COOMBE CASTLE B.V. TERMS OF BUSINESS

Chapter 1 General
(Provisions applicable to purchases)

Article 1 APPLICABILITY
1. These Terms of Business will apply to all offers issued by Coombe Castle B.V.

  1. If the order is not delivered in its entirety but rather as partial deliveries at different times, each such partial delivery will be considered an independent delivery for the application of these Terms of Business.

Article 2 DEFINITIONS
These Terms of Business use the following definitions:

“Storage” storing of Product for the Customer or any third party in the Warehouse, maintaining Product stock in the Warehouse, treating and/or processing Product in the Warehouse and/or related locations and the release of Product from the Warehouse. This also includes a sales transaction as part of which Parties simultaneously have agreed that the same batch of Product will be sold back and delivered to the Supplier by the Customer in its unprocessed state.

“Warehouse” the Warehouse/s operated or used by the Supplier.

“Parties” Supplier and Customer jointly.

“Customer” the party buying Product from the Supplier

“Supplier” the party selling Product to the Customer

“Incoterms” the most recent Incoterms of the International Chamber of Commerce as they are at the time the agreement is entered into.

“Terms of Business” the terms set out herein

“Product” the Product to be supplied to the Customer by the Supplier under these terms of Business

Article 3 DEVIATING TERMS OF BUSINESS

Terms of Business or stipulations that deviate from these Terms of Business and that are communicated in purchase orders or sales orders, service contracts and/or letters, or other means of correspondence, or communicated verbally, will only be effective if these have been explicitly accepted in writing. Any clause in any purchase order or other document purporting to impose additional or alternative terms of business is hereby negated.

Article 4 OFFERS
Offers are free of obligations, unless stated otherwise in writing.

Article 5 GENERAL DELIVERY

  1. Incoterms will apply to these Terms of Business and are as per ‘Incoterms 2020’ or such later version or revision as shall have been published on or before the date hereof, unless otherwise agreed in writing between the Parties. If the Customer does not make any vehicles available on the agreed day of collection, any damages and costs incurred by the Supplier ensuing directly from such lack of availability will fall to the Customer.
  2. The Incoterms applicable at the time the agreement is entered into will lead to the interpretation of the transportation and delivery terms used in offers, purchase agreements and/or purchase confirmations, Storage agreements and/or Storage confirmations, insofar as these are not deviated from in writing between the Parties, these documents and/or these Terms of Business.
  3. If delivery is to be on the demand of the Customer, the Customer will ensure that dispatch instructions will be issued to the Supplier in time before the agreed delivery date or termination of the agreed term so that the Supplier can deliver within that term.
  4. In case an agreed delivery method is lacking or unclear, the Supplier will be entitled to deliver in a way that it deems fit.
  1. All delivery dates provided by the Supplier shall be deemed to be approximate and time shall not be of the essence of delivery.

Article 6 LOADING AND UNLOADING INSTRUCTIONS

  1. The Customer must ensure that it issues clear and timely instructions regarding the transportation and loading and unloading procedure.
  2. If the loading of the order by the Supplier happens on the instruction of the Customer, the Supplier will not be liable for possible overloading of the transport unit. Supplier will in that case explicitly be indemnified against overloading by the Customer.

Article 7 TERMS OF PAYMENT

  1. All amounts payable by Customer to Supplier under any agreement must be paid in Euros without delay and without off-setting of outstanding debts on the correspondingly agreed pay-by-date. Title to all goods supplied to the Customer will not pass to the Customer until all payments due have been made in full and all conditions of these Terms of Business on the part of the Customer have been satisfied in full
  2. If orders are not collected on the agreed date the Supplier reserves the right to charge for Storage costs.
  3. Unless agreed otherwise, Customer will have a payment term of 30 days after the invoice date for payment into the account. If payment has not been received within the abovementioned term, Customer will automatically be held in default of exceeding the payment term, without any summons or proof of default being required. Customer will in that case also be liable to pay interest on the outstanding amount at a rate of 1.5% per calendar month after expiry of the payment term. Part of a calendar month will be considered a full calendar month. This interest will be payable without any summons or proof of default being required. Customer will furthermore be held liable to compensate the Supplier for all costs the Supplier has to incur to collect outstanding amounts.
  1. a) The following costs will in particular fall to the Customer: expenses incurred by solicitors, both judicial and extrajudicial, winding up costs, bailiffs’ fees, representatives’ fees and debt-collection agency fees.
  1. b) Abovementioned extrajudicial costs incurred by third Parties will be limited to 15% of the total order cost for that order, with a minimum of € 100.
  1. c) Costs for bankruptcy applications and Storage charges in case of suspension of supply will also fall to the Customer.
  1. d) The Supplier is not obliged to prove that claimed collection costs were actually incurred.
  1. Without prejudice to any other declaration by the Customer relating to the making of payments and without prejudice to the administrative processing thereof by the Supplier, payments by the Customer will always and exclusively be taken firstly to cover collection fees and interest payable by the Customer, secondly to cover claims of the Supplier relating to articles that the Customer has sold on and delivered to third parties and finally to cover the oldest unpaid invoices of the Supplier.
  2. All claims of the Supplier against the Customer will be payable without delay if the Customer:
  • is declared bankrupt;
  • applies for a moratorium;
  • is declared subject to the Debt Restructuring for Natural Persons Act or any equivalent thereof in any jurisdiction;
  • if the Customer’s assets are seized, and this seizure cannot be raised within 30 days;
  • if Customer otherwise loses the disposal of (or part of) its assets;
  • if Customer offers its creditors an arrangement;
  • if Customer defaults on its compliance with any obligations towards the Supplier; or
  • if Customer ceases its operations.

