Article 1: Applicability
 

1.1 The present general terms and conditions apply to all offers, orders and agreements of Girasol Natural Products BV, hereinafter Girasol, with respect to the manufacture, production and/or delivery of methods of preparation (formulas) of products or semi finished products, packaging of products, the finishing of the packaging of products and/or the delivery thereof, unless
explicitly otherwise agreed in writing.
1.2 In the event the other party refers to its own general terms and conditions at the time of concluding the agreement, these are hereby explicitly rejected by Girasol, unless they are explicitly accepted in writing. 1.3 The present terms and conditions shall also apply to third parties executing (part of) the agreement for Girasol.

Article 2: Offers
 

2.1 All Girasol’s offers, price-lists, prices and stock lists shall be free of obligation and shall be valid for the period set out in the offer. In the event an ultimate date is not stated, the offer is valid for a maximum of 3 months.
2.2 The dispatch of offers, folders, documentation, quotes, plans, drawings, models, samples, descriptions, sketches, specifications of sizes and weights, technical specifications, proposals for raw materials, methods of preparation (formulas) and such do not obligate Girasol in any way to deliver or accept the order. The client shall be informed of non-deliveries or non-acceptance of the order as soon as possible. All documents sent in this respect will, at all times, remain the property of Girasol and have to be returned at the first request. Without Girasol’s explicit approval, they are not to be multiplied or submitted to third parties for inspection unless required for the normal operations.
2.3 Girasol reserves the right to refuse any orders without stating its reasons for doing so or to deliver COD.

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Article 3: Agreement
 

3.1 Girasol shall only be bound by orders if they are accepted in writing.
3.2 Possible requirements set by the other party with respect to the goods to be delivered by Girasol must be explicitly included in the agreement. In case no mentioning is made, Girasol is free to determine the composition of the goods in accordance with its own judgement.

3.3 Any agreement entered into or any changes, as well as (oral) agreements and/or commitments made by staff, representatives, agents or brokers shall only bind Girasol if and when they have been confirmed by Girasol in writing.

3.4 If the other party is of the opinion that an item of goods does not meet the agreement, the onus of proof shall lay with the other party. This proof can only be provided in writing. 

3.5 In the event the agreement between Girasol and the other party has been entered into as a result of a sample, example or model, this must have been done by way of indication. (This means that the quality of the goods to be delivered may, within reasonable limits, differ from the sample, example or model.) In the event of a difference, it shall be the obligation of the
other party to prove that Girasol did not observe all reasonable limits.
3.6 At the time of or after entering into the agreement, Girasol has the right, before fulfilling its obligations, to require an advance payment or the security that both the payment and other obligations shall be met - such within a timeframe to be set by Girasol. Pending the security to be provided as set out above, Girasol is allowed to suspend its obligations set out in the
agreement without having to declare the other party to be in default.

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Article 4: Prices

4.1 Unless stated otherwise, all offers made by Girasol are subject to price changes.
4.2 Unless stated otherwise, the prices are:

• Based on the purchase prices, wages, labour costs, social security premiums, government premiums, freight, insurance premiums and other costs at the time the offer was made;

• Based on ex company, warehouse or other storage facility;

• excluding VAT, import duties, government levies, rights and other taxes.

4.3 In the event of an increase of one or more of the cost components, Girasol has the right to increase the offer or order price accordingly, complying with any legal regulations in that respect. In the event of an increase of the offer price, the agreement shall only then be concluded if the other party agrees with the increase. In the event the increase of the order price is higher than 10% or if the price increase takes place within three months after the agreement has been entered into, the other party is allowed to dissolve the agreement, unless the price increase is the result of a legal provision.

