GENERAL TERMS & CONDITIONS OF SALE AND DELIVERY FOR 10KATE HEALTH INGREDIENTS B.V.
1.1. These general terms and conditions shall apply to all deliveries made by 10Kate Health Ingredients B.V. (hereinafter referred to as 10KATE) unless otherwise explicitly agreed and confirmed in writing by both parties.
1.2. Conditions or requirements of the Buyer contained in the Buyer’s order, stated in his general conditions of purchase or elsewhere, shall not bind 10KATE unless 10KATE has accepted them in writing.
1.3. In his use of the goods the Buyer shall observe all relevant national legislations including any regulation or requirement of governmental or other regulatory authority. Consequently, 10KATE assumes no liability for any infringement of patents or violations by the Buyer of any relevant legislations, regulations or requirements, which is due to his use of the goods. This shall apply even if 10KATE, its employees or agents have made statements or recommendations (whether before or after the purchase) relating to the goods.
1.4. All information in brochures, publications etc. regarding goods offered for sale by 10KATE is based on 10KATE’s own research and development work. The information is of an informative nature only and does not constitute a warranty. 10KATE accepts no liability for such information.
1.5. Any offer made by 10KATE shall be without prejudice and subject to contract, even if such offer includes a period for acceptance, unless explicitly stated otherwise in writing.
2. Terms of delivery
2.1. Unless otherwise agreed in writing, the delivery terms are “Ex works” from the premises of 10KATE.
2.2. The terms of delivery agreed upon shall be interpreted in accordance with the most recent version of Incoterms.
2.3. The stated date of delivery or length of time for delivery is an estimate made to the best of 10KATE’s knowledge. 10KATE shall notify the Buyer of the actual date of delivery when it has been finally determined.
2.4. Unless otherwise agreed in writing, the quantity agreed upon may be delivered in consignments in the course of the term of the order. The delivered quantity shall be deemed to be inconformity with the contract, if the delivered differs from the invoiced quantity within a maximum of +/-1,5 %.
2.5. If a consignment has not been taken by the Buyer within the agreed time of delivery, 10KATE is entitled at its own discretion to cancel or maintain the delivery in question. Furthermore, 10KATE is entitled to store, sell or remove the goods for the Buyer’s account and risk and to claim damages. In case of 10KATE cancelling the order, 10KATE is entitled to compensation for costs incurred as well as loss of profit and other damages.
2.6. 10KATE can demand a postponement of delivery if the Buyer makes changes in the order or in cases that the production is stopped or delayed by responsible authorities or other causes beyond the reasonable control of 10KATE. On this account 10KATE reserves the right to an adjustment to the agreed price in accordance with the actual expenses.
3.1. If delivery is delayed beyond the date or length of time agreed upon or stated by 10KATE, the Buyer can by notice to 10KATE demand delivery and fix a final, reasonable time limit for delivery.
3.2. If delivery is not effected within a reasonable time limit fixed in a notice served under clause 3.1, and the time limit is
exceeded by more than 10 (ten) working days, then the Buyer is entitled to cancel the order. The Buyer cannot cancel when goods are delivered to the Buyer prior to his serving the notice of cancellation.
3.3. Unless otherwise agreed in writing, the Buyer is not entitled to cancel the order without the prior written consent of 10KATE.
3.4. Whether or not the order is cancelled, 10KATE shall not be liable to make good any damage or loss whether arising directly or indirectly from any delay in delivery.
4. Price and cost reservation
4.1 10KATE reserves the right to increase prices quoted or agreed upon if and to the extent such increase is due to an increase in costs of raw materials, parts, wages, freight, insurance, taxes/duties or any other cost price factors of 10KATE. However, an alteration of prices already agreed upon shall not apply to goods to be delivered within the first 14 days upon 10KATE’s written notification of the price increase in question to the Buyer
4.2 Price changes resulting from variations in relevant currency exchange rates will be credited/debited the Buyer only if the order confirmation clearly states which currency shall apply.
5.1. Unless otherwise agreed in writing, the amount owed to 10KATE falls due for payment at the latest on the date stated on the invoice as the last due payment date.
5.2. In case of late payment, 10KATE charges interest for default on the amount owing at the time in question, at a rate of 1,5 per cent per month from the due date. Interest will be calculated on the outstanding amount due which will include previously added interests, reasonable cost etc. until payment has been effected.
5.3. Should default be made by the Buyer in paying any sum due under any order as and when it becomes due, 10KATE shall have the right either to suspend all further deliveries until the Buyer’s default of payment shall have been made good or to cancel the order so far as any goods remain to be delivered there under.
5.4. The Buyer shall not withhold payment or make any deductions from or make any settlement against the price of the goods in respect of claims that have not been approved by 10KATE.
5.5. To the extent that this is allowed by the relevant legislation, 10KATE shall retain title to the goods until payment has been made and shall be entitled to exercise its rights under such retention of title to the fullest extent possible. For as long as the goods have not been paid, the Buyer shall insure the goods and keep them insured and shall store the same with due care and as identifiable property of 10KATE.
6.1. Upon receipt of the goods, and before use thereof, the Buyer shall make such examination of the goods as is required by proper trade practice.
The Buyer shall satisfy himself that the goods meet all contractual requirements before using the goods.
