32CUP N.V. GENERAL TERMS AND CONDITIONS FOR THE SUPPLY OF COFFEE Applicability 1. These General Terms and Conditions are applicable to all quotes issued, offers of, and agreements entered into by 32CUP N.V. (including, among other things, distance selling, the selling and supply of goods and all other legal relationships which may result) by 32CUP N.V. Any deviation from these General Terms and Conditions is only possible on a case by case basis and in so far as this is agreed on in writing. The provisions of the European Delivery Contract for Coffee apply to the legal relationships between the parties insofar as these do not deviate from these General Terms and Conditions. Place of sale Confirmation 2. Each sale is deemed to have been agreed upon in Antwerp and is only valid after written confirmation by both parties. 3. Any comments concerning the written confirmation of one of the parties must be notified to this party by the other party within 48 hours or two business days after receipt of the written confirmation. After the expiry of this period, silence will be construed as acceptance of the written confirmation. Amounts 4. The amount of coffee to be supplied is specified in the order confirmation. However, the actual amount of coffee delivered may deviate by a maximum of 3% (more or less) from the amount specified in the order confirmation. Weight 5. The coffee is weighed in accordance with local customs. Subject to conflicting provisions in the agreement, the coffee will be weighed at the moment the coffee is sent overseas from Antwerp (shipped weight), or when the coffee, if it is transported in containers, is placed into the containers. The invoice will therefore be drawn up based on the weight recorded at the time and place of shipment of the coffee. Tare weight 6. If the tare weight for the empty bags of coffee has not been determined, 500 grams per bag will be deducted. Quality 7. (a) If the coffee is sold on the basis of a sample from a specific stock of coffee, the coffee supplied must fully conform with this coffee sample; (b) If the coffee is sold on the basis of a type or reference sample, the average quality of the coffee supplied must correspond with this coffee sample; (c) If the coffee is sold by means of certain parameters, the coffee supplied must correspond with this description in all aspects; (d) If the coffee is sold by a special classification, the coffee supplied must correspond to this classification and the quality must conform with the average quality of the harvest at the place and the time of shipment of the coffee; General Terms and Conditions 32CUP N.V. 1
(e) Finally, a sale may also be agreed on approval of a sample by the buyer if the parties agree to this and explicitly determine this. In this case, 32CUP N.V. will submit a coffee sample to the buyer as soon as possible, and the buyer must accept or refuse this sample within 24 hours after receipt. A refusal is only justified if the lot sold does not fully correspond to the predetermined quality, and cannot serve the use for which the buyer intended. Such refusal does not release 32CUP N.V. from any further obligations regarding the supply of the coffee. However, 32CUP N.V. is free to offer other lots similar to the quality sold within 30 days in full or partial performance of the agreement. 8. Subject to obvious mistake, gross negligence or wilful intent by 32CUP N.V., the buyer may not invoke a difference in quality between the coffee supplied and the aforementioned sample to annul the agreement or to refuse to accept the coffee which is the subject thereof. Such a difference in quality only entitles the buyer to compensation from 32CUP N.V. for the abnormal deviation. Delivery and performance 9. The place of delivery is deemed to be the address provided by the buyer in advance. 10. Upon delivery, the risk is transferred to the buyer. 11. Delivery times are approximate. If 32CUP N.V. exceeds the delivery times, this does not entitle the buyer to compensation or to annul the orders concerned and/or possible earlier or later orders or to dissolve the underlying agreement. The buyer must send 32CUP N.V. a written notice of breach and give it a reasonable period within which to comply with its obligations. Shipment 12. The coffee is always transported at the buyer s risk, even in the case of delivery free of charge to the destination indicated by the buyer. It is expressly agreed that the provision free of charge only concerns the previously agreed price for the transport, excluding all associated risks. 32CUP N.V. is not liable for possible weight loss or for any damage to the coffee after the delivery thereof. 