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General Terms & Conditions

General Terms & Conditions of NATURAL SPICES B.V., residing in Mijdrecht

Applicable from September 3rd, 2019.

 

1          Definitions

1.1     Supplier: with supplier is meant the private limited company Natural Spices B.V., having its statutory seat in Watergang, residing in (3641 SK) Mijdrecht at the Rendementsweg 3B, registered in the Trading Registry of the Chamber of Commerce under the number 36052139.

1.2     Customer: the counter-party, natural person or legal entity that trades in the practice of a profession or company, including its representatives, agents, assigns, and heirs, that has entered into an Agreement or wishes to do so with Supplier.

1.3     Consumer: the counter-party, natural person that does not trade in the practice of a profession or company, who has entered into an Agreement or wishes to do so with Supplier.

1.4     Agreement: every Agreement that has been entered into between Supplier and the Customer, each alteration or addition thereof, as well as all (legal) acts of preparation and/or performance of that Agreement.

1.5     Distance Agreement: an Agreement that has been entered into between Supplier and a Consumer in the context of an organized system for remote sale of products, digital content and/or services, with which one or more techniques for communication at distance up until the moment of entering the Agreement exclusively or jointly is used.

1.6     Order: every assignment of the Customer to Supplier to deliver products, in whatever form.

1.7     Products: all goods that have been produced or delivered by and/or for the account of Supplier, for the realisation of the Agreement that has been entered into by the Supplier and the Customer, as well as ancillary services to be provided by Supplier.

 

2          Applicability

2.1     These general terms & conditions are applicable on every Agreement between Supplier and the Customer, including offers, orders and price agreements, unless parties have explicitly agreed otherwise in writing. A reference by the Customer to its own general terms & conditions is explicitly rejected by Supplier.

2.2     Before entering into an Agreement, the contents of these general terms & conditions will be made available to the Customer. In the event that this is not possible, Supplier will express, before the Agreement is entered into, in which manner the general terms & conditions can be inspected and that the general terms & conditions will be sent at the request of the Customer as soon as possible and free of charge.

2.3     Customer accepts the applicability of these general terms & conditions on all Agreements Supplier and Customer enter into.

2.4     Deviations from these general terms and conditions are only valid if the deviations have been confirmed in writing by Supplier. If Supplier has explicitly agreed in writing to a deviation from these general terms and conditions, that deviation only applies to the Agreement in question.

2.5     Whenever in these general terms & conditions is spoken of the Customer, also aside from the Customer as described in article 1.2 of these general terms & conditions, the Consumer as described in article 1.3 of these general terms & conditions is meant. Whenever the definition Consumer is used in these general terms & conditions, that stipulation specifically refers to the Consumer as described in article 1.3 of these general terms &  conditions, because with regard to that subject specific legal statutes concerning consumer rights are applicable.

 

3          Offer, realization and prices

3.1     Offers from Supplier in which form in any way are noncommittal, unless explicitly mentioned differently.

3.2     Offers from Supplier are valid for the duration of 30 days, unless explicitly mentioned differently.

3.3     The conformation of order of Supplier is binding for the size and nature of the Agreement. Obvious errors and obvious mistakes in an offer will not bind Supplier and Customer cannot derive any rights from them.

3.4     Supplier is merely bound to the offer, when the Customer has accepted the offer within the period of validity as mentioned in article 3.2 of these general terms & conditions.

3.5     The Agreement will be established when Supplier confirms the Order of the Customer in writing, or when Supplier performs accordingly to the order.

3.6     The Customer shall provide Supplier with all the information necessary for the performance of the Agreement.

3.7     Prices mentioned in the offer are expressed in Euros, excluding VAT. Shipping costs are not included in the mentioned prices. For international shipments, shipping costs are not included in the mentioned prices, unless the parties have deviated from this in writing.

3.8     Supplier’s offers are based on normal circumstances regarding the production and supply within normal terms. Supplier is entitled to adapt the prizes mentioned in the offer, in case the circumstances mentioned before give rise to such adjustments.

3.9     Supplier shall inform the Customer as soon as possible in writing of any price increase in connection with circumstances as referred to in Article 3.8. If the price increase takes place within three (3) months after the conclusion of an Agreement and amounts to more than ten (10)% of the originally agreed price, the Customer has the right to dissolve the Agreement within ten (10) days after the message referred to in the first sentence of this article has been sent by means of written notification to Supplier. If Customer has not responded to the price increase within the aforementioned period of ten (10) days, Customer shall be deemed to have agreed to the price increase.

