General Terms and Condition of Sale of
Naturel West Corp EU B.V.
• These General Terms and Conditions of Sale (“Conditions”) govern the offering, sale and delivery of all goods and/or services (the goods and services herein both separately and jointly referred to as: the “Goods”) from or on behalf of Naturel West Corp EU B.V. (“Seller”) to customer (“Customer”) and apply to all similar dealings between Seller and Customer.
• Any communication or conduct of Customer which confirms an agreement for the delivery of Goods by Seller, as well as acceptance by Customer of any delivery of Goods from Seller shall constitute an unqualified acceptance by Customer of these Conditions.
• Any electronic communication between Seller and Customer shall be considered to be a “writing” and/or “in writing”. The electronic communication system used by Seller will serve as sole proof for the content and the time of delivery and receipt of such electronic communication.
Orders and Confirmation: Orders are not binding until accepted by Seller in writing (“Seller’s Confirmation”). Price quotations based on estimated or projected quantities are subject to increase in the event that actual quantities purchased during the specified period are less than the estimated or projected quantities. Any samples supplied to Customer are supplied solely for information purposes and in no way imply any express or implied conditions or warranties of any kind, including as to quality, description, merchantability, suitability or fitness for any purpose and Customer shall be deemed to have satisfied itself as to such matters prior to ordering the Goods.
Prices: Prices and currencies of Seller’s Goods are as set out in Seller’s Confirmation. Unless agreed otherwise, Seller’s prices include standard packaging but do not include Value Added Tax or any other similar applicable taxes, duties, levies or charges in any jurisdiction levied in relation to the Goods or the delivery thereof (“Taxes”). The amount of any Taxes levied in connection with the sale of the Goods to Customer shall be for Customer’s account and shall be added to each invoice or separately invoiced by Seller to Customer. Unless the prices have been indicated as firm by Seller in Seller’s Confirmation, Seller is entitled to increase the price of the Goods still to be delivered if the cost price determining factors have been subject to an increase. Seller shall notify Customer of such increase.
Payment and Customer’s credit: With regard to payment of the price for Goods, time is of the essence. Seller may, without prejudice to any other rights of Seller, charge interest on any overdue payment at twelve percent (12%) per annum from the due date computed on a daily basis until all amounts outstanding are paid in full. All costs and expenses incurred by Seller with respect to collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) shall be for Customer’s account. Any complaint with respect to the invoice must be notified to Seller within eight (8) days after the date of invoice. Thereafter Customer shall be deemed to have approved the invoice
Delivery: Unless expressly stated otherwise in Seller’s Confirmation, any times or dates for delivery by Seller are estimates and shall not be of the essence. Seller is entitled to deliver the Goods as stated in Seller’s Confirmation in parts and to invoice separately. In no event shall Seller be li able for any delay in delivery. Delay in delivery of any Goods shall not relieve Customer of its obligation to accept delivery thereof. Deviations in quantity of Goods delivered from that stated in Seller’s Confirmation shall not give Customer the right not to accept the Goods. Customer shall be obligated to pay the rate specified in Seller’s Confirmation for the quantity of Goods delivered. Delay in delivery of any installment shall not relieve Buyer of Buyer’s obligations to accept deliveries. For ascertaining, which amounts or measures have actually been delivered by us, the data given by us upon dispatch from our place of business shall be conclusive evidence. This does not apply if the Customer can provide conclusive evidence proving the contrary. To the extent that we have congruent covering purchases with our suppliers all dates of delivery stipulated by us are subject to us being supplied timely and properly by our suppliers. In case the incoterms specify Ex Works Halstenbek, meaning that the customer is responsible for the pick-up of goods at the location mentioned on the delivery note, the customer is responsible for providing a vehicle that meets the following requirements:
– Loading platform width: 2.40m or more
– A vehicle equipped with a loading bed with a height of at least 85cm or alternatively a
– Hydraulic lifting platform able to meet the 85cm required and which can carry the weight of the ordered goods
Should the vehicle not meet the above mentioned requirements, the seller will reserve the right to either charge a fee for loading not less than € 150 or deny the pick-up altogether.
Pallet Exchange: The goods are stacked on standard white EU pallets. The buyer and/or freight forwarder is obliged to exchange pallets of the same amount and quality upon loading the goods, or return these within 7 days after loading. The seller is entitled to charge the buyer and/or freight forwarder the costs of replacing reconditioned pallets without a reminder or warning, should the buyer and/or freight forwarder fail to comply with the aforementioned pallet exchange clause. The seller will reserve the right to charge a fee of € 15 per pallet that has not been exchanged without prior notice.