 

Article 5: Payment

5.1 Unless otherwise agreed in writing, payment needs to be made net cash on delivery – without any discount or set-off – or by depositing or transferring the amount into a bank account appointed by Girasol, within fourteen (14) days from the date of invoice. Payments made by the other party first of all serve to repay due interest and costs, irrespective of any other statement made with the payment. The due date mentioned on the bank account statement shall be decisive and shall, therefore, be considered as date of payment.
5.2 Girasol reserves the right to demand payment in advance, cash payment or security without stating its reasons for doing so.
5.3 In the event the other party:

• a. Is declared bankrupt, a suspension of payment is granted, or (part of) its property is being pounded;

• b. Dies or put under legal control;

• c. Does not fulfil its legal obligation or any other obligation pursuant to these general terms and conditions;

• d. Fails to settle the invoice or part thereof within the set payment term;

• e. Discontinues or transfers its company or a main part thereof, including the assets of its company put in a company to be incorporated, or changes the objective of its company; the other party shall, solely as a result of the occurrence of one of the aforementioned circumstances, be in default. In that case, all claims against the other party shall be immediately claimable and Girasol shall be entitled to, without any further notice of default or legal intervention, suspend the (execution of) (part of) the agreement or consider the agreement as being dissolved, without prejudice to its right to claim full compensation for any incurred damages, costs and interest.

Article 6: Interest and costs

6.1 In the event the term of payment is not met, the other party shall be legally in default and Girasol shall be entitled to claim an interest of 1.5% per month to be paid by the other party, of which part of a month shall be considered as a whole month.
6.2 In the event payment is not made, not made timely or any of the other obligations set out in the agreement are not met, the other party, apart from the purchase price and the interest, owes all collection charges, both judicial and extrajudicial, caused by non-payment or non-fulfilment. The extrajudicial collection costs amount to at least 15% of the, inclusive the aforementioned interest, amount owed by the other party. Collection charges are payable in all cases for which Girasol has ensured itself of the collection with the aid of a third party. Just the act of involving a third party shows the amount of and the obligation of the third party to pay the extrajudicial charges, without Girasol having to prove it actually incurred these costs.

 

Article 7: Delivery

7.1 The given terms of delivery are only indicative and shall never constitute a term to be observed, unless explicitly otherwise agreed. The nature of the goods to be delivered by Girasol, entails that Girasol is not liable towards the other party as a result of omission to deliver at a certain point in time. In the event delivery does not take place within a reasonable period of time, the other party is, however, entitled to cancel the order and re-claim the amount already paid.
7.2 Girasol binds itself to take the delivery time into account as much as it can. It shall, however, never be held liable for exceeding the delivery time in case this was unforeseen at the time of concluding the agreement. In the events such as: fire, riots, strike, transport difficulties, shortages of raw materials and such, Girasol has the right to, in consultation with the other party, lengthen the time of delivery or cancel the agreement, without this giving the other party the right to claim compensation.
7.3 Subject to the provisions set out in the previous paragraph, Girasol can only be held liable for culpable exceeding of the delivery time after it was given a new reasonable term to fulfil its obligation and after it has been given notice of default in writing by the other party.
7.4 The other party shall be held to take delivery of the goods the moment said goods are delivered by Girasol. Suspension by the other party to take delivery of the goods is precluded.In the event the other party does not take delivery of the goods, the goods shall be stored and the costs hereof shall be borne by the other party.
7.5 Any damage and/or shortage of the packaging and the delivered goods present at the time of delivery and/or deviations in the number of packages shall be recorded by or on behalf of the other party on the packing note/delivery note and/or the transport documents. Simultaneously to the report of the deviation(s), the other party shall provide Girasol with a sample of the
deviating goods. Deviations in the number of goods in the packaging and/or defaults disclosed when opening the packaging, shall be reported in writing within eight days of delivery, under penalty of the dissolution of any claim in that respect. In the event the other party was, in fairness, not able to assess the goods within this period – in case the onus of proof lies with the other party and is not automatically assumed in case of noticeable defects -, the other party shall report this in writing within 8 days after it should have noticed that the goods were not as expected.
7.6 It is assumed that the other party is familiar with the functioning of the goods and the other party shall instruct buyers and/or users accordingly. 