The above will be correspondingly applicable in case the Customer is a legal person and this legal person is subject to the same or similar sanctions as outlined above.

  1. All Products delivered by the Supplier will remain its property – until the Customer has made all payment, in full, relating to the Products under the agreement, including any work agreed upon under such agreements and all claims for shortcomings in compliance with such agreements, including all incurred collection expenses and payable interest.
  2. Customer agrees to establish a tacit right of lien on the deliverables in favour of the Supplier upon first request, insofar as possible by making transfer of title to the delivered goods subject to conditions for all existing and future claims of the Supplier against the Customer, including all collection expenses and interest; the Customer will not be permitted to establish a tacit right of lien on the deliverables for a third party.
  3. The Customer is not authorised to pledge Products belonging to the Supplier to third parties (and neither is it authorised to establish a pawn or tacit right of lien on these Products for a third party) or transfer the property thereof to third parties, with the exception of sales and delivery to third parties as part of the normal exercise of its business.
  4. By way of collateral for payment of everything that Customer owes or will owe to Supplier under any agreement, Supplier will have a lien on all monies and Products of the Customer that the Customer has in its possession at any time.
  1. All payments made under these Terms of Business are exclusive of Value Added Tax, and all local taxes and impositions and each Party agrees to provide the correct documentation needed to validate such impositions.

Article 8 FORCE MAJEURE

  1. In these Terms of Business, force majeure is defined as it is defined in the law of the Netherlands. Force majeure relieves the Supplier and the Customer of the delivery obligation and purchase obligation respectively, without the Supplier and Customer being able to make any statutory claims for damages respectively.
  2. Obstruction of traffic will only relieve the relevant Party of its obligations to deliver/collect on time, with possible ensuing additional costs Customer having no additional rights if delivery is delayed due to reasons beyond the control of the Supplier.
  3. In case of temporary force majeure, Supplier will only be relieved of its obligations under the stipulation of paragraph 1 if this temporary force majeure has lasted more than three months.

Article 9 DISPUTES

  1. Supplier can, submit a dispute or claim under these Terms of Business to the judgement of the competent court, of its choice, whether or not the value of the dispute or claim in question meets the amount referred to in Article 93 of the Civil Legal Code.
  2. Arbitration as referred to in paragraph 1 will be subject to the dispute settlement procedure as it is valid at the moment of submission of the dispute, as well as the arbitration regulations of the “Nederlandse Zuivelbeurs” Foundations, based in The Hague.
  3. The stipulations from paragraph 1 and 2 of this Article will be without prejudice to the Customer’s and Supplier’s, right to try to come to an amicable settlement of the dispute.
  4. This Article 9 does not exclude either party’s right to turn to the judge’s hearing applications for interim relief for urgent matters and to proceed to the taking of attachment measures and the means of keeping up such measures.
  5. If Parties have entered into several agreements under these Terms of Business, and one of the Parties fails to comply with its obligations towards the other or fails to pay the damages defined in substitute for such obligations, the latter party will, providing liability in the shortcomings has been ascertained by a competent tribunal, be entitled to claim surety, for the correct compliance with its obligations under agreements.
  6. If, despite a summons to that effect, surety is not provided for/by the party in question, the other party reserves the right to terminate all current agreements. In that case, the terminating party agrees to notify the other of its intention to exercise this right by way of a notice sent by registered mail and at the soonest possible opportunity.

Article 10 APPLICABLE LAW

All agreements, to which these Terms of Business apply, partially or in full, are governed by Dutch Law.

The provisions of the Vienna Sales Convention are excluded.

Article 11 FINAL CLAUSES

  1. Whenever these Terms of Business refer to working days, this does not include Saturdays, Sundays and official public holidays as per the General Extension of Time Limits Act.
  1. If any stipulations from these Terms of Business, or any part of an agreement entered into under these Terms of Business are null or nullified, the other stipulations of these Terms of Business, or other parts of the agreements, will remain fully intact. Parties will in that case come to an arrangement regarding the null or nullified stipulations and/or the null or nullified part of the agreement that resembles the original purport of the Parties when they entered into the agreement, as well as related Terms of Business, as closely as possible, if no arrangement can be reached, the Parties will apply to an appropriate tribunal to resolve the issues and the costs of such application will be borne equally by the Parties.
  1. The Supplier will provide proper and complete proof of origin for all Products claiming organic status.
  1. Intellectual Property Rights in all material produced by the Supplier including the right to use its name, logo, advertising slogans and other marketing devices shall rest, solely, with the Supplier and any use by the Customer shall be on terms which the Supplier shall provide.

