Section 1. Applicability and validity
1.1 These General Terms shall apply to all offers, orders and /or agreements in virtue of which AVS SPICE B.V. (hereinafter referred to as: “Broker”) acts as an intermediary between a Buyer and a Seller to effect and entering into an agreement with regard to the sale and purchase of spices, herbs, seeds, dehydrated vegetables and in general materials for the food industry (hereinafter referred to as “Agreement”).
1.2 Deviations from and supplements to these General Terms or to the Agreement shall be only valid if and in so far as these have been confirmed explicitly and in writing by the Broker.
Section 2. Realization of an Agreement
2.1 All offers, tenders, price quotations etc. issued by the Broker shall be without engagement, unless otherwise indicated.
2.2 The Seller and/or the Buyer shall be bound after Broker has confirmed an offer or order by phone, e-mail, fax or letter. Even if a separate written confirmation from Buyer or Seller has not been received, the Broker’s confirmed offer or order (in other words: the Agreement) stays valid.
2.3 With regard to the Agreement, the Broker is allowed to act as an intermediary for the Seller as well as the Buyer.
Section 3. Modification of an Agreement
Modifications of and supplements to Agreements concluded shall be only effective if they have been confirmed by the Broker explicitly and in writing.
Section 4. Duration and termination of an Agreement
An Agreement shall be contracted for a definite period or a particular sale and purchase, unless otherwise indicated.
Section 5. Commission, invoicing and payment
5.1 The Seller shall be entitled to pay a commission to the Broker, at the moment the Buyer and the Seller entering into an Agreement. Commissions are always owed whether the Agreement is fulfilled or not.
5.2 The scope of the commission shall be agreed in writing (in the Agreement) between the Broker on the one hand and the Seller on the other hand.
5.3 The commission shall be calculated over the total amount as mentioned in the Agreement, unless otherwise indicated. Invoicing shall take place at the conclusion of the Agreement.
5.4 The payment of the commission shall be made within 15 days after the date of invoice. The payment shall be made without setting off or suspension on any ground. The Seller’s obligation to pay shall continue to exist at any time, even if the Seller has made arrangements with third parties concerning payments, or uses third parties for payments.
5.5 If the Seller has not paid in full the amounts owed within the agreed upon period, the Seller shall be in default after this period has expired, without any placing in default being required. In that case the Seller shall owe, from the date on which the amount owed has become payable until the time of payment, an interest over the unpaid amount, which interest shall amount to the statutory interest increased by three per cent, and this without prejudice to the Broker’s other rights.
5.6 If the Seller has not paid the amounts owed within the agreed upon period, the Broker shall be entitled furthermore to have the invoiced collected judicially, in which case all costs relating thereto, which costs are set at 15% at least of the claim, shall be at the expense of the Seller.
Section 6. Force majeure
6.1 By force majeure shall be understood: any circumstance which is beyond the direct influence of the Broker or cannot be reasonably foreseen by him, which temporarily or permanently prevents the fulfilment of the Broker’s obligations from the Agreement. Such circumstances include: restrictive government measures, mobilisation, war, risk of war, revolution, strike, seizure, attachment, interruption of production, natural disaster, ice-drift, special weather conditions, lack of transport means, entire or partial remaining in default of third parties from whom goods or services are received, or lack of raw materials, semi-finished products, auxiliary materials and/or energy.
6.2 In case of force majeure the Broker shall be entitled either to suspend the fulfilment of his obligations towards the Buyer or the Seller, or to dissolve the Agreement entirely or partly, this at the Broker’s discretion, without judicial intervention and without being held himself to any damages.
6.3 Compliance in one or several cases of force majeure shall leave intact the Broker’s right to make use of his right to suspend or dissolve in subsequent cases of force majeure.
Section 7. Warranties
7.1 Communications by or on behalf of the Broker concerning the quality, composition, application possibilities, properties, handling in the widest sense, etc., of goods delivered as mentioned in the Agreement shall only be considered as warranties if they have been confirmed explicitly and in writing in the form of a warranty by the Broker.
7.2 The Broker does not warrant that the goods delivered as mentioned in the Agreement are suitable for the purpose for which the Buyer intends to use them, not even if such purpose has been made known to the Broker, unless the parties have agreed explicitly and in writing otherwise.
Section 8. Liability
8.1 The Buyer and/or the Seller indemnify/indemnifies the Broker against any liability because of his intermediation during the effect, entering into or the fulfilment of the Agreement.
8.2 The Broker shall in no case be liable for damage caused by any exceeding of a period, nor for any consequential or indirect loss, including any loss caused by lost profit or missed savings.
8.3 The Buyer and/or the Seller shall hold the Broker harmless against claims by third parties. Further the Buyer and/or the Seller shall never hold liable any employees of the Broker, any third party used by the Broker or any employees of such third parties.
Section 9. Disputes and applicable law
9.1 Any dispute relating to an Agreement or the execution of An agreement between the Broker on the one hand and the Buyer or the Seller on the other hand, which cannot be settled in mutual consultation between the parties, shall be submitted to the competent judge in whose district the Broker is registered. The Broker shall have the right, in deviation from the above, to submit a dispute to the competent judge in whose district the Buyer or the Seller is registered.
9.2 The agreement shall be governed by Dutch law, unless otherwise agreed.
Filed at the Chamber of Commerce and Industry at Rotterdam.
AVS Spice Brokers
3015 LD Rotterdam
T +31 102 410 210
F +31 102 410 205