GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY TERMS
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
Version April 2023
Article 1 - General
1.1 In these general terms and conditions ("Terms and Conditions") the following terms shall have the following meanings:
1.2 These Terms apply to all offers, quotations, order confirmations, Agreements and to all related (legal) acts of Seller and Buyer. In case of conflict, the Agreement prevails over the Conditions.
1.3 The applicability of Buyer's general terms and conditions, however named, are expressly rejected by Seller.
1.4 Deviations from these Terms and Conditions and from the Agreement shall only be valid if and insofar as they have been expressly laid down in writing by Seller and shall only apply once.
1.5 In the event of nullity, annulment or otherwise inapplicability of (part of) one or more provision(s) of the Terms and Conditions, the remaining provisions shall continue to apply in full. In such cases, the meaning of the void, annulled or inapplicable provision will be applied as far as possible.
Article 2 - Formation of Agreements
2.1 All offers, quotations, order confirmations and statements made by or on behalf of Seller are entirely without obligation.
2.2 An Agreement is only realised if a written Agreement, signed by both parties, is concluded or if Seller sends an order confirmation to Buyer by email or in writing, which order confirmation in such a case is considered a correct and complete representation of the Agreement concluded between Seller and Buyer.
2.3 If no written Agreement has been concluded and no order confirmation has been sent either, the parties are nevertheless bound if Seller commences with the performance of the Agreement. The invoice shall in that case be regarded as Buyer's order and as the correct representation of the Agreement between Seller and Buyer.
2.4 Buyer is not entitled to transfer all or part of this Agreement and/or any rights and obligations arising therefrom to a third party without the prior written consent of Seller.
Article 3 - Prices and payment
3.1 Unless otherwise stated, prices are in Euro and exclude VAT, other costs, taxes, levies, duties and import and export duties payable by law. The Buyer shall bear the exchange rate risk in case of payment in foreign currency.
3.2 Prices are based on the cost factors applicable at the time of the conclusion of the Agreement, such as: import and export duties , freight and insurance, unloading costs, levies and taxes, raw materials, electricity and gas, products and services obtained from third parties, salaries, social security charges and insurance premiums. The Seller shall be authorised to adjust the agreed prices if the price of cost factors has increased in relation to the prices on which the Agreement is based. The Buyer undertakes to accept a price increase up to and including 10%.
3.3 Payments shall be made within 14 (fourteen) days of the invoice date. Buyer shall pay the invoiced amounts without any deductions, discounts or set-offs and shall not be entitled to suspend any payment obligation to Seller.
3.4 All payment terms are final. If no payment has been made within 14 (fourteen) days of the invoice date, the Buyer shall be immediately in default and all Seller's claims against the Buyer, on whatever account, shall be immediately due and payable. In that case, the Buyer shall owe statutory commercial interest (Section 6:119a of the Dutch Civil Code) + 4% above the invoice amount from the due date. In addition, in the event of late payment, all judicial and extrajudicial collection costs shall be borne by the Buyer. The extrajudicial collection costs are set at15% of the principal sum, including VAT, with a minimum of€ 250, without prejudice to the Seller's right to claim compensation of the actual costs if these costs are higher and without prejudice to the costs of legal proceedings or arbitration.
3.5 Complaints regarding an invoice must be submitted to the Seller in writing within 8 (eight) days of the invoice date. After this period, complaints will not be considered and the Buyer has processed its rights. A complaint does not suspend the payment obligation.
3.6 Seller is at all times authorised to demand advance payment from Buyer, or any form of security including but not limited to pledges and bank guarantees, to which Buyer is obliged to cooperate.
Article 4 - Delivery and delivery times
4.1 Unless explicitly agreed otherwise, deliveries are made ex works and the Products travel at the expense and risk of the Buyer.
4.2 During (internal) transport and storage of Products, the Buyer must act in accordance with the applicable laws and regulations, including the HACCP standards, and the storage regulations, failing which no liability whatsoever can be accepted for (damage resulting from) defects to the Products.
4.3 The seller is entitled to make and invoice partial deliveries separately.
4.4 The stated delivery times are approximate and not strict deadlines. Exceeding delivery times does not entitle the Buyer to compensation, except in the event of intent or gross negligence on the part of the Seller.
