General terms and conditions
General terms and conditions of sales, Fresh Way of thinking B.V. (version of November 16, 2018)
Article 1 – General
1.1 These general terms and conditions of sale, payment and delivery are applicable to all our quotations, offers and to all contracts concluded by Gourmet BV, however named.
1.2 The applicability of other general terms and conditions, including those of sale, in use by our future contracting party, is expressly excluded by us. We will not accept any reference by this other party to its own general terms and conditions.
1.3 By accepting our quotations, offers or by concluding an agreement with us, the future contracting party explicitly waivers its rights under its own general terms and conditions while accepting our general terms and conditions, as described in this document.
1.4 A deviation from our general terms and conditions will be of no effect, unless such a deviation has explicitly and literally been confirmed in writing by our management. If so, this express deviation will be limited to the contract for which it has been agreed upon.
1.5 A contracting party, with whom we have previously concluded an agreement, falling under these terms and conditions, will (tacitly) accept the applicability of these same general terms and conditions with respect to future agreements with us, concluded orally, by phone or by other means.
1.6 All our suppliers with packing facilities are BRC and/or GlobalGap certified, not all of them are IFS certified.
Article 2 – Offers and quotations
2.1 All our offers are free of any obligation. Verbal arrangements or deals of and with our salesmen will only be binding on us, if and when they have been confirmed in writing by our management.
2.2 Our written order confirmation will be held to correctly represent the agreement, unless our contracting party makes a written complaint with respect to its content and meaning, stating otherwise, immediately after receiving the order confirmation.
2.3 Any additional agreements, changes as well as (oral) arrangements or deals that are made after the conclusion of this agreement by our personnel or on behalf of us by our salesmen, agents, representatives or other intermediaries will only be binding on us unless they are expressly confirmed by us and/or through their realization.
2.4 For activities and deliveries that are limited in scope and for which no quotation and/or order confirmation is sent, the invoice/delivery receipt will also be considered as an order confirmation, also representing the agreement correctly and completely.
2.5 Digital or telephonic orders will only be accepted by us at the client’s own risk. Any resulting inaccuracies will be the risk and responsibility of the client.
Article 3 – Delivery terms
3.1 Any mention of a delivery term will only be an indication. We will try to keep the agreed and/or communicated delivery term or date as much as possible, but we will not be liable for the consequences should delivery terms or dates be exceeded, unless in case of intent or gross negligence on our part.
3.2 We are entitled to deliver through a partial shipment, in which case we will charge each shipment or delivery separately.
3.3 In case a delivery term is exceeded, this will not oblige us to pay any compensation for damages, however named.
3.4 After the expiration of the delivery term, buyer has the right to summon us by registered mail to deliver within 14 days. Should no delivery take place within that period, then buyer will be entitled to cancel the agreement without judicial interference, yet without being entitled to any compensation for damages, however named.
Article 4 – (Taking) delivery
4.1 All our deliveries will take place from our warehouse (af magazijn) or ex-works, unless otherwise agreed with our management.
4.2 Our contracting party is obliged to check or have checked the delivery and/or the packaging immediately by delivery, when unloading, for any apparent damage, failings, incompleteness, or check the quality or have it checked or arrange this inspection immediately after receiving notice from us that the goods are at the disposal of our contracting party.
4.3 Our contracting party should immediately note, or have noted, any failings, incompleteness or damage with respect to the delivered goods and/or the packaging, existing by the delivery, on the delivery receipt, the invoice and the transport documents. Failing to do so, will imply that the contracting party has approved of and accepted the goods that have been delivered. Any claims or complaints submitted afterwards will not be admitted nor handled.
4.4 The delivered amount, its numbers, weight and quality, is considered to be in accordance with the agreement and the applicable law and regulations, unless proven otherwise by our contracting party.
4.5 Should the delivered goods not be taken by our contracting party after the expiration of the delivery term, then they will be stored to be taken or collected at a later time, at the risk and responsibility of the contracting party. The moment one week (7 days) has passed since the (actual) date of delivery, we will be entitled to sell to a third party, in which case any loss of profit or costs made on our part will be charged to the other party,
4.6 Unless expressly agreed otherwise in writing with our management, the delivery implies that risk and responsibility connected to these sold goods will from that moment onwards be with our contracting party.
Article 5 – (Re)claims
5.1 Without prejudice to what is stated in article 4, (re)claims should be made no later than the day following the day of delivery. Such (re)claims will only be considered as such by us when they have been submitted to us within the stated term by registered mail, in writing, digitally and/or by fax.
5.2 In case of (re)claims which could not be discovered by the delivery, after a careful examination, our contracting party should inform us immediately digitally, by fax of this (re)claim and confirm it immediately in writing should it have been communicated previously by phone.
