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General terms and conditions of sales

Total Exotics BV – The Netherlands

Total Exotics B.V. with its registered office at Spectrumlaan 29 in (2665 NM) Bleiswijk according to its
articles of association, as well as its legal successors and affiliated companies, hereinafter to be referred
to as ‘Total Exotics’, has laid down the following General Terms and Conditions of Sale:

 

Article 1 Definitions

1. In these General Terms and Conditions of Sale, the following terms are used in the following
meanings, unless explicitly stated otherwise or if the context proves otherwise in these General
Terms and Conditions of Sale, the following terms are used in the following meanings, unless
explicitly stated otherwise or if the context proves otherwise:
a. The Other Party: any legal person or natural person who acts in the exercise of his profession or his
business entering into an agreement with Total Exotics, or to which Total Exotics makes a special
offer and/or gives a quote, as well as their representative(s), authorized agent(s), legal successor(s)
and heirs;
b. Agreement: all Agreements realized between Total Exotics and the Other Party and all modifications
or additions thereto as well as all (legal) acts performed in preparation and in implementation of
such an Agreement;
c. Product(s): the Products that Total Exotics supplies.

Article 2 General

1. These General Terms and Conditions of Sale will apply to all quotes given and special offers made
by Total Exotics and all Agreements concluded and orders accepted by Total Exotics. The General
Terms and Conditions of Sale thus apply to all (legal) acts (including omissions) of Total Exotics
and its relevant Other Party.
2. For the implementation of that stipulated in the Agreement, the Other Party gives Total Exotics
permission to make use of third parties who are not the employees of Total Exotics. The General
Terms and Conditions of Sale also apply to legal acts carried out by these third parties in connection
with the fulfilment of obligations to which Total Exotics is subject pursuant to the Agreement.
3. Deviations from and/or additions to any provision in these General Terms and Conditions of Sale
will only be binding for Total Exotics if these deviations and/or additions have been agreed on
explicitly between Total Exotics and the Other Party, without reservation and in writing or through e-
mail. Any deviations and/or additions agreed on will only apply to the Agreement concerned.
4. The applicability of any purchase or other conditions of the Other Party is explicitly rejected.
5. In the event that following the intervention of a judicial authority, any provision of these General
Terms and Conditions of Sale appears to be null and void, solely the provision concerned will cease
to apply. All other provisions will continue to apply without prejudice. The invalid or voided provisions
will be replaced by Total Exotics, taking into account as far as possible the purpose and intent of
the original provisions.
6. If Total Exotics does not always demand strict compliance with these General Terms and Conditions
of Sale, this does not mean that its provisions do not apply, or that Total Exotics would in any way
lose the right to in other cases desire strict compliance with the provisions of these General Terms
and Conditions of Sale.

Article 3 Offers and prices

1. All amounts stated in quotations, offers, Agreements and orders are stated in euros, unless the
parties have agreed otherwise in writing or via e-mail. Furthermore, all amounts mentioned are
exclusive of sales tax.
2. Total Exotics reserves the right to adjust her prices from time to time.
3. All offers made by Total Exotics are without obligation.
4. Total Exotics retains the right to refuse orders without giving any reason.
5. Total Exotics is not obliged to keep to an offer and/or an agreement for a specified price if this price
is based on a misprint and/or a writing error.
6. Offers, quotations and prices do not automatically apply to future orders.
7. Total Exotics is entitled at all times to determine that certain Products will only be delivered in certain
minimum quantities.
8. All images, dimensions, colours, weights, etc. of the offered Products included on the website, in
offers or brochures of Total Exotics are only approximate and cannot give rise to compensation
and/or dissolution.

Article 4 Agreement

1. The Agreement is concluded at the time that the Other Party has placed an order with Total Exotics
by telephone or e-mail.
2. After the conclusion of the Agreement, Total Exotics will send a confirmation of the order from the
Other Party via the e-mail.
3. If after the Agreement has been realized the parties agree on further and/or additional agreements
or modifications, these will only be binding if and insofar as these agreements have been laid down
in writing or via e-mail. In this case too, the written record can consist of the invoice and/or purchase
order.

