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GENERAL TERMS ANDCONDITIONS OF SALEAND DELIVERY,of Foodcase International B.V.. in Wageningen, and of its holdings, all referred to hereinafter individually as well as jointly as: FINT, as adopted on 01-01-2016.

Article 1 - Applicability

  1. These General Terms and Conditions apply to all offers made and agreements concluded by FINT, by whatever name. These General Terms and Conditions also apply particularly to contracts FINT concludes for the supply of products and services to FINT’s customers.

  2. Where ‘Customer’ is mentioned in these General Terms and Conditions, this should be understood to mean any natural or legal person having a contractual relationship with FINT on the basis of a contract of sale or other type of contract concluded and/or to be concluded with FINT. ‘Customer’ also means in particular the party on whose account and on whose instruction or through whose agency products and/or services are supplied.

  3. Departures from the provisions of these General Terms and Conditions are only possible if and in so far as FINT has agreed to them explicitly or if they have been agreed with FINT in writing. If these Terms and Conditions are departed from one or more times tacitly or explicitly, the Customer may not derive any rights from them with respect to subsequent contracts.

  4. Where (the supply of) products is mentioned in these General Terms and Conditions, this also means the performance of services and work of any nature.

Article 2 - Offers and the conclusion of a contract

  1. The order given to FINT counts as an offer. This offer shall be accepted by FINT as soon as FINT confirms it in writing, or FINT actually starts to execute the offer in another way recognisable to the Customer.

  2. The contract shall be concluded as soon as FINT accepts the offer, which acceptance is binding on the Customer. Acceptance may be given explicitly or tacitly. Tacit acceptance shall be deemed to have been given if FINT does not notify the Customer in writing within five days of receiving the order that it has not accepted the order.

  3. Each contract concluded with FINT contains the condition precedent or subsequent – at FINT’s discretion – that the Customer has proved to FINT to be sufficiently creditworthy, which is to be decided exclusively by FINT. FINT shall have the right to refuse an order from a Customer for this reason.

  4. FINT is entitled to demand that the Customer provides security for the performance of its obligations, also after conclusion of the contract. If the security demanded by FINT is not provided, FINT may suspend the performance of its obligations and/or dissolve the contract without judicial intervention, without prejudice to any other rights, such as those arising for FINT from common law.

  5. Information concerning the sold product, such as properties, quality, colour etc, as well as information in printed matter, drawings, illustrations, samples and suchlike, provided by FINT with the offer, shall be provided to the best of its knowledge and with the greatest care, but shall never be considered as binding.

  6. In exceptional cases, at FINT’s discretion, FINT may give permission to cancel an order. This permission must then be given in writing. If the Customer cancels an order, all costs incurred, as well as losses and interest, shall be charged to the Customer.

  7. Agreements and/or commitments made by employees of or on behalf of FINT shall only be binding on FINT if these agreements and/or commitments are confirmed explicitly and in writing by managing directors of FINT with representational authority.

  8. FINT reserves the right to refuse orders without stating reasons,. Such refusal shall never give any right to damages.

  9. Except with explicit, written permission from FINT, the Customer shall not transfer rights or obligations under contracts concluded with FINT to third parties, including companies affiliated with the Customer.

  10. If a contract is concluded with two or more Customers jointly, each of them shall be jointly and severally liable for the full performance of the contract they have concluded.

  11. The Customer authorises FINT to have the order executed by a third party designated by FINT, at a time to be determined in further consultation. The Customer approves the assignment by FINT to one or more third parties of all rights and obligations under the contract(s) concluded by FINT with the Customer.

Article 3 - Prices

  1. Unless explicitly stated otherwise, the prices apply in euro currency, exclusive of turnover tax, on the basis of the minimum basic quantities stipulated by FINT, exclusive of the costs of packing and/or packaging materials. Transport costs are not included, but are payable by the Customer.

  2.  If not stipulated otherwise upon conclusion of the contract, the prices and delivery conditions contained in FINT’s computer files shall apply, as they are applicable to the Customer in question on the day of delivery.