5.3 In that case we will have the right to inspect or have inspected the goods immediately and engage a Lloyd’s surveyor, in consultation with our contracting party, who will give a decision on the matter that will be binding on the contracting parties.
5.4 Should the (re)claims be founded, then we will consult with our contracting party to make an arrangement, respecting article 11 of these terms and conditions.
5.5 In case we are not able to engage the expert mentioned in 5.3 above, without being at fault in this respect, our contracting party should do this on our behalf. We should be notified immediately of such an order by fax or digitally.
5.6 Should the (re) claim be considered unfounded, then our contracting party will be obliged to compensate us for all costs made by us.
5.7 (Re)claims concerning invoices should be submitted to us within 8 days after their sending. Failing to do so will imply that the invoices have been accepted by our contracting party.
Article 6 – Force majeure
6.1 In the following cases we will always be entitled to choose freely between the options to either partially/entirely dissolve the agreement or rather suspend the performance of the agreement without any obligation to compensate for damages, however named:
– In case of business stagnation due to governmental regulations or measures, disturbances, mobilization, war, frost, flooding, strikes or similar actions as well as all other forms of business stagnation.
– In case of a failure to deliver completely, timely, or correctly by the suppliers of our goods, the raw materials, fuels, electricity and all other auxiliary materials and/or necessities for the production and packaging of our goods, entire or partial crop failure, extreme draught or extreme rainfall, crop disease, insect plagues.
– Difficulties with respect to the normal means of transportation used by us for the performance of this agreement.
– All other cases of force majeure, explicitly including circumstances because of which the fulfillment of our delivery obligations no longer can reasonably be expected.
Article 7 – Prices
7.1 With respect to our price quotations we reserve the right to increase prices, unless stated otherwise.
7.2 Unless stated otherwise, our price quotes are:
– Net, without bonus or discount agreement.
– Based on current market prices.
– Based on ex-works delivery (af-magazijn).
– VAT excluded.
– In Euros.
7.3 Should any circumstances occur since the quotation date and/or the date the agreement was concluded that have an effect on the agreed price, such as price increases of raw materials, auxiliary and packing materials or with respect to total production costs, energy costs, wages, social security, VAT, excise duties, fuel costs, currencies we are entitled to increase the price to be paid by our contracting party, at the time of the delivery.
Article 8 – Payment
8.1 Payment of our invoices will take place without any discount or settlement of mutual claims, within 14 days after the invoice date through a payment by deposit or a transfer to a bank account, indicated by us, unless expressly agreed otherwise and in writing with our management.
8.2 As of the moment the final payment date is expired, our contracting party will be obliged to pay an interest rate equal to the interest rate determined by law in The Netherlands (wettelijke rente) plus 1% to be calculated over the total invoice amount, for every (part of the) month that this other party is in default with its payment obligations.
8.3 All extrajudicial collection costs will be charged to our contracting party, determined at 15% of the amount to be claimed, to be increased with VAT with a minimum amount of € 500, -, without prejudice to our right to charge any real additional extrajudicial costs to our contracting party.
8.4 We are at all times entitled to suspend the delivery as long as our contracting party has not furnished sufficient security under the contract(s), with respect to all his contractual obligations to us.
8.5 In case of bankruptcy, the submission of a suspension of payments request, or in case of (partial) seizure of the property, or death of our contracting party or failure to fulfill a obligation under this contract we will have the right, as the result of the occurrence of just one of these circumstances, to either consider the agreement dissolved, without the need for any judicial interference or to claim fully and immediately the amount due by our contracting party as a result of our deliveries and without the prior need for a notice of default or a warning and/or to reclaim the goods delivered as our property, without any prejudice to additional rights pertaining to compensation for costs, damages and
Article 9 – Retention of title
9.1 We will retain title to all goods delivered until our contracting party has fully paid all the amounts due, for whatever reason, including our future contractual claims, including interest and costs (and in case of a current account payment for a delivery until the moment of the deduction of this amount from the other party’s possible bank surplus).
9.2 The goods can be used or be sold to a third party by our contracting party for regular business purposes, but they cannot be given as collateral nor be used to furnish security for a third party claim.
9.3 Our contracting party is obliged to demonstrably store the delivered goods and will be obliged to return these goods immediately, wherever they may be, the moment we reclaim these goods in accordance with article 8.5 of these terms and conditions. In all cases mentioned in this article, any risks involving these goods, such as a possible loss of profit and extra costs, will be with our contracting party.
