Article 1 – Definitions

1.1           "Victerra": Victerra Ingredients B.V., having its registered office at Stedumhof 446, 6835 MP Arnhem, the Netherlands, registered with the Netherlands Chamber of Commerce under number 99178249, VAT number NL868846600B01.

1.2           "Customer": the other party to an Agreement with Victerra.

1.3           "Agreement": any agreement under which Victerra sells and delivers Products to the Customer, including every order confirmation, contract and amendment thereto.

1.4           "Conditions": these general conditions of sale.

1.5           "Products": the food ingredients and other goods sold and delivered by Victerra, whether conventional or organic.

1.6           "Specification": the product specification agreed in writing between the parties for the relevant sales order.

Article 2 – Applicability

2.1           These Conditions apply to all offers, quotations, order confirmations, Agreements and deliveries of Victerra, unless expressly agreed otherwise in writing.

2.2           The applicability of any general terms and conditions of purchase or other conditions of the Customer is expressly rejected and shall not bind Victerra, even where Victerra has not expressly objected to them.

2.3           Deviations from these Conditions are valid only if expressly agreed in writing and apply solely to the Agreement for which they were agreed.

2.4           In the event of any conflict, the following order of precedence applies: (i) the individually agreed written contract or order confirmation, (ii) the agreed Specification, (iii) these Conditions.

2.5           Once these Conditions have been made available to the Customer, they also apply to all future Agreements between the parties.

2.6           If any provision of these Conditions is or becomes void, voidable or unenforceable, the remaining provisions remain in full force. The parties shall replace the affected provision with a valid provision that approximates its purpose and purport as closely as possible.

Article 3 – Offers and formation of Agreements

3.1           All offers and quotations of Victerra are without engagement and revocable, unless they state an express period of acceptance. Prices quoted for commodities are valid only for the period stated and, failing such statement, for two (2) working days.

3.2           An Agreement is concluded upon written confirmation by Victerra. An Agreement is also deemed validly concluded if Victerra has commenced performance without the immediate protest of the Customer, or if the Customer has accepted delivery of the Products. An Agreement is binding even where no formal contract has been signed by both parties.

3.3           Obvious errors and evident mistakes in offers, order confirmations and other communications do not bind Victerra.

3.4           The Customer shall check the order confirmation immediately upon receipt and shall notify Victerra in writing of any inaccuracy within one (1) working day, failing which the order confirmation is deemed to reflect the Agreement correctly and in full.

Article 4 – Prices

4.1           Prices are expressed in euro or in any other currency designated or accepted by Victerra, and are exclusive of VAT, import and export duties, levies, inspection fees and any other governmental charges.

4.2           Unless expressly agreed otherwise, prices apply to the Products to which they relate and to the delivery term stated in the order confirmation.

4.3           Where delivery takes place more than three (3) months after the conclusion of the Agreement, Victerra is entitled to pass on increases in cost-determining factors arising after conclusion, including duties, taxes, levies, freight and insurance rates, and exchange rate movements. Should such an increase exceed ten percent (10%), the Customer is entitled to dissolve the Agreement in writing within five (5) working days of notification, without either party being liable for damages.

Article 5 – Delivery, delivery terms and risk

5.1           All terms used in Agreements with regard to delivery shall be construed and defined in accordance with the Incoterms® 2020 of the International Chamber of Commerce, or the version in force at the date of the Agreement.

5.2           Unless expressly agreed otherwise, delivery takes place Ex Works (EXW) at a warehouse designated by Victerra. Where the parties have agreed FCA, FOB, CIF, CFR, DAP or DDP, that term governs the passing of risk, the allocation of costs and the obligations of the parties.

5.3           Delivery times and shipment periods stated by Victerra are approximate and are never to be regarded as strict deadlines. Exceeding a delivery time does not place Victerra in default. The Customer must first give Victerra written notice of default granting a reasonable period for performance.

5.4           For deliveries Ex Works or FCA the Customer shall take delivery within the period stated in the Agreement and, failing such statement, within five (5) working days after the Products have been placed at its disposal. Thereafter storage, handling, insurance and all further costs are for the account and risk of the Customer.

