Terms & Conditions

GENERAL CONDITIONS OF SALES

General Conditions of Sale of ‘Aguas Creatives’ (trading under the name ‘Solstice Blends’), with its registered office in Amsterdam and registered with the Dutch Chamber of Commerce under file number 57531625.

 

Article 1 - Definitions

In these General Conditions of Sale the following terms shall have the following meanings:

‘Aguas Creatives’: the Aguas Creatives entity that uses these general conditions and has declared them applicable and/or enterprises associated with it;

‘Buyer’: the party to which Aguas Creatives supplies goods and/or to which Aguas Creatives renders services or which has agreed on this with Aguas Creatives, and also the party that has given Aguas Creatives an order of another nature;

‘Agreement’: all agreements between Aguas Creatives and the Buyer concerning the purchase of goods and/or services by the Buyer from Aguas Creatives, and also any other order that the Buyer gives to Aguas Creatives, and also all (legal) acts that are related to this;

‘lncoterms’: means the lncoterms drawn up by the International Chamber of Commerce in Paris.

 

Article 2 - Applicability

1. These General Conditions of Sale shall apply to and form an integral part of all offers, quotations, order confirmations of Aguas Creatives, to the Agreement and to all the other legal acts between Aguas Creatives and the Buyer.

2. The interpretation of what the parties agree will take place in accordance with the customs between businesses which trade in ingredients for food and related industries as well as related items.

3. Deviation from and/or addition to these General Conditions of Sale may only be agreed in writing and explicitly.

4. General conditions, by any name whatsoever, of the Buyer shall explicitly not apply.

5. In the event that the contents of the Agreement deviate from the contents of these General Conditions of Sale, the contents of the Agreement shall prevail.

6. The legal relationship between Aguas Creatives and the Buyer shall also be governed (apart from the provisions from the Agreement and these General Conditions of Sale) by the latest version of the Incoterms at the time when the Agreement was concluded. Where the provisions of the Agreement and/or these General Conditions of Sale deviate in contents unequivocally from the provisions of the latest version of the Incoterms at the time of the conclusion of the Agreement, the provisions of the Agreement and/or these General Conditions of Sale shall prevail.

 

Article  3 - Offer; conclusion of the Agreement

1. Quotations and offers made by Aguas Creatives are not binding unless explicitly stated otherwise and will in any event lapse after ten (10) working days.

2. The Agreement shall only be concluded when Aguas Creatives has acknowledged an order or instruction from the Buyer in writing and explicitly, but in any event at the time that Aguas Creatives has started its performance.

3. Illustrations, catalogues, drawings and notices relating to quality, composition, weight, dimensions, handling in the broadest sense, possible uses and characteristics of the goods made available by or on behalf of Aguas Creatives are only intended to give a general impression and do not bind Aguas Creatives.

 

Article 4 - Prices

1. Unless expressly agreed otherwise in writing, the prices shall be exclusive of VAT and other government levies.

2. Unless expressly agreed otherwise in writing, the Buyer shall charge prices as included in the price list/offer most recently issued at the time of the conclusion of the Agreement.

3. Aguas Creatives shall be entitled to adjust the prices or parts thereof for goods or services not yet delivered and/or paid to possible changes in price-determining factors such as raw material prices, wages, currency exchange rates, if after the conclusion of the Agreement three (3) months have passed. Any rise in VAT or other government levy may always be passed on.

4. Unless expressly agreed otherwise in writing, the prices shall be “Ex Works” as referred to in the Incoterms 2010 or at any rate the latest version of the Incoterms at the time of the conclusion of the Agreement.

5. Unless expressly agreed otherwise in writing, the prices of Aguas Creatives shall be indicated in Euros. The foreign exchange risk shall be for account of the Buyer.

6. If the price has been determined in another currency than Euros, the amount in Euros corresponding with this price at the time of payment shall not be lower than the price would have been in Euros at the time of the conclusion of the Agreement.

 

Article 5 - Payment

1. Unless expressly agreed otherwise in writing or otherwise determined by the court, all Aguas Creatives’s invoices must have been paid at the latest within fourteen (14) days after the invoice date, without any discount or set-off, which period shall be a final deadline. If payment is not made within this time, Aguas Creatives may, without further notice, exercise its right to charge the client statutory interest (as referred to in Section 6:119a of the Dutch Civil Code).

2. Aguas Creatives shall always be entitled to desire whole or partial payment in advance for every delivery or partial delivery.

3. If the Buyer fails to see to timely payment, he will be legally in default, without any further notice of default being necessary. 

4. For every payment request or demand, verbal or written, the invoice amount owing will be increased by twenty-five (25) Euros, exclusive of the VAT to be charged thereover.

5. As soon as the Buyer is in default Aguas Creatives has the right, without further notice, to take judicial and extrajudicial collection measures. The Buyer is bound to compensate all costs related thereto. The extrajudicial collection costs will in any event be deemed to amount to fifteen (15) percent of the amount to be collected with a minimum of two-hundred-and-fifty (250) Euros exclusive of the VAT to be charged thereover. The Buyer owes the compensation for extrajudicial collection costs as of the day that he is in default.

