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Article 1

1.1An agreement is reached with us only definitely by our written confirmation per letter, fax message or e-mail message or by the signing by the buyer or the seller of the contract, which we have offered him.

1.2Our agents are not competent to bind us unconditionally. They are only allowed to buy and sell subject to our approval.

1.3 All our offers are completely non binding, unless it is mentioned otherwise in the offer.

Article 2

2.1In case of force majeure we are entitled to suspend the performance of our contracts for the time the force majeure will continue. If the length or the seriousness of the force majeure makes such necessary – and such is solely at our discretion – we are entitled to rescind the contract of sale, to the extent that this contract has not yet been performed, without judicial intervention and without any obligation to pay damage. In any case each party can rescind the agreement without the right to damages when the force majeure situation exists longer than one month or when the prospect exists that the force majeure situation will exist longer than one month. Of the calling upon force majeure and of the rescission, immediately notification must be given by registered letter to the other party.

2.2As force majeure is considered any special circumstance, which makes the performance of our delivery duty and our purchase duty impossible or so burdensome, that this can not reasonably be expected of us, such as war, mobilisation, strike, labour disturbances, revolution, revolt, disturbance, gale, floating ice, flood, stagnation in the delivery of electricity or water, industrial fire, industrial stagnation caused by machinery failure or difficulties in the delivery of energy, obstructions in traffic, complete or partial crop failure, unusual dry spells, or continued rains, disease in the crop, plagues of vermin, the being in default of suppliers, etc.

2.3Government measures which obstruct or make financially adverse the import, transit or export of sold or bought goods, give us the right to rescind the agreement, in sofar as this agreement has not yet been performed, without any obligation on our side to pay damages, or the right to demand from the seller or the buyer to indemnify us for the costs of those measures, before we will deliver or receive the goods.

Article 3

3.1In case of deviations or differences between these conditions of trade and those of our contract parties, our conditions of trade will prevail and be paramount.

3.2In case of contradiction between the Dutch text of these conditions of trade and the translations thereof, the Dutch text prevails and is paramount.

3.3In sofar as there is deviated in the agreement from provisions of these conditions of trade, then the other provisions of these conditions of trade and the part from which is not deviated of the provisions from which there is deviated, remain applicable to the full extent.

3.4If any provision of these conditions of trade will be annulled wholly or partly, then the other provisions and the part from which there has not been deviated of the partially annulled provision, remains applicable.

Article 4

4.1Dutch law applies to all our agreements.

4.2The provisions of the Vienna Sales Treaty, in sofar as applicable, are excluded.

4.3 Apart from what is provided in article 5.4 all disputes resulting from our agreements, including the claim for payment of due sale price, will solely be resolved through arbitration in The Hague, Netherlands; disputes with a financial amount at stake up to and including EUR 100,000.00 in principal amount will be resolved by a single arbitrator. Disputes with a larger financial interest will be resolved by three arbitrators. In the first mentioned case the arbitrator will be nominated by both parties together and in the case of there not being agreement on the person of the to be nominated sole arbitrator, within two weeks after commencement with the arbitral proceedings, by the President of the Court of The Hague. In the last mentioned case each of the parties will nominate one arbitrator and those two nominated arbitrators will collectively nominate the third arbitrator.

Article 5

5.1To all our agreements in respect of the sale or purchase of consumption potatoes made with parties established or with registered office in the Netherlands, in addition to our general conditions of trade also the most recent version on the moment of making the agreement, of "Algemene Handelsvoorwaarden Groothandel in Aardappelen" and the arbitration rules drawn up by the V.B.N.A. and the VENEXA (AHV VBNA/VENEXA) deposited with the Court in The Hague apply, with the exception of article 47 AHV VBNA/VENEXA; to all our agreements in respect of sale or purchase of consumption potatoes entered into with parties which are not established and/or do not have a registered office in the Netherlands, in addition to our general conditions of trade also apply (the most recent version at the moment of making the agreement of) the Conditions of Trade, the Survey Rules and the Arbitration Rules of the European potato trade (RUCIP).

5.2 To all our agreements in respect of sale or purchase of dairy products in addition to our conditions of trade also the (at the moment of the entering into of the agreement most recent version of) the M.P.C.-conditions and the M.P.C.-Arbitration Rules, as made by the "Vereniging van Groothandelaren in Melkproducten (VGM)", apply.

5.3 For all our agreements as meant in article 5.1 respectively 5.2 it is so that our general conditions of trade are supplementary to the branch conditions that apply ex article 5.1 respectively 5.2 (the A.H.V. VBNA/VENEXA, the RUCIP respectively the M.P.C. conditions). In case of conflict between those branch conditions and our general conditions of trade, our general conditions of trade will prevail and be paramount.