13. The buyer may demand weight control checks at the time of loading the coffee into containers, provided that this is requested in time and that the buyer bears the costs thereof. Sale deferred shipment 14. Each sale agreed for shipment on order of the buyer assumes, unless otherwise agreed, shipment by 32CUP N.V. within 14 days after the sale of the coffee by 32CUP N.V. or within 14 days after 32CUP N.V. has made the coffee available to the buyer, whichever is earliest. 15. For each deferred shipment caused by the buyer, 32CUP N.V. may either (i) suspend the performance of the agreement or terminate the agreement for any unshipped amount, or (ii) weigh the coffee, invoice the coffee, hold the coffee at the disposal of the buyer. In such case, the insurance against fire damage will automatically be for the account of the buyer. 16. For arrears, storage costs and insurance 32CUP N.V. may charge the buyer a fixed rate of 12% per year over and above the interest rate for late payment specified in Article 27 of these General Terms and Conditions. Sale in transit or for shipment 17. Prompt shipment is deemed to be shipment no later than the 30th day after the day following the date of the order confirmation. General Terms and Conditions 32CUP N.V. 2
18. 32CUP N.V. is not liable if for reasons beyond its control, the transport cannot take place by means of the scheduled ship or the scheduled means of transport. 19. Unless agreed otherwise, the coffee which is sold in transit or for shipment must be collected from the quay within 48 hours after its unloading. If this condition is not complied with, the resulting additional costs will be charged to the buyer. Cost of maritime transport 20. For each sale on unloading, the price is always determined on the basis of the cost price of the maritime transport in effect at the time of the order confirmation and converted into the currency in which the price of the coffee is expressed. If these transport costs change, any difference is credited or charged to the account of the buyer. Insurance 21. The transport to the buyer is not covered by any insurance without an explicit and individual order or repeated request of the buyer. If an insurance policy is taken out by 32CUP N.V., its possible liabilities must not exceed the liability of its insurers. Price 22. Unless explicitly agreed otherwise, the prices for the sale of coffee are expressed in EUR, USD, GBP or CHF, per kilo of coffee (i) net, (ii) delivery ex quay (in the case of maritime transport) or (iii) ex warehouse on HGV (in the case of overland transport) with departure from Antwerp. All rights, taxes and levies on the coffee purchase agreement and/or other mandatory charges are for the account of the buyer, even those not foreseen at the moment the agreement was entered into. Payment 23. Payment must be validly made in Antwerp at the moment stipulated in the agreement. Material mistakes in the agreement do not give the buyer the right to avoid the agreement, provided that such mistakes are corrected in a timely manner and with the necessary additional explanation. 24. If the buyer has made no comment on the delivery price of the coffee within 8 days after receipt of the invoice, the buyer is deemed to have approved and accepted the invoice. The costs resulting from any possible protest are for the account of the buyer. 25. In so far as it has not been agreed otherwise, the sums owed by the buyer for delivery of the coffee or in the case of an agreement for the rendering of services, must be paid by the buyer. 26. The buyer must make any payment into a bank account of 32CUP N.V., as indicated on the invoice, without the buyer having the right to a discount or to offset or suspend such payment. 27. For the sums which remain unpaid on the due date, interest for the delayed payment will automatically and without notification will be payable and this simply by the fact of exceeding the due date. The buyer is liable for delayed payment interest of 1% per month for the duration of the default in payment, until the day of full settlement, unless the legal interest is higher, in which case the legal interest is payable. 28. If the invoice remains unpaid after the notification of default in payment, the amount of the invoice will be increased by 10% as fixed liquidated damages. 29. Notwithstanding any other provisions, 32CUP N.V. may demand payment in cash from the buyer. General Terms and Conditions 32CUP N.V. 3