5.5           Victerra is entitled to deliver in instalments and to invoice each instalment separately.

5.6           If the Customer has good reason to believe that it will be unable to take delivery within the agreed period, it shall notify Victerra immediately and in any event within twenty-four (24) hours after those reasons became known, or could reasonably have become known, to it.

5.7           If the Customer fails to take delivery, Victerra is entitled, at its discretion and without prejudice to its other rights, to store the Products at the cost and risk of the Customer or to sell them to a third party, with settlement of any difference in proceeds.

Article 6 – Quantity, weight and determination of quality

6.1           Unless expressly agreed otherwise, a tolerance of plus or minus five percent (± 5%) applies to the quantity agreed. Invoicing takes place on the basis of the quantity actually delivered.

6.2           Weight and quality are determined at the place and time agreed in the Agreement. Where an independent surveyor or accredited laboratory has been appointed at the place of loading, its certificate of weight and analysis is binding upon both parties, save in the event of manifest error or fraud.

6.3           Samples, type analyses and indicative values provided by Victerra serve only as an indication of the general character of the Products and do not constitute a warranty that each unit or the whole lot corresponds to that sample or value.

Article 7 – Packaging

7.1           Products are packaged properly and in accordance with their nature and the use that is made of them.

7.2           If the Customer has particular wishes regarding packaging, Victerra is entitled to increase the selling price quoted. In that case the Customer is not entitled to lodge a complaint in respect of defects, errors or other grievances in so far as such complaint relates to the packaging method agreed.

7.3           Packaging is non-returnable unless expressly agreed otherwise in writing.

Article 8 – Specifications and conformity

8.1           The Specification agreed in writing for the relevant sales order is decisive for the conformity of the Products. Victerra warrants that the Products correspond to that Specification at the moment risk passes to the Customer.

8.2           The Customer is responsible for assessing whether the Products are suitable for the use it intends and for compliance with any requirement applicable in the country of destination outside the European Union, unless Victerra has expressly confirmed such compliance in writing.

8.3           The Customer shall inform Victerra in writing, prior to the conclusion of the Agreement, of any specific legal, customer or retailer requirement applicable to the Products, including any requirement as to origin, certification status, labelling or analysis. Requirements notified after conclusion do not bind Victerra.

8.4           Specifications issued to Victerra by the Customer may only be altered if Victerra is granted a reasonable period of time to carry out such alterations and subject to the obligation of the Customer to pay any additional costs incurred. Upon receipt of a request to alter a Specification, Victerra may at its option (i) carry out the requested alteration without additional costs, (ii) carry out the alteration subject to acceptance of a price increase, or (iii) dissolve the Agreement concerned, without prejudice to its right to claim damages.

8.5           Deviations of a minor nature, and deviations customary in the trade in agricultural commodities, do not constitute a shortcoming on the part of Victerra.

Article 9 – Retention of title and right of retention

9.1           All Products delivered remain the property of Victerra until the Customer has paid in full all claims of Victerra arising from Agreements, including the purchase price, interest, costs and any damages owed, as referred to in Article 3:92 of the Netherlands Civil Code.

9.2           For as long as title has not passed, the Customer shall store the Products separately and identifiably as the property of Victerra, insure them adequately against the usual risks, and refrain from pledging, encumbering or otherwise granting any right to a third party in respect of them. The Customer may resell and deliver the Products within the normal conduct of its business.

9.3           The Customer shall notify Victerra in writing without delay of any attachment levied on the Products, of any application for suspension of payments or bankruptcy, and of any other circumstance affecting the rights of Victerra.

9.4           If the Customer fails to comply with its obligations, Victerra is entitled to retrieve the Products. The Customer grants Victerra irrevocable authorisation to enter the premises where the Products are located for that purpose. All costs of retrieval are for the account of the Customer.

9.5           Victerra has a right of retention in respect of all goods and documents it holds for the Customer, until all amounts due have been paid in full.

Article 10 – Payment

10.1         Unless expressly agreed otherwise in writing, invoices shall be settled within thirty (30) days of the invoice date, without any discount, suspension or set-off, by payment into a bank account designated by Victerra.

10.2         The date of payment is the date on which the amount is credited with value date to the bank account of Victerra.