5.4In deviation of the rules on the settlement of disputes of article 4.3 and except what has been provided in article 5.5, all disputes which solely flow out of the potato transactions or solely out of dairy product transactions will be resolved through arbitration under the rules of the branch conditions which apply pursuant to article 5.1 respectively article 5.2 (the AHV VBNA/VENEXA respectively the RUCIP respectively the M.P.C. conditions), whilst for RUCIP-contracts the arbitration commission in The Hague will be competent in first instance. In case of a dispute which flows out of transactions in respect of various kinds of products (therefore: potatoes and/or dairy products and/or other kinds of products) then the arbitration proceedings will solely take place pursuant to article 4.3 without the reference therein to article 5.4.

5.5In case our contractual party is established in a country which is no party with the Convention regarding the recognition and enforcement of foreign arbitration awards, concluded n New York on 10 June 1958, we have the right to have a dispute, arisen between us and that contractual party, decided by a court which would be competent if there were no arbitration clause, in deviation of the arbitration which has been agreed upon in for instance the articles 4.3, 5.1, 5.2 and 5.4.

Article 6

6.1We are not liable for any damage unless our contractual party will prove that the damage has been caused by fault or neglect of us or of our employees.

6.2Our liability is in all cases limited to the net invoice amount, that is to say the product price excluding transport costs and tax, of the transaction regarding which the damage has occurred. We are never liable for loss of profit, consequential damage and/or nonmaterial damage.

6.3Our contractual party holds us harmless against claims from third parties connected with the agreement entered into with that contractual party, unless our contractual party proves that these claims are the direct result of our own act or omission, occurred either with the intent to cause that damage, or recklessly and with the knowledge that that damage would probably result as a consequence thereof.

Article 7

7.1We expressly reserve possible rights of intellectual and/or industrial property (brands) in respect of products sold by us and delivered by us.

7.2Products which have been delivered to us may not infringe any patent, license, copy right, registered drawing or design, commercial trade mark or trade name. The seller which has sold to us a product or products will indemnify and hold harmless us and our buyer which has purchased that product or those products from us for all claims of such nature and will pay for all the damage caused thereby.

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Article 8

8.1All our contracts of sale are deemed to have been concluded at our offices.

8.2Unless explicitly stipulated otherwise our products will be sold ex works.

8.3Unless explicitly stipulated otherwise, payment of the purchase amounts will be made at our offices.

8.4All our prices are in Euro (unless stipulated otherwise) and are excluding VAT (unless explicitly stipulated otherwise in writing).

8.5We are not held to perform a contract for a mentioned price which evidently is the result of a printing or writing error.

Article 9

9.1The buyer guarantees that the amount of products bought by him will be taken delivery of and as far as necessary will be called, at the agreed place and time.

9.2 If it has been agreed upon, that the sold amount will be delivered during a certain period, the buyer is held to take delivery on call and to take delivery of equal or nearly equal amounts during this whole period at regular intervals. The buyer must observe a notice period of minimal 3 days for each delivery and each delivery on call.

9.3If the buyer will not perform these obligations to call and take delivery, we will be entitled to consider the agreement, in sofar as this has not been carried out, as rescinded, without obligation on our side to send a notice.

Article 10

10.1 The products to be delivered by us are perishable and the shelf life is largely dependent on the manner of keeping, on which we have no influence anymore after delivery. Therefore, the buyer must inspect or have the delivered products inspected on delivery to establish whether these in his view comply with the demands and quality agreed upon.

10.2The buyer can claim only regarding the quality and quantum of the delivered goods at the time of delivery of the goods, that is to say prior to or during loading of the goods on the means of transport, made available by the buyer or by delivery free at works, prior to the discharge of the goods and in case of sale with delivery per ocean vessel or inland vessel prior to the moment of loading in the first carrying ship.

10.3 The buyer has waived his right to claim when he has received the goods, consequently when those have been loaded on his means of transport c.q. in case of delivery free works, have been discharged on the spot indicated by him. In case of sale with delivery per ocean vessel or inland vessel the buyer has waived his right to claim three working days to be calculated as from the day of delivery in conformity with the agreed delivery conditions.

10.4The buyer who refuses to receive our goods on the ground of alleged bad quality is obliged to notify us thereof immediately and anyhow within 6 hours after refusal per cable or telefax or by pdf document sent by e-mail. If we reject the complaint of the buyer, he is held to have independent survey carried out and invite us for counter survey immediately, that is to say within 12 hours, failing which he will lose his rights.

