1 Article 1. General 1. These terms and conditions apply to all offers, quotations and agreements between Smets Food Trading B.V., with registered offices in (6131 GR) Sittard, at Odasingel 473, hereinafter referred to as: the User, and a Customer, with respect to which the User has declared these terms and conditions applicable, insofar as parties have not explicitly agreed in writing to diverge from these terms and conditions. Agreements as referred to in this paragraph therefore additionally include mediation, commission and related agreements. 2. These terms and conditions likewise apply to all agreements with the User, for whose execution the services of third parties are required to be called upon by the User. 3. These general terms and conditions have likewise been written for the staff and management of the User. 4. The applicability of any other terms and conditions of the Customer is explicitly rejected. 5. All agreements are deemed to be have been effectuated at the business address of the User, with respect to both execution and payment. 6. If, at any moment, one or more of the provisions in these general terms and conditions is invalid or annulled, in part or in full, the general terms will remain fully effective with respect to the remaining provisions. In such cases, the User and the Customer will enter into consultation to agree new provisions to replace the invalid or annulled provisions, whereby the object and the essence of the original provisions are taken as much as possible into consideration. 7. Provisions which deviate from these terms and conditions are only binding if these have been agreed in writing. 8. If any ambiguity exists concerning the interpretation of one of more provisions in these general terms and conditions, the interpretation should be made according to the spirit of these provisions. 9. If a situation should arise between the parties which has not been foreseen in these general terms and conditions, this situation needs to be judged according to the spirit of these general terms and conditions. 10. If the User does not always demand strict observance of these terms and conditions, this does not mean that the provisions therein no longer apply, or that the User might revoke the right to demand strict observance of the provisions of these terms and conditions to any extent in other cases.
2 Article 2. Offers and quotations 1. All offers and quotations made by the User are without obligation, unless a deadline for acceptance has been specified in the offer. If no acceptance deadline has been specified, no rights can be derived from the offer or quotation whatsoever if, in the intervening period, the product to which the offer or quotation applies is no longer available. 2. The User cannot be bound to its offers or quotations if the Customer is reasonably able to understand that the offers or quotations, or a part of this/these, contain an obvious mistake or written error. In this case, the User is not obliged to fulfil an agreement at a specified price which is obviously the result of a for a typing or spelling error. 3. The prices specified in an offer or quotation exclude VAT and other government taxes, any costs incurred as part of the agreement, including travel and hotel expenses, post and packaging costs, administrative costs, unless otherwise specified. 4. If the acceptance (relating to secondary points or otherwise) differs from the proposal contained in the offer or the quotation, the User is not bound to these. The agreement cannot be effectuated in conformity with this divergent acceptance, unless the User otherwise indicates. 5. A composite price quotation does not oblige the User to perform part of the assignment at the corresponding share of the specified price. 6. Offers and quotations do not automatically count with respect to future orders. Article 3. Contract duration; deadlines for implementation, transfer of risk, execution and change of agreement; price increases 1. The agreement between the User and the Customer is entered into for an indefinite period, unless the nature of the agreement deems otherwise or if the parties have explicitly agreed otherwise in writing. 2. If a deadline has been agreed or specified for the execution of specific work, this is never a non-negotiable deadline. If a deadline has been exceeded, the Customer is therefore required to notify the User by notice of default in writing. In this event, the User is required to be given a reasonable period of time still in which to fulfil the agreement. 3. The User shall perform the agreement to the best of its ability and in conformity with the requirements of good workmanship and based on the knowledge available at that time. 4. The User has the right to have specific work performed by third parties. The applicability of articles 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code is explicitly excluded. 5. If the User or third parties engaged by the User for the purposes of the assignment carries/carry out work at the site of the Customer or at another site designated by the Customer, the Customer is reasonably required to make facilities available free-of-charge for its personnel. 6. The User is entitled to execute the agreement in different phases and likewise to invoice the part performed separately.