  3. The prices and offers of the products supplied by FINT, which are provided with a price sticker, are without obligation. In the event of a difference between the sticker price and the invoice price, the invoice price shall be binding.

  4. FINT shall list the quantities or weights delivered on a delivery document. If the Customer does not protest against this within 24 hours of receipt at the latest, the quantity or weight listed on the delivery document shall be deemed to be a correct representation of the goods delivered.

  5. All prices agreed are binding, unless after the offer one of the factors that determine the cost price of the product changes in the period between the time of the offer and the time of delivery, and FINT has little or no influence on the resulting price increases. In such cases, FINT shall be entitled to adjust the agreed price accordingly, whether or not the cost price increase was foreseeable at the time of the offer, all this subject to the applicable statutory rules.

  6. If one of the price increases referred to in the preceding paragraph amounts to 10% or more, the Customer shall be entitled to cancel the relevant contract without any costs, however without any right to damages. If the products have already been delivered, FINT shall take them back as soon as possible after cancellation at its own expense. However, the Customer shall remain fully liable for the deterioration of quality, damage, theft and suchlike until the time that the products are taken back

Article 4 - Delivery, delivery periods and delivery risk

  1. Delivery shall be made:
    a. by making the sold goods available at FINT’s address.
    b. by delivery of the sold goods to the location where the Customer’s business is established.

  2. If goods are made available to a Customer at FINT’s address, and if the Customer does not take along the sold goods immediately, the Customer must pick up the sold goods within five days of the date of FINT’s notice to the Customer that the goods are at its disposal. If the Customer fails to pick up the sold goods within the aforementioned period, FINT shall be entitled to charge the Customer 1% of the value of the goods a week or part of a week (with a maximum of € 50 a week) as a site fee.

  3. If the sold goods are delivered to the Customer’s address, the delivery periods indicated by FINT shall never be considered as deadlines, unless explicitly agreed otherwise in writing. The delivery periods indicated by FINT shall start at the time when the contract is concluded and all information required to execute the order is in FINT’s possession. Delay in the delivery shall not be cause for the purchaser to dissolve the contract, unless FINT has exceeded reasonable limits in the particular case. Delivery times may be extended and/or orders placed may be suspended by the time during which the Customer has left any amount owed or due and payable to FINT unpaid.

  4. If the products are delivered to the Customer’s address, FINT shall determine the mode of transport. The Customer must take delivery of the products immediately. The Customer must provide for an adequate and accessible loading and unloading place and facilitate the shortest possible waiting time. Transporting or moving the products within the Customer’s industrial spaces or on its grounds shall never be included.

  5. The delivery of products ordered in parts shall be permitted. FINT is entitled to invoice the Customer immediately for the products already delivered.

  6. The risk of the products shall pass to the Customer if and as soon as the sold products are made available to the Customer at FINT’s address (or, if the Customer does not take along the products immediately, through the mere notice from FINT that the sold products have been set apart for its benefit).

  7. If the sold products are delivered to the Customer’s address, the loading, transport and unloading shall be carried out at FINT’s risk. The risk of the products to be delivered shall pass to the Customer as soon as they have been unloaded at the Customer’s business premises. If the Customer requests to have the products be delivered otherwise than in the customary manner, FINT may charge the Customer for the costs involved in this.

  8. The Customer must take delivery of the products ordered and delivered, and pay for them immediately in accordance with the agreed payment conditions without invoking any discount or setoff. By paying the invoice amount or signing a packing slip, the Customer confirms that it has received the products. If the Customer fails to fulfil its purchase requirement or payment obligations, FINT shall be entitled to dissolve the contract without judicial intervention.

  9. Defective products delivered by FINT may only be returned if they are provided with a return slip furnished by FINT, and if the products meet the following conditions:
    - they are provided with the original package sticker or – if not stickered – accompanied by a copy of the -   delivery document, the date of which is not older than 7 days
    - they are in their original, unopened packaging
    - they have not been priced by the Customer
    - they are part of the normal FINT product line
    - they are in good condition and can be resold at normal prices
    - they are returned within the periods stipulated in FINT’s condition brochures
    Folder articles may never be returned.
    Pursuant to the government’s refrigeration chain directives, refrigerated and frozen products may not be taken back. In all situations mentioned in this article in which it is not possible to return the products, a contract of sale shall nevertheless have been concluded between the Customer and FINT, and therefore the Customer shall be required to pay.