7.7 The agreed delivery time commences on the date of the written order confirmation. In the event of an agreed advance payment, the agreed delivery time does not commence until the day on which this advance payment has been received by Girasol.
7.8 Unless otherwise agreed, delivery shall be ex company, warehouse or other storage facility; In any case, the risk shall be borne by the other party from the moment delivery has taken place. Time of delivery is the moment the goods leave the company, warehouse or other storage facility;

 

Article 8: Transport and risk

8.1 Transport shall at all times take place, unless otherwise agreed, at the risk of the other party (EX works, Incoterms 2000), even if the carrier stipulates that all damages caused by transport shall be borne by the sender.
8.2 The method of transport, shipment, packaging and such shall be determined in good conscience by Girasol if no further instructions are given to Girasol by the other party, without it bearing any liability. Any specific wishes of the other party with respect to transport/shipment shall only then be granted if the other party has stated to bear the extra costs thereof.

 

Article 9: Complaints

9.1 Complaints should be reported to Girasol by the other party in writing within 8 days of delivery, with reference to the packing note, delivery note and/or invoice number and reason and nature of the complaint(s). After the term of 8 days, the other party is deemed to have accepted the delivered goods and the invoice. Complaints shall not be considered after that period.
9.2 The other party shall check the delivered goods, including the packaging, the moment the goods are delivered or shall check the delivered goods (or have them checked) after the announcement that the goods are at the disposal of the other party, or check the performed work immediately after the work has been carried out.
9.3 If the complaint relates to defects that can become apparent only after the goods are in use, the complaint may be submitted within 8 days of the date on which the other party discovers or could have discovered the defect, but no later than two months after the invoice date.
9.4 A complaint may be made only if the goods in question are still in the condition in which they were at the time of delivery, unless it concerns hidden defects, and only if the other party provides Girasol with a sample of the defective goods at the time the defect is reported.
9.5 Complaints shall not be considered if the other party has made changes to the goods, unless this was done with the knowledge and permission of Girasol.
9.6 The quality of the goods and the raw materials used therein shall be assessed based on the regulations and quality requirements as in force for the involved goods and/or raw materials on the date of the offer and the product sample approved by the other party. Minor, common, within commercial tolerances or (technical) unavoidable variances in quality, thickness, smell,
taste, colours, finish, packaging, finishing and such shall be no cause for complaint.
9.7 Only if and when the complaint is considered justified by Girasol, Girasol shall be obligated to fulfil its obligations within a reasonable period of time.
9.8 Only if and when the complaint is considered justified by Girasol, the other party shall be entitled to withhold payment or suspend any other obligations until the complaint has been dealt with.

 

Article 10: Retention of title

 

10.1 All goods delivered by Girasol shall remain the property of Girasol until the other party has fulfilled all payment obligations in consideration of by, on behalf of and/or at the expense of Girasol, pursuant to the agreement, delivered or to be delivered methods of preparation (formula), packaging and/or goods, and in consideration of any failing to comply with such agreements. The other party undertakes to use the goods properly and shall not have the right to hand over, give as a pledge, lend to a third party or remove or have removed from the place of delivery the goods, until the entire purchase price and possible additional costs have been paid in full as far as this is required for the normal operations.
10.2 In the event of non-payment of a due amount, suspension of pay, moratorium, bankruptcy, receivership, liquidation of the other party or death, Girasol is entitled to, without any judicial intervention, cancel the order, or the part that has yet to be delivered, and to reclaim the delivered goods as its property under deduction of the possible amount already paid, without prejudice to its rights to demand full compensation for possible incurred losses or damages. In those cases, all claims towards the other party shall be due immediately and by lump sum.

 

Article 11: Force majeure

11.1 Force majeure means: A shortcoming that can not be attributed to Girasol and which it, in accordance with the law, a legal act or common opinion, is not responsible for. Causes of unforeseen shortcomings are for instance: strike or lock-out, (proclamation of) war or siege, mobilization, riots, fire, transport problems, extreme weather conditions, measurements by the government that hinder or obstruct the execution of the agreement, including import and export bans, quota restrictions, interruption of operations at suppliers of Girasol, default of Girasol’s suppliers as a result of which Girasol is not able to fulfil its obligations towards the
other party, as well as all other circumstances on which Girasol cannot exercise any influence that hinder or make the execution of the agreement impossible.
11.2 In the event of force majeure, Girasol has the right to agree a new term with the other party to fulfil its obligations. If fulfilment of the agreement is no longer possible, parties shall have the right to consider the agreement to be dissolved. Parties shall inform each other hereof in writing; they shall not be held liable for any damages, as far as allowed by current legal regulations.
11.3 Girasol is entitled to claim payment of the work already finished prior to a situation as mentioned in this article to be proven.

