GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
FROM: SCHIP AAN WAL VOF (CuliConcepts/Saus.Guru and others)
Filed with the Chamber of Commerce Gelderland in Arnhem, the Netherlands, under number 68088590
Article 1 General
1.1 For the purposes of these general terms and conditions of sale and delivery, the following terms shall have the following meanings: the trade names CuliConcepts, Saus.Guru and other trade names related to this general partnership, hereinafter referred to as CuliConcepts. In these general terms and conditions of sale and delivery ‘product’ or ‘products’ shall mean: sauces, marinades, dressings and/or other items offered and/or delivered by CuliConcepts.
1.2 These terms and conditions apply to all offers made by CuliConcepts and to all agreements concluded with CuliConcepts.
1.3 These terms and conditions shall apply to the exclusion of any general terms and conditions used by the (potential) customer (hereinafter referred to as ‘the Customer’). The applicability of the Customer's general terms and conditions is thus expressly rejected.
Article 2 Offers, orders and agreements
2.1 All offers made by CuliConcepts are free of obligation. Orders and acceptance of offers by the Customer are irrevocable.
2.2 Inaccuracies in an order confirmation from CuliConcepts must be reported to CuliConcepts in writing within 1 working day of the date of the order confirmation, failing which the order confirmation will be deemed to correctly and fully reflect the agreement and the Customer will be bound by it.
2.3 Verbal commitments or agreements by or with its personnel shall only be binding for CuliConcepts if it has confirmed this in writing.
2.4 Images, descriptions, advertising material and offers do not legally bind CuliConcepts.
Article 3 Prices
3.1 Prices quoted by or agreed with CuliConcepts are inclusive of packaging costs, but exclusive of VAT and other taxes or levies.
3.2 Prices quoted by CuliConcepts are calculated for delivery ex Works Twello (incoterms 2010), unless stated otherwise in writing.
3.3 If cost-determining factors change after the offer and/or the conclusion of an agreement, CuliConcepts is entitled to adjust the prices accordingly.
Article 4 Delivery time and delivery
4.1 Stated delivery times are approximate and are not to be regarded as deadlines. Exceeding the delivery time does not oblige CuliConcepts to pay damages and does not give the Customer the right to terminate or suspend his obligations arising from the agreement. However, the Customer is entitled to dissolve the agreement if and insofar as CuliConcepts has not performed the contract within a reasonable term set by the Customer. In such a case, CuliConcepts does not owe any compensation.
4.2 Transport and/or dispatch of the products shall take place at the risk of the Customer. The Customer is obliged to accept the products as soon as they arrive at their destination.
4.3 If the Customer does not take delivery of the products or does not come to collect them or have them collected, they will be stored at the Customer's expense and risk for as long as CuliConcepts deems this desirable. CuliConcepts has in this case, as with any other (attributable) failure on the part of the Customer, at all times the power to either demand compliance with the agreement or to (extrajudicially) dissolve the agreement, without prejudice to its rights to compensation for damage suffered and loss of profit, including the costs of storage.
4.4 CuliConcepts is not obliged to honour a request from the Customer for re-delivery or after-delivery. Should CuliConcepts decide to do so anyway, the associated costs will be at the expense of the Customer.
4.5 CuliConcepts is authorised to execute an agreement in parts and claim payment of the part of the agreement that has been executed.
Article 5 Force majeure
5.1 If CuliConcepts is prevented from fulfilling the agreement due to force majeure, it is entitled to suspend the execution of the agreement. In such a case, the Customer is not entitled to compensation for damages, costs or interest.
5.2 Force majeure includes but is not limited to: natural disasters, war, threat of war, pandemics, strikes, fire, accident or illness of personnel, business interruption, transport stagnation, disruptive legal provisions, import/export restrictions, restrictions imposed by governmental measures, problems unforeseen by CuliConcepts in production or transport and any other circumstance not solely dependent on the will of CuliConcepts, such as the non-delivery or late delivery of goods or services by third parties engaged by CuliConcepts.
5.3 In the event of a situation involving force majeure, CuliConcepts shall be entitled to dissolve the agreement for the non-feasible part by means of a written statement. If the force majeure circumstances last longer than 4 weeks, the Customer is also authorised to dissolve the agreement for the non-feasible part by means of a written statement.