10.3         On expiry of the payment term the Customer is in default by operation of law, without any notice of default being required. From that moment the Customer owes the statutory commercial interest pursuant to Article 6:119a of the Netherlands Civil Code, together with compensation for collection costs of at least EUR 40 per invoice pursuant to Article 6:96(4) of the Netherlands Civil Code.

10.4         All costs incidental to judicial and extrajudicial collection, including the full costs of legal assistance, are for the account of the Customer.

10.5         Payments received are applied first to costs, then to accrued interest and finally to the longest outstanding invoice, irrespective of any different designation by the Customer.

10.6         A complaint, dispute or counterclaim does not suspend the payment obligation of the Customer.

Article 11 – Security

11.1         If Victerra sees reasonable occasion to do so, it may at any moment during the term of an Agreement demand that the Customer furnish security or additional security for payment, in the form of advance payment, an irrevocable and confirmed documentary credit, a bank guarantee or otherwise.

11.2         If the Customer does not honour a reasonable demand within five (5) working days, Victerra is entitled to suspend performance of its obligations and, thereafter, to dissolve the Agreement wholly or in part in writing, without prejudice to its right to claim damages.

Article 12 – Inspection, complaints and notice periods

12.1         The Customer shall examine the quantity and quality of the Products upon delivery and in any event before processing, mixing, repacking or resale.

12.2         Visible defects, shortages and transport damage shall be noted on the transport document or delivery note and notified to Victerra in writing within three (3) working days of delivery.

12.3         Defects that were not reasonably detectable on inspection shall be notified to Victerra in writing within five (5) working days of discovery, and in any event within three (3) months of delivery.

12.4         A complaint shall state the nature and extent of the alleged defect, the batch or lot numbers concerned and the quantity affected, and shall be substantiated by an analysis performed by a laboratory accredited to ISO/IEC 17025.

12.5         The Customer shall offer Victerra the opportunity, within a reasonable period, to examine the Products itself or to have them examined by a third party. Pending that examination the Customer shall store the Products properly, retain representative samples and refrain from processing, reselling or destroying them without the prior written consent of Victerra.

12.6         If the Customer does not comply with Articles 12.1 to 12.5, the Products are deemed to have been accepted and every right of the Customer in respect of the alleged defect lapses.

12.7         If so requested, Victerra grants the Customer inspection of the HACCP protocols it applies and of the results achieved by it following the application thereof with respect to the Products sold.

Article 13 – Liability

13.1         If the Products prove deficient and Victerra is responsible for such deficiency, Victerra shall at its option (i) replace the deficient Products by Products complying with the Specification, (ii) issue a credit note for the purchase price against return of the Products, or (iii) grant a reduction of the price corresponding to the deficiency. The Customer is not entitled to any performance other than that referred to in this paragraph.

13.2         Victerra is never liable for indirect or consequential loss, including but not limited to loss of profit, loss of turnover, loss of production, business interruption, loss of contracts, costs of withdrawal or recall, damage to reputation, penalties owed to third parties and claims of third parties.

13.3         The total liability of Victerra under an Agreement is in all cases limited to the invoice value, excluding VAT, of the delivery to which the liability relates, and in any event to the amount paid out in the relevant case under the liability insurance of Victerra, increased by the applicable excess.

13.4         Costs incidental to the destruction of Products are not for the account of Victerra, irrespective of whether the destruction was carried out by order of the competent authorities.

13.5         The limitations in this Article do not apply in the event of intent or deliberate recklessness on the part of Victerra or its managerial staff, nor where mandatory law provides otherwise.

13.6         Every claim against Victerra lapses by the mere expiry of twelve (12) months after delivery, unless legal proceedings have been instituted before that date.

Article 14 – Force majeure

14.1         Victerra is not liable for any failure to perform to the extent that such failure results from force majeure.

14.2         Force majeure includes, but is not limited to: crop failure and reduced harvest yields, extreme weather conditions, plant disease and pest infestation, fire, flood, war, terrorism and civil unrest, epidemic and pandemic, governmental measures, import and export restrictions, sanctions and trade embargoes, customs, veterinary or phytosanitary blocks, congestion or closure of ports, terminals or shipping routes, shortage of vessels, containers or road transport, strikes and industrial action, cyber attacks, failure of IT systems, energy or telecommunications, and any failure in performance by suppliers, warehouse keepers, inspection bodies or carriers of Victerra, for whatever reason.