3 7. If the agreement is executed in phases, the User may suspend the execution of work for a following phase until the Customer has approved in writing the results of phase preceding this. 8. The Customer ensures that all information, which the User deems essential or which the Customer should reasonably understand to be essential for the execution of the agreement, is provided in good time to the User. If the information necessary for the execution of the agreement is not provided in good time to the User, the User has the right to suspend the agreement and/or to charge the additional costs arising from this delay to the client in line with the customary rates. The period of execution does not commence any sooner than the Customer has made the information available to the User. The User is not liable for damage, of whatever nature, arising from the User basing its information on incorrect and/or incomplete data supplied by or on behalf of the Customer. 9. If, during execution of the agreement, it appears that it is necessary to make changes or additions to this in order to ensure its proper execution, parties will agree to have amendments made to the agreement in good time and after mutual consultation. If the nature, scope and content of the agreement are changed, on the request or instructions of either the Customer or the authorised agencies, etc., and the agreement is changed in any qualitative and/or quantitative respect, this may have consequences for what was originally agreed. As a result, the amount agreed on originally may be raised or lowered. Insofar as possible, the User shall provide a quotation for this beforehand. As a result of any change in the agreement, the period of execution originally agreed on may be liable to change. The Customer accepts the possibility of the agreement being changed, including any change in the price and the period of execution. 10. If the agreement is amended, including any additions, the User is only entitled to commence execution after approval for this has been given by the authorised representative of the User, and the Customer has given its approval with respect to the price and other conditions regarding the execution, including the time fixed for the commencement of its execution. Non-execution, or non-immediate execution of the amended agreement does not imply any breach of contract on the part of the User, neither does this provide any reason for the Customer to terminate the agreement. 11. Without being in default, the User can refuse a request to amend the agreement, if, in qualitative and/or quantitative respect, this might have consequences, for example, for the work being executed for this purpose. 12. If the Customer, in properly fulfilling its obligations vis-à-vis the User, is found to be in default, the Customer is liable for any damage suffered on the part of the User which is a direct or indirect result of this. 13. If the User agrees a fixed fee or price with the Customer, the User is nevertheless entitled to increase this fee or price at all times without
4 the Customer in this instance having an entitlement to dissolve the agreement on account of this, if the price increase is the result of an authorisation or obligation pursuant to the statutory regulations or is caused by a rise in the price of raw materials, wages, etc. or on other grounds that could not have reasonably been foreseen when the agreement was entered into. 14. If the price increase, other than as a result of an amendment to the agreement, amounts to more than 10% and takes place more than 3 months after the agreement had been entered into, only then is the Customer entitled, by invoking the provisions of title 5, part 3 of Book 6 of the Dutch Civil Code (articles 231 to 247 of Book 6 of the Dutch Civil Code), to dissolve the agreement by a declaration to this effect in writing, unless - the User is still prepared to execute the agreement on the basis of what was originally agreed; - the price increase is the result of an authorisation or an obligation vested in the User pursuant to the law. Article 4. Suspension, dissolution and premature termination of the agreement 1. The User is authorised to suspend fulfilment of the obligations or to dissolve the agreement: if, after entering into the agreement, the User has good reason to believe, on the basis of information made known, that the Customer will fail to fulfil the obligations arising from the agreement, either in full, in part or on time; if the Customer is requested to provide a guarantee for fulfilment of its obligations ensuing from the agreement and this guarantee is lacking or inadequate; or if, as a result of the delay on the part of the Customer, the User can no longer be expected to fulfil the agreement on the basis of the conditions originally agreed on. 2. Furthermore, the User is authorised to dissolve the agreement if circumstances arise which are of such a nature that fulfilment of the agreement is impossible, or if circumstances otherwise arise which are of such a nature that the User cannot reasonably be expected to maintain the agreement in an unchanged state. 3. If the agreement is dissolved, any claims the User has vis-à-vis the Customer are immediately due and payable. If the User suspends fulfilment of the obligations, it retains its rights arising from the law and the agreement. 4. If the User suspends or dissolves the agreement, in no way whatsoever is it obliged to pay for damages and costs which arise in any way as a result of this. 5. If the dissolution is attributable to the Customer, the User is entitled to compensation for the damages, including any costs which arise directly or indirectly as a result. 6. If the Customer does not fulfil its obligations arising from the agreement and this non-fulfilment warrants dissolution, the User is entitled to dissolve the agreement with immediate effect, without any obligation on