3.10    In case Supplier has provided the Customer with samples, the samples are merely indicative for the Products. The actual produced or delivered Products may differ from the samples, unless parties have explicitly agreed that the Products shall correspond with the samples.

3.11    In case of a Distance Agreement, entered into between Supplier and a Consumer, all mentioned prices in the offer are expressed in Euros, including VAT. Shipping costs will also be mentioned on the offer.

 

4          Cancellation

4.1     The Customer is entitled to cancel an Agreement before Supplier has begun with the performance of the Agreement provided he compensates the Supplier for the damages occurred through this. Damages include suffered losses and missed profits by Supplier and in any case the costs that Supplier already has made in preparation of the Agreement, amongst which the purchased goods, invoked services and stocking.

4.2     The Customer shall only be entitled to return the Products to Supplier, in case Supplier has explicitly given permission to do so in writing and only under conditions set by Supplier. Costs associated with returning the Products to Supplier shall be at the expense of Customer, with the exception of costs for returning Products in connection with a well-founded complaint as referred to in article 8.5 or on the basis of the guarantee provisions as referred to in article 9.

4.3     In case of a Distance Agreement, entered into between Supplier and a Consumer, the Consumer is entitled to terminate the Agreement without given reason during a 14 day reflection period, taking effect on the day the Consumer has received the agreed upon Products.

4.4     The Consumer explicitly is not entitled to terminate the Distance Agreement as meant in article 4.2 of these general terms & conditions, in the event the realized Agreement concerns the delivery of Products that have been manufactured in accordance with the specifications of the Consumer, are not prefabricated and that are being constructed on the basis of the preferences of the Consumer.

4.5     The Consumer that uses his right to terminate the Distance Agreement, is obliged to return the agreed Products to the Supplier as soon as possible, or at least within 14 days after he has declared to use his right to terminate the Agreement. The Consumer bears the costs for returning the Products.

4.6     In the event the Consumer uses his right to terminate the Distance Agreement without reason within the reflection period, the Supplier shall reimburse the payments of the Consumer, including any delivery costs, within 14 days after the Consumer has declared to use his right to terminate the Agreement without reason.

 

5          Billing and payment

5.1     Unless explicitly agreed otherwise in a price agreement and confirmed in the order confirmation as referred to in article 3.3, payment must be made within 14 days of the invoice date by transferring the amount due to a bank account specified by Supplier.

5.2     If any dispute arises between Supplier and the Customer with regard to the performance of the Agreement, Customer is explicitly not entitled to suspend his payment obligation in accordance with the Agreement. Any appeal on settlement by the Customer is explicitly excluded.

5.3     If the Customer does not pay in time, the Customer will by law be in default without it being necessary for a written notice of default. From the moment the Customer is in default, the Customer owes a contractual fine of 2% per month on the claimable amount, with which a part of a month is counted as an entire month. Supplier is also unabatedly entitled to claim the extralegal and court costs on the Customer, among which costs concerned are Lawyers’ costs and Bailiff costs. The extralegal and court costs are fixed at 15% of the claimable amount, with a minimum of EURO 100,00.

5.4     Payments made by the Customer shall first be applied to the extrajudicial and judicial costs that have become due, then to the contractual interest and at the latest to the invoice amounts that have become due, whereby the oldest invoice shall always be settled first, irrespective of the description mentioned by the Customer at the time of payment or the payment reference used by the Customer.

 

6          Retention of ownership

6.1     Every delivery of Products by Supplier to the Customer occurs under the retention of ownership of those products until the Customer has done all that which he is required conform the Agreement, including interest and costs.

6.2     Customer is not permitted to sell and transfer the Products delivered under retention of ownership within the framework of its normal business operations to third parties, as long as Customer has not fulfilled all its obligations towards Supplier pursuant to the Agreement.

6.3     The Customer is obliged to safeguard the Products delivered under retention of ownership with necessary care and to keep them recognizable as property of Supplier.

6.4     When the buyer fails in the performance of his payment obligations towards Supplier under the Agreement, or he gives Supplier valid reason to suspect that the Customer will fail in his obligations, Supplier is entitled to take back all the Products delivered under retention of ownership. In case Supplier exercises his right to take back all the Products under the circumstances as described in this article, the customer is obliged to cooperate and to give Supplier access to his properties and/or buildings to facilitate the inspection of the Products and to allow the exercise of the Suppliers rights.