6. On Aguas Creatives’s demand the Buyer shall provide, whether or not supplementary, security for the Buyer’s payment of the considerations due to Aguas Creatives, for instance in the form of a bank guarantee. If Aguas Creatives has good grounds for fearing that the Buyer will not be able to fulfil its financial obligations and the Buyer refuses to provide (supplementary) security, Aguas Creatives shall be entitled to suspend the performance of the order, this subject to its statutory rights of suspension.

7. With regard to goods delivered or services rendered the Buyer shall not be entitled to suspend its obligations(s) of payment for whatever reason.

8. Regardless of any statements of the Buyer, all payments of the Buyer will first be deducted from the extrajudicial collection costs owing at that time, then from the contractual interest owing at that time, and finally from the oldest invoice amount owing at that time.

9. The Buyer shall not be entitled to set off its debt to Aguas Creatives with a counterclaim on Aguas Creatives.

10. In the event of payment by means of bills of exchange and cheques, the charges for the bills of exchange and cheques shall be for account of the Buyer. The same shall apply to cash on delivery charges.

11. As soon as the Buyer is declared bankrupt or is made subject to a moratorium on payment, or a decision is made to liquidate the Buyer, all claims of Aguas Creatives will be immediately due.

12. In consultation with the Buyer Aguas Creatives can decide to make invoices (only) available electronically. If Aguas Creatives thus decides to make invoices (only) available electronically, the Buyer shall cooperate in making its realization possible, and any expenses on the part of the Buyer in connection with this form of invoicing shall be at the Buyer’s own expense and risk.

 

Article 6 - Delivery and Risk transfer

1. Aguas Creatives shall be entitled to make partial deliveries and in conjunction with this has the has the right to invoice separately and the Buyer is obliged to pay these invoices as if they were invoices for separate contracts.

2. Aguas Creatives shall be entitled to deliver 10% more or less than the agreed quantity.

3. The agreed or stated delivery periods can never be regarded as final deadlines, unless expressly agreed otherwise. A mere transgression of the delivery period therefore shall not constitute default on the part of Aguas Creatives and consequently cannot result in any liability for compensation on the part of Aguas Creatives. The Agreement cannot be dissolved on account of transgression of the delivery period, unless Aguas Creatives does not deliver within a reasonable period after the end of the delivery period notified in writing by the Buyer. A reasonable period as referred to in the previous sentence amounts to at least two (2) weeks.

4. Unless expressly agreed otherwise in writing, Aguas Creatives shall deliver the goods “Ex Works” as referred to in the Incoterms 2010 or at any rate the latest version of the Incoterms at the time of the conclusion of the Agreement.

5. Subject to other written arrangements, the time of delivery shall in all cases be the time that the goods are made available for transport for the benefit of the Buyer. The goods shall in all cases be dispatched and transported at the expense and risk of the Buyer only.

6. Regardless of the agreed Incoterms the risk of damage to or loss of the goods to be transported or transported or other things than the goods to be transported or transported shall lie with the Buyer during loading and/or unloading. Transport insurance shall only be provided at the explicit request of the Buyer; all the costs involved in this shall be charged to the Buyer.

7. The Buyer shall be subject to a purchase commitment.

8. Risk transfer shall be effected at the time that Aguas Creatives offers the goods for delivery in accordance with the Agreement, also if the Buyer does not take delivery of them for any reason whatsoever.

9. If for any reason whatsoever the Buyer does not take delivery (in time) of the goods that are offered in accordance with the Agreement, all the costs incurred in vain by Aguas Creatives in connection with the offering and any further costs of transport, safekeeping and storage shall be for account of the Buyer. In that case Aguas Creatives shall also be entitled to sell the goods to third parties after three days have passed after the offering to the Buyer. In the last-mentioned case the proceeds of the goods shall replace those goods at no more than the agreed price, on the understanding that Aguas Creatives shall be entitled to deduct all then expenses and damage incurred by it from these proceeds respectively to settle with these proceeds, without prejudice to Aguas Creatives’s right to hold the Buyer otherwise responsible for all the costs and damage and everything without prejudice to all other rights to which Aguas Creatives is entitled in respect of the Buyer in that case.

10. If in the event of an agreed delivery of fungibles these are not taken delivery of by the Buyer after the end of a delivery period, Aguas Creatives shall be entitled to designate the goods intended for delivery, in which case Aguas Creatives, after notification to the Buyer, shall only be obliged to deliver these goods, without prejudice to Aguas Creatives’s power to deliver other goods that comply with the Agreement.

11. Return consignments shall only be accepted after prior written permission by Aguas Creatives and are regardless of the agreed Incoterms at the expense and risk of the Buyer. The acceptance of any return consignments does not constitute approval by Aguas Creatives.

 

Article 7 - Suspension and dissolution of the Agreement

1. As soon as the Buyer (regardless of whether this can be attributed to the Buyer) is in default, does not perform his obligations under the Agreement, is declared bankrupt or is subject to a moratorium on payment, merges with or is taken over by another party, or a decision is taken that it will be liquidated, Aguas Creatives has the right to suspend the performance of all obligations with regard to the Buyer and to terminate the Agreement if so desired or to cancel the Agreement or dissolve the Agreement by means of an extrajudicial statement without any compensation being owed therefore.