5 its part to payment of any damages or compensation, whilst the Customer, by virtue of breach of contract, is nevertheless obliged to pay damages or compensation. 7. If the agreement is prematurely terminated by the User, the User, in consultation with the Customer, shall ensure the transfer to third parties of any outstanding work to be executed, unless this termination is attributable to the Customer. If the transfer of the work causes additional expenses for the User, these will be charged on to the Customer. The Customer is obliged to pay these costs within the specified period, unless the User indicates otherwise. 8. In event of liquidation, (application for) suspension of payment or bankruptcy, seizure if and insofar as seizure is not lifted within three months at the expense of the Customer, debt restructuring or other circumstances, as a result of which the Customer no longer has free access to its assets, the User is free to terminate the order or agreement with immediate effect or annul the order or agreement, without any obligation on its part to payment of damages or compensation. In this case, the claims of the User vis-à-vis the Customer are immediately due and payable. 9. If the Customer cancels an order placed, in full or in part, the work which was carried out, plus any working time reserved for the execution of the agreement, will be charged in full to the Customer. Article 5. Force Majeure 1. The User is not obliged to fulfil any obligation vis-a-vis the Customer if it is impeded from doing so as a result of circumstances which cannot be blamed on negligence, and neither pursuant to the law, a legal act or generally accepted practice on its part. 2. Force majeure in these general terms and conditions, in addition to all that is understood in this respect in law and in legal precedence, is understood to be all outside causes, anticipated or unforeseen, on which the User is unable to exert any influence, but as a result of which the User is unable to fulfil its obligations. This includes, but is not limited to: (1) work stoppages in the company of the User, Customer or third parties; (2) problems concerning the delivery of products; (3) problems of a logistical nature including transport; or (4) problems relating to the quality of the product being delivered. The User has the right to invoke force majeure if the circumstances that impeded the (further) fulfilment of the agreement, take effect after the User should have fulfilled its obligation. 3. During the period that the force majeure continues, the User can suspend the obligations arising from the agreement. If this period lasts for more than two months, each party is entitled to dissolve the agreement, without any obligation to pay damages to the other party. 4. Insofar as the User has partially fulfilled its obligations arising from the agreement or is still able to fulfil these at the time force majeure took
6 effect, and an independent value accrues with respect to the fulfilled or still to be fulfilled part, the User is entitled is to invoice the already fulfilled or still to be fulfilled part separately. The Customer is obliged to pay this invoice as if a separate agreement were said to exist. Article 6. Payment and collection fees 1. Payment is always required to be made within 14 days after the date of the invoice, in the currency and in the manner to be specified by the User on the invoice, unless otherwise agreed in writing by the User. The User is entitled to invoice at fixed intervals and/or by e-mail. 2. If the Customer fails to pay an invoice in time, the Customer is in default by operation of the law. In this case, the Customer is charged 1% interest per month unless the statutory interest rate is higher, in which case the statutory interest rate will be charged. The interest in respect of the due and payable amount will be calculated from the date on which the Customer is in default until the moment at which the full outstanding amount has been settled. 3. The User has the right to have payments made by the Customer used in the first instance to reduce the costs, then to reduce the outstanding interest and finally to reduce the principal sum and the current interest. The User, without being in default as a result, can refuse an offer to pay, if the Customer indicates another sequence for the attribution of the payment. The User can refuse full settlement of the principal sum, if the said payment does not include the interest still due, the current interest and the debt collection charges. 