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General terms & conditions

These terms and conditions were established by Triferto B.V. and subsequently filed with the Chamber of Commerce and Industry “Centraal Gelderland” in Arnhem, with the number 09 126552.

Article 1: Applicability of these terms and conditions

  1. These general terms and conditions shall be applicable to all offers and acceptances of offers and to the content and performance of any contract for the supply of fertilizers (and comparable goods) and related contracts between Triferto B.V. ("Triferto") (and associated companies) and another party (the "Purchaser").
  2. Terms put forward by the Purchaser shall not apply unless their applicability has been expressly agreed in writing by Triferto and the Purchaser.
  3. The applicability of the provisions of the Vienna Convention on the International Sale of Goods is expressly excluded.
  4. Where the terms of Incoterms 2000 have been declared to apply between Triferto and the Purchaser, the present general terms and conditions have supplementary force except as expressly provided otherwise in the Incoterms terms.

Article 2: Offers

  1. All Triferto's offers are without obligation. A contract only comes into existence between Triferto and the Purchaser once Triferto has expressly communicated a confirmation to the Purchaser either orally or in writing.
  2. Delivery times quoted in Triferto's offers are for guidance only and failure to deliver within the quoted time shall not give the Purchaser any right to dissolve the contract of sale or to claim compensation, unless expressly agreed otherwise in writing.
  3. The prices quoted in offers by Triferto are exclusive of value-added tax (VAT) and other direct official levies and exclusive of carriage and packing costs unless expressly agreed otherwise in writing.
  4. If the acceptance differs from what is contained in the offer, Triferto will not be bound by it and Triferto's offer will be deemed not to have been accepted unless Triferto expressly notifies the Purchaser in writing that it accepts the change or modification.
  5. A composite offer shall not result in any obligation for Triferto to supply a part of the goods included in the offer at the proportionate part of the offer price.
  6. The content of leaflets, printed materials, websites and the like is not binding on Triferto unless it is expressly referred to in writing in the contract.

Article 3: Delivery

  1. Delivery is ex warehouse unless the parties have expressly agreed another form of delivery in writing.
  2. The Purchaser is obliged to take delivery of the sold goods on the working day on which Triferto makes these goods available to the Purchaser or has them delivered to the Purchaser.
  3. If the Purchaser refuses to accept delivery or fails to provide information or instructions necessary for delivery, Triferto shall have the right to store the sold goods for the Purchaser's account and risk.
  4. The risk of loss of or damage to the goods passes to the Purchaser at the time when Triferto has made the goods available to the Purchaser or has delivered the goods to the address supplied by the Purchaser.
  5. Triferto has the right to deliver the sold goods in parts and to invoice the goods so delivered separately in parts.
  6. Where Triferto has quoted a period for delivery, this is for guidance only unless expressly agreed otherwise in writing. Accordingly, any quoted period for delivery shall not under any circumstances be a condition going to the root of the contract. If a period is exceeded, the Purchaser must declare Triferto in default in writing and grant a further period of at least four weeks before the Purchaser may derive any rights from the failure to meet the period.
  7. Triferto has the right to deliver up to 10% more or less than the agreed quantity of fertilizers, in which case the purchase price shall be increased or reduced proportionately.
  8. Triferto's weighing of the quantity of fertilizers delivered is final in the absence of proof to the contrary by the Purchaser.
  9. In case of dispute on the quality of the fertilizers supplied, a sampling or analysis shall be carried out by a first-class laboratory to be designated jointly by Triferto and the Purchaser. The costs of sampling or analysis are for the Purchaser's account.