2. Every suspension right and retention right of the Buyer and every right of the Buyer to cancel the Agreement is excluded.

 

Article 8 - Complaints

1. The Buyer is obliged to inspect goods and packaging delivered upon receipt, if necessary for the execution of relevant (laboratory) tests. If the Buyer is of the opinion that Aguas Creatives or its supplier(s) have failed in the performance of its obligations under the Agreement, he must immediately inform Aguas Creatives thereof in writing, substantiated with reasons, within seventy-two (72) hours after receipt of the delivered goods. The Buyer must send proof to Aguas Creatives which demonstrates the alleged shortcomings.

2. After expiry of the term set out in the preceding paragraph, it will be deemed established between the parties that Aguas Creatives has performed its obligations under the Agreement. The provision of counter­proof by the Buyer is excluded as of that time.

3. Regardless of the preceding paragraphs of this article, it will be deemed established between the parties that Aguas Creatives has performed its obligations under the Agreement if the Buyer has used the goods, processed the goods or passed them on to a third party.

4. In no case does the Buyer have the right to return the goods delivered by Aguas Creatives, other than after Aguas Creatives's written consent and subject to the satisfying of further conditions laid down by Aguas Creatives.

5. If Aguas Creatives deems any complaint well-founded, it has the right, at its selection, to replace the goods in question or to credit the Buyer for the relevant part of the delivery. For the rest Aguas Creatives is not bound to compensate any damage, loss or costs.

6. The measurements and weights as these are set out on the invoices presented by Aguas Creatives or measurement or weight notes, are deemed to be correct, unless the Buyer demonstrates a deviation of more than two (2) percent within the term set out in Article 8.1 of these General Conditions of Sale, in which case the payment owing will be adjusted accordingly.

 

Article 9 - Force majeure

1. In the case of force majeure Aguas Creatives has the right, without judicial intervention, to suspend the performance of the Agreement in whole or in part until the circumstance causing the force majeure no longer exists, or to cancel the Agreement in whole or in part or to dissolute it by means of an extrajudicial statement. In no case will Aguas Creatives be bound to pay any compensation to the Buyer.

2. Force majeure means: every circumstance which Aguas Creatives could not reasonably have foreseen, which cannot be attributed to Aguas Creatives or which is reasonably beyond Aguas Creatives’s control. I n any event, force majeure includes war, risk of war, civil war, riot, flooding, water damage, fire, transport difficulties, unforeseen technical complications, disruptions in operations, strikes at Aguas Creatives or at suppliers and third parties engaged by it, blockades, import and export bans, whether or not of health authorities, whole or partial seizure or expropriation of stock at Aguas Creatives or at its suppliers by a civil or military authority, lack of transport capacity, non-delivery or late delivery by suppliers of Aguas Creatives, machine malfunctions, destruction and other stagnation in the businesses of Aguas Creatives or suppliers, as well as a scarcity, whether or not the result of price increases of the goods or government measures, whereby delivery is made permanently or temporarily impossible or is made more difficult.

 

Article 10 - Liability

1. Any liability of Aguas Creatives for damage of any nature whatsoever is excluded, except in the event this damage was caused by intentional or wilfully reckless action of managers of Aguas Creatives. This exclusion of liability for loss can also be invoked by the (former) personnel, directors and supervisory directors of Aguas Creatives, third parties engaged by it, including heirs and legal successors, regardless of whether managers of Aguas Creatives caused the loss due to intentional or wilfully reckless actions, except in the case of intentional or wilfully reckless action of these third parties.

2. Aguas Creatives is in no case liable for:

a. loss arising on the part of the Buyer or third parties which is the result of the provision of incorrect or incomplete documentation or information by the Buyer to Aguas Creatives, also when this information and documentation comes from third parties, or loss which is otherwise the result of instructions, actions or omissions of the Buyer;

b. loss arising on the part of the Buyer or third parties which is the result of an action or omission of agents or suppliers engaged by Aguas Creatives, including employees of an organisation connected with Aguas Creatives;

c. operating, indirect or consequential loss arising on the part of the Buyer or third parties, including but not limited to loss due to shutdown of operations, loss of turn over or profit.

3. Any liability of Aguas Creatives is in any event limited with regard to a shortcoming in the performance of the Agreement and/or the delivery of goods and with regard to wrongful act to the amount that the Buyer paid and/or still owes with regard to the Agreement to which the loss-causing event relates or with which it is connected, with a maximum of the amount which is paid out in the case in question by Aguas Creatives's liability insurer; if for whatever reason no payout is made under said insurance, this maximum has been fixed at hundred-thousand (100,000) Euros.

4. The Buyer is bound to indemnify Aguas Creatives against all claims of third parties (including but not limited to agents and employees of Aguas Creatives and the Buyer) ensuing from or connected with the Agreement and/or the delivery of goods, except insofar as these claims are the result of intent or wilful misconduct of managerial staff of Aguas Creatives.