 

7          Delivery and risk

7.1     Supplier is required to conduct his obligations under the Agreement with the necessary caution. Supplier is entitled to make use of third parties for the performance of the Agreement.

7.2     The Customer is required to do all which is reasonably necessary or preferable to make a timely delivery by Supplier under the agreement possible.

7.3     The agreed delivery time is not a strict deadline, but is only approximate. Supplier shall not be in default by the mere exceeding of the agreed delivery time. Supplier shall not be in default until after the Customer has given him written notice of default, even in the case of an agreed delivery time. If the delivery time is exceeded, Supplier shall ensure delivery of the Products as soon as possible.

7.4     The agreed upon Products are considered to be delivered when the Products are ready to be shipped to the Customer, unless parties have explicitly agreed otherwise in writing. Supplier shall inform the Customer in writing when the Products are delivered as mentioned under this article.

7.5     Until the moment of delivery of the agreed upon Products as mentioned in article 7.4, the ownership and risk of the agreed upon Products are for the Supplier. From the moment of delivery the ownership and risk of the agreed upon Products are for the Customer.

7.6     Supplier is entitled to deliver the Products in parts. In the case of partial deliveries, the Agreement between the parties concerning the delivery of the Products shall apply to each separate partial delivery. In the event of partial deliveries as referred to in this article, each partial delivery, whether or not part of a composite Order, may be invoiced separately to the Customer so that the provisions regarding Billing and payment under article 5 apply to those partial deliveries.

7.7     The shipment of the agreed Products shall always be at the expense and risk of Customer, even if delivery at the expense of Supplier has been agreed.

7.8     Customer is obliged to accept the Products delivered by Supplier. If the Customer fails to comply with this obligation, Supplier may store (or have stored) the Products delivered to and not accepted by the Customer. Costs associated with storage and non-fulfilment by Customer shall be borne by Customer.

7.9     In deviation of article 7.5, in case of a Distance Agreement, entered into between Supplier and Consumer, the ownership and risk of the agreed upon Products are for the Consumer from the moment he receives the Products.

 

8          Inspection and complaints

8.1     The customer is obliged to inspect the delivered Products on the moment of the delivery and receipt of the Products and to determine whether the Products are in accordance with the Agreement.

8.2     If the Customer is of the opinion that the delivered Products do not comply with the Agreement, he must submit a written complaint to Supplier, stating the reasons of the complaint, within 36 hours after receipt of the delivered Products. If it is not reasonably possible for Customer to discover the defectiveness of the delivered Products within 36 hours after receipt, a period of 36 hours shall apply from the moment that the defect could reasonably have been discovered.

8.3     Notwithstanding the foregoing, Supplier will not accept or consider complaints of the Customer that have been submitted to supplier later than 5 (five) days after the receipt of the Products to the Customer, if the complaints are related to Products with a shelf life of 28 (twenty eight) days or less.

8.4     The Customer will allow Supplier to inspect the Products that are subject to the Customer’s complaint and to inspect the validity of the Customer’s complaint. The customer’s right to complain expires if the Customer does not provide Supplier with sufficient opportunity to inspect the Products and to inspect the validity of the Customer’s complaint.

8.5     If Supplier deems the Customer’s complaint valid, Supplier shall only be obliged to replace the Products that are subject to the Customer’s complaint without cost, or compensate the purchase price as paid by the Customer with regard to these Products, all this at Supplier’s discretion.

 

9          Guarantees

9.1     Until the expiry date stated on the delivered Products, Supplier gives a guarantee with regard to the expiry date of the delivered Products, provided that the Products are stored by Customer carefully and in the manner prescribed by Supplier. Defects covered by the guarantee shall be remedied by Supplier by replacing the defective Product, or at least the defective part of the defective Product, or by crediting the purchase price of the Product paid by Customer, all this at Supplier's discretion.

9.2     Supplier does not give any other or further guarantee on the delivered Products than the guarantee of its suppliers and/or producers with regard to the relevant Products

9.3     Any modification, adaptation or processing of the delivered Products by or on behalf of the Customer without the written permission of the Supplier shall invalidate any guarantee given by Supplier. The guarantee given by Supplier shall also expire if the Products are used for other than usual business purposes, or are handled or maintained carelessly by the Customer.