Article 5 Cancellation of the Agreement

1. The Other Party can only cancel the Agreement if this takes place in writing or via e-mail prior to the
commencement of the implementation of the Agreement. With due observance of that stipulated
hereinafter, in the event of a cancellation, all preparatory expenses incurred by Total Exotics will be
charged to the Other Party at all times.
2. In the event that the Agreement is cancelled within 72 hours prior to the time of delivery agreed on,
in addition to the preparatory expenses, the Other Party will owe compensation set at 50% of the
price agreed. If the Agreement is cancelled later than 24 hours prior to the time of delivery, the Other
Party will owe the full price agreed.
3. In the event that the Agreement is cancelled, regardless of the date on which the cancellation takes
place, the Other Party will be obliged to compensate the costs that Total Exotics must pay third
parties arising from and in connection with the cancelled Agreement.

Article 6 Obligations of the Other Party

1. The Other Party shall ensure that all data, of which Total Exotics indicates that these are necessary
or of which the Counterparty should reasonably understand that these are necessary for the
performance of the Agreement, are provided in a timely, complete and correct manner to Total
Exotics.
2. If the information provided by the Other Party is incomplete and/or incorrect, this will be entirely at
the expense and risk of the Other Party.
3. The Other Party is obliged to inform Total Exotics without delay of facts and circumstances that may
be of importance in connection with the performance of the Agreement.
4. For compliance with all legal and other applicable regulations that apply in the country where the
Other Party is established in connection with the possession, storage, transport and reselling, in any
way whatsoever, of the Products, only the Other Party responsible.
5. The Other Party shall indemnify Total Exotics against any claims from third parties that suffer
damage in connection with the execution of the agreement and which is attributable to the Other
Party.
6. Total Exotics assumes that the Other Party will fulfil all its legal obligations.

Article 7 Delivery

1. The delivery time agreed is not a strict deadline unless the parties have explicitly agreed otherwise.
2. Delays in delivery – insofar as these are within reason, will not give the Other Party the right to
terminate the Agreement or to any compensation.
3. In the event that a delivery period agreed with the Other Party is exceeded as a result of an event
that is in fact outside the control of Total Exotics and cannot be attributed to and/or allowed to be
attributed to it, as described in article 12.2 of these General Terms and Conditions of Sale, this
period shall automatically be extended by the period during which it was exceeded as a result of
such an event.
4. Barring notice to the contrary given by the Other Party, that delivered by Total Exotics must comply
with that agreed on by the parties both in terms of number and weight as well as in terms of
requirements prescribed by public- and private law. The parties explicitly agree on presumptive
evidence with regard hereto.
5. The Parties agree whether the Other Party or a third party engaged by it collects the order from
Total Exotics or that Total Exotics delivers the order to the delivery address specified by the Other
Party.
6. If the Other Party collects the order from Total Exotics or has it collected, the risk of the Products
transfers to the Other Party at the moment the order leaves the Total Exotics warehouse.
7. If Total Exotics delivers the order, the risk of the Products will pass to the Other Party at the time
the order is delivered to the delivery address specified by the Other Party.
8. Total Exotics is subject to arising from the agreement entitled to demand sufficient security with
regard to the Other Party’s fulfilment of its payment obligations, before fulfilling the obligations of the
agreement.
9. In the event that the Other Party still has an obligation to pay Total Exotics any sum, especially if
invoices sent by Total Exotics are still partly or fully due, Total Exotics will be entitled to suspend the
obligation to deliver until the Other Party has met all its obligations.

Article 8 Acceptance and complaints

1. Immediately when delivery of the Products by Total Exotics take place, Products must be inspected
and verified by the Other Party. The inspection and verification must be carried out in the presence
of the driver. The Other Party must verify whether the Products delivered comply with that stipulated
in the Agreement, namely:
a. whether the correct Products have been delivered correctly;
b. whether the Products delivered comply with the quality requirements made and agreed
with regard thereto, or in other words, the requirements that may be made in connection
with normal use and/or commercial purposes;
c. whether the Products delivered comply with that agreed on by the parties in terms of
quantity (number, amount, weight). If a difference is established by the Other Party that
is less than 10%, the Other Party will be obliged to fully accept the Products delivered,
such for a pro rata reduction of the price agreed.
2. In the event the Other Party picks up the order at Total Exotics or has it collected (delivery ex
warehouse), the Other Party must inspect the Products delivered in the warehouse of Total Exotics.
3. Any defects and objections not related to circumstances set out in paragraph 1, sub c of this article
must be reported to Total Exotics in writing immediately after having been established, but no later
than eight hours after delivery. If Total Exotics does not receive a complaint forthwith the delivery of
the Products, the Products will be deemed to be delivered in conformity with that stipulated in the
Agreement and without any defects.
4. As soon as possible after having been established, any complaints concerning defects that are not
immediately visible must be communicated to Total Exotics in writing or via e-mail to enable Total
Exotics to investigate the justness of the complaints concerned on the spot. The Other Party must
enable Total Exotics to verify that the complaints of the Other Party are justified. In the event that
Total Exotics has not received a written complaint from the Other Party within eight hours of the
delivery, the defect and/or the fault will not be deemed to have been present at the time of the
delivery, but the parties will take it for granted that this defect and/or this fault arose after delivery.
5. That stipulated in this article will apply without prejudice in the event that the Products delivered by
Total Exotics for the Other Party are delivered to a third party. The Other Party can thus at no time
argue against Total Exotics that it had not inspected the Products delivered in view that these
Products were stored with a third party elsewhere.
6. If the Other Party proves that the delivered order was (partially) defective at the time of delivery,
then Total Exotics will, at its discretion, resell the order (in part) or (partly) credit the invoice for the
relevant order. The liability of Total Exotics is at all times limited to that which is included in Article
11 of these General Terms and Conditions of Sale.
7. A lack of a Product does not give the Other Party the right to refuse the entire order of which the
Product is part.
8. Trade-related deviations in colour, quality, shape, weight, etc. in the delivered Products are not
eligible for advertising.
9. Complaints do not suspend the payment obligation of the Other Party.