 

Article 12; Liability

 

12.1 Subject to liability on the side of Girasol pursuant to strictly binding statutory provisions and universal rules of justness and fairness, Girasol shall not be liable. Girasol shall, therefore, never be liable for and not obligated to pay compensation for any damage, direct or indirect, including company damage to movable or immovable property, or to individuals, both incurred
at the other party and third parties as a result of defects to the sold and delivered goods. In addition, Girasol is not obligated to repair the defects, caused by normal wear and tear, improper and/or incorrect use.
12.2 Girasol shall not be liable for damage caused by the use of the delivered goods or the unsuitability thereof for the purpose the other party has bought the goods.
12.3 Girasol shall not be liable for damage caused by faults or omission of third parties, which third parties Girasol entrusted with the delivery of materials and/or raw materials.
12.4 Girasol shall never be liable for goods of which the composition has been determined by the other party. The other party shall indemnify Girasol in such cases for any claim of third parties with respect to product liability.

12.5 Processing any, by the other party supplied, (raw) materials and/or packaging is at all times at the expense and risk of the other party.
12.6 The other party shall indemnify Girasol from all claims of third parties with respect to the goods delivered, unless it is proven by law that these claims are a direct result of gross negligence of Girasol and the other party, furthermore, proves that it is not at fault.
12.7 Trading the goods delivered by Girasol by the other party shall always be at the expense and risk of the other party, including meeting the current technical and/of quality requirements.

 

Article 13: Intellectual property

13.1 All goods delivered by Girasol – unless proven otherwise – are developed and/or put together by Girasol. All rights on account of intellectual and/or industrial property to any item of goods put together or developed by Girasol – including the methods of preparation (formula) and name of the item of goods – solely belong to Girasol.
13.2 Unless otherwise agreed in writing, the method of preparation (formula) or the name of any item of goods delivered by Girasol shall be Girasol’s property, irrespective of any legal attempt to register and irrespective of the fact that the name of the method of preparation (formula) in question is developed by Girasol by order of the other party.
13.3 In the event the agreement between Girasol and the other party contains the order of developing a certain method of preparation (formula) for an item of goods, it shall not imply the transfer of the (intellectual property) rights to that method of preparation (formula) to the other party, unless otherwise agreed in writing.
13.4 Unless explicitly included in the agreement, Girasol shall not be entitled to sell and/or trade the goods and/or method of preparation (formula) manufactured by order of the other party. 
13.5 The other party is not allowed to register any product, product name and/or product composition delivered by Girasol unless approved by Girasol.
13.6 The other party is not allowed, unless approved beforehand in writing by Girasol, to have any delivered item of goods developed or produced by Girasol in that specific composition and/or quality as delivered by Girasol, produced and/or delivered under any name or in any form. This under penalty of a fine of EUR 50,000 per infringement, without prejudice to Girasol’s
right to full compensation.
13.7 The other party shall be bound to strict secrecy with respect to the method of preparation (formula) of the goods and Girasol’s production methods. This under penalty of a fine of EUR 50,000 per infringement, without prejudice to Girasol’s right to full compensation.
13.8 Without Girasol’s prior written approval, the other party shall not make any changes to the goods delivered by Girasol in any way.

Article 14: Applicable law

 

14.1 Dutch law shall apply to each and every offer or agreement of Girasol and the execution thereof.

 

Article 15: Disputes

15.1 All disputes arising from or related to the agreement between Girasol and the other party shall be resolved by the competent court in the district of Dordrecht.

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