30. Non-payment of an invoice on the due date confers on 32CUP N.V. the right to suspend the delivery of any undelivered coffee. Retention of title 31. 32CUP N.V. expressly retains title to the coffee to be delivered until the buyer has fulfilled all obligations pursuant to the agreement, including the obligation to pay any costs, interest and premiums which are for the account of the buyer. 32. If the delivery is part of a series of deliveries, the title to the coffee is retained until all payment obligations in connection with this series of deliveries have been fulfilled. 33. If the buyer does not fulfil its obligations under the agreement, or if there is a justified fear that it will not do so, 32CUP N.V. may repossess the coffee in which it retains title from the buyer or from third parties. The buyer must reimburse any costs incurred by 32CUP N.V. in such process. Suspension and termination 34. 32CUP N.V. may suspend performance or terminate the agreement without notification or compensation being due to the buyer if: (a) the buyer does not fulfil its obligations under the agreement (such as, for instance, the timely payment of the agreed price, including any interest and costs due); (b) the buyer fails to take receipt of the delivered coffee; (c) circumstances which 32CUP N.V. has become aware of after entering into the agreement provide 32CUP N.V. with justifiable grounds to fear that the buyer will not fulfil its obligations, including the situation where the buyer is not sufficiently creditworthy; (d) the buyer is (in a state of) bankrupt(cy), discontinuation of payment, or has requested judicial restructuring; or (e) the buyer is not or is no longer authorised to dispose of its assets. Complaints Reservation 35. The buyer is obliged to check the coffee on delivery. Complaints regarding visible imperfections and/or defects, including a detailed description of the nature and grounds of the complaint, must be submitted in writing to 32CUP N.V, within 24 hours after arrival at destination (for available coffee) or after notification of the buyer of the arrival (for coffee sold in transit or on unloading ). 36. Complaints regarding defects which were not visible (on delivery), including a detailed description of the nature and grounds of the complaint, must be submitted in writing within five business days after the determination of the defect invoked but at the latest two months after the arrival at destination (for available coffee) or after notification of the buyer of the arrival (for coffee sold in transit or on unloading ). After the aforementioned term the buyer is deemed to have accepted delivery of the coffee. 37. Complaints regarding non-delivery may always be submitted if this is done within the relevant statutory limitation period. General Terms and Conditions 32CUP N.V. 4
Liability 38. 32CUP N.V. is not liable for any damage arising under (the performance of) the agreement to the buyer or to third parties, unless in the case of an intentional act or gross negligence. 39. 32CUP N.V. is not liable for any loss due to the theft of and/or damages to the coffee or funds belonging to the buyer and/or used or required during the performance of the agreement. 40. Even in the case of an intentional act or gross negligence, 32CUP N.V. is not liable for consequential losses, losses due to delays, loss of profits or immaterial damage to the buyer or third parties. 41. 32CUP N.V. is not liable for any damage suffered by the buyer due to the actions of third parties (including suppliers). Force majeure 42. The buyer expressly waives any recourse it may have against 32CUP N.V. due to an event of force majeure (lack of shipping tonnage, war, uprising, blockade, prohibition against import and export, quarantine, strike, lock-out, shortage of man power, destruction of warehouse, fire, flood, frost, wreckage this list is purely illustrative and not exhaustive), if 32CUP N.V. cannot fully or partially perform the agreement, or can only do so with some delay. 32CUP N.V. must inform the buyer of the occurrence of a force majeure event as soon as possible after it becomes aware of such event. Arbitration and applicable law 43. In the absence of an amicable settlement between the parties, any dispute will be settled by the British Coffee Association in London in accordance with its statutes and regulations. 44. The request to start arbitration must be submitted within thirty days after the date of notification of the dispute, as determined in articles 35-37 of these General terms and Conditions. 45. For any dispute pursuant to an agreement between 32CUP N.V. and the buyer and which is outside of the competence of the British Coffee Association, only the Courts of Antwerp are competent. 46. All legal relationships between 32CUP N.V. and the buyer are exclusively governed by Belgian law. In case of any discrepancies between this English version of the General Terms and Conditions and the latest Dutch version thereof, the latest Dutch version of the General Terms and Conditions 'Algemene Verkoopsvoorwaarden 32CUP N.V. voor het aanleveren van Koffie' will prevail. General Terms and Conditions 32CUP N.V. 5