Article 12 CLAIMS RELATING TO SHORTCOMINGS

  1. When delivered Product does not comply with the agreement because the Product displays shortcomings, claims relating thereto will only be taken up if these were submitted in writing within 5 working days after receipt of the Product.
  2. When shortcomings only emerge a while after receipt, Customer can only claim the delivered Product did not meet the agreed quality if they have notified the Supplier of the shortcomings within a reasonable time within which they could reasonably be expected to have detected the shortcoming:
  3. The Supplier must inform the Customer, in writing, of its position relating to claims within 14 working days after receipt of these claims.
  4. If a dispute which has given rise to a claim, as referred to under paragraphs 1 or 2 of this Article, is not settled between the Parties within the 8-weeks term after the claim was submitted, the Customer will request arbitration within the said term of 8 weeks under penalty of lapsing of the claim. Such claim must be made by arbitration in the manner described in Article 9.
  5. The assessment of whether and when the Customer could reasonably have been expected to detect a shortcoming in the Product (paragraph 2) will bear in mind the Customer’s obligation to comply with standards of inspection and care as set by practice and statutory regulations.

6.a        For the avoidance of all doubt. Storage of Product must happen in an air-conditioned Warehouse, with periodical inspections as necessary for the different kinds of Product and recorded in the Warehouse log for the Customer.

6.b        All transport and Storage temperatures of chilled Products should be between 2°C and

5°C. the Supplier mandates that all Storage and transport temperatures of chilled Products are within local legal limits at all times when it has control of the Products.

  1. The Supplier will maintain a Product liability insurance policy with a coverage amount commensurate with the degree of liability risk associated with the Products supplied and will, on written request supply a copy of the Certificate of Insurance and receipt for the last premium.
  1. As far as the law permits, the Supplier will not be liable for any loss of profit, loss of business, interruption to business, or for any loss of business opportunity, or for any indirect or consequential loss arising out of or in connection and, save for death, personal injury, fraud and other matters where it is not possible to limit liability, the liability of the Supplier will be limited to the total amount of orders for Products accepted by the Supplier from the Customer in the 12` months immediately preceding the event which gives rise to a claim.

Article 13 CUSTOMER FAILURE

  1. If the Customer fails to comply with its obligations under these Terms of Business the Supplier is entitled to:
  2. a) enforce compliance with them, i.e. claim payment of the invoice amount from the Customer, increased by statutorily payable interest, costs and damages, while leaving the Products and if necessary store them, with ensuing risk and costs falling to the Customer;
  3. b) or proceed to the dissolution of the agreement under which they have been supplied, i.e. taking back the delivered Products and claiming payment of costs, damages and interest

Article 14 SUPPLIER FAILURE

If the Supplier fails to comply with its obligations, the Customer will also have the right to claim compliance with or dissolution of the agreement, as well as claim damages.

Article 15 BUSINESS HOURS

1.Unless agreed otherwise in writing, all activities to be carried out by the Supplier on or in relation to the Product will be carried out during regular business hours, as stipulated in the normal working hours in the Collective Labour Agreement for the sector.

  1. If the Customer requires activities to be carried out outside regular business hours, the Supplier is entitled to either comply with or reject such a request. Supplier will, however, only reject a request to that effect on reasonable grounds.
  2. Additional costs ensuing from carrying out activities outside the regular business hours referred to in paragraph 1 on the request of the Customer will fall to the Customer.

Article 16 ACCESS

  1. Access to the premises and buildings of the Product Storage will only be granted to the Customer or someone acting on the Customer’s behalf during the regular business hours of the Product Storage facility. When visiting the Product Warehouse, the Customer or its representative will always first report to the management. The Supplier reserves the right to deny the Customer or its representative entry, providing it has reasonable grounds to do so.
  2. All persons who are on the premises of the Storage Warehouse on behalf of or sent by the Customer, including staff and third Parties, are obliged to comply with locally applicable regulations, instructions, and formalities, as well as to observe instructions of the Customs Agency, Food Inspection Agency, and other authorities relating to hygiene, public order, and safety.

Article 17 RIGHTS, TAXES, AND STATUTORY OBLIGATIONS

  1. If Product is subject to customs and excise stipulations or other taxes and/or government instructions, the Customer agrees to provide all information required by the Supplier on time, enabling the Supplier to file the corresponding documentation.
  2. Supplier will not be liable for the correctness of the details stated on the waybill, if these were provided by Customer. This also applies to the labels affixed to the Product. Supplier will only be obliged to check weight, number of packages, and description of the Product, and the latter only if the description is visible on the outside of the package.
  3. Supplier will neither be liable for the checking, accepting, storing, completing or issuing of any documentation, nor for the contents of such documentation, unless the Supplier is subject to a statutory obligation to that effect, or has explicitly agreed in writing that this is to be part of the agreement as one of the services provided by the Supplier.