 

10       Termination

10.1    Every Agreement entered into between Supplier and Customer can immediately and without a specific notice of default be terminated at each shortcoming of the Customer in the compliance of any obligation under the Agreement, unabatedly the right of Supplier to claim additional damages.

10.2    Supplier is furthermore authorized to terminate the Agreement without a prior notice of default, in the event:
a)       the Customer is declared bankrupt, applies for his own  bankruptcy, or applies for receivership; 
b)       the Customer transfers the company entirely or  partially to a third party;   
c)       Supplier receives information after the Agreement has   been closed of circumstances that give him a valid       reason to fear that the Customer will not comply to its  obligations under the Agreement.

10.3    In the event that Supplier is prevented from performing the Agreement as a result of force majeure, Supplier is entitled, without judicial intervention, to suspend the performance of the Agreement or to dissolve the Agreement in whole or in part, without being obliged to pay any compensation to the Customer. There may be force majeure within the meaning of this article in the event of a circumstance beyond the control of Supplier as a result of which fulfilment of the Agreement is permanently or temporarily prevented, as well as, if not already included, in the event of war, threat of war, civil war, riots, strikes and the ignition of any other disruption in the business of Supplier or his suppliers. There may also be force majeure if a supplier from whom Supplier buys products relating to the execution of the Agreement with Customer cannot temporarily or permanently deliver products.

 

11       Liability

11.1    Supplier's liability under the Agreement is limited to the guarantee provisions described in Article 9 of these General Terms & Conditions. Any further or other liability of Supplier on account of an attributable failure in the performance of the Agreement or for any other reason is excluded.

11.2    With the exception of deliberate or intentional recklessness from Supplier, Supplier can only be held to reimburse direct material damages, suffered by the Customer. In any case this does not entail: consequential damages, corporate damages, other indirect damage and damages as a result of liability towards third parties, production loss, loss of revenue or profit or a decline in value or loss of Products.

11.3    Supplier's liability under the Agreement is limited to compensation for direct damage and to a maximum of the amount of the invoice amount stipulated for the Agreement, excluding VAT.

11.4    The Customer is obliged to indemnify and hold harmless Supplier against all claims by third parties engaged by the Customer for damages against Supplier with regard to the execution of the Agreement, as well as for claims that are related to or result from the use by the Customer of the Products delivered by Supplier, except in the case of malicious intent or gross negligence on the part of Supplier.

11.5    Employees of Supplier can invoke the provisions of this article as if they were a party to the Agreement, should they be held liable by Customer or by third parties engaged by Customer.

 

12       Intellectual property rights

12.1    All documents, folders, images, drawings, offers, designs, recipes, preparation methods, production processes and the like, as well as the underlying information provided to Customer, remain the property of Supplier. The Customer is not entitled to use these for any other purpose than that for which they were made available to by Supplier to the Customer.

12.2    All signs, logos, labels, packaging and the like, whether or not protected by intellectual or industrial property rights, which are on the Products delivered by Supplier, may not be altered, removed from or from the products, imitated or used for other purposes by Customer other than with the permission of Supplier.

 

13       Transfer of rights and obligations

13.1    The Customer is not permitted to transfer or pledge any rights and/or obligations arising from an Agreement with Supplier to third parties without the prior express written consent of Supplier.

 

14       Competent judge, applicable law and residual determination

14.1    In deviation of the legal rules for relative competence of the civil judge, parties will submit all disputes that have a connection with an Agreement between Supplier and the Customer to the competent judge of the court of Rotterdam.

14.2    In the event there is a Distance Agreement, closed between Supplier and the Consumer, all disputes will be submitted to the civil judge that is competent to take notice of the dispute according to the legal rules.

14.3    Agreements between Supplier and the Customer are exclusively governed by Dutch law.

14.4    When one or more terms of these general terms & conditions are void or are declared void, then this will not affect the validity of the other terms. In that case, parties shall replace the void or nullified term/condition with a valid term/condition that matches with the intention of the term/condition it replaces.

14.5    In the event of a conflict between the meaning of a provision in the version of these general terms and conditions in the Dutch language and the version of these general terms and conditions in the English language, the meaning of that provision in the version of these general terms and conditions in the Dutch language shall prevail.