10.5Regarding feed products it is so that if we have sold and delivered the goods with a health and quality certificate (for instance the phytosanitary certificate and the KCB check certificate) issued by the competent authorities, instance or survey bureau, the contents of the health and quality certificate is decisive, except counter proof to be delivered by the buyer, for the question whether or not the agreed quality specifications have been met.

10.6We are allowed to replace the goods which have been refused on good grounds, by other goods, but we are not bound thereto. In that case we can deduct the refused quantity from the sold quantity.

10.7 If the buyer refuses without good grounds to accept the goods, tendered for delivery, we are allowed, also in case of a part delivery, to rescind the agreement, to the extent that this has not been performed, whilst no notice is necessary.

10.8If we rescind the agreement on one of the abovementioned grounds or refuse further delivery, we are bound to notify the buyer thereof by cable, telefax, pdf document sent by e-mail or letter without the necessity of further formalities.

10.9The damage, sustained by us and to be sustained later by the not or not completely taking delivery of the goods sold by us must be indemnified to us completely. Those damages amount in any case to the difference between the price, agreed with the buyer and the day price at the time of non performance.

10.10The buyer who defaults is liable to pay damages on the ground of the mere fact of the not or not timely taking delivery.

Article 11

11.1 All products, delivered pursuant to this agreement, remain our property till the sales price together with all extra charges and costs falling thereon will have been paid completely and we do not have another claim against the buyer either in other respects.

11.2If the goods, delivered by us are not available anymore in the original form and/or packing or if those have been processed into other products, there is established in favour of us regarding those goods a silent right of pledge which remains in force till everything will have been paid what we have to claim from the buyer on any ground.

Article 12

In case of not timely payment by the buyer, application for or granting of suspension of payment to the buyer or application to or pronouncing of bankruptcy of the buyer, we are entitled to take possession of our goods and to enter thereto the premises and buildings of the buyer.

Article 13

13.1Unless agreed explicitly otherwise our invoices have to be paid within 14 days after invoice date in such way that the invoice amount should be received by us on our bank account without deduction of transfer costs on the due date. In case of non payment within this or within a time limit, agreed later, the buyer has to pay an interest to us of 1% per month to be calculated as from the due date, whereby a part of a month is deemed to be a whole month, without the necessity for us to send a notice.

13.2The buyer may not set off any other claim which he has or alleges to have, unless and to the extent that we have sent a credit invoice to the buyer or we have been ordered by arbitration award or court judgment to pay an amount of money to the buyer.

13.3 If payment has not taken place within the agreed time frame, the buyer should pay to us all out of court costs with a minimum of EUR 50.00.
  The costs are calculated at a fixed lump sum on the basis of the following table:
  -on the first EUR 3,000.00 15%
  -over the excedent till EUR 6,000.00 10%
  -over the excedent till EUR 15,000.00 8%
  -over the excedent till EUR 60,000.00 5%
  -over the excedent till EUR 60,000.00 3%
If the actual out of court costs made are higher than follows from the abovementioned calculation, the actually made costs are indebted.

13.4If we win an arbitration or court procedure, all costs which we have made in relation with this procedure come for the account of the buyer.

13.5Notwithstanding what there has been agreed between us and the buyer relating the payment times we are entitled to demand prior to the moment of delivery to the buyer that the buyer puts up sufficient security for the payment. If this security for the payment is not put up within the reasonable period of time, fixed by us, or is not put up in a proper way, to be judged by us in our sole discretion, we are allowed to suspend our obligations or remaining obligation pursuant to the agreement by a written notice. Then we are not liable in any way for the possible damage which may be caused by this suspension for the buyer.

13.6We are entitled to rescind the sale agreement, to the extent that it has not yet been performed, if the buyer fails to pay the due sale price within 2 x 24 hours after he has been summoned by letter, cable, telefax of e-mail to pay. In that case we have the right to demand indemnification of the complete damage, which flows from the non performance.

Article 14

All our sales agreements regarding agricultural products are made under harvest proviso. If due to a disappointing harvest regarding the quantity and/or quality of agricultural products, less products are available, which also includes the rejecting thereof by the competent authorities, than at the time of concluding the agreement could be expected reasonably by us on the basis of objective data, we have the right to decrease pro rata the amounts sold by us. By the delivery of the quantum, so decreased, we then comply completely with our obligations to deliver. Then we are not bound to deliver replacing agricultural products and we are then not liable for any damage at all.

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