 

Article 11 - Retention of title

1. The title to the goods delivered by Aguas Creatives first passes to the Buyer after he has performed all his obligations to Aguas Creatives, including payment of invoices, contractual interest and extrajudicial collection costs.

2. During the period that the ownership in the goods remains with Aguas Creatives, the Buyer is obliged to store the goods delivered subject to retention of title carefully and clearly marked as the property of Aguas Creatives and he cannot transfer the goods (as security) to third parties and/or encumber it with a right of security.

3. If the Buyer fails in the performance of his obligations to Aguas Creatives, or if Aguas Creatives has reasonable grounds to fear that the Buyer will fail in the performance of said obligations, Aguas Creatives has the right to retrieve the delivered goods from the Buyer without prior notice, without prejudice to Aguas Creatives's right to compensation.

4. lf the law of the country of destination of the goods delivered by Aguas Creatives has farther-reaching options for the retention of title than has been stipulated in this article, it is deemed agreed between the parties that such farther-reaching options are deemed to have been stipulated on behalf of Aguas Creatives on the understanding that when it cannot be objectively determined to what farther-reaching rules this provision relates, the provisions of this article will remain in effect.

5. On Aguas Creatives's first request the Buyer will grant a (non-possessory) pledge on all goods in which the goods delivered by Aguas Creatives have been incorporated, or of which they form part.

 

Article 12 - Information to be provided by the Buyer

1. The Buyer is bound to provide Aguas Creatives in time and in the manner requested by Aguas Creatives with all information and documentation which is necessary in Aguas Creatives's opinion or which is legally necessary for the correct performance of the Agreement. If the Buyer fails to provide the relevant information and documentation (in time), Aguas Creatives is entitled to suspend the (further) performance of the Agreement until all necessary information and documentation has been provided to Aguas Creatives. The Buyer is furthermore bound to provide Aguas Creatives with all information and documentation in respect of which the Buyer knows or should reasonably know that it is necessary or useful for the proper performance of the Agreement. The Buyer guarantees that the information and documentation which has been provided to Aguas Creatives is correct, complete and reliable, even if this information and documentation comes from third parties. The Buyer is bound to compensate loss arising as a result of inaccuracy and/or incompleteness of the information and documentation provided.

2. If non-performance by the Buyer of the above results in delay in the performance of the Agreement, all (additional) costs ensuing therefrom are at the Buyer's expense and the Buyer will be bound to compensate Aguas Creatives for all (additional) costs for (additional) work activities which are required in this respect.

 

Article 13 - Confidentiality

Save to the extent required in the performance of its obligations under these General Conditions of Sale, the Buyer hereby agrees to keep confidential, to protect and not to disclose to any third party any confidential information, technical data or trade secrets in respect of Aguas Creatives (both during the term and following termination of these General Conditions of Sale). The Buyer further agrees to use its best endeavours to prevent the disclosure of any confidential information of Aguas Creatives (whether by any of its past or present employees, agents, representatives or otherwise) and shall not use or disclose such information except with the prior written consent of Aguas Creatives or as required by law or in accordance with the order of a court of tribunal of competent jurisdiction. This obligation shall not apply to information which is publicly available or becomes publicly available otherwise than as a result of a breach of this provision or any other confidentiality agreement relating to any of the matters referred to in these General Conditions of Sale.

 

Article 14 - Intellectual Property Rights

1. Nothing in this Agreement shall in any way transfer to the Buyer, and the Buyer shall have no rights in or to use, any intellectual property rights owned or used by any Aguas Creatives (“Aguas Creatives IP”). In this Agreement, "Aguas Creatives" shall mean Aguas Creatives and any company or partnership in which it either directly or indirectly owns, or controls the voting rights attaching to not less than 50% of the issued share capital, or controls directly or indirectly the appointment of a majority of the board of management.

2. The Buyer shall not do or omit to do anything which may damage or endanger any “Aguas Creatives IP” and shall procure that its Affiliates do not do or omit to do the same. In this Agreement, "Affiliates" means, in the case of the Buyer, any corporation controlling,  controlled by or under common control, whether direct or indirect, with the Buyer.

3. The Buyer shall promptly and fully notify Aguas Creatives of any breach of this Article 8 or any actual, threatened or suspected infringement of any of the “Aguas Creatives IP” which comes to its notice, and shall at the request and expense of Aguas Creatives do all such things as may be reasonably required to assist Aguas Creatives in taking or resisting any proceedings in relation to any such infringement or claim.

4. Buyer shall only purchase Aguas Creatives products from Aguas Creatives and shall not purchase, sell, distribute, store or transport any other Aguas Creatives Products, which are not distributed or manufactured by Aguas Creatives unless the prior written consent of Aguas Creatives is obtained. Buyer shall not participate in any activity, either by itself or through any other third party or person, which shall result in or encourage parallel imports of Aguas Creatives products in any way whatsoever.

5. Buyer shall not sell, offer for sale, handle, manufacture, produce and/or distribute, directly or indirectly, export or import goods that infringe the intellectual property rights of Aguas Creatives, counterfeits or fakes or look-alike Products or other products which bear any mark or design which is similar or confusingly similar with the Aguas Creatives products. Buyer shall notify Aguas Creatives forthwith if it becomes aware of the existence, location, import, export, manufacture or distribution of goods that infringe the intellectual property rights of Aguas Creatives, counterfeits or fakes or look-alike Products.