Article 4: Inspection

  1. The Purchaser must report any visible shortcomings to Triferto in writing within three days after delivery; the Purchaser must further report non-visible shortcomings to Triferto within three weeks of their discovery and in any case within six months after the date of delivery, failing which the Purchaser shall have no claims whatsoever against Triferto.
  2. If under the provisions of this article the Purchaser advises Triferto within the appropriate period that there are shortcomings in the goods supplied, the Purchaser is still obliged to take delivery of the bought goods and to pay for them. If the Purchaser wishes to return the goods alleged to be faulty, he may do so only if Triferto has given its express written consent in advance.
  3. Where Triferto has shown the Purchaser samples or provided the Purchaser with samples, those samples serve only as examples and the goods supplied need not conform to them unless so agreed expressly in writing.

Article 5: Payment

  1. The Purchaser must pay the purchase price in each instance within fourteen days after the date of invoice in a manner to be specified by Triferto and in the currency invoiced. Queries or complaints relating to the amounts or details of invoices do not suspend the obligation to pay.
  2. If the Purchaser fails to make payment within a period of fourteen days the Purchaser is in default by operation of law and is then liable to pay interest at a rate equal to the European Central Bank's refinancing rate plus maximum 8%. The interest on the amount due and payable will be calculated from the date on which the Purchaser is in default until the date of full settlement of the amount in question.
  3. If the Purchaser becomes bankrupt, is granted provisional or other suspension of payment, or goes into liquidation, the amounts receivable by Triferto from the Purchaser shall become immediately due and payable.
  4. Triferto has the right to offset all amounts owed by it to the Purchaser against all claims that Triferto and its associated group companies have against the Purchaser on condition that Triferto indemnifies the Purchaser against any claims by Triferto's associated group companies in respect of the claims set off in this way.

Article 6: Collection costs

  1. If the Purchaser is in arrears or in default in the performance of his obligations, all the reasonable costs involved in obtaining extrajudicial settlement are payable by the Purchaser. All reasonable legal costs and costs of execution that may be incurred are also for the Purchaser's account.

Article 7: Variations to the contract

  1. If during the term of the contract there is a change in Triferto's wage costs and/or other costs as a result of a change in the law or mandatory official orders or administrative decisions, or if there are changes to the factors determining the cost price, such as for example the price of the basic materials used, means of transport or storage costs, Triferto shall have the right to modify the agreed price accordingly, irrespective of whether the increase in the cost price was foreseen at the time of offer or acceptance.
  2. If the increase in price charged to the Purchaser by Triferto is more than 10% of the agreed price, the Purchaser may dissolve the contract within two weeks after Triferto has communicated the price increase to the Purchaser but shall not have any right to claim compensation.

Article 8: Reservation of title

  1. All goods supplied by Triferto remain Triferto's property until the Purchaser has complied in full with all his obligations arising from all contracts entered into with Triferto.
  2. The Purchaser may not pledge or otherwise encumber goods subject to reservation of title.
  3. The Purchaser must inform Triferto without delay if third parties attach the goods supplied by Triferto under reservation of title or wish to establish or assert rights on such goods.
  4. The Purchaser is obliged to insure the goods supplied under reservation of title against theft, embezzlement and damage and to keep them so insured.
  5. In case Triferto wishes to exercise its title, the Purchaser now for then grants Triferto unconditional and irrevocable permission to enter all those places where Triferto's property is located and take back the goods in question.

Article 9: Suspension and dissolution

  1. Triferto may suspend performance of its obligations or dissolve the contract if:
    1. the Purchaser fails to comply, comply promptly or comply fully with his obligations under the contract or under any other contract entered into previously, simultaneously or subsequently with Triferto; or
    2. circumstances that come to Triferto's knowledge after the finalization of the contract give Triferto good grounds to fear that the Purchaser will fail to comply with his obligations or to comply with them promptly or fully.