Examination and conformity to specifications: Complaints about the Goods shall be made in writing and must reach Seller not later than seven (7) days from the date of delivery in respect of any defect, default or shortage which would be apparent from a reasonable inspection on delivery, and seven (7) days from the date on which any other claim was or ought to have been apparent, but in no event later than one (1) month from the date of delivery of the Goods. Use or processing of the Goods shall be deemed to be an unconditional acceptance of the Goods and a waiver of all claims in respect of the Goods. A determination of whether or not delivered Goods conform to the agreed specifications for the Goods as stated in Seller’s Confirmation or, in the absence of agreed specifications, to the most recent specifications held by Seller at the time of delivery of the Goods (the “Specifications”), shall be done solely by analyzing the samples or records retained by Seller and taken from the batches or production runs in which the Goods were produced in accordance with the methods of analysis used by Seller. Goods that Seller consents or directs in writing to be returned shall be returned to Seller at the risk of Customer, to the destination directed by Seller. Defects in parts of the Goods stated in Seller’s Confirmation do not entitle Customer to reject the entire delivery of the Goods. Complaints, if any, do not affect Customer’s obligation to pay. Upon receipt of a notice of defect, Seller is entitled to suspend all further deliveries until the complaints are established to be unfounded and/or refuted or until the defect has been totally cured. .If only several of all delivered goods or if only parts of the delivery show a defect, the Customer is entitled to withdraw from the contract only with respect to the defect goods or the defect parts. This does not apply if the separation of the defect goods or defect parts would lead to a damage or to a loss of function of the sound goods or parts or if the Customer may not be reasonably expected to accept the separation. In this case it is up to the Customer to specify the reasons for such unreasonableness. The Customer is not entitled to withdraw from the contract if the defect is negligible. Any damages to goods in transit have to be notified immediately to the forwarding agent.
Sweet Agave Powder (Switter): The Seller guarantees a maximum humidity of 3% on delivery. Any claims the buyer may have must be submitted within 72 hours upon receipt of the affected goods. The seller cannot control the hydroscopic nature of the product after it has been manipulated and stored by the buyer. Therefor the seller will not take responsibility for the hydroscopic nature of the product and will not accept returns after the period of 72 hours has passed.
Transfer of risk and property: The risk of the Goods shall pass to Customer on delivery. The ownership of the Goods shall not pass to Customer and full legal and beneficial ownership of the Goods shall remain with Seller unless and until Seller has received payment in full for the Goods, including all secondary costs such as interest, charges, expenses etcetera.
Limited Warranty: Seller’s obligation to replace, or credit shall be contingent upon receipt by Seller of timely notice of any alleged non-conformance of Goods and, if applicable, the return of the Goods.
Limitation of liability: THE LIABILITY OF SELLER FOR ANY AND ALL CLAIMS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE GOODS AND THE USE THEREOF SHALL UNDER NO CIRCUMSTANCES EXCEED THE SUM OF CUSTOMER’S PAYMENTS FOR THE GOODS THAT ARE THE SUBJECT OF THE CLAIM. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY KIND OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGE OR LOSS, COST OR EXPENSE, INCLUDING WITHOUT LIMITATION, DAMAGE BASED UPON LOST GOODWILL, LOST 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, NEGLIGENCE OR OTHERWISE.
Force majeure: Neither party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other party caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws, statutes, ordinances, regulations, legislative measures, acts of governments or other administrative measures, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labor disturbances, difficulty in obtaining necessary labor or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay in delivery or defects in goods supplied by suppliers or subcontractors (“Force Majeure”). Upon the occurrence of any event of Force Majeure, the party suffering thereby shall promptly inform the other party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under Seller’s Confirmation. In the event of any delay, the obligation to deliver shall be suspended for a period equal to the time loss by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than two (2) months after the agreed delivery date, either Party is entitled to cancel the affected part of Seller’s Confirmation without any liability to the other Party.
Suspension and termination: If (a) Customer is in default of performance of its obligations towards Seller, or (b) if Seller has reasonable doubts with respect to Customer’s performance of its obligations to Seller and Customer fails to provide to Seller adequate assurance of Customer’s performance before the date of scheduled delivery and in any case within thirty (30) days of Seller’s demand for such assurance, Seller may by notice in writing forthwith suspend its performance or terminate Seller’s Confirmation for outstanding delivery of Goods unless Customer makes such payment for Goods on a cash in advance basis or provides adequate assurance of such payment for Goods to Seller; without any intervention of courts being required and without liability for Seller of whatsoever kind arising out of or in connection with such suspension or termination.
Governing law and jurisdiction: The parties’ rights and obligations arising out of or in connection with Seller’s Confirmation and/or these Conditions shall be governed, construed, interpreted and enforced according to the laws of The Netherlands, excluding principles of conflict of laws. Each party agrees to submit to the exclusive jurisdiction of the court of Amsterdam, the Netherlands in relation to any claim or matter arising under this agreement. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. These conditions are applicable with effect from 5th August 2013 and are subject to change at any time without notice.