These TCSD apply to all agreements between RED and a customer (“Purchaser”) for the sale and deliver of products from RED. These TCSD were filed at the Chamber of Commerce on 13/07/2017 under number 67317847.

1. General

1.1. In these TCSD “RED” is understood as seller and “Purchaser” is understood as party who purchases products from RED. RED and Purchaser shall hereinafter be jointly referred as the “Parties”

1.2. These TCSD apply to all arrangements made between the Parties with regard to the purchase and/or delivery of RED’s products, including but not limited to Quotations, Purchase Contracts (PC), Confirmations of Contract (CC), Purchase Orders (PO), Order Confirmations (OC), Specifications and Invoicing forming part thereof or arising therefrom.

1.3. RED has the right to change the TCSD from time to time. The latest version will be available online on www.redlecithin.com. The Purchaser agrees that the most recent version of the document automatically applies to the Agreement, unless agreed otherwise between the Parties.

1.4. The general terms and conditions of the Purchaser, or any commercial agent, shall not apply.

1.5. Only when RED confirms in writing a PO by means of an OC, or a PC by means of a CC, Parties agree there is a formal agreement (hereinafter referred to as “PO” and/or as “Contract”). A PC requires >1 PO’s to be issued by Purchaser for >1 deliveries made by RED. A PO is a PC like above, but involves only 1 delivery made by RED.

2. Orders and confirmation

2.1. Purchaser must issue a Purchase Order (PO) with sufficient time for RED before the designated shipping date. RED will confirm the PO within 5 working days after receiving the PO by means of an OC.

2.2. Purchaser must issue all shipping instructions (including all required documents) together with the PO. If Purchaser fails to include instructions, or is sending wrong instructions, additional costs may arise and these will be charged to Purchaser.

2.3. A PO can no longer be changed after RED confirmed the PO by means of an OC. Errors, inaccuracies, incompleteness in the OC should be communicated to RED within 24 hours. In the event of any conflict between the PO and OC, the OC prevails.

2.4. RED reserves the right to suspend the delivery of the Product until Purchaser fulfilled all its payment obligations towards RED.

2.5. If the Purchaser fails to comply strictly with the Contract (e.g. volume, period, payment), RED will be entitled to terminate the Contract between RED and the Purchaser. RED is entitled to compensation of the total costs of the volume that has not been called off in accordance with the Contract (hereinafter referred to as the “Outstanding”). These costs will be determined unilaterally by RED, will be binding for Purchaser, and include (but are not limited to) loss of profit, actual storage costs, and any depreciation involved.

3. Delivery

3.1. Delivery shall be made within the agreed delivery period at a time chosen by RED. Where delivery is spread over several months , it shall- in the absence of any other arrangement- take place monthly in approximately equal installments.

3.2. Upon delivery of the Product, the Purchaser is obligated to inspect the Product prior to accepting the product, and to communicate any complaints, inaccuracies or defects to RED within 24 hours after delivery and by written notice, failing which the Product will be deemed to be accepted and any right for claims against RED relating to this delivery are forfeited. In case of a rightful claim by Purchaser relating to a delivery, RED will replace the Product at no cost for Purchaser, and Purchaser acknowledges that will remedy any claim in full in any case.

3.3. If Purchaser wrongfully refuses the product, RED is entitled to compensation of all costs that it incurred and of all damages it has suffered. This does not alter any other right RED has in such case.

3.4. Working days shall mean from Monday to Friday, excluding statutory or customary public holidays at the place of loading. RED is entitled to tender the Product at any time within the delivery period at its discretion. However, the tender or delivery notice shall be given at least 5 working days before planned shipment date.

3.5. RED shall make every effort to adhere to the agreed dates and times of delivery. However, RED shall be released from adherence to contractual delivery dates and periods to the extent that and as long as circumstances occur, either in the home country or abroad, which substantially impede performance (“substantial impediment to performance”). All difficulties, irrespective of their nature, the sphere and segment of the supply chain which they occur, such as force majeure and acts of God (e.g. floods and low water, ice, delay in and/or loss of harvest etc.), export and import restrictions, problems in procuring commodities, disruptions of operations (e.g. breakdown of machinery, fire etc.), strikes or any similar actions, court decisions, summons, states of emergency or loading and transportation difficulties are deemed to be substantial impediments to performance.

3.6. In the event of a substantial impediment to performance under clause 3.5, RED is entitled to rescind the Agreement with immediate effect without damages or any compensation to Purchaser whatsoever.