Article 10: Force majeure

  1. In case of force majeure affecting Triferto, the performance of the contract shall be suspended for as long as the state of force majeure makes it impossible for Triferto to perform the contract. In case of permanent force majeure, Triferto may dissolve the contract without any obligation for Triferto to pay any compensation to the Purchaser.
  2. If the state of force majeure affecting Triferto lasts for more than one month the Purchaser may dissolve the contract free of charge, but without any entitlement on his part to compensation for any loss suffered.
  3. Force majeure affecting Triferto is any situation in which, after the finalization of the contract, Triferto is prevented from complying with its obligations under that contract or making its preparations for those obligations because of war, threat of war, civil war, riot, civil commotion, fire, water damage, flooding, strike, sit-in strike, lock-out, import and export restrictions, official measures, faults in machinery or interruptions to energy supplies both within Triferto's business and in respect of third parties from whom Triferto may obtain all or part of the necessary materials or ingredients, and during storage or transport operations performed by Triferto or third parties, and further as a result of all other causes that are not for Triferto's risk or are beyond Triferto's control.
  4. If the force majeure occurs when the contract has already been performed in part and the remainder of the delivery is delayed for more than one month as a result of force majeure, the Purchaser has the right: (a) to retain that part of the goods already delivered and pay the due purchase price on it; or (b) where the Purchaser can demonstrate that he can no longer use the already delivered part of the goods appropriately because of the failure to deliver the remainder of the goods, to consider the contract terminated also in respect of the part already performed, provided that in the latter case the Purchaser shall return the part already delivered to Triferto for the Purchaser's account and risk.

Article 11: Liability

  1. Unless expressly agreed otherwise in writing, the guarantee conditions applying to the goods supplied by Triferto are exclusively those guarantee conditions set by the manufacturer and/or importer. In the absence of such guarantee conditions, Triferto warrants that the goods supplied comply with the usual commercial standards.
  2. The Purchaser must decide independently what goods he purchases from Triferto, and for what purpose and in what way he uses the purchased goods. The Purchaser may not derive any rights whatsoever from any statements made or advice given by Triferto on the possible applications and methods of use of goods sold by Triferto.
  3. If Triferto fails imputably in its performance and a satisfactory performance can no longer be provided, Triferto shall be liable solely for the direct loss suffered by the Purchaser up to a maximum of the sum payable under Triferto's liability insurance plus the excess stated in the policy for that insurance. If and insofar as no payment is made under the liability insurance policy, any entitlement is limited to a maximum of twice the invoiced amount of the supplied goods that have given rise to the loss. Where a loss has been caused by supplied goods obtained by Triferto from a third party and not manufactured or processed by Triferto, Triferto's liability is limited to a maximum of the invoice value of the supplied goods in question or alternatively to the maximum of the relevant guarantees provided by third-party suppliers.
  4. Direct loss means exclusively:
    1. reasonable costs of determining the cause and extent of the loss, where the determination relates to loss in the meaning of these terms and conditions;
    2. the reasonable costs incurred in bringing Triferto's faulty performance into compliance with the contract;
    3. the reasonable costs incurred to prevent or limit the loss, insofar as the Purchaser demonstrates that the costs in question have resulted in the limitation of direct loss in the meaning of these general terms and conditions;
    4. damage to plants or crops, where it has been caused directly by a fertilizer which is faulty in the absolute sense.
  5. The limitations on liability for direct loss in these terms and conditions do not apply where the loss or damage results from wilful acts or gross negligence by the board or management of Triferto.
  6. Triferto is not liable for loss caused by vicarious agents/third parties including carriers andstorage/transshipment companies, even if it is caused by wilful acts or gross negligence by vicarious agents/third parties.

Article 12: Return of items made available

  1. Where Triferto has made items available to the Purchaser in the performance of the contract, the Purchaser must return these items in their original state and free of faults within two weeks. If the Purchaser fails to comply with this obligation, all costs and losses arising for Triferto from that failure shall be for the Purchaser's account.

Article 13: Law and jurisdiction

  1. This contract shall be governed by Dutch law.
  2. This contract is a translation of the Dutch contract.
  3. All disputes arising from this contract shall be submitted exclusively to the court of appropriate jurisdiction in Arnhem, without prejudice to Triferto's right to submit the dispute to the legally competent court elsewhere.

Doetinchem, November 2003,
Triferto bv
J.C.van Asperen