  10. If Recall Actions should be initiated by FINT’s suppliers in connection with product defects that originated during manufacture or packaging, the Customer must handle the products in accordance with the Recall procedure made known by FINT in those cases.

  11. FINT shall have no obligation to deliver if, without FINT’s knowledge, third parties deliver products directly to an associate of FINT which are invoiced through FINT.

  12. The Customer must return all empty packing materials in its possession to FINT as soon as possible, unless explicitly agreed otherwise. FINT’s obligation to take back packing materials shall only apply if these are in good condition, clean and do not contain any waste and residual material and if – as far as roll containers and refrigerated boxes are concerned – these have been delivered by FINT.

  13. If the Customer delivers return packing materials improperly or unsorted, FINT shall be entitled to charge the Customer for the additional handling costs.

  14. If FINT is required by the Customer or the government to take along outside packaging, residual materials and suchlike upon delivery of the products, the costs involved in this, including any costs of destruction, shall be for the Customer’s account.

Article 5 - Complaints and claims

  1. When taking delivery of the products, the Customer must check whether the delivery is in accordance with the order. Visible damage or defects that can already be discovered (including shortages) upon taking delivery in one of FINT’s sales areas must be reported by the Customer immediately. If the Customer opens, breaks or damages packaging or products before they are paid, the Customer undertakes to take delivery of and pay for the products in question.

  2. If the products are delivered to the Customer’s address, the Customer must list visible damage, defects or shortages on the delivery document, or report them to FINT in another direct manner in writing (by fax). Failure to do so shall count as full proof that, upon delivery, the Customer had received the products in proper and undamaged condition, at any rate in outer appearance.

  3. Where fresh, refrigerated or frozen products are concerned, the Customer must report complaints about defects that cannot be discovered immediately or defects in the products delivered to FINT without delay, but not later than 12 hours after delivery. If other products are concerned, this must be reported to FINT in writing (by fax) not later than 48 hours after delivery.

  4.  Any right of action of the Customer against FINT in relation to errors in the delivery or defects in or on products delivered by FINT shall lapse irrevocably as soon as the aforementioned claim periods have expired, as well as in situations in which the Customer does not cooperate adequately with FINT in an investigation into the legitimacy of the complaints. The products to which complaints relate must be made available for possible inspection by FINT in the condition the products were in at the time the defects were discovered. The right to bring a claim shall lapse after the Customer has started to use the delivered products, has treated or processed them or has had them used, treated or processed, or has delivered them to third parties, unless FINT has given explicit permission to this effect or durable consumer goods are concerned, to which a factory warranty applies.

  5.  If a complaint proves to be well-founded and the procedures mentioned above have been followed concerning the reporting of complaints, FINT shall, as soon as possible, at FINT’s discretion, either repair the defect or deliver a replacement product or, if the purchase price for the product in question has already been invoiced, credit the Customer for the amount corresponding to the complaint. In these types of situations, the Customer shall never be able to claim any damages from FINT. FINT’s liability shall remain limited to the value of the delivered products to which the complaint relates.

  6. Complaints and claims shall not give the Customer the right to suspend payment of the relevant invoice, and FINT explicitly excludes setoff. The period for complaining about the invoices sent by FINT is 5 days at most from the day of receipt. If no protest is lodged against the invoice within that period, it shall be deemed to be a correct reflection of the underlying transaction(s) with FINT and to have been approved by the Customer.

Article 6 - Retention of ownership

  1. The products delivered by FINT shall remain FINT’s property until the time of payment in full of the purchase price due, including any interest and costs. The products delivered by FINT to the Customer are delivered under the condition subsequent of payment in full by the Customer of the purchase price, interest and costs. After payment in full, the ownership of the products delivered shall pass to the Customer. Payment shall always be deemed to relate to the invoice that has been due and payable for the longest time.