6.2. The Buyer forfeits the right to submit complaints in respect of defective goods, if the Buyer does not notify 10KATE thereof specifying the nature of such defect in writing within 7 days after the defect was or should have been detected. The complaint shall include a description of the alleged defect.
6.3. Any claims based on defects in the goods shall become void in case such claims has not been submitted to 10KATE in writing within 6 months as from delivery.
6.4. 10KATE may at 10KATE’s own discretion remedy any defects by subsequent delivery/replacement delivery to be made within a reasonable period of time or grant the Buyer a proportionate reduction in the purchase price. These remedies are the sole remedies the Buyer is entitled to.
6.5. The Buyer is not entitled to cancel the order or to claim damages in the event that defects are ascertained, provided that 10KATE remedies such defects in accordance with the provisions of clause 6.4. above. The Buyer further is not entitled to return any goods delivered by 10KATE without the prior written consent of 10KATE and in that case shall always do so at its own expense and risk.
6.6. 10KATE shall not be liable for infringements of any third party’s intellectual property right to which the use of 10KATE’s products may give rise. Furthermore, 10KATE shall have no responsibility as regards the legality of use of the product in the country of consumption.
6.7. In no event shall 10KATE be liable for indirect or consequential losses, including but not limited to operating losses, loss of earnings, loss of time, loss of profit, trading losses as a result of delivery of defective goods and punitive damages. 10KATE shall furthermore never be liable for any recall expenses including (but not limited to) any pre recall expenses, business interruption damages, rehabilitation costs, loss of goodwill, third party recall costs and/or consultancy costs.
6.8. The limitations and exclusions of liability stipulated by 10KATE are also stipulated for and on behalf of its employees, any other person employed by it within the framework of the contract, as well as for the persons from whom 10KATE obtains delivered goods and/or materials.
7. Product liability
7.1. 10KATE shall be liable in accordance with applicable law on product liability, however with the limitations following from this clause 7.
7.2. 10KATE shall under no circumstances be liable for indirect or consequential losses, including but not limited to operating losses, loss of earnings, loss of time, loss of profit, trading losses as a result of delivery of defective goods and punitive damages, to which a defective product may have given rise. 10KATE shall furthermore never be liable for any recall expenses including (but not limited to) any pre recall expenses, business interruption damages, rehabilitation costs, loss of goodwill, third party recall costs and/or consultancy costs.
7.3. 10KATE cannot be held liable for damage to products manufactured by the Buyer or to products of which these form part.
7.4. Furthermore, 10KATE shall not be liable for losses suffered in connection with replacement of products that have been resold or processed by the Buyer or that otherwise are not (or no longer) identifiable as originating from 10KATE.
7.5. To the extent 10KATE incurs product liability towards third parties, the Buyer shall be under an obligation to indemnify 10KATE to the extent such liability exceeds the limitations according to this clause 7.
7.6. In the event that a third party lodges a claim against either party for damages in pursuance of the provisions regarding product liability, the party in question shall immediately inform the other party thereof. The parties are mutually obliged to participate as defendant/involved party at the court/arbitration that considers the claim for damages. However, any disputes between 10KATE and the Buyer shall always be settled in accordance with clause 9 below.
8. Force Majeure
8.1. 10KATE shall not be liable for failure to perform the company’s obligations in compliance with offers or orders to which the company is a party provided that such failure to perform results from force majeure, including war, rebellion, terrorism, domestic riots, government or local authority intervention, strike, blockade or lockout, embargo on exports or imports, natural disaster or weather conditions, fire, failure of machinery, shortage of labour, raw materials or energy or other matters that are beyond the reasonable control of 10KATE and that prevent 10KATE’s performance of its obligations.
8.2. The above force majeure clause shall apply regardless of whether the events preventing performance of the order affect 10KATE or a sub supplier or carrier appointed by 10KATE.
8.3. In the event that timely or defect-free delivery is temporarily prevented due to one of the above-mentioned events, the time of delivery shall be postponed for a period of time that corresponds to the duration of such event. However, either party is entitled to cancel the agreement in writing without incurring liability, if such event can be expected to persist for more than two months after the stipulated time of delivery.
9. Invalid or unenforceable provisions
9.1. In the event and to the extent one or more provisions of the contract, including these general terms and conditions, would turn out to be or will become invalid or legally unenforceable, the remaining provisions shall remain in full force and the parties shall negotiate in good faith with the aim to agree on an alternative arrangement that is as closely as possible in line with the original intention of the parties.
10. Governing Law and Venue
10.1. Any dispute that may rise out of or in connection with the sale from 10KATE including any disputes regarding the existence, validity or termination thereof shall, at 10KATE’s sole discretion, be finally settled either by court at the venue of 10KATE or by arbitration arranged by Dutch Arbitration in accordance with the rules of arbitration procedure adopted by the Netherlands Arbitration Institute n and in force at the time when such proceedings are commenced. The arbitration shall take place in Amsterdam, the Netherlands. The language of arbitration shall be English, unless both parties are established in the Netherlands in which case the language of arbitration shall be Dutch
10.2. The law in force in the Netherlands shall be applicable for the settlement of all disputes, disregarding its rules of renvoi. The international law pertaining to the sale of goods (U.N. Convention, C.I.S.G.) shall not apply between the parties.
10Kate Health Ingredients B.V.
Export VAT no. NL860060718B01