GENERAL SALE TERMS AND CONDITIONS OF HOLLAND AROMATICS

1.   Definitions
     In these General Sale terms and conditions the following is defined:

1. Holland Aromatics: A company with limited liability, with its statutory seat in Almere, having its registered offices at Transistorstraat 111 (1322CL) Almere, the Netherlands, and/or its employees, management board and/or any hired or contracted third parties.
2. Counter party/Buyer: the counter party or contract party of Holland Aromatics and any party to which Holland Aromatics proposals, quotations, delivers and/or sells its products and any party Holland Aromatics enters into a contractual relation with.
3. Parties: Holland Aromatics and Counter party and any other party that is a party to an Agreement.
4. Agreement: an agreement consists of 1) the quotation made by Holland Aromatics, 2) an order confirmation, 3) these General Sale terms and conditions, 4) any appendices and/or additional and/or deviating agreements stipulated in writing, in conjunction with the key commercial terms agreed between the parties, such as, without limitation, the description of the goods, the place and terms of delivery, the price, currency and terms of payment, and any special conditions;
5. General Sale terms and conditions: these General Sale terms and conditions.

2.     Applicability

2.1     These General Sale terms and conditions apply to all proposals, prices, quotations, samples, agreements, deliveries and the execution of activities by Holland Aromatics B.V. to the Counter party, unless expressly stipulated by Parties and agreed in writing.

2.2     The applicability of any general purchase terms and conditions or other terms and conditions used or referred to by Counter party is herewith expressly rejected.

2.3     In case of confusion with respect to the meaning of any clause in these General Sale terms and conditions, such clause should be explained in line with the “spirit” of these General Sale terms and conditions.

2.4     In case of a situation between Parties, not foreseen by these General Sale terms and conditions, such situation should be assessed in line with the “spirit” of these General Sale terms and conditions.

3.      Quotations and Acceptance of Orders

3.1     All proposals and quotations made by Holland Aromatics are without obligation, unless a term of acceptance is given. Orders shall be deemed to be an offer by the Counter party, and are only binding on Holland Aromatics on the earlier of (i)  Holland Aromatics sending the Counter party an acknowledgement of order in writing, or (ii)  Holland Aromatics commencing the manufacture of goods in order to fulfil the order.

3.2     A quotation or offer expires if the product for which the quotation or offer is made is no longer available. Quotations and/or offers are not automatically applicable to future orders.

3.3     No quotation or offer is binding for Holland Aromatics if the Counter party reasonably understands that a quotation or offer, or part thereof, contains an apparent mistake or type error.

3.4     If the acceptance deviates, in whole or in part, from the offer contained in the quotation or offer, such offer shall not be binding for Holland Aromatics. In such event, the Agreement shall not be entered into in accordance with such deviating acceptance, unless otherwise agreed by Holland Aromatics. 
 

4.      Quality

4.1    Holland Aromatics warrants that at the time the goods leave Holland Aromatics’s factory they will comply with the specification agreed by the parties. Holland Aromatics shall not be liable for breach of this warranty unless Holland Aromatics receives from the Counter party written notice of the breach within fourteen days after delivery of the goods, and Holland Aromatics is given a reasonable opportunity thereafter to examine the goods and in occurring situations, repair and/or alter the goods.

4.2    Holland Aromatics shall not be liable for any breach of the warranty contained in Condition 4.1 to the extent that: (i) the Counter party makes any further use of the goods after giving notice pursuant to Condition 4.1; or (ii) any defect leading to such breach arises because the Counter party has breached  Condition 10.

5.       Prices and Payment Guarantee

5.1     Prices mentioned in quotations or offers are exclusive of any VAT or any equivalent local tax, which will  be payable to Holland Aromatics by the Counter party in accordance with the law applicable from time to time against receipt of an appropriate invoice. Prior to delivery Holland Aromatics can demand advance payment or a payment guarantee in a form required by Holland Aromatics.

5.2     Even if a fixed price is agreed upon by Parties, Holland Aromatics shall nevertheless always be entitled to increase such price without the Counter party having the right to dissolve the Agreement for such reason, provided that the increase of the price is a result of the authority or obligation based on laws and regulations, or as a result of the increase of raw materials, wages etc. or any other ground not reasonably  foreseeable at the time of entering into the Agreement.