Article 5 - Advertising and quality
5.1 The Buyer must inspect or have the Products inspected upon delivery - or as soon as possible thereafter. In doing so, the Buyer must in particular check whether the Products delivered are in accordance with the agreement, namely: - whether the correct Products have been delivered; - whether the Products delivered correspond to what has been agreed as regards quantity; - whether the Products delivered meet the quality requirements and temperature and hygiene standards or, if these are lacking, the requirements that may be set for normal use and/or commercial purposes.
5.2 Complaints regarding the quantity of Products delivered and complaints regarding defects or damage must be made immediately after delivery and noted by the Buyer on the receipt provided to the Seller, after which complaints must also be made in writing, stating reasons, within 8 (eight) days of delivery. Complaints relating to quality or deviations from specifications and other complaints must be made within 8 (eight) days of delivery in writing, stating reasons. After expiry of these periods, the right to complain shall lapse and complaints shall no longer be considered. Complaints shall not entitle the Buyer to suspend its payment.
5.3 The right of complaint lapses if the Buyer has processed the Products in the broadest sense of the word, e.g. processed or mixed them. The Products to which the complaints relate must remain available for inspection and examination by the Buyer and any third parties engaged by it in the condition they were in at the time the defects were discovered.
5.4 If the complaint is well-founded, the Seller will, at its discretion, either send a credit note or deliver a replacement (similar) Product, only after returning the originally delivered Products. The Seller shall not be obliged to pay any (further) compensation. Credit notes shall first be set off against claims of the Seller against the Buyer and shall only be paid by the Seller when there are no outstanding invoices or other offsettable claims.
5.5 Legal actions must be brought by the Buyer within 6 (six) months of the timely claim under penalty of expiry.
5.6 Buyer guarantees that Products on which an expiry or use-by date is stated will not be processed, used and/or sold after that date. Buyer explicitly indemnifies Seller in this respect against claims from third parties on account of damage resulting from consumption or use of the Products if these have been processed, used, consumed or sold by Buyer after the expiry or use-by date. The Seller does not accept any liability after consumption or use of the Products after their best-before or use-by date.
Article 6 - Force majeure
6.1 If Seller is prevented from fulfilling its obligations to Buyer due to force majeure, the period within which Seller must fulfil its obligations will be extended by the duration of the force majeure situation. Force majeure shall in any case mean any circumstance independent of the Seller's will, such as, but not limited to, special weather conditions, illness of persons working at the Seller, strikes, epidemics, pandemics, compulsory and advised government measures, wars, breakdown of machinery and/or delays on the purchasing side or impossibility of purchasing, for example, raw materials, semi-manufactured products, equipment, fuel or transport, changes in the range of suppliers, import and export bans or import and export impediments, transport impediments, all this if they occur at the Seller's company as well as at its suppliers.
6.2 If the force majeure situation has lasted longer than 2 (two) months, or it is established that it will last longer than 2 (two) months, both parties are entitled to dissolve the Agreement for the part that has not yet been fulfilled by the Seller. Previous dissolution by the Buyer is expressly excluded.
6.3 In the event of force majeure, the Buyer is not entitled to damages
Article 7 - Retention of title
7.1 The Seller retains title to all Products delivered until all its claims against the Buyer in respect of any Agreement or otherwise have been paid in full to the Seller.
7.2 As long as ownership of the Products has not passed to the Buyer, the Buyer may not sell, pledge or grant any other right to the Products to third parties, except within the normal course of its business.
7.3 The Seller is entitled to unhindered access to the Products owned by it. The Buyer shall cooperate with the Seller in every way to enable the Seller to exercise its retention of title by taking back the Products, including any dismantling required for that purpose.
7.4 The Buyer is obliged to keep the Products delivered under retention of title with due care and as recognisable property of the Seller.
7.5 If the Buyer defaults on payment and the Seller therefore recovers the delivered Products using the retention of title, the costs thereof shall be borne by the Buyer.
7.6 If and as long as Seller is the owner of the Products, the Buyer will inform Seller immediately if they are seized (or threatened to be seized) or otherwise a claim is made to (any part of) the Products. The Purchaser shall also inform the third party of the Seller's (ownership) rights.
Article 8 - Suspension and dissolution
8.1 If the Buyer fails to fulfil any obligation to the Seller, or if the Seller can reasonably expect that the Buyer will fail to fulfil any obligation to the Seller, for instance if it learns that the Buyer's creditworthiness is declining, the Seller will be entitled to suspend (further) performance of its obligations under the Agreement by means of a written notification, without the Seller being liable to pay any compensation, without prejudice to its other rights.