4. The Customer never has any entitlement to offset any of its outstanding payments due to the User. Objections in respect of the amount of the invoice do not suspend the obligation to payment. Neither is the Customer, by not invoking title 5, section 3 of Book 6 of the Dutch Civil Code (articles 231 to 247 of book 6 of the Dutch Civil Code), entitled to suspend payment of an invoice for any other reason. 5. If the Customer is in default with respect to (timely) fulfilment of its obligations, all reasonable costs to recover payment extrajudicially will be charged to the Customer. Default on the part of the Customer who is not a natural person, who is not acting in the capacity of a profession or business (private customer), comes into effect within fourteen days after a reminder for payment has been sent and payment has not been forthcoming. The reminder also specifies what the consequences of continued non-payment will be. The extrajudicial costs will be calculated on the basis of what is standard practice in Dutch debt collection procedures. However, if the User incurs higher debt collection charges which were reasonably necessary to this effect and the Customer is not a natural person, who is not acting in the capacity of a profession or business (commercial customer), the actual costs incurred qualify for compensation. Any judicial and enforcement costs will likewise be
7 recovered from the Customer. The Customer will likewise be charged interest in respect of the debt collection charges incurred. Article 7. Liability 1. If the User is held liable, this liability is limited to what is regulated for in this article. 2. The User is not liable for damage, of whatever nature, ensuing from the User having based its information on incorrect and/or incomplete data supplied by or on behalf of the Customer. 3. If the User is liable with respect to any kind of damage, the liability of the User is limited to a maximum of twice the invoice value of the order, at least to that part of the order to which the liability relates, or twice the value of the invoice of the User s commission, at least to that part of the commission to which the liability relates. 4. In whatever event, the liability of the User is always limited to the amount paid out by the insurance company in such cases. 5. The User is liable only for direct damage. 6. Direct damage is exclusively understood to mean the reasonable costs incurred to establish the cause and the scope of the damage, insofar as this relates to damage in the meaning of these terms and conditions, any reasonable costs incurred to have the inadequate performance of the User conform to the agreement, insofar as these can be attributable to the User and reasonable costs, incurred to prevent or limit the damage, insofar as the Customer can demonstrate that the costs have led to the limitation of direct damage as referred to in these general terms and conditions. The User is never liable for indirect damage, including consequential damage, loss of profit, lost savings and damage through business stoppages. 7. The limitations contained within this article do not apply if the damage can be blamed on an intentional act or the gross negligence of the User or its management or subordinates. Article 8. Indemnity 1. The Customer indemnifies the User against any claims by third parties who may suffer damage relating to the execution of the agreement and whose cause is attributable to those other than the User. If claims are made against the User by third parties in this respect, the Customer is obliged to assist the User, both judicially and extra-judicially, and to do all that may be expected of them to this end without delay. If the Customer fails to take adequate measures, the User, without notice of default being required, is entitled to take these himself. All costs and damages arising from this for the User and third parties are at the risk and expense of the Customer in full.
8 Article 9. Intellectual property 1. The User retains the rights and powers attributable to him on the basis of the Copyright Act and other statutory regulations covering intellectual rights. 2. The User has the right to use the know-how acquired on its part in the execution of the agreement for other purposes, insofar as no strictly confidential information of the Customer is made known to third parties. Article 10. Applicable law and disputes 1. Netherlands law applies exclusively to all legal relationships to which the User is party, even if an undertaking is carried out abroad, in part or in full, of if the party involved in the legal relationship has domicile there. The applicability of the Vienna Sales Convention is excluded. 2. The courts in the User s place of business are exclusively competent to deal with disputes, unless the law explicitly prescribes otherwise. Nevertheless, the User has the right to submit the dispute to the court which is competent in compliance with the law. 3. In the first instance, parties will invoke the courts only after they have made every effort to resolve the dispute in joint consultation. Article 11. Location and changes in terms and conditions 1. These terms and conditions have been filed with the Roermond Chamber of Commerce. 2. The most recently filed version always applies, or the version that applied at the time the legal relationship with the User was effectuated. 3. The Dutch text of these general terms and conditions will always be decisive in their interpretation. ---------------------------