9. Should products that are sold and delivered by the contracting party be brought within the German jurisdiction, the following terms will be applicable, German law will be applicable and a German court will be competent, contrary to what is stated in article 13. This will solely be the case with respect to this article (9) of these terms and conditions.
a. Das Eigentum an den gelieferten Waren bleibt zur Sicherung aller Ansprüche vorbehalten, die uns aus der gegenwärtigen und künftigen Geschäftsverbindung bis zum Ausgleich aller Salden gegen den Abnehmer und seine Konzerngesellschaften zustehen.
b. Unser Eigentum erstreckt sich auf die durch Verarbeitung der Vorbehaltsware entstehende neue Sache. Der Abnehmer stellt die neue Sache unter Ausschluss des eigenen Eigentumserwerbs für uns her und verwahrt sie für uns. Hieraus erwachsen ihm keine Ansprüche gegen uns.
c. Bei einer Verarbeitung unserer Vorbehaltsware mit Waren anderer Lieferanten, deren Eigentumsrechte sich ebenfalls an der neuen Sache fortsetzen, erwerben wir zusammen mit diesen Lieferanten – unter Ausschluss eines Miteigentumserwerbs des Abnehmers – Miteigentum an der neuen Sache, wobei unser Miteigentumsanteil dem Verhältnis des Rechnungswertes unserer Vorbehaltsware zu dem Gesamtrechnungswert aller mitverarbeiteten Vorbehaltswaren entspricht.
d. Der Abnehmer tritt bereits jetzt seine Forderungen aus der Veräußerung von Vorbehaltsware aus unseren gegenwärtigen und künftigen Warenlieferungen mit sämtlichen Nebenrechten im Umfang unseres Eigentumsanteils zur Sicherung an uns ab.
e. Bei Verarbeitung im Rahmen eines Werksvertrages wird die Werklohnforderung in Höhe des anteiligen Betrages unserer Rechnung für die mitverarbeitete Vorbehaltsware schon jetzt an uns abgetreten.
f. Solange der Abnehmer seinen Verpflichtungen aus der Geschäftsverbindung an uns ordnungsgemäß nachkommt, darf er über die in unserem Eigentum stehende Ware im ordentlichen Geschäftsgang verfügen und die an uns abgetretene Forderungen selbst einziehen.
g. Bei Zahlungsverzug oder begründeten Zweifeln an der Zahlungsfähigkeit oder Kreditwürdigkeit des Abnehmers sind wir berechtigt, die abgetretenen Forderungen einzuziehen und die Vorbehaltsware zurückzunehmen.
h. Scheck-/Wechselzahlungen gelten erst nach Einlösung der Wechsel durch den Abnehmer als Erfüllung.
Article 10 – Cask and freight carriers
10.1 Our contracting party is obliged to make a deposit for the cask/freight carriers that are made available by us. We will retain ownership of these cask/freight carriers that are supplied to our contracting party.
10.2 Our contracting party will be obliged to return the supplied cask/freight carriers as soon as possible, while we will be obliged to take them back, when returned, with the obligation to return or deduct the paid deposits.
10.3 We are not obliged to take back returned but damaged and/or dirty cask/freight carriers and/or only against the obligation to pay back part of the deposit.
10.4 Our contracting party will indemnify us against the incorrect use by our contracting party or by third parties of the supplied cask/freight carriers and will indemnify us against all third party claims for past and/or future damages as a result of such an incorrect use.
Article 11 – Liability
11.1 We exclude any liability with respect to products delivered by us, except in case of intent or gross negligence on our part.
11.2 In case of claims that are timely and founded, we will never be obliged to do more than substitute any faulty delivered goods or return the price paid by the contracting party, whereby we can choose either of these two options.
11.3 Without prejudice to what is mentioned before, we will not be liable for any damages to persons and/or goods of our contracting party or those of third parties, with respect to the contractual delivery of products, unless the damage is caused by intent or gross negligence on our part.
11.4 Our contracting party will indemnify us explicitly against third party claims for whatever kind of damage to a third party person or good caused by or through the delivered good and will indemnify us for all damages and costs resulting from a claim as described in this paragraph (11.4).
Article 12 –Transport terms
12.1 In case of transports that are to be carried out by or on behalf of our contracting party the Algemene Vervoerscondities (AVC 2000) will be applicable in case of domestic transport.
12.2 In case of international transport the CMR-conditions will be applicable. Container transport will take place in accordance with the conditions stated in the Bill of Lading and furthermore in accordance with the Algemene Vervoerscondities (AVC 2000).
Article 13 – Disputes and applicable law
13.1 On all disputes between parties pertaining to the contract that has been concluded with us, or to its execution in the broadest sense, Dutch Civil law (NBR) will be applicable, unless parties have explicitly and literally agreed otherwise in writing and in a separate agreement. These disputes will be exclusively settled by the competent judge of the court (rechtbank) in Alkmaar, The Netherlands.
13.2 All contracts concluded with us will be considered to have been concluded in Lutjebroek (Noord-Holland), the Netherlands.
13.3 With respect to the interpretation of international business terms the “Incoterms 2000” as determined by the international Chamber of Commerce (I.C.C.) in Paris will be applicable. The Dutch text of these conditions is authentic and binding.