleveld Export BV has its registered office is competent.

Maasdijk, 31-07-2002, P. Solleveld, General Manager