6. The Buyer shall not:

  1. use any of the “Aguas Creatives IP” in any way, which might prejudice their distinctiveness or validity or cause confusion or deception;

  2. use any of the “Aguas Creatives IP” or marks confusingly similar thereto in connection with any products other than the Products, and shall not refer to the Aguas Creatives IP in any way in its literature or any labels without the Supplier’s prior written consent; or

  3. manufacture, produce, pack or sell during the term of this Agreement and after products similar to the Products or which are likely to cause confusion or deception.

 

Article 15 - Specifications and guarantees

1. Aguas Creatives does not guarantee that the goods are suitable for the intended use or are otherwise suitable, unless it has been explicitly agreed in writing that the goods must be suitable for the intended use. The Buyer is in such case obliged to explicitly indicate in writing what use the goods are intended for. Prior to delivery of the goods the Buyer will inform Aguas Creatives in writing of all (statutory) regulations and all, in view of the use, location and conditions, (other) requirements to be set for the goods.

2. Aguas Creatives must only ensure that the goods meet those dimensions, materials, suitability, specifications, inspections, certifications, safety regulations and other requirements which have been agreed between the parties in writing. In the event the goods do not meet the Agreement laid down in this article, Aguas Creatives is obliged, at Aguas Creatives's selection, to either rectify the defect, or repay the money already paid by the client with regard to the goods in question. For the rest Aguas Creatives is not bound to pay any other guarantees than those which have explicitly been agreed as such in writing between the parties.

 

Article 16 - Time limits

All rights of action against Aguas Creatives, its employees, directors and supervisory directors, third parties engaged by it, including heirs and legal successors, will lapse upon the passing of one (1) calendar year after the event which gave rise to the claim occurred and will in any event lapse after three (3) years.

 

Article 17 - General interpretation of these General Conditions of Sale

1. These General Conditions of Sale have been drawn up in English. In the event of a dispute regarding the content or purport of translations of these General Conditions of Sale, the English text will be binding and the interpretation of the text and terms will take place as much as possible in accordance with what is common in international commercial transactions.

2. In these General Conditions of Sale, words shall not be given a restrictive interpretation if they are preceded or followed by words indicating a particular class of acts, matters or things, the expression "including" or "shall include" means "including without limitation" (with related words being construed accordingly), any references to singular include plural (and vice versa) and a statute or statutory provision includes any consolidation, re-enactment, modification or replacement of the same and any subordinate legislation in force under any of the same from time to time.

3. Headings are included for ease of reference and convenience only and shall not affect the interpretation of the General Conditions of Sale.

4. Each of the provisions of these General Conditions of Sale is severable. If any such provision or any part of such provision is or becomes illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining provisions of these General Conditions of Sale or the remaining parts of that provision shall not in any way be affected.

5. Aguas Creatives may amend these General Conditions of Sale from time to time and without prior notice. The amended General Conditions of Sale then govern all subsequent legal relationships with the Buyer.

 

Article 18 - Applicable law and Venue

1. All offers, quotes, assignments and all legal relationships ensuing from or connected with these General Conditions of Sale and/or the Agreement or further contracts, shall be exclusively governed by, and constructed in accordance with, the laws of the Netherlands. The applicability of the Vienna Sales Convention (United Nations Convention on Contracts tor the International Sale of Goods, 11 April 1980) is explicitly excluded.

2. The parties agree to attempt in good faith to resolve any dispute or claim which might arise in connection with or in relation to these General Conditions of Sale and/or the Agreement or further contracts which might be the result thereof, and/or the delivery of goods, promptly through negotiations between senior management.

3. Any disputes that arise as a result of these General Conditions of Sale and/or the Agreement shall, unless provided otherwise by mandatory law, be subject to the judgment of the competent court in Amsterdam, with the proviso that Aguas Creatives shall be entitled to bring legal actions, either simultaneously or not, before other courts that have jurisdiction to hear such cases.

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GENERAL PURCHASE CONDITIONS 

General Purchase Conditions of ‘Aguas Creatives’ (trading under the name ‘Solstice Blends’), with its registered office in Amsterdam and registered with the Dutch Chamber of Commerce under file number 57531625.

 

Article 1 - Definitions

In these General Purchase Conditions the following terms shall have the following meanings:

‘Aguas Creatives’: the Aguas Creatives entity that uses these general conditions and has declared them applicable and/or enterprises associated with it;

‘Goods’: the goods, services and/or software to be delivered to and/or to be provided for Aguas Creatives;

‘Supplier’: any party which delivers Goods to Aguas Creatives;

‘Agreement’: all agreements between Aguas Creatives and the Supplier concerning the purchase of Goods by Aguas Creatives from the Supplier, and also all (legal) acts that are related to this;

‘lncoterms’: means the lncoterms drawn up by the International Chamber of Commerce in Paris.

 

Article 2 - Applicability

1. These General Purchase Conditions shall apply to and form an integral part of all offers, quotations, order confirmations of Aguas Creatives, to the Agreement and to all the other legal acts between Aguas Creatives and the Supplier.