  2. All products coming from FINT that are in the Customer’s possession shall always be deemed to be the same as those listed on the unpaid invoices, at least in so far as the quantity of products in the Customer’s possession, according to their type and composition, does not exceed the quantities listed on the unpaid invoice.

  3. The Customer shall not be entitled to pledge the unpaid products, to create (or have created) a non-possessory pledge in them or to create any other real right in them for the benefit of a third party.

  4. The Customer shall be permitted to sell the delivered, not yet paid products, but only in the context of its ordinary course of business, unless FINT has ordered the Customer in writing to make the products available to FINT immediately.

  5. The Customer grants FINT the right, now for then, in cases that arise, to enter all places where the products delivered by FINT are located, in order to allow FINT to exercise its ownership rights and take back the unpaid products. Taking back its goods in this way shall not affect FINT’s right to claim compensation from the Customer for loss suffered or costs incurred as a result of the Customer’s attributable non-performance.

Article 7 -  Invoicing and Payment

  1. Products and services delivered are invoiced exclusively by name and customer number. Payment of the final amounts of FINT’s sales invoices must be made within the payment period made known in this way, counting from the invoice date.

  2. The payment period made known to the Customer shall be considered a deadline. If payment is made by bank, by either transfer or direct debit, the credit value date of FINT’s account shall count as the payment date. The Customer is not entitled to apply a discount or setoff to such payments to FINT.

  3. If the Customer has not paid promptly or in full in accordance with the foregoing, it shall be in default without further notice of default or a demand letter being required. FINT shall be entitled to charge the Customer daily interest equal to not more than 4.25% annually above the euro base interest rate, as applied at the time it is charged by the majority of the commercial banks in the Netherlands, divided by the factor 365, rounded off to 2 decimal places.

  4. All costs incurred in the collection of amounts due, particularly the extrajudicial costs, shall be for the Customer’s account. The extrajudicial costs shall be set at 15% at least of the principal of the amounts due, with a minimum of € 50 and without prejudice to FINT’s right to charge the Customer for additional reasonable costs.

  5. Each payment by the Customer shall first serve to pay the interest due and then to pay the costs incurred in collection, with the exception of the court costs. Only after these amounts are paid shall any payment by the Customer serve to reduce the principal of the outstanding claim. This payment shall be deducted first from the longest outstanding claim, irrespective of the designation the Customer might have given to the payment.

  6. FINT shall be entitled to set off amounts due or to be claimed against amounts FINT has to claim from the Customer or owes to it.

Article 9 -  Liability

  1. FINT only accepts the statutory obligation to pay damages if and in so far as the Customer proves that the loss was caused by a serious fault or gross negligence on the part of FINT. The liability ensuing therefrom for loss shall be limited explicitly to the amount of the order that resulted in loss.

  2. Any farther-reaching liability on the part of FINT for loss, including but not limited to liability for employees and auxiliary persons, on whatever basis, including any direct and indirect loss, such as consequential loss or trading loss, is excluded. The Customer also indemnifies FINT against any claims of third parties for losses possibly suffered or to be suffered by such third party or parties, with due observance of everything provided in this article.

  3. FINT does not accept any liability for the possible consequences of not having products in stock.

  4. During the (internal) transport and the storage of products delivered by FINT, the Customer must act in accordance with the applicable laws and regulations, including the HACCP standards and the storage regulations, failing which no liability can be accepted for (loss resulting from) defects in the products.

  5.  If FINT is of the opinion that it must take measures or cooperate in Recall Actions initiated by producers to prevent (further) loss due to claims of consumers based on a defect in products delivered, the Customer undertakes to cooperate in such measures and, if this proves to be necessary or desirable, to join FINT in holding the producer liable.