14.3         During force majeure the obligations of Victerra are suspended. If the force majeure situation continues for more than sixty (60) days, either party is entitled to dissolve the Agreement in writing in respect of the part not yet performed, without either party being liable to the other in damages.

14.4         Victerra is entitled to invoice that part of the Agreement which has already been performed.

Article 15 – Food safety, traceability and recall

15.1         The Customer shall maintain a traceability system enabling it to identify at all times the Products received from Victerra and the parties to whom they have been supplied on, in accordance with Regulation (EC) No 178/2002.

15.2         The Customer shall notify Victerra immediately, and in any event within four (4) hours of becoming aware, of any indication that Products do not comply with food law requirements or may be unsafe, and of any enquiry, sampling or measure by a competent authority relating to the Products.

15.3         The parties shall cooperate fully and without delay in the investigation of any incident and in any blocking, withdrawal or recall of Products, and in the notification of the competent authorities.

15.4         The Customer shall store, transport, handle and use the Products in accordance with the storage and handling conditions stated in the Specification. Victerra is not liable for any deterioration resulting from non-compliance with those conditions.

Article 16 – Sanctions and export control

16.1         Each party shall comply with all applicable sanctions, export control and anti-money-laundering legislation, including that of the European Union, the United Nations and the Netherlands and, where applicable, of the United States and the United Kingdom.

16.2         The Customer warrants that the Products will not be supplied, directly or indirectly, to any person, entity or destination subject to such measures.

16.3         Victerra is entitled to suspend or dissolve an Agreement with immediate effect, without any liability to compensate damage, if performance would conflict with those rules or would expose Victerra to a risk of sanction.

Article 17 – Confidentiality

17.1         All information concerning Victerra that has not been made public in any manner and that the Customer has obtained in the performance of an Agreement is confidential and may not be disclosed to third parties by the Customer.

17.2         The Customer who breaches the preceding paragraph is liable for the loss that Victerra suffers as a result.

Article 18 – Personal data

18.1         Victerra processes personal data in accordance with Regulation (EU) 2016/679 (GDPR) and the privacy statement published on its website.

Article 19 – Transfer of rights and obligations

19.1         Without the prior written permission of Victerra, the Customer may not transfer any right or obligation under an Agreement to a third party.

19.2         Victerra is entitled to transfer its rights and obligations to a group company or in the context of a transfer of its business or a part thereof.

Article 20 – Product liability and indemnity

20.1         If the Customer alters, repacks, relabels, mixes or dilutes the Products, or stores or uses them improperly, the Customer shall indemnify Victerra against all costs and losses that may result from legal actions brought against Victerra on grounds of product liability in connection with those Products.

20.2         The Customer shall likewise indemnify Victerra against all claims of third parties arising from any breach by the Customer of Article 15 or Article 16.

Article 21 – Suspension and dissolution

21.1         Victerra is entitled to suspend performance of its obligations or to dissolve an Agreement wholly or in part with immediate effect, in writing, without notice of default and without any liability to compensate damage, if the Customer fails to comply with any obligation, applies for or is granted suspension of payments, is declared bankrupt, is subject to attachment of a substantial part of its assets, or ceases or transfers its business.

21.2         In the situations referred to in Article 21.1 all claims of Victerra against the Customer become immediately due and payable in full.

Article 22 – Notices, amendments and language

22.1         Notices under an Agreement shall be given in writing, whereby communication by email is regarded as written, to the addresses stated in the order confirmation.

22.2         Victerra is entitled to amend these Conditions. The amended version applies to Agreements concluded after the Customer has been notified of the amendment or after publication of the amended version on the website of Victerra.

22.3         These Conditions have been drawn up in English and in Dutch. In the event of any discrepancy between the two texts, the Dutch text prevails.

Article 23 – Applicable law and competent court

23.1         These Conditions and all Agreements are governed exclusively by the law of the Netherlands.

23.2         The applicability of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention, CISG) is expressly excluded.

23.3         Any dispute in connection with an Agreement shall be brought exclusively before the competent court of the District Court of Gelderland, location Arnhem, the Netherlands, without prejudice to the right of Victerra to bring a dispute before the court that would have jurisdiction in the absence of this provision.