8.2 In the case where the Buyer:
- becomes insolvent, is declared bankrupt, is admitted to the Legal Debt Rescheduling Scheme for Natural Persons, applies for his own bankruptcy or suspension of payments or admission to the Legal Debt Rescheduling Scheme for Natural Persons, renounces assets, or has all or part of his assets attached;
- is placed under guardianship or
otherwise loses the power of disposal of his assets or parts thereof;
- proceeds to strike or transfer of
all or part of his business, including the contribution of his business to a company to be incorporated or already existing, or proceeds to change the objective of his business;
- dies, or one of Buyer's directors or key personnel dies;
- its personnel, or third parties engaged by Buyer (which includes influencers sponsored by it) harms the good name of Seller and/or its Products and/or makes negative public statements about Seller and/or its Products;
- does not comply, does not comply on time and/or does not comply properly with any obligation incumbent on him by virtue of the law or pursuant to the Agreement or Conditions;
Seller is entitled to dissolve the Agreement in whole or in part with immediate effect, without notice of default or judicial intervention, by means of a written notification, without prejudice to its other rights.
Article 9 - Liability
9.1 As stipulated in Article 5.4, Products which have been established as not being delivered in accordance with the Agreement shall be credited or replaced by the Seller, provided that all other (contractual and statutory) conditions for establishing liability are met.
9.2 Other damages and claims such as loss compensation or purchase price reduction, for whatever reason, shall not be compensated by Seller unless the damage is covered and paid by Seller's insurer or if exclusion or limitation of liability is not permitted by law.
9.3 In the specific cases in which the limitation of liability as included in these Terms and Conditions would be unacceptable according to the standards of reasonableness and fairness, Seller's liability will in any case be limited to the invoice value of that part of the Agreement from which the liability arises. If the liability cannot specifically be related to (part of) the Agreement, then the liability is limited to an amount of EUR 20,000 per event.
9.4 Under no circumstances shall Seller be liable for indirect damage such as consequential damage, reputation damage, delay damage and loss of profit or turnover.
9.5 The Buyer shall indemnify the Seller against all claims by third parties, directly or indirectly related to (the use of) the Products and shall compensate the Seller for all damage suffered by the Seller as a result of such claims.
Article 10 - Intellectual property, confidentiality and data protection
10.1 All intellectual property rights and related rights, such as copyright, trade name rights, trademark rights, design rights, patent rights, database rights and neighbouring rights, as well as rights to know-how and trade secrets in relation to the Products supplied by Seller, including recipes, lists of ingredients, texts, illustrations, design, photos and software, reports, manuals, presentations and advice, are vested exclusively in Seller. The Buyer acknowledges these rights and shall refrain from any infringement thereof.
10.2 The Buyer undertakes to keep confidential all confidential information and the intellectual property rights mentioned in 10.1 that it obtains from the Seller in the context of the Agreement. Information is considered confidential if this has been communicated by the Seller or if it arises from the nature of the information. The Buyer realises that in any case the recipes and production methods of the Seller qualify as confidential. The Buyer is not allowed to share (information about) the Products and their production methods with third parties for a purpose other than that necessary for its primary business operations. In any case, Buyer shall not share information with other products and dietary supplement suppliers. Nor shall the Buyer examine (information about) the Products or the production methods (or have them examined) for the purpose of counterfeiting the Products.
10.3 On the formation of an Agreement, the Seller records the Buyer's data in a file. This file is used for the following purposes: - for the purpose of executing services and delivering the Products; - for the purpose of marketing and sales activities such as providing the best possible information about our (other) products and services; - for the purpose of market research; - for both statistical analyses and analyses per company.
10.4 Buyer shall not provide Buyer's data to third parties except in the case where this is necessary for the performance of the services and delivery of Products. In such cases, permission to use such data is limited to the defined purpose.
Article 11 - Modification of General Terms and Conditions
11.1 Seller is entitled to unilaterally amend these Conditions. In that case, Seller will inform Buyer of the change in writing. The Conditions shall be deemed to have been accepted by Buyer if no written protest has been lodged against them by Buyer within two weeks of receipt. The amended Terms and Conditions shall apply to the next order or assignment.
Article 12 - Applicable law and dispute resolution
12.1 These Conditions, as well as the Agreement, are governed by Dutch law.
12.2 All disputes that may arise as a result of the Agreement or these Conditions shall be settled exclusively by the District Court of Gelderland, location Arnhem, or another competent court at the Seller's discretion.