5.3     If the increase of the price, other than as a result of an amendment of the Agreement, exceeds 10% and occurs within three months after the conclusion of the Agreement, the Counter party to which Title 5 Section 3 of Book 6 Civil Code applies, is exclusively entitled to dissolve the Agreement, unless Holland Aromatics is prepared to execute the Agreement on the basis of the originally agreed terms.

6.      Delivery

6.1    Holland Aromatics will arrange delivery of the goods to, and the Counter party will accept delivery of the goods at, the agreed place of delivery and according to the terms of delivery set out in the Agreement. If the Parties have agreed on the applicability of the Incoterms, such Incoterms prevail in the event of conflicting terms.

6.2    Delivery dates are estimates only and not to be understood as decisive dates. If a delivery date has lapsed, a Counter party has to serve Holland Aromatics with notice in writing, such notice demanding delivery of the late goods within a reasonable remedy period of not less than 15 days, during which Holland Aromatics shall have the opportunity to meet her delivery obligations.

6.3    If Holland Aromatics needs data from the Counter party for proper execution of the Agreement, the delivery date does not commence prior to the correct and complete delivery by Counter party to Holland Aromatics of such data.

6.4    Delivery of the goods is made from the company Holland Aromatics. The Counter party is obliged to accept the goods at the moment such goods are made available to it.

6.5    Holland Aromatics is entitled to engage third parties for the execution of certain activities.

6.6    Each delivery of a good or goods shall constitute a separate contract and any breach thereof shall not entitle termination of the Agreement as a whole.

7.      Ownership and Risk

7.1    The goods are solely for the risk of the Counter party as of the moment of delivery, meaning the moment that the goods are made available to, or in, or deemed to be in possession of the Counter party, including the risk of whole or partial loss, decrease of quality or damage of the goods.

7.2    All goods supplied and delivered by Holland Aromatics shall remain in the legal and beneficial ownership of Holland Aromatics and are held by the Counter party only as bailee for the benefit of Holland Aromatics until the Counter party has paid the price in full to Holland Aromatics (and any VAT or equivalent sales tax thereon). The Counter party may resell or process the goods as part of the normal conduct of its business, unless Holland Aromatics has asked the Counter party to return the goods.

7.3    In the event that Holland Aromatics wishes to exercise its ownership rights as mentioned in this clause, the Counter party grants its irrevocable and unconditional permission to Holland Aromatics and any third party that Holland Aromatics may appoint in anticipation, including the right to grant access to the premises where the goods owned by Holland Aromatics are located, and the right to regain possession of the owned goods.

8.      Intellectual Property

All intellectual property rights in and relating to the goods, their manufacture, development or creation (including improvements thereto) shall be or remain vested in Holland Aromatics (whether or not commissioned by the Counter party) and the Counter party will, at the request and cost of Holland Aromatics, do any act and execute any documents necessary to confirm such rights in or transfer such rights to Holland Aromatics. In the event of uncertainty with respect to the owner of any intellectual or industrial property right, Holland Aromatics is deemed to be the owner of such intellectual or industrial property right.  

9.      Payment

9.1    Payment shall be made in full and in cleared funds within the period stated in the invoice.

9.2    If the Counter party fails to pay an invoice in due time, the Counter party is automatically and legally in default, without any further written notice required. In such event Holland Aromatics is entitled to the legal interest on the outstanding amount. The legal interest shall be calculated over the due amount as from the moment the Counter party is legally in default up until the moment the outstanding amount is fully paid by the Counter party.

9.3    Holland Aromatics is authorized to apply the payments made by the Counter party in the following order: firstly to reduce the costs, then for the reduction of the interest and finally to reduce the principal amount and the accrued interest.

9.4    Holland Aromatics may, without thereby legally being in default, refuse a payment offer if the Counter party uses a different order of allocation of the payment. Holland Aromatics may refuse full payment of the principal amount, if the accrued interest, collection and any other outstanding costs are not paid.

9.5    The Counter party may not for any reason suspend payment or make any deduction by way of set-off.

9.6    In the event that payments remain outstanding and unpaid, Holland Aromatics is entitled to relinquish the claim, in which case the Counter party is also required to pay, next to the total amount owed, all legal and extrajudicial costs, including enforcement costs.