2. The interpretation of what the parties agree will take place in accordance with the customs between businesses which trade in ingredients for food and related industries as well as related items.

3. Deviation from and/or addition to these General Purchase Conditions may only be agreed in writing and explicitly.

4. General conditions, by any name whatsoever, of the Supplier shall explicitly not apply.

5. In the event that the contents of the Agreement deviate from the contents of these General Purchase Conditions, the contents of the Agreement shall prevail.

6. The legal relationship between Aguas Creatives and the Supplier shall also be governed (apart from the provisions from the Agreement and these General Purchase Conditions) by the latest version of the Incoterms at the time when the Agreement was concluded. Where the provisions of the Agreement and/or these General Purchase Conditions deviate in contents unequivocally from the provisions of the latest version of the Incoterms at the time of the conclusion of the Agreement, the provisions of the Agreement and/or these General Purchase Conditions shall prevail.

 

Article 3 - Formation

1. Every offer and/or quote the Supplier including all costs, in whatever form, are considered as irrevocable and are entirely free of charge for Aguas Creatives, unless the contrary explicitly appears from the offer and/or quote.

2. The agreement comes into effect at the moment of acceptance by Aguas Creatives of the last verbal or written quote from the Supplier and by the written confirmation thereof by Aguas Creatives. This acceptance can be made by means of a purchase order sent by Aguas Creatives. An order confirmation sent later by the Supplier does not change the content or moment of formation of the agreement.

 

Article 4 - Prices and conditions

1. The price of the Goods is fixed and also inclusive of all additional costs in connection with – for example, but not limited to – the packaging, trade promotion, the transport and/or delivery costs to the location designated by Aguas Creatives and further any costs of assembly and instruction.

2. All prices are in Euros or another internationally traded currency and exclusive of VAT and inclusive of other levies which are or will be imposed by the authorities.

3. Future price changes and market developments are reported in writing by the Supplier to Aguas Creatives. Price changes shall only become effective after having been accepted by Aguas Creatives in writing.

 

Article 5 - Payment

1. Aguas Creatives will take care of payment within the term agreed by the parties. The banking costs connected with (international) payment are at the Supplier's expense.

2. Aguas Creatives has the right to set off any claim on the Supplier under any heading whatsoever against payments owing to the Supplier under any heading whatsoever. Aguas Creatives is entitled to suspend payment until the Supplier has performed all its obligations to Aguas Creatives.

3. Aguas Creatives will in no case be in default until after it has been given prior written notice by the Supplier whereby it will be given a term of at least thirty (30) days to effect performance. This term of thirty (30) days will be extended one time on Aguas Creatives's request by the same number of days if it indicates to the Supplier that said time is necessary to effect performance.

4. lf Aguas Creatives is in default it is only bound to compensate statutory interest over the invoice amount exclusive of transport costs, VAT and other government levies of whatever nature and exclusive of any extrajudicial collection costs.

5. If the Supplier has several claims on Aguas Creatives, the latter is entitled to determine toward which claim a payment will go.

6. If the Supplier intends to increase the price, on whatever ground, Aguas Creatives is permitted to cancel the contract or dissolute it by means of an extrajudicial statement, without it owing any compensation to the Supplier in this respect.

 

Article 6 - Delivery and Risk transfer

1. All deliveries by Supplier to Aguas Creatives are based on the most recent Incoterms delivery conditions. Until Aguas Creatives has taken receipt of the goods, the goods remain at the Supplier's expense and risk, regardless of whether or not Aguas Creatives has taken care of the transport. The Supplier will take care of insurance of the goods during transport and storage until the time of receipt by Aguas Creatives, unless explicitly agreed by both parties otherwise with written confirmation thereof by Aguas Creatives. The ownership and risk of the relevant Goods passes to Aguas Creatives immediately after the Goods are delivered.

2. All periods, dates and order lead/slot times stated in the Agreement are final deadlines. In case of overdue delivery, the Supplier is accordingly in default de jure and Aguas Creatives is entitled to compensation in connection with the delay. The compensation will in any event be deemed to amount to one (1) percent per calendar week of the value of the goods delivered late whereby each part of a calendar week which has started will be counted as a whole week, without prejudice to Aguas Creatives's right to demand full compensation.

3. Without Aguas Creatives's written consent, the Supplier is not permitted to deliver earlier than the agreed time.

4. In no event any costs for and/or deposit on packaging, including packets, crates and suchlike will be charged by the Supplier.

 

Article 7 - Suspension and cancellation of the contract

1. Aguas Creatives has the right to suspend the performance of all obligations to the Supplier and to terminate the contract or cancel it by means of extrajudicial statement, without it owing any compensation therefore to the Supplier, if the Supplier (regardless of whether this is attributable to the Supplier) is in default, does not perform his obligations under the contract, is declared bankrupt or made subject to a moratorium on payment, merges with or is taken over by another party, is made subject to guardianship or assets belonging to the Supplier but in the possession of Aguas Creatives are made subject to a garnishment order.

2. Every suspension right and retention right of the Supplier and every right of the Supplier to cancel the contract is excluded.

