Termes et conditions

GENERAL SALES AND DELIVERY CONDITIONS OF KONINGS-ZUIVEL B.V.

deposited with the Chamber of Commerce for Rotterdam on 16-10-2006 under registry number 29048392.

 Article 1          –           Definitions

 In these general sales and delivery conditions (hereinafter: « Conditions ») the following definitions apply:

Purchaser: any judicial or natural person, working on a professional basis, on whose order Konings-Zuivel delivers, or with whom Konings-Zuivel concludes a contract or with whom Konings-Zuivel is negotiating on the conclusion of a contract;

Konings-Zuivel: the private limited company under the laws of the Netherlands Konings- Zuivel B.V., having its registered office in Bergambacht, including its assigns or her editors under general or special title;

Delivery: the actual transfer of the good to the Purchaser;

Offer: in more or less specified delivery and the budget of the costs connected to the delivery;

Order: every request, done verbally or in writing, in whatever form, either with or without relation to a offer, from Purchaser to Konings-Zuivel with respect to delivery of goods or in conclusion of any contract;

Contract: any contract concluded between Konings-Zuivel and the Purchaser, every amendment to the contract and any (judicial)act in preparation or execution of the agreement;

Produce: all goods which form the object of a contract in writing;

In writing: in writing also comprises electronically;

Article 2   –    Applicability

• These conditions form part of all contracts and apply to all (other) acts and (judicial) acts between Konings-Zuivel and the Purchaser, also in the case that these judicial acts do not lead to or are connected with a contract.
• The applicability of any general conditions of the Purchaser is explicitly declined by Konings-Zuivel.
• The Dutch original text of these general conditions is leading in the case that unclarity should arise from this translation.

Article 3          –           Contracts and offers

• All offers and price lists are without obligation and function only as an invitation to order by Purchaser, unless it is indicated otherwise explicitly. The aforementioned furthermore does not apply to subsequent orders.
• An agreement can only be concluded if and in so far Konings-Zuivel accepts an order by the Purchaser in writing or if Konings-Zuivel executes an If Konings-Zuivel delivers on demand before full agreement has been reached on the price and the conditions of payment for the delivery, the Purchaser shall pay Konings-Zuivel according to the tariffs of Konings-Zuivel, observing these general conditions.

In so far the Purchaser accepts a binding offer of Konings-Zuivel with marginal adjustments, these adjustments do not constitute part of the agreement, resulting in a conclusion of the agreement in accordance with the offer of Konings-Zuivel – in difference to the stipulation in the first sentence of this section. In the case of express deliveries the invoice shall be deemed an agreement.

• All indications by Konings-Zuivel about the products have been written with due care and diligence. However, Konings-Zuivel can not guarantee that no aberrations shall occur. The descriptions of the product, quality and colour, etcetera do only apply by proxy. All samples are type samples.

Article 4          –           Prices

• All prices of Konings-Zuivel are set in euros and do not include VAT, unless such is explicitly indicated in writing. Unless it is explicitly agreed otherwise, the costs of shipping and transport, import and export and any other tax or burden imposed on or levied with respect to any delivery shall be borne by the Furthermore, the costs of packaging, loading, transport, unloading and insurance shall be borne by the Purchaser.
• Any change in the factors which influence the prices and the extra costs mentioned in the foregoing section, among other things the purchase price, exchange rates, taxes levied on import and export, insurance tariffs, freight tariffs and all other taxes and burdens can be passed on to the Purchaser.

Article 5          –           Delivery, delivery time and transport

 Konings-Zuivel is entitled to deviate by 5% of the agreed delivery amount whereby the agreed price is set off.

• The place of delivery shall be the plant or warehouse of Konings-Zuivel or the place of production, at the choosing of Konings-Zuivel.
• The Purchaser is obliged to call on the delivery at least two working days before the time of delivery.
• The delivery time shall be effective after the conclusion of the agreement, after Konings-Zuive) pocesses the objects to be delivered to the Purchaser, the information, needed from the Purchaser and after an a possibly agreed advanced payment has been received by Konings-Zuivel or securities have been issued to Konings-Zuivel.
• The goods are deemed to be delivered at the moment that Konings-Zuivel has informed the Purchaser that they are at his If such an announcement is not made, the goods will be deemed delivered when they have left the plant or warehouse of Konings-Zuivel or the production plant for the benefit of the Purchaser. Partial deliveries are admissible.