4. Quality and sampling

4.1. RED shall set Specifications for each Product, consisting of a Technical Data Sheet (hereinafter referred to as “TDS” ) and Safety Data Sheet (hereinafter referred to as “SDS” ), which apply to any Contract unless otherwise agreed.

4.2. RED warrants that the Product will meet the Specifications stipulated in the TDS after the product made available for shipment, unless the Parties agree that the values of the Product may fall outside the value of the TDS. RED shall analyze the Product prior to shipment according to the TDS. The result of this analysis will be reported in the Certificate of Analysis (hereinafter referred to as “CoA”). RED does not bear any risk of any changes in quality, Specification or conformity of the Product during or after shipment and excludes all liability for such change. This provision prevails over other provisions in any document, any general terms and conditions, or any applicable Incoterms.

4.3. RED has the right to change the Specifications from time to time. The Purchaser agrees that the most recent version of the Specifications is automatically applicable to the Agreement, unless agreed otherwise between the Parties. Upon request, Purchaser will sign the Specifications. In the absence of such signature, the Specifications are deemed to be accepted after 7 days after the date of dispatch of the Product.

4.4. If there are any differences of opinion about the quality of the Product, the retention sample taken by RED shall be binding.

5. Liability

5.1. In the event of any breach of duty - irrespective of whether such breach is based on pre-contractual, contractual or non-contractual duty - RED shall only be liable for damages and reimbursement of costs in the event of intent or gross negligence, subject to any other contractual or statutory precedent to liability. RED shall in no event be held liable for any damage caused by vicarious agents.

5.2. RED’s liability is limited to loss or damage which was foreseeable at the time the Contract was concluded up to a free of charge replacement of the Product. RED shall not be liable for loss, damage or any other cost caused by delay. Except in the case of intent, liability for indirect and consequential loss or damage (e.g. loss of profit) is explicitly rejected. Liability in tort is in all cases strictly rejected.

5.4. All claims for damages against RED shall lapse no later than one year after the Product has been delivered to the Purchaser.

5.5. RED cannot obtain insurance for the financial risks and costs regarding a possible recall by Purchaser, therefore any liability and/or costs claimed by Purchaser related to an eventual recall are strictly rejected.

6. Weight, prices and terms of payment

6.1. The Purchaser will pay the exact volume delivered, which is determined and calculated unilaterally by RED.

6.2. Unless agreed otherwise, pre-payment is the term of payment that applies to Purchaser for any Contract.

6.3. Parties are obliged to provide each other with their correct VAT registration number, failing which RED will remedy the situation as RED deems fit. Any additional cost arising from wrong VAT registration information provided by Purchaser, shall be charged to Purchaser and must be paid to RED immediately.

6.4. Regarding pre-payment, payment must be on RED’s bank account 3 working days prior to the shipment. In the event that the payment is not received or not received on time, RED will have the right not to carry out the Delivery, and any cost arising from cancellation of this shipment shall be charged to Purchaser and must be paid to RED immediately.

6.5. If Purchaser fails to pay the invoiced amounts within the payment term agreed, RED will be entitled to commercial interest as referred to in Article 6:119a of the Dutch Civil Code and to reimbursement of all costs to collect its claim, including but not limited to costs of legal assistance.

6.6. All agreed prices shall be exclusive of any tax and duty, unless otherwise and explicitly offered and agreed by RED. All taxes and duties shall be paid by the Purchaser in addition to the agreed prices.

6.7. As referred to in Article 3:92 (2) of the Dutch Civil Code the ownership of the Product delivered by RED will be reserved to RED until the Purchaser has paid the purchase price including all costs and taxes due relating to the delivery of the Product.

7.Miscellaneous

7.1. Purchaser cannot transfer its rights and obligations under the Agreement to a third party, sister company, or mother company, without the prior written consent of RED.

7.2. Any provisions that are void or voidable will not affect the validity of the other provisions.

8.Applicable law and jurisdiction clause

8.1. The Agreement has been construed in accordance with and is governed by Dutch law, and the competent District Court of Rotterdam has exclusive jurisdiction on any disputes arising from the Agreement.

8.2. The provisions of the Uniform Act on the International Purchase of Corporeal Movables (LUVI, The Hague, 1/7/1964) and the UN Convention on International Purchase Agreements (CISG, Vienna, 11/4/1980) do not apply, except where agreed otherwise in writing.

Terms and Conditions

Terms and Conditions of Sale and Delivery (TCSD) – RED B.V.