 

Article 8 - Supplier's obligations

1. The Supplier is obliged upon delivery to present the necessary documents and certificates of the authorities, including customs and health and inspection authorities, which show that the goods can be imported, traded or processed by Aguas Creatives for human consumption or the use set out in the contract is permitted within the European Union without any impediment and without any further governmental formalities needing to be satisfied.

2. The Supplier is furthermore bound to ensure that delivered goods are packaged carefully and properly, are provided with a 'best before date', and provided with all markings required by law, are free of foreign objects, contaminants and substances harmful to health, and are in accordance with all legal requirements and EU regulations and satisfy the temperature requirements prescribed by law.

3. The Supplier will see to it that the purchased goods are stored and transported under at least the legally stipulated temperatures and conditions and insofar as applicable that the refrigeration chain is not unnecessarily interrupted. In addition, the Supplier must satisfy the general regulations in this respect which apply to the relevant product. The Supplier will regularly check and register the temperature of the refrigeration and freezer cell and the temperature development during the transport to Aguas Creatives. Upon first request the Supplier will furnish a copy to Aguas Creatives for all registrations made in this respect.

4. The Supplier is bound to apply an HACCP and/or GMP system or an applicable hygiene code or quality control system for all delivered goods which is aligned to the work activities, the volume and the nature of the Supplier's goods. The Supplier is bound with regard to all points of preparation, handling, storage or distribution of goods, materials or equipment which come into contact with the delivered goods to satisfy the legislation and regulations applicable at Aguas Creatives's office and if necessary to demonstrate this on Aguas Creatives's first request.

5. lf the Supplier fails in the performance of the obligations ensuing from this article, the Supplier will repair or replace the goods at his expense and at Aguas Creatives's selection on its first request or supplement the missing parts, unless Aguas Creatives prefers to terminate or dissolute the contract, without prejudice to Aguas Creatives's other rights under the heading of a shortcoming, including but not limited to the right to compensation.

6. The Supplier guarantees that the goods to be delivered correspond with the contract. This guarantee at least encompasses that:

  1. the goods have the characteristics which have been promised;

  2. the goods satisfy the highest quality standards;

  3. the goods are new and free of defects and rights of third parties;

  4. the goods are suitable for the purpose for which the order was placed or the contract was made;

  5. the goods satisfy the rules laid down by or pursuant to the law and/or otherwise and/or the requirements set by Aguas Creatives, inter alia in the area of quality, health, safety and the environment, both in the country of delivery and in the country of destination;

  6. the goods are furnished with and accompanied by all details and instructions which are necessary for a correct and safe use; and

  7. the goods will be furnished with and accompanied by all documents requested by Aguas Creatives or which are otherwise necessary.

 

Article 9 - Complaints

1. Aguas Creatives is never bound by any term set by the Supplier within which Aguas Creatives must give notice that the delivered goods have been rejected or within which Aguas Creatives must lodge a complaint.

2. Even if it only turns out after processing of the goods or delivery of the goods to customers of Aguas Creatives that the Supplier failed in the performance of his contract, Aguas Creatives will be entitled to cancel the contract on the basis thereof and/or to extrajudicially dissolute the contract and the Supplier is bound to compensate all loss suffered by Aguas Creatives.

3. Aguas Creatives is at all times entitled to return the goods delivered by the Supplier if there is a shortcoming in the performance of the delivery obligation after which the Supplier is bound to return amounts already paid by Aguas Creatives or to furnish a credit invoice for items which have remained unpaid in this respect.

4. After a complaint Aguas Creatives is entitled, at the Supplier's expense, to replace the relevant goods or the Supplier is bound to indemnify Aguas Creatives with regard to the relevant part of the delivery.

5. The measurements and weights as these are set out on the invoices presented by the Supplier or on measurement or weight notes, must be correct and in the event of any deviation thereof in a negative sense for Aguas Creatives, the payment owed will be reduced accordingly.

 

Article 10 - Force majeure

1. In the case of force majeure on the part of Aguas Creatives, Aguas Creatives has the right to suspend the performance of all obligations to the Supplier and to cancel the contract or dissolute it by means of an extrajudicial statement, without it owing any compensation therefore to the Supplier.

2. Force majeure means: every circumstance which Aguas Creatives could not reasonably have foreseen, which cannot be attributed to Aguas Creatives or which is reasonably beyond Aguas Creatives's control. In any event, force majeure includes war, risk of war, civil war, riot, flooding, water damage, fire, transport difficulties, unforeseen technical complications, disruptions in operations, strikes at Aguas Creatives or its customers or suppliers and third parties engaged by it, blockades, import and export bans, whether or not of health authorities, whole or partial seizure or expropriation of stock at Aguas Creatives or at its customers by a civil or military authority, lack of transport capacity, machine malfunctions, destruction and other stagnation in the businesses of Aguas Creatives or its customers.

3. Aguas Creatives has the right to suspend the performance of all obligations to the Supplier and to cancel or dissolute the contract by means of an extrajudicial statement, without it owing any compensation therefore to the Supplier, if a circumstance of force majeure arises on the part of the Supplier.