• The delivery times indicated by Konings-Zuivel only apply by proxy. Unless it has been agreed upon differently in writing, Konings-Zuivel will not guarantee any delivery time. Furthermore, if the time frame has not been met, Purchaser shall not be entitled to repair of damage, cancellation of the agreement or suspension of obligations towards Konings-Zuivel.
• The delivery time will be extended for the period in which Konings-Zuivel is faced with Force Majeure. The delivery times will also be extended with the time that the Purchaser is in default in the fulfilment of any of his obligations.
• In the cases when Konings-Zuivel takes care of the transport of the goods, Konings- Zuivel will plan the transport at its own insights. If normal or usual transport is impossible or hindered, Konings-Zuivel has the right to sent the goods in the way and at the time which it deems best. The costs caused by this alternative transport shall be borne by the Purchaser.
• The Purchaser is responsible for and bares the risk of obtaining the necessary documents, permits and bye-laws.

5.10     The Purchaser is responsible for and bares the risk of the exception of the goods at the agreed place and time. If the Purchaser is in default, Konings-Zuivel is entitled to cancel the agreement, whereby the Purchaser is obliged to repair the damages suffered by Konings-Zuivel.

Article 6          –           Continuinq performance contract

 If for a period of more than a month multiple deliveries have to be executed, whether or not on demand, these deliveries shall take place in more or less equal monthly quantities.

Article 7          –           Risk

• The risk of the products shall past to the Purchaser from the moment of
• In the case that the Purchaser does not take the products because of a non valid reason or not in due time, he shall be in default without prior Konings-Zuivel is entitled to sell the products in such case to any third party. The Purchaser shall be obliged in such case to pay the purchase price, accumulated with accrued interest and costs, for means of repair of damages.
• The Purchaser shall be obliged to take all the measures Konings-Zuivel deems necessary to be able to fulfil its obligation connected to the delivery of

Article 8          –           Retention of title

 The ownership of the products shall not part to the Purchaser until he has completely paid the price connected to the products delivered or to be delivered by virtue of the agreement, save the actual delivery in difference from the agreement.

• Any amount received from the Purchaser shall firstly served to pay the claims Konings-Zuivel has on the Purchaser for products delivered which are not protected by the retention of title mentioned in section 1. An amount received from the Purchaser shall first serve to pay the possibly incurred interest and costs as mentioned in the agreement or the offer and/or these conditions.
• Before the ownership of the products has transferred to the Purchaser, the Purchaser is not entitled to unable any third party to use the products, to pledge the products to any third party or to encumber the products for the benefit of any third party on any other way.
• The Purchaser shall notify its contractors that the products can not be delivered and transfer in ownership to its contractors until the Purchaser has completely fulfilled its obligations towards Konings-Zuivel.
• The Purchaser is obliged to keep the products delivered under retention of title with due care and diligence as apparent ownership of Konings-Zuivel and to insure these products against any such risk as fire, explosion, damage and theft at its first request, the Purchaser shall assign all rights on the insurers involved to Konings-Zuivel.
• If and in so far Konings-Zuivel is the owner of the products, the Purchaser shall inform Konings-Zuivel without undue delay in writing if any part of the products is lost, damaged, ceased and/or if any claim is laid on the products. Furthermore, the Purchaser shall inform Konings-Zuivel at its first request, where the products owned by Konings-Zuivel are located.

Article 9          –           Import and export

 All circumstances or events which hinder or interdict the import and export of goods, shall be borne by Purchaser.

• In the case of import and export the Purchaser shall cooperate in obtaining the necessary documents. The costs attached to obtaining the necessary documents shall be borne by the Purchaser.
• Konings-Zuivel shall never be liable for missing, loss or delay in the provision of any document to be supplied by Konings-Zuivel, saved Konings-Zuivels own deliberate intent or considerable guilt (culpa gravis).
• The Purchaser is obliged to send the custom’s documents, attached to be delivered or to be delivered goods to the responsible authorities, and also to undertake every action necessary to complete missing documents.

Article 10       –           Force Majeure

• If Konings-Zuivel can not fulfil its ob)igations towards the Purchaser because of a circumstance not contributable to it (« Force Majeure »), these obligations shall be suspended for the duration of the Force Majeure.
• If the Force Majeure has lasted for three months, both parties shall have the right to cancel the agreement in writing wholly or partially, whereby the Purchaser is not entitled to any repair of damages and whereby the Purchaser has to fulfil its financial obligations towards Konings-Zuivel completely, including the amounts not yet due.
• The Force Majeure includes any circumstance independent from the will of Konings- Zuivel, hindering or interdicting the fulfilment of Konings-Zuivels obligations towards the Purchaser, among other things strike, exclusion fire, machinery breakdown and other circumstances, including among other things set and delay in delivery by Konings-Zuivels suppliers.