5.4 If CuliConcepts has already fulfilled part of its obligations when the force majeure situation arises, or is only able to fulfil part of its obligations, it is entitled to invoice the part already delivered or the part that can be delivered separately and the Customer is obliged to pay this invoice as if it were a separate agreement.
Article 6 Products with limited shelf life
6.1 In the case of products with a limited shelf life, the storage instructions must be strictly observed by the Customer.
6.2 The Customer warrants that products with a best-before date or sell-by date will no longer be used or processed after the expiry of that date and will no longer be offered for sale, use or consumption after the expiry of that date.
6.3 The Customer indemnifies CuliConcepts against any claim from third parties for compensation of damage resulting from the use or consumption of the products after the sell-by date or best-before date, as well as against the costs incurred by CuliConcepts as a result thereof.
Article 7 Defects
7.1 If defects should occur in the products delivered by CuliConcepts, CuliConcepts will replace the products in question or apply a reasonable price reduction, all this at the sole discretion of CuliConcepts. This warranty is valid until the expiry date or best-before date.
7.2 Defects that occur in or are (partly) the result of processing by an external carrier, by the consumer of the products, the transport, storage or use of the products by (staff of) the Customer in a faulty manner or contrary to instructions given by or on behalf of CuliConcepts, or by other than the normal intended use, fall outside the scope of the warranty.
7.3 The Customer must carefully inspect the products delivered immediately upon receipt, under penalty of forfeiture of any right to price reduction and/or replacement. Any complaint regarding the quantity of the products delivered must be noted on the consignment note or delivery note upon delivery, failing which the quantities stated on the consignment note or delivery note shall constitute compelling evidence against the Customer.
7.4 The Customer must lodge a complaint with CuliConcepts in writing within 2 working days after a defect has occurred. In the absence of a timely complaint, any claim against CuliConcepts will lapse.
7.5 If the Customer lodges a complaint, it is obliged to give CuliConcepts the opportunity to inspect the products (or have them inspected) in order to establish the shortcoming. The Customer is obliged to keep the products about which the complaint has been made available to CuliConcepts, under penalty of forfeiting any right to price reduction and/or replacement.
7.6 Returns to CuliConcepts of sold products, for whatever reason, can only take place after prior written authorisation and shipping and/or other instructions from CuliConcepts. The products remain the expense and risk of the Customer at all times.
7.7 Any defects relating to part of the products delivered do not entitle the Customer to reject or refuse the entire batch of products delivered.
7.8 The Customer must inform CuliConcepts in writing of any inaccuracies in CuliConcepts' invoices within 5 working days of the invoice date, failing which the Customer will be deemed to have approved the invoice.
7.9 Complaints and/or reclamations do not suspend the Customer's payment obligations.
7.10 Upon detection of a defect in a product, the Customer is obliged to do everything possible to prevent or limit damage, explicitly including any immediate cessation of use and trading.
Article 8 Retention of title
8.1 CuliConcepts retains title to the products delivered and to be delivered until all its claims relating to the products delivered and to be delivered have been paid in full by the Customer, including claims for payment of the purchase price (including interest and collection costs) and claims due to failure to fulfil one or more agreements.
8.2 If the Customer fails to fulfil his obligations, CuliConcepts is entitled to retrieve the products belonging to him (or have them retrieved) from the place where they are located, at the expense of the Customer.
8.3 The Customer is not entitled to pledge the products that have not yet been paid for or to transfer ownership thereof. This prohibition is enshrined in Dutch property law to establish a limited right in terms of transfer. The Customer is obliged to store the products delivered under retention of title with due care and as the recognisable property of CuliConcepts.
8.4 If goods delivered under retention of title are seized by third parties, the Customer is obliged to inform CuliConcepts thereof immediately.
Article 9 Intellectual property
9.1 All intellectual and industrial property rights relating to the products and their designations (with the exception of the Customer's private labels), and to everything CuliConcepts develops, manufactures or provides, including recipes, production methods, packaging and images, belong to CuliConcepts.
9.2 The aforementioned items may not be copied, reproduced, made public and/or made available to third parties without the prior written consent of CuliConcepts.
Article 10 Payment
10.1 Unless otherwise agreed in writing, payment of the invoices of CuliConcepts must take place within 14 days after the invoice date.