9.7    In the case of receivership, bankruptcy or liquidation of the Counter Party, all outstanding claims of Holland Aromatics are payable immediately.

9.8    Objections to the outstanding amount payable by the Counter party do not suspend the Counter party from its payment obligation.

10.    Duty of care

The Counter party shall at all times handle the supplied goods with reasonable care and in conformity with Holland Aromatics’s verbal or written instructions as to storage, use or maintenance of the goods, and shall perform no actions which might affect the quality or safety of the goods or the reputation of  Holland Aromatics’s brands and it shall cause all measures to be taken to ensure that, in the event the goods are sold to a third party, such third party shall also comply with this condition.

11.    Liability

11.1  Any liability of Holland Aromatics is limited to reimbursement of actual direct damages and, if it is covered by its liability insurance, limited to the amount of the actual payment by the insurer in a specific case.

Any liability is further limited as follows:
11.2  Holland Aromatics’s total liability due to non-performance of the Agreement, and in the event that its insurer does not reimburse damages or damages are not covered by its insurance, shall be limited to an amount equal to two times the value of  the goods in relation to which the claim arises, net of VAT or any equivalent sales tax.

11.3  Holland Aromatics shall not be liable for any claim or damages arising from incorrect or incomplete information provided by the Counter Party.

11.4  Direct damages are defined as:
a. The reasonable cost to determine the cause and extent of the damage, insofar as the establishment of such costs relate to damages in the sense of these General Sale terms and conditions;
b. Any reasonable costs for the demonstrably poor performance of Holland Aromatics to comply with the Agreement, unless such faulty performance can not be attributed to Holland Aromatics.
c. Reasonable costs incurred to prevent or minimize damage to the extent the Counter party shows that these costs have led to the limitation of direct damage as referred to in these General Sale Terms and conditions.

11.5  Liability of Holland Aromatics for non-performance under the Agreement and/or any related obligation only arises if the Counter party serves Holland Aromatics immediately and properly with written notice of default, stating a reasonable period for remedying the non-performance and if Holland Aromatics, after the expiry of that period, remains in default with the fulfillment of  its obligations.  The notice must include a detailed description of the non-performance by Holland Aromatics, to enable Holland Aromatics to respond adequately,

11.6  Any liability of Holland Aromatics lapses after one year as of the moment that the order is completed. Condition for the existence of any right to compensation is always that the Counter party has, as soon as possible after the occurrence of the damage, notified Holland Aromatics in writing. Any claim for damages against Holland Aromatics expires after 12 months as of the moment that the claim has arisen.

11.7  Holland Aromatics shall not be liable for any indirect damages, including for: (i) consequential damages, loss of profits, goodwill, production, business, anticipated savings or business interruption; (ii) for consequential or indirect losses. Neither shall Holland Aromatics be liable for any damages caused by third parties, for which the Counter party shall indemnify Holland Aromatics.

11.8  The Counter party indemnifies Holland Aromatics and holds Holland Aromatics fully harmless against all claims, losses, costs (including legal costs), fines and damages of third parties, recovered from Holland Aromatics, or suffered or incurred by Holland Aromatics in connection with the goods as a direct or indirect result of omissions by the Counter party, its employees or agents or any other party other than Holland Aromatics. If a third party addresses Holland Aromatics in this respect, the Counter party is obliged to assist Holland Aromatics both in law and otherwise and immediately do whatever may be expected in such case. If the Counter party fails to take appropriate measures, Holland Aromatics, without any notice required, is entitled to proceed to do so itself. All costs and damages on the part of Holland Aromatics and others in this respect, are for the account and risk of the Counter party.

11.9  All warranties, representations, guarantees, conditions and terms, other than those expressly set out in the Agreement, whether express or implied by statute, common law, trade usage or otherwise, and whether written or oral, are hereby expressly excluded to the fullest extent permissible by law.

11.10 Representations about the goods, directions for their use, and marketing claims that can be made about the goods, are made in good faith, but  Holland Aromatics shall not be liable for such statements and representations.

11.11 The limitations of Holland Aromatics’ liability included in these general Sale terms and conditions do not apply when damages are caused by demonstrable intent and/or gross negligence by Holland Aromatics.