Article 9 Invoicing and payments

1. Invoicing will take place immediately after the order has left the Total Exotics warehouse.
2. Unless parties have deviated from the agreement, Other Party must pay the price agreed on after
receiving the invoice related to the delivery without a reduction or claiming compensation within 30
days as of the date of invoice.
3. Setting off of the sums invoiced by Total Exotics by the Other Party against a counterclaim put
forward by the Other Party is not permitted, nor the suspension of payment by the Other Party in
connection with a counterclaim is permitted, unless agreed on with Total Exotics otherwise.
4. In the event that the term of payment is exceeded, the Other Party will owe default interest of 1%
per month, without prejudicing the other rights of Total Exotics such as the right to compensation
for extrajudicial costs and commercial interest.
5. In the event that the term of payment is exceeded, without prior notice of default, the Other Party
will owe statutory commercial interest on the outstanding sum. Insofar as it has been established at
law that the Buyer does not owe statutory commercial interest, it will owe Total Exotics the statutory
interest concerned.
6. In the event that the Other Party even after been put in default by Total Exotics, the Other Party fails
to pay the outstanding sums to Total Exotics, in addition to the total sum due consisting of the
outstanding sums increased by the interest payable, it will also be obliged to pay compensation for
extrajudicial collection costs. The sum of the extrajudicial collection costs is set at 15% of the
principal sum due with a minimum of € 100,-.
7. Payment made by the Other Party will first be applied to settle all interests and costs payable and
subsequently for those invoices that have been outstanding for the longest periods. This will also
be the case if the Other Party states that the payment relates to a later invoice.

Article 10 Retention of title

1. Total Exotics will remain ownership of the Products delivered up to the moment of full payment of
all claims of Total Exotics to the Other Party on the basis of agreements concluded between them,
including interests and costs.
2. The Other Party will only be authorized to resell Products delivered by Total Exotics that are subject
to retention of title, as set out in paragraph 1 of this article, if reselling is one of the Other Party’s
normal business activities.
3. In the event that the Other Party fails to observe its obligations, or if there is a well-founded fear at
Total Exotics that the Other Party is not capable of fulfilling its obligations flowing from the
Agreement, or if there is a suspicion that the Other Party does not wish to fulfil the obligations to
which it is subject, Total Exotics will be entitled to take back the Products it has delivered, subject
to retention of title mentioned in paragraph 1 of this article, from the Other Party or from a third party
keeping these Products for the Other Party or to cause these Products to be taken back. The Other
Party will be obliged to cooperate with such action carried out by Total Exotics.
4. In the event that third parties wish to establish or assert a right on the Products delivered by Total
Exotics under retention of title, the Other Party must notify Total Exotics hereof by return of post.
The Other Party must moreover point out to the third party concerned the fact that the Products in
question were delivered under retention of title. The Other Party must provide the third party with
the Agreement concluded between the parties from which it is apparent that a retention of title was
claimed with regard to the Products delivered.
5. The Other Party is obliged to cooperate with all measures that Total Exotics wishes to undertake to
protect its property rights with regards to Products it has delivered.