10.2 CuliConcepts has at all times the right to demand full or partial payment in advance and/or to obtain security for payment in any other way.
10.3 Invoicing protocol for new relations and any invoice with a total order amount higher than EUR 4500: 50% prepayment unless otherwise agreed in writing.
10.4 If payment is not received on time, the Customer will owe interest on the invoice amount without further notice of default at a rate of 1.5 per cent per month, calculated from the due date up to and including the date of payment, on the understanding that the statutory (commercial) interest will be due if it is higher.
10.5 All costs related to the collection are at the expense of the Customer. The extrajudicial collection costs shall amount to at least 15% of the amount to be collected, with a minimum of EUR 200.
10.6 The Customer waives any right to set off any amounts owed from one side to the other. CuliConcepts is at all times authorised to set off everything it owes the Customer against what the Customer and/or companies affiliated to the Customer owes CuliConcepts, whether or not due and payable, to CuliConcepts.
10.7 The entire invoice amount is immediately due and payable in full in the event of late payment of an agreed instalment on the due date, as well as in the event that the Customer becomes bankrupt, applies for (provisional) suspension of payments, the statutory debt rescheduling arrangement (WSNP) is declared applicable to it and/or if any attachment is levied on the Customer's goods and/or claims. If one of the aforementioned situations occurs, the Customer is obliged to inform CuliConcepts without delay.
10.8 Payments made by the Customer shall first be applied to settle the costs owed, then to settle the interest due and then to settle the oldest outstanding invoices due and payable, even if the Customer states that the payment relates to a later invoice.
Article 11 Cancellation
11.1 The Customer may not cancel a submitted order. If the Customer nevertheless cancels all or part of an order, the Customer is obliged to reimburse CuliConcepts for all costs reasonably incurred for the execution of the order, the work carried out by CuliConcepts and the loss of profit incurred by CuliConcepts, plus VAT.
Article 12 Advice
12.1 All advice given by CuliConcepts and information and statements provided by CuliConcepts regarding, among other things, the properties of products to be supplied by CuliConcepts are entirely free of obligation and are provided by CuliConcepts by way of non-binding information. CuliConcepts does not provide any guarantee in this regard.
12.2 CuliConcepts is not liable for any direct or indirect damage, in whatever form and for whatever reason, resulting from the provision of information and/or advice by CuliConcepts. The Customer indemnifies CuliConcepts against all claims by third parties in this regard, unless intent or gross negligence on the part of CuliConcepts can be proven.
Article 13 Liability
13.1 Apart from the provisions of Article 7, the Customer has no claims against CuliConcepts and indemnifies CuliConcepts against any claims from third parties on
account of defects in or relating to the products supplied by CuliConcepts. CuliConcepts is not liable for direct and/or indirect damage, including personal injury and property damage, immaterial damage, consequential damage (loss of income, stagnation damage, etc.) and any other damage arising by whatever cause, unless there is gross negligence or intent on the part of CuliConcepts.
13.2 Damage to products caused by damage or destruction of packaging is at the expense and risk of the Customer.
13.3 In all cases in which CuliConcepts is obliged to pay damages, these will never exceed the invoice value of the delivered goods and/or services through which or in connection with which damage has been caused. Moreover, if the damage is covered by CuliConcepts' corporate liability insurance, the compensation will never exceed the amount actually paid out by the insurer in the case in question.
13.4 Any claim against CuliConcepts lapses 12 months after the claim arose, unless it has been acknowledged by CuliConcepts.
Article 14 Representation
14.1 If the Customer acts on behalf of one or more third parties, he will be liable to CuliConcepts as if the third party were the Customer, without prejudice to the liability of those others.
Article 15 Final provisions
15.1 The applicability of any international convention on the sale of movable tangible property, the operation of which may be excluded between the parties, shall not apply and is hereby expressly excluded. More specifically, the applicability of the Vienna Sales Convention 1980 (CISG 1980) is expressly excluded.
15.2 All disputes between CuliConcepts and the Customer will be settled exclusively by the competent court in the district of the District Court of Gelderland, unless the Act explicitly states otherwise. All agreements entered into by CuliConcepts are governed exclusively by Dutch law. The possibility of instituting any legal action or bringing a dispute shall lapse one year after the cause of action arose.