 

Article 11 - Liability

1. The Supplier is liable for all loss of any nature whatsoever and without any limitation which is suffered by Aguas Creatives and/or later customers or users, including the - final - consumer of the delivered goods (whether or not in processed condition) as a result of a shortcoming in the performance of the obligations of the Supplier and/or or as result of the actions or omissions of the Supplier, or his staff or third parties engaged by him. The Supplier's liability relates to both direct and indirect loss.

2. The Supplier is bound to insure his liability for such amounts as is common in the European and North American foodstuffs industry. The insurance cover will be at least five-million (5,000,000) Euros. Upon first request the Supplier will allow Aguas Creatives to inspect the relevant policies and will annually submit an insurance certificate evidencing this insurance cover.

3. The Supplier indemnifies Aguas Creatives against all claims of third parties in connection with the contract and/or the goods delivered by the Supplier or through his intervention. The Supplier will join judicial or arbitration proceedings on Aguas Creatives's first request. The Supplier is also bound to indemnify Aguas Creatives against all costs related to such judicial or arbitration proceedings, including the full costs of leg al assistance and extrajudicial costs.

4. The Supplier guarantees that the use (including resale) of the delivered goods will not infringe (intellectual) property rights or other (property) rights of third parties. The Supplier indemnifies Aguas Creatives against claims of third parties which ensue from any infringement of (intellectual) property rights or other (property) rights of third parties and the Supplier will compensate Aguas Creatives for all loss which is the result thereof.

5. Any liability of Aguas Creatives for loss of any nature whatsoever is excluded, except in the event this loss is caused by intent or wilful misconduct of managerial staff of Aguas Creatives. This exclusion of liability for loss can also be claimed by the (former) staff, directors and supervisory directors of Aguas Creatives, by third parties engaged by it, including heirs and legal successors, regardless of whether managerial staff of Aguas Creatives caused the loss due to intent or wilful misconduct, except in the event of intent or wilful misconduct of such third parties.

 

Article 12 - Time limits

All rights of action of Aguas Creatives, its employees, directors and supervisory directors, third parties engaged by it, including heirs and legal successors, will lapse upon the passing of five (5) calendar years after the event which gave rise to the claim occurred.

 

Article 13 – Confidentiality

Save to the extent required in the performance of its obligations under these General Purchase Conditions, the Supplier hereby agrees to keep confidential, to protect and not to disclose to any third party any confidential information, technical data or trade secrets in respect of Aguas Creatives (both during the term and following termination of these General Purchase Conditions). The Supplier further agrees to use its best endeavours to prevent the disclosure of any confidential information of Aguas Creatives (whether by any of its past or present employees, agents, representatives or otherwise) and shall not use or disclose such information except with the prior written consent of Aguas Creatives or as required by law or in accordance with the order of a court of tribunal of competent jurisdiction. This obligation shall not apply to information which is publicly available or becomes publicly available otherwise than as a result of a breach of this provision or any other confidentiality agreement relating to any of the matters referred to in these General Purchase Conditions.

 

Article 14 - General interpretation of these General Purchase Conditions

1. These General Purchase Conditions have been drawn up in English. In the event of a dispute regarding the content or purport of translations of these General Purchase Conditions, the English text will be binding and the interpretation of the text and terms will take place as much as possible in accordance with what is common in international commercial transactions.

2. In these General Purchase Conditions, words shall not be given a restrictive interpretation if they are preceded or followed by words indicating a particular class of acts, matters or things, the expression "including" or "shall include" means "including without limitation" (with related words being construed accordingly), any references to singular include plural (and vice versa) and a statute or statutory provision includes any consolidation, re-enactment, modification or replacement of the same and any subordinate legislation in force under any of the same from time to time.

3. Headings are included for ease of reference and convenience only and shall not affect the interpretation of the General Purchase Conditions.

4. Each of the provisions of these Purchase Sales Conditions is severable. If any such provision or any part of such provision is or becomes illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining provisions of these General Purchase Conditions or the remaining parts of that provision shall not in any way be affected.

5. Aguas Creatives may amend these General Purchase Conditions from time to time and without prior notice.  The amended General Purchase Conditions then govern all subsequent legal relationships with the Supplier.

 

Article 15 - Applicable law and Venue

1. All offers, quotes, assignments and all legal relationships ensuing from or connected with these General Purchase Conditions and/or the Agreement or further contracts, shall be exclusively governed by, and constructed in accordance with, the laws of the Netherlands. The applicability of the Vienna Sales Convention (United Nations Convention on Contracts tor the International Sale of Goods, 11 April 1980) is explicitly excluded.

2. The parties agree to attempt in good faith to resolve any dispute or claim which might arise in connection with or in relation to these General Purchase Conditions and/or the Agreement or further contracts which might be the result thereof, and/or the delivery of goods, promptly through negotiations between senior management.

3. Any disputes that arise as a result of these General Purchase Conditions and/or the Agreement shall, unless provided otherwise by mandatory law, be subject to the judgment of the competent court in Amsterdam, with the proviso that Aguas Creatives shall be entitled to bring legal actions, either simultaneously or not, before other courts that have jurisdiction to hear such cases.