Article 11 Liability, risk and expiration

1. In the event that the Other Party has Products in possession delivered by Total Exotics which are
the property of Total Exotics (including packaging) and/or which are subject to retention of title as
referred to in Article 10 of these General Terms and Conditions of Sale, Other Party is liable for any
damage caused as of the time from which Products are delivered up to the time that Products are
returned, or the time at which the ownership of these Products is transferred.
2. In the event that Other Party has Products in possession that are the property of Total Exotics
(including packaging) and/or which are subject to retention of title as mentioned in Article 10 of these
General Terms and Conditions of Sale, the Other Party will be liable for any loss suffered by Total
Exotics as a result of the damage to, the loss of or the destruction of these Products, which loss
arose in the period between the time at which Total Exotics delivered the Products until the time at
which the Products were returned or until the time at which the ownership of the Products was
passed.
3. In the event that as a result of circumstances attributable to the Other Party Total Exotics wishes to
make use of its retention of title but nevertheless suffers a loss, the Other Party will be liable for the
loss suffered by Total Exotics.
4. In the event that in the implementation of the Agreement, the Other Party has Products in
possession (including packaging) which are property of Total Exotics and/or subject to retention of
title as referred to in Article 10 of these General Terms and Conditions of Sale and in the event of
theft, loss or damage to the Products supplied to it by Total Exotics, the Other Party will be obliged
to notify Total Exotics hereof immediately. The Other Party must immediately report theft or acts of
war to the police of the municipality where the theft and/or the act of war took place. The Other Party
must provide Total Exotics with a copy of such a report.
5. Total Exotics cannot be held to compensate for any damage that is a direct or indirect consequence
of:
a. an event, which is in fact beyond its control and thus cannot be attributed to it and/or let it be
attributed, as described, inter alia, in Article 12.2 of these General Terms and Conditions of Sale;
b. any act or negligence on the part of the customer, his subordinates or other persons who have
been employed by or on behalf of the customer.
6. Total Exotics is not liable for any damage caused by incorrect or incompetent storage by the Other
Party of the delivered Products or by removing/changing the packaging of the Products.
7. If the Other Party or a third party to whom the Other Party has delivered the Products delivered by
Total Exotics carries out a recall or has it carried out, Total Exotics can only be held liable for (part
of) the associated costs, if i) it is established that Total Exotics is liable for the circumstance leading
to the recall, and ii) Total Exotics has been consulted and has had a say before the recall has been
carried out, and iii) it is established that the Other Party will a reasonably competent and reasonably
competent colleague has behaved and has tried to keep the costs associated with the recall as
limited as possible.
8. Total Exotics is never obliged to pay compensation as a result of consequential damage.
Consequential damages are in any case considered: lost turnover, lost profits, lost savings,
Production damage, labour costs, transport costs, trading loss, business interruption, stagnation
damage, delay damage, reputational damage, environmental damage, fines imposed and indirect
damage, irrespective of their origin.
9. In the event that Total Exotics is liable for any damage, all liability of Total Exotics will be limited to
the sum paid out under the public liability insurance of Total Exotics, increased by the own risk
under this insurance policy. If for any reason whatsoever no sum is paid out pursuant to this
insurance, all liability will be limited to the sum of the invoice corresponding to the Agreement on
which the Other Party’s claim is based, on the understanding that all liability will be limited to the
amount that the Other Party has paid for the part of the Agreement to which the liability relates,
with a maximum of € 40,000.
10. Claims and other rights, for whatever reason, by the Other Party against Total Exotics expire in
any case after the expiry of 1 year from the moment when a fact arises and the Other Party can
put claims forward or invoke their rights against Total Exotics.

Article 12 Force majeure

1. In the event of force majeure, Total Exotics will be entitled either to suspend the implementation of
the Agreement or to fully or partly terminate the Agreement without the Other Party being able to
claim any compensation vis-à-vis Total Exotics.
2. Force majeure of Total Exotics should be understood to mean:
a. strikes held by the employees of Total Exotics or third parties called in by Total Exotics in
connection with the implementation of the Agreement;
b. illness of employees of Total Exotics or third parties called in by Total Exotics in connection with
the implementation of the Agreement;
c. measures taken and/or prohibitions issued by the Dutch government and/or a foreign government
by which Total Exotics is bound;
d. unforeseen and unpredictable traffic impediments;
e. accident(s) with a means of transport employed in connection with the implementation of the
Agreement as well as unforeseen technical defects in these means of transport;
f. (attributable) failure to perform by the suppliers of Total Exotics;
g. theft of Products required for the implementation of the Agreement;
h. war, riots, threat of war and terrorism;
i. errors in electricity and internet supply;
j. as well as all other unforeseen circumstances that prevent Total Exotics from implementing the
Agreement properly and on time and that are not for the account and risk of Total Exotics.
3. In the event that on the commencement of the force majeure, Total Exotics has already partly met
its obligations or can only partly meet its obligations, it will be entitled to send out separate invoices
for that supplied and/or the part supplied. The Other Party will then be obliged to pay the invoice
concerned as if a separate Agreement was concerned.
4. All agreements related to the sale of agrarian Products are subject to a good harvest. If as a result
of a disappointing harvest in terms of the quantity and/or quality of the agrarian Products concerned
there are fewer Products available than could have been expected within reason on concluding the
Agreement, also as a result of Products having been declared unfit by the authorized bodies, Total
Exotics will have the right to reduce the quantity it sells correspondingly. On reducing the quantity
supplied, Total Exotics will fully comply with its obligations to deliver. Total Exotics will then not be
obliged to supply substitute agrarian Products, neither will it be liable for any loss suffered
whatsoever.