12.    Confidentiality and no analysis

12.1  The Counter party shall not disclose to any other party any confidential information belonging to Holland Aromatics or any associated company of Holland Aromatics (including, without limitation, specifications, formulae, manufacturing processes, know-how and any technical or economic information), or use such information for any purpose except as expressly authorised in writing by Holland Aromatics for a period of ten years.

12.2  The Counter party is expressly not allowed to analyse or have analysed, or permit or knowingly facilitate the analysis of the chemical composition or structure of the goods.

12.3  In order to protect the proprietary and confidential nature of Holland Aromatics’s goods the following restrictions apply to the use of its goods: (i) save as may be reasonably required for safety purposes the Counter party shall not analyse or have analysed, or permit or knowingly facilitate the analysis of, any sample or good supplied to the Counter party pursuant to the Agreement, and (ii) the Counter party shall not copy or knowingly permit the copying of the goods.

13     Force Majeure

13.1  If, as a result of force majeure (as defined in Condition 13.2),  Holland Aromatics is not able to comply with its obligation to deliver, then  Holland Aromatics shall be entitled, without being in default, to postpone delivery of the goods until such time as the force majeure has terminated.

13.2  Force Majeure means any event which is beyond the reasonable control of the party affected such as, including but not limited to acts of God, war, revolt, civil war, hostilities, riot, fire, explosion, accident, flood, high water, sabotage, vermin, lack of adequate fuel, power, raw materials, containers, transportation or labour, strike, labour unrest, failure of computer systems, soft/hardware, e-mail or other communication resources, lockout or injunction, compliance with laws of regulations and breakage of machinery or apparatus.

14.    Termination

14.1  Holland Aromatics may terminate, without prejudice to accrued rights, all or part of the Agreement (i) by 30 days written notice, or (ii) by written notice with immediate effect if the Counter party is in arrears of any amount owed to Holland Aromatics, if Holland Aromatics has good reasons to believe that the Counter party shall not comply with its obligations under the Agreement or the Counter party becomes bankrupt or insolvent, or the Counter party is in breach of contract and does not remedy such breach (if remediable) within 30 days of receiving notice of the breach.

14.2  In addition, Holland Aromatics is entitled to terminate the Agreement if circumstances arise of such nature that fulfilment of the Agreement  is impossible or if other circumstances arise of such nature that the unaltered maintenance of the Agreement may not reasonably be requested from Holland Aromatics.

14.3  If the Agreement is terminated, all claims of Holland Aromatics on the Counter party are immediately due and payable. If Holland Aromatics suspends fulfilment of its obligations, it shall retain its rights granted by law and under the Agreement.

14.4  If Holland Aromatics decides to suspension or dissolution, it  is in no way liable for any damages and costs incurred in any way.

14.5  If the dissolution is attributable to the Counter party, Holland Aromatics is entitled to compensation for damages, including costs, thereby directly and indirectly incurred. If the Counter party fails to comply with its obligations under the Agreement and this failure to comply justifies dissolution, then Holland Aromatics has the right to dissolve the Agreement with direct and immediate effect without any obligation on its part to pay any damages or compensation, while the Counter party, by virtue of default, is however required to pay damages and/or compensation.

15.    General

15.1  If any provision of these General Sale terms and conditions or the Agreement is by any court of competent jurisdiction declared void or voidable or to be wholly or partly illegal, invalid, unenforceable or unreasonable it shall to the extent of such illegality, invalidity,  unenforceability or unreasonableness be deemed severable and the remaining provisions of these General Sale terms and conditions and the Agreement and the remainder of such specific provision shall continue in full force and effect.

15.2  Failure or delay by Holland Aromatics in strict enforcement of any provision of these General Sale terms and conditions and/or the Agreement does not mean that its provisions do not apply, nor result in a loss of rights of Holland Aromatics to require strict enforcement of the provisions of these General Sale terms and conditions in any other event  and  will not constitute a waiver of any of its rights under the Agreement or these General sale terms and conditions.

15.3  Any variation or amendment to these General Sale terms and conditions shall be in writing and signed by both Parties.

16.    Law and Jurisdiction

All agreements between Holland Aromatics and the Counter party to which these General Sale terms and conditions apply shall be governed by Dutch law. Any dispute arising out of or in connection with the Contract shall be subject to the non-exclusive jurisdiction of the Dutch Court.

HOLLAND AROMATICS B.V.                                        March 2011