General Conditions of sales of AfriTrade B.V., Alphen aan den Rijn, The Netherlands

Applicability

  • These conditions of sale are applicable to and are part of all sales agreements concluded by AfriTrade B.V. as supplier/seller (hereafter: “supplier”).
  • Unless otherwise expressly agreed in writing, the supplier’s acceptance of a purchase order is limited to acceptance of the express terms set forth in the purchase order insofar as they do not deviate from these terms and conditions or any special conditions signed by the parties.
  • If the supplier’s order confirmation contains any conditions which deviate from these general conditions, the condition in the supplier’s order-confirmation will prevail.
  • These general sales conditions automatically apply to all similar future commercial relations and legal transactions between the supplier and the customer without it being necessary to expressly refer to these general sales conditions.

Agreement

  • All sales by the supplier are confirmed by the supplier in writing (i.e., by e-mail, fax, or regular mail), and eventually approved and confirmed by a signed sales contract.
  • An order is only binding for the supplier if it has been confirmed in writing by a duly authorized representative of the supplier’s office.
  • The purchaser is deemed to have accepted the supplier’s order unless he has notified the supplier in writing to the contrary within 48 hours after the receipt of the confirmation of supplier.
  • The purchaser is also deemed to have accepted the supplier’s order if he has requested the execution of the order.
  • Any (order) confirmation(s) from the purchaser which deviates from the supplier’s order-confirmation are only binding to the supplier if the supplier has accepted such deviations in writing.
  • The supplier’s order may contain an abbreviated Incoterms condition (e.g., FOB, CIF, etc.); the Incoterms conditions are to be interpreted according to the most recent definitions published by the I.C.C.
  • The supplier’s delivery instructions form part of the agreement.

Price and Terms of Payment

  • The price in the supplier’s order confirmation is fixed and exclusive of VAT. This price includes the costs of packing material.
  • The supplier is entitled to increase the price retroactively if the cost price determining factors have been subject to an increase. These factors include, but are not limited to: production costs, raw and auxiliary materials, energy, products or materials obtained by the supplier from third parties, taxes, levies, governmental charges, freight costs, and insurance premiums. The supplier shall notify the purchaser of such an increase.
  • Set-off or retention of payment by the purchaser is not allowed, unless the supplier confirms in writing that it is permitted.
  • The purchaser shall be deemed to be in default without reminder or notice of default if it fails to make payments when due. Default interest may be charged at a rate of 12%. AfriTrade may assert claims for loss or damage.
  • In all cases, the supplier remains, without any restriction, the owner of the goods until the moment that the  purchaser has fulfilled all commitment(s) and payment(s) in full has been received by the supplier.

Delivery and Delays

  • The supplier is entitled to partial shipment of orders. Each delivery is considered a separate contract.
  • AfriTrade shall be released from the agreed delivery dates and periods to the  extent that, and as long as, circumstances occur which substantially impede performance. All difficulties, irrespective of their nature, the sphere, or segment of the supply chain in which they occur, are deemed substantial impediments to performance. Such difficulties include: Force majeure and acts of God (e.g., flooding, ice, loss of harvest), export and import restrictions, problems in production, problems in procuring commodities, disruption of operations (e.g., equipment or machinery breakdown, fire), strikes, shortage of personnel, States of emergency, or loading and transportation difficulties.
  •  In the event of a substantial impediment to performance under clause 4.2, AfriTrade is entitled to rescind the contract with immediate effect without damages or extend the agreed delivery period by the duration of such impediment and the time required to make adjustments or to be able to deliver. If such an extension period exceeds five months, the buyer or purchaser may rescind the agreement. If continuation of the agreement appears unreasonable for either party before the extension period has expired, that party may rescind or terminate the contract. AfriTrade shall notify the purchaser of the duration of the extension period.
  • In the case of an extension of delivery, AfriTrade is entitled, but not obliged, to supply goods equivalent to those agreed with the purchaser or to replace failed deliveries with third-party goods of equal value and quality within the extension period. In the case of damage, the seller is not obliged to substitute goods.
  • If the purchaser is in default with any obligation under the agreement with the supplier, AfriTrade is entitled to postpone delivery by the same number of days as the purchaser was in arrears, in addition to a reasonable period for making appropriate arrangements. AfriTrade is also entitled to suspend its own obligations as long as the purchaser is in default. If the purchaser is subject to bankruptcy law, the supplier may either suspend any obligations or cancel further deliveries. Any loss or damages incurred by the purchaser’s default is the responsibility of the purchaser.
  • Under applicable E.U. law, the supplier is entitled to request duly certified copies of customs documents from the purchaser, certifying that the goods delivered by the supplier have been put into free circulation in the country of destination outside the E.U. The purchaser shall provide these documents upon the supplier’s first request.