Article 13 Default and termination

1. In the event that the Other Party fails to comply, fails to comply properly or fails to comply on time
with any obligation arising for the Other Party from the Agreement concluded with Total Exotics
and/or the law, including the obligation to pay on time as included in Article 9 of these General Terms
and Conditions of Sale, the Other Party will be in default de jure and Total Exotics will be entitled to
suspend the implementation of the Agreement and/or to fully or partly terminate the Agreement and
any directly related Agreements without Total Exotics being obliged to pay any compensation and
without prejudicing the further rights of Total Exotics.
2. In the event of the (provisional) suspension of payment or the bankruptcy of the Other Party or the
closing down or the winding-up of the business of the Other Party, all Agreements with the Other
Party will be terminated by operation of law, unless Total Exotics notifies the Other Party within a
reasonable term that it requires the observance of (part of) the Agreement(s), in which case without
giving notice of default, Total Exotics will be entitled to suspend the implementation of the
Agreement(s) concerned until sufficient security has been given with regard to payment, without
prejudicing the further rights of Total Exotics.
3. Total Exotics will have the right to terminate the Agreement in the event of permanent force majeure
of the Other Party. The Other Party will then compensate all costs incurred and to be incurred by
Total Exotics.
4. Furthermore, Total Exotics is entitled to terminate the Agreement if circumstances arise which are
of such a nature that compliance with the Agreement is impossible or can no longer be required
according to standards of reasonableness and fairness, or if circumstances arise which are of such
a nature unchanged maintenance of the Agreement cannot reasonably be expected.
5. In each of the cases mentioned in paragraphs 1, 2 and 3 of this article, all claims of Total Exotics
vis-à-vis the Other Party will be immediately due and payable and the Other Party will be obliged to
immediately return leased Products or Products for which payment has not yet been received.
6. In the event of bankruptcy or suspension of payment, the Other Party must notify Total Exotics
hereof immediately.

Article 14 Packaging

1. If a rental system applies to the packaging, the costs for the packaging will be charged to the Other
Party. If the Other Party returns the packaging clean and undamaged to Total Exotics, then Total
Exotics credits the costs for the packaging..
2. If the return of packaging will take place via transport means of Total Exotics, the Other Party must
ensure that the packaging is sorted and ready for transport..

Article 15 Industrial and intellectual property rights

1. Total Exotics explicitly reserves any intellectual and/or industrial property rights (trademarks) with
regard to the Products it supplies.
2. The Other Party is not permitted to infringe on the intellectual and/or industrial property rights of a
third party using the Products supplied by Total Exotics. The Other Party indemnifies Total Exotics
against any claims of third parties on the basis of an infringement of intellectual and/or industrial
property rights by means of Products delivered by Total Exotics that take places after Total Exotics
has delivered the Products to the Other Party.
3. The Other Party must respect the intellectual property rights, including trade name and trademark
rights, of Total Exotics at all time.

Article 16 Applicable law

1. The legal relationship between Total Exotics and the Other Party is governed by Dutch law.

Article 17 Disputes

1. Any disputes deriving from an order, a quote, an offer or an Agreement to which these General
Terms and Conditions of Sale apply, including conflicts related to these General Terms and
Conditions of Sale, will be exclusively by the competent court in the district where Total Exotics has
its registered office, on the understanding that this choice of forum will not affect the right of Total
Exotics to settle a dispute by means of arbitration or a binding opinion.
2. In derogation of that stipulated in paragraph 1 of this article, the parties can agree in writing that
they will allow the settlement of the dispute to be settled by the competent court in another district.