Article 11        –           Complains

• The Purchaser is obliged to have the product inspected immediately – but in any case within 48 hours after receipt – with due care and diligence. The Purchaser shall be obliged to complain immediately after delivery in the case of visible shortages of the product. Shortages which could not have been spotted have to be notified to Konings- Zuivel immediately after spotting and at the latest within 30 days after delivery of the products in writing to Konings-Zuivel.
• After the discovery of any shortage, the Purchaser is obliged to suspend its own sales of the products concerned.
• The Purchaser shall give every cooperation to Konings-Zuivel in conducting research of the complains. Among other things the Purchaser shall allow Konings-Zuivel to investigate the circumstances of stock, processing of the
• The Purchaser is not entitled to file a complaint with respect to products which Konings-Zuivel can not investigate.
• The Purchaser is not entitled to return the products, unless Konings-Zuivel has agreed with a return explicitly in
• The Purchaser can not hold Konings-Zuivel liable for complains on the shortages of products:
  1. if the products have been stocked in a warehouse without due care and diligence by the Purchaser;
  2. if the products have been processed by or on behalf of the Purchaser;
  3. for as long as the Purchaser has not fulfilled any of its obligation towards Konings-Zuivel or not properly or not in due time.
• Complains for deviations in weight, which are not substantial, inadmissible in the business or technically unavoidable in the case of cooling, freezing, evaporation etc. and which lead to a weight loss of maximum 5% or which influence or quality with the said 5% are not acceptable. Complains which are connected to (a part ol the) delivered Products which can not identified because of the use, processing, production of delivery time or received can not be accepted.

Article 12     –         Guarantee

• The following clauses about guarantee apply to the Products sold en delivered by Konings-Zuivel.
• If a complain has been filed in due time, correctly and according to the stipulation set forth in article 11, guarantee mentioned in this article and titles the Purchaser only to – notwithstanding the stipulation set forth in article 13 – a redelivery at no costs, albeit a credit to the Purchaser (wholly or partially) at the choosing of Konings-Zuivel. The fulfilment of one of the aforementioned obligations shall discharge Konings-Zuivel of its obligations emanating from the guarantee. Konings-Zuivel shall in such case not be obliged to repair any more damages.

• If Konings-Zuivel delivers Products to the Purchaser, which Konings-Zuivel has received from its own suppliers, Konings-Zuivel is never obliged to except a further going guarantee or liability towards the Purchaser than Konings-Zuivel can claim from its own deliverer.

Article 13       –           Liability and indemnification

• Konings-Zuivel is — save the stipulation set forth in the following section – never liable for any damage whatsoever, including but not exclusively consequential loss, immaterial damage, operational damage, loss of order, loss of profit, etc..
• The liability of Konings-Zuivel for any damage what so ever, as mentioned in the last section, never exceeds the restitution of the amount of the invoice, al be it redelivery of the goods, at the choice of the Purchaser and as far as Konings-Zuivel is capable of delivering similar goods, al be it – if and insurance policy as applicable to the damage – until the amount of pay out under the insurance policy.
• Every claim against Konings-Zuivel, except for those claims accepted by Konings- Zuivel, described one year after the claim has come to existence.
• The employees of Konings-Zuivel or any additional workforce contracted by Konings- Zuivel to execute the Agreement can invoke all remedies mentioned in the Agreement as if they where a party of the Agreement.
• The Purchaser shall indemnify Konings-Zuivel, its employees and third parties contracted by Konings-Zuivel to executed the agreement from any claim of any thrid party in relationship with the execution by Konings-Zuivel of the agreement, in so far this claims exceed the claims which the Purchaser might invoke on Konings-Zuivel.

13.6     Any clause exoneration or exclusion of liability which suppliers of Konings-Zuivel can invoked against Konings-Zuivel, will be invoked by Konings-Zuivel against the Purchaser.

13.7.    The Purchaser will indemnify Konings-Zuivel for any claim based on the breach of any clause that the goods are not allowed to be passed on to certain destinations and or final users.