Examination and Conformity to Specifications

  • Upon delivery, the purchaser shall examine the goods and verify that the delivered goods meet all contractual requirements.
  • Any complaints regarding the delivered goods must be made in writing and received by the seller no later than seven (7) days from the date of delivery and within seven (7) days of discovering any non-conformity of the goods.
  • The use or processing of the goods shall be deemed an unconditional acceptance of the goods and a waiver of all claims concerning the goods. The goods must be retained in their transport containers on-site to enable AfriTrade to assess whether the claim is justified.
  • Determination of (non)conformity of the delivered goods shall be done solely by analyzing the samples or records retained by suppliers and taken from the batches or production runs of the delivered goods. The goods may only be returned to supplier if supplier has confirmed this in writing. Returning of goods takes place at risk of purchaser.
  • Duly specified complaints do not affect the obligation of the purchaser to pay the price for the goods. Upon receipt of a notice of defect, the supplier is entitled to suspend all further deliveries until the complaints are investigated and established to be unfounded and/or refuted or until the defect has been totally cured.

Transfer of Risk and Property

  • The risk of the goods shall pass to the purchaser on delivery.
  • In case delivery is suspended, pending payment by the customer, as well as goods which delivery is wrongfully rejected or not accepted by the purchaser, shall be held and stored by the seller at the risk and expense of the customer.
  • The ownership of the goods shall not pass to the purchaser and the full legal and beneficial ownership of the goods shall remain with the supplier, unless and until the supplier has received payment in full for the goods, including all secondary costs, such as interest, demurrage, charges, expenses, etc.
  • In the event of termination of the agreement with the purchaser, the supplier shall, without prejudice to any other rights of the supplier, be entitled to require immediate re-delivery of the goods for which it may invoke the retention of title.
  • Until payment for the goods has been made, the purchaser is entitled to use the goods solely to the extent required in its ordinary course of business, and, to the extent possible, shall:
    • (I) keep the goods separate, clearly identified as goods of the supplier;
    • (II) notify the seller immediately of any claims by third parties which may affect the goods; and
    • (III) adequately insure the goods.

Liability

  • In case liability of AfriTrade is established, such liability is limited to the loss or damage which was foreseeable at the time the contract was concluded, up to a maximum amount equivalent to the purchase price agreed with the supplier. Under no circumstances shall the supplier be liable to the purchaser for any other kind of special, incidental, direct, or indirect. Consequential or punitive damages or loss, cost or expense, including without limitation, damage based upon loss of goodwill, loss of business, loss of sales or profits, work stoppage, production failure, impairment of other goods or otherwise and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation or otherwise.

Rights of AfriTrade

  • AfriTrade may refuse performance under the contract, if:
    • the purchaser falls into arrears with the acceptance of a delivery or payment;
    • doubt arises as to the purchaser’s solvency and willingness to pay;
    • the purchaser’s company is liquidated or an administrator has been appointed or the purchaser’s company is transferred to a competitor of AfriTrade; or
    • the credit limit of AfriTrade’s credit insurance and/or internal credit limit for delivery of the goods is exceeded or if the Credit Limit is withdrawn.
  • In cases AfriTrade deems it necessary, it is entitled to command payment in advance against delivery, notice of goods cleared for loading.

Waiver

  • Failure of the supplier to enforce at any time any provision of these conditions shall not be construed as a waiver of the supplier’s rights to act or to enforce any such term or condition.

Limitation of Action

  • No action by purchaser shall be brought unless purchaser first provides written notice to the supplier of any claim alleged to exist against the seller within thirty (30) days after the event complained of first becomes known to the purchaser, and an action is commenced by the purchaser within twelve (12) months after such notice.

Governing Law and Jurisdiction

  • All disputes that arise from or in connection with the agreement and further agreements resulting therefrom will be subject to the exclusive jurisdiction of the competent court in The Netherlands.
  • The agreement is governed by Dutch law.
  • The applicability of the U.N. Convention on Contracts for the International Sale    of Goods (CISG), concluded in Vienna on the 11th of April 1980, is excluded.

Compliance with Laws and Standards

  • The supplier makes no promise or representation that the goods shall conform to any law, statute, ordinance, regulation codes, or standard (“laws and standards”) unless expressly stated in the supplier’s confirmation or in the specifications. The goods may be subject to requirements or limitations under laws and standards in the country of delivery. The purchaser shall be exclusively responsible for: (I) Ensuring compliance with all laws and standards associated with its intended use of the goods; and (II) Obtaining all necessary approvals, permits, or clearances for such use.

Intellectual Property

  • The sale of goods to the purchaser shall not convey any license or right under any intellectual property rights related to the compositions and/or applications of the goods. The purchaser expressly assumes all risks of any intellectual property infringement by reason of its importation and/or use of the goods, whether or not in combination with other materials or in any processing operation.
  • The supplier has not verified the possible existence of third-party intellectual property rights, which might be infringed as a consequence of the sale and delivery of the goods. The supplier cannot be held liable for any loss or damages in that respect.