  6.  In so far as the products delivered by FINT are provided with a final best-before date (t.h.t. code), FINT shall no longer accept any liability if these products should be consumed or used after the final best-before date. The Customer must warrant that the products bearing a final best-before date will not be processed or sold after the expiry of those dates. The Customer explicitly indemnifies FINT for claims of third parties based on loss due to the consumption or use of products delivered by FINT, if they are treated, processed, used or consumed or sold after the final best-before date.

  7. Because the normal inspection possibilities in connection with assuring the quality of articles are no longer possible once they have been sold to distributors, the Customer shall not be permitted to sell to distributors articles of one of the Exclusive Brands, Fancy Labels or Private Brands carried by FINT. If this prohibition is violated, FINT shall exclude all liability and FINT shall recover any loss from the Customer.

Article 10 -  Force Majeure

  1. Force majeure means any circumstance beyond FINT’s control of such a nature that FINT cannot reasonably be required to perform the contract (so-called non-attributable failure to perform). Force majeure also includes: mobilisation, war and the threat of war, riots, strikes, acts of terrorism, demonstrations, lack of personnel, interruptions of business and transport of whatever nature, breach of contract by suppliers, epidemics, obstacles caused by measures, laws or decisions of international, national or regional (government) authorities, fire, explosion, frost, problems due to snow, flood, storm damage and other natural disasters.

  2. If FINT is unable to perform the contract in a timely manner because of force majeure, FINT shall be entitled to perform the contract at a later date, or to consider the contract to be dissolved, at FINT’s discretion. In these or similar cases, FINT shall be entitled, entirely at FINT’s discretion, to dissolve the contract after a reasonable period without any obligation to pay any damages, or to demand that the contract be adjusted to the circumstances.

Article 11 -  Breach of contract and dissolution

  1. Without prejudice to the provisions of the Netherlands Civil Code (Burgerlijk Wetboek), in the event of a breach of contract by the Customer, FINT shall also have the right, at FINT’s discretion, to suspend the contract or to dissolve it in part. In that case, FINT shall be entitled to compensation of any loss suffered by FINT.

  2. FINT shall also be entitled to the rights referred to in paragraph 1 of this article if the Customer has been declared insolvent, if the Customer has applied for a moratorium on payment or a judicial debt-rescheduling scheme, his immovable property has been seized, his company has gone into liquidation or has been taken over by one or more third parties, or if the Customer intends to leave his residence in the Netherlands. In all these cases, all claims that FINT has against the Customer shall be immediately due and payable.

Article 12 -  Conversion of provisions

  1. If the court should rule that a provision of these terms and conditions is unreasonably onerous wholly or in part, this shall be deemed to be converted into a provision that, while maintaining the contents and tenor of the original as far as possible, is not considered unreasonably onerous.

  2.  If the court should rule that a provision of these terms and conditions is unreasonably onerous and paragraph 1 of this article cannot be applied, this shall not affect the validity of the other provisions of these general terms and conditions.

Article 13 - Assignment and lapse of rights

  1. FINT is entitled to assign its rights under contracts wholly or partially to third parties.

  2. Any claim against FINT shall lapse if legal action is not brought against FINT within 12 months after it has received the notice relating to that claim.

Article 14 -  Applicable law, disputes and court with jurisdiction

  1. The contracts concluded between FINT and the Customer shall be governed exclusively by Netherlands law.

  2. If a dispute should arise between FINT and the Customer over the conclusion, interpretation or performance of a contract between the parties, or the failure to perform it properly, promptly or at all, or over another legal relationship, or if one of the parties is of the opinion that such a dispute exists, the parties shall attempt to reach agreement through negotiations before the dispute is put before the civil court.

  3. The District Court of ‘s-Hertogenbosch shall have exclusive jurisdiction over disputes arising from contracts concluded with FINT, unless the subdistrict court has jurisdiction. Nevertheless, FINT shall be entitled to put a dispute before the court with jurisdiction in the Customer’s domicile.

Article 15 -  Location of the General Terms and Conditions

  1. These General Terms and Conditions were adopted on 01-01-2016 and filed with the District Court of Arnhem, The Netherlands. The most recently filed version, or the version as it applied when the contract with FINT was concluded, shall always be applicable.

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