Article 14       –           Payment and securities

• Payment shall be fulfilled — notwithstanding the stipulations set for of the following sections — within the term mentioned on the invoice and if any such term is absent, within 14 days from the date of the The place of payment shall be the location where Konings-Zuivel is domiciled.
• Payment shall be fulfilled in a currency in which the price has been agreed upon, unless it have been agreed otherwise in writing, in which case the currency differences shall be born by the Purchaser.
• All the invoices send to the Purchaser shall be paid without discounts or
• The Purchaser shall not be entitled to suspend any of his obligations. If Konings- Zuivel deems its just, Konings-Zuivel is entitled at all time to demand that the Purchaser issue securities for payment. If the Purchaser is in default to provide such securities, Konings-Zuivel is entitled to suspend its deliveries, even if the delivery was agreed upon on demand, or to cancel this agreement without judgement and to claim repair of The price of the goods already delivered, shall be due at that very instant.
• If the Purchaser has not or not completely paid the invoices within the set time frame, he is in default without the need of a prior written notice and is therefore due the accrued interest over the amount of money due, in accordance with the following
• Without prior written notice Purchaser is due the accrued interest over all amounts which have not been paid at the latest at the last day of the term of payment. The interest rate shall be equal to the current statutory commercial interest, plus 2% after each month the amount over which the interest is calculated shall be accumulated with the accrued interest.
• All costs connected to the selection of a not (fully) paid invoice, both judicial and extrajudicial, will be born by Purchaser. In any case the Purchaser is due a fixated amount of costs, calculated via the collection tariff of the Dutch bar association, current at the moment that the Purchaser is in The extrajudicial costs will be assumed to be at least 15% of the invoice due with a minimum of G 150,—. If Konings- Zuivel proves that it has made higher collection costs, which were reasonably necessary, the Purchaser is obliged to pay these higher costs to Konings-Zuivel as well.
• The Purchaser is not entitled to set off any alleged claim of his side with the claims of Konings-Zuivel.

Article 15        –           Suspension and cancellation

• In the case of a moratorium, bankruptcy, applicability of Debt Resettling (natural persons) Act (Wet Schuldsanering Natuurlijke Personen), a stop, liquidation, substantial changes in the managing board or personnel of the company of the Purchaser, and in case of seizures, all agreements with Purchaser shall be deemed cancelled de iore, unless Konings-Zuivel informs the Purchaser within reasonable time that it wishes (partial) fulfilment of the obligations, all be it by request of the administrator or trustee in bankruptcy, in which case Konings-Zuivel is entitled without notice of default:
  1. to suspend the execution of the agreement concerned until securities have been issued for the payment; and/or
  2. to suspend all of her possible obligations towards the Purchaser; not withstanding the other rights of Konings-Zuivel concerning whatever agreement with the Purchaser and without the obligation of Konings-Zuivel to repair damages.
• If the Purchaser does not comply to his obligation duly or within a set time frame or otherwise in due time, the Purchaser is in default and Konings-Zuivel shall be entitled without prior written notice or judgement:
  1. to suspend the fulfilment of the agreement and any ancillary agreement until securities have been issued for payment and/or

1. to cancel the agreement and ancillary agreement wholly or partially; not withstanding the other rights of Konings-Zuivel emanating from whatever agreement with Purchaser and not withstanding the fact that Konings-Zuivel shall not be held to repair any damages.

• If an occurrence as mentioned in the previous sections occur, all claims of Konings- Zuivel on Purchaser and the claims by virtue of the agreements concerned shall be immediately and wholly due and Konings-Zuivel shall be entitled to reclaim the Products concerned. In that case, Konings-Zuivel and its proxies shall be entitled to enter the facilities and buildings of the Purchaser, to take possession of the The Purchaser shall be obliged to take the appropriate measures to enable Konings- Zuivel to effectuate its rights.

Article 16       –           Transfer of riqhts and obliqations

• Konings-Zuivel shall be entitled to transfer any right and obligations mentioned in any agreement with the Purchaser to any third In the case that obligations of Konings-Zuivel are transferred, Konings-Zuivel shall inform the Purchaser of the transfer prior to the transfer. Konings-Zuivel shall not be obliged to any repair of damages for the transfer.
• The Purchaser shall not be entitled to transfer any of its rights and/or obligations emanating from an agreement to any third party without the prior written approval of Konings-Zuivel.

Article 17       –           Indemnification

The Purchaser shall indemnify Konings-Zuivel for any claims that any third party might allege which was brought about as a consequence of the use by Purchaser of the products and/or the execution of the agreement.

Article 18      –           Conversion

 If one or more stipulations in these general conditions are void or void able for any reason, the other clauses of these general conditions shall not be effected. By virtue of article 3:42 Dutch Civil Code the void/void able clause shall be converted in a valid clause which expresses the intentions of Konings-Zuivel.

Article 19        –           Applicable law/dispute settlement

 All agreements concluded with Konings-Zuivel shall be governed by Dutch These general conditions form an addition to the Dutch Civil Law, and, in so far, prescriptive law does not stipulate otherwise, form a derogation.

• Any disputes arising between the Purchaser and Konings-Zuivel shall be resolved by the competent Court of the place where Konings-Zuivel has its residence.