Brugel Food Products B.V.
GENERAL TERMS AND CONDITIONS

General Purchase Terms and Conditions of the private company with limited liability Brugel Food Products B.V., having its registered office in Breda, registered with the Chamber of Commerce under number 20048046. These terms and conditions were filed with the Chamber of Commerce on 10 August 2015.

Article 1 – General

  1. These terms and conditions are applicable to any and all proposals, deliveries, services, and other (legal) acts of Brugel Food Products B.V. (hereinafter referred to as: the “User”) that are related to the conclusion and/or the implementation of the agreement between Brugel Food Products B.V. and an Other Party to the extent that the parties do not expressly deviate from these terms and conditions in writing.
  2. The present terms and conditions are also applicable to agreements with the User for the implementation of which the User must rely on third parties.
  3. The applicability of potential purchase or other terms and conditions of the Other Party is expressly rejected.
  4. Should one or more provisions of these general terms and conditions at any time be fully or partly null and void or be cancelled then the remainder of these general terms and conditions shall remain in full force and effect. As the occasion arises the User and the Other Party shall enter into discussions in order to agree on new provisions in replacement of the null and void or cancelled provisions in the course of which the objective and the scope of the original provisions is observed as much as possible.
  5. In case of a lack of clarity about the interpretation of one or more provisions of these general terms and conditions the interpretation must take place in the spirit of these provisions.
  6. If a situation occurs between the parties that is not foreseen in these general terms and conditions then this situation must be assessed in the spirit of these general terms and conditions.
  7. If the User does not always desire strict compliance with these terms and conditions then this does not imply that the provisions thereof are not applicable or that the User would to any degree forfeit the right to desire strict compliance with the provisions of these terms and conditions.

 

Article 2 – Offers and proposals

  1. Any and all offers and proposals of the User are subject to contract, unless the offer imposes a time limit for acceptance. An offer or proposal expires if the product to which the offer or the proposal is related has meanwhile become unavailable.
  2. The User cannot be held to comply with its offers or proposals if the Other Party can within reason understand that the offer or proposal, or a part thereof, contains an obvious mistake or clerical error.
  3. The prices mentioned in an offer or proposal are exclusive of VAT and other official duties and potential costs to be incurred within the framework of the agreement, including travelling and subsistence expenses, shipping and administration costs, unless indicated otherwise.
  4. If the acceptance deviates (whether or not on subordinate points) from the content of the offer or the proposal then the User shall not be bound by this. The agreement is not concluded in accordance with this deviating acceptance, unless the User indicates otherwise.
  5. A combined quotation does not oblige the User to perform a part of the contract at a corresponding part of the indicated price. Proposals and offers are not automatically valid for future orders or services.

 

Article 3 – Contract term; delivery periods, implementation and change of agreement

  1. The agreement between the User and the Other Party is concluded for an open term, unless the nature of the agreement indicates otherwise or if the parties expressly stipulate otherwise in writing.
  2. If a time limit was stipulated or indicated for the delivery of certain goods then this shall never be a fatal deadline. In case of an overstepping of a time limit the Other Party must therefore give the User written notice of default. In this respect the User must be offered a reasonable time limit for yet implementing the agreement.
  3. If the User requires data from the Other Party for the implementation of the agreement then the completion time only starts after the Other Party has made these data available to the User correctly and completely.
  4. Delivery takes place ex works of the User. The Other Party is held to take receipt of the goods at the moment that they are made available to the same. If the Other Party refuses to take receipt or fails to provide information or instructions that are required for the delivery then the User is authorised to store the goods at the expense and risk of the Other Party.
  5. The User is entitled to have certain activities performed by third parties.
  6. The User is entitled to implement the agreement in different phases and to invoice the thus implemented part separately.
  7. If the agreement is implemented in phases then the User can suspend the implementation of the parts that pertain to a subsequent phase until the Other Party approved the results of the preceding phase in writing.
  8. If it becomes apparent during the implementation of the agreement that proper implementation thereof requires changing or supplementing the same then the parties shall in a timely fashion and in joint consultation proceed with adjustment of the agreement. If the nature, scope or content of the agreement is, whether or not at the request or on the instruction of the Other Party, the competent authorities, etc., changed and the agreement is consequently changed from a qualitative and/or quantitative perspective then this may also affect the original stipulations. As a consequence the originally stipulated amount may be increased or decreased. The User shall as much as possible provide a quotation for this in advance. A change of the agreement may moreover change the originally indicated completion time. The Other Party accepts the possibility of change of the agreement, including the change in price and completion time.
  9. If the agreement is changed, including a supplement, then the User is authorised to only implement the same after approval has been given for this by the competent person within the User and the Other Party has agreed with the price and other terms and conditions specified for the implementation, including the then to be determined time when the same shall need to be completed. Failing or non-immediate implementation of the changed agreement does not result in breach of contract of the User and shall neither entitle the Other Party to terminate the agreement. Without thus being in default, the User may refuse a request for change of the agreement, if it could from a qualitative and/or quantitative perspective affect, for instance, the activities to be performed or the goods to be delivered in connection therewith.
  10. Should the Other Party fail to comply properly with its obligations vis-à-vis the User then the Other Party shall be liable for any and all damages (including costs) that the User consequently incurs either directly or indirectly.
  11. If the User agrees on a fixed price with the Other Price then the User is nonetheless at all times authorised to increase this price without the Other Party in that case being entitled to dissolve the agreement for that reason if the increase of the price derives from a statutory ore regulatory authority or obligation or is caused by an increase of the price of raw materials, wages, etc. or on the basis of other grounds that were within reason not foreseeable at the time of conclusion of the agreement.

 

Article 4 – Suspension, dissolution, and early termination of the agreement

  1. The User is authorised to suspend compliance with the obligations or to dissolve the agreement if:

–      the Other Party does not comply with the obligations pursuant to the agreement or incompletely or late;

–      after the conclusion of the agreement the User took note of circumstances that give good reason to fear that the Other Party shall not comply with the obligations;

–      the Other Party was requested upon the conclusion of the agreement to provide security for compliance with its obligations pursuant to the agreement and the said security fails to materialise or is insufficient;

–      if due to the circumstance (including a delay) on the part of the Other Party it can no longer be expected of the User that the latter shall continue the agreement on the basis of the originally stipulated terms and conditions.

  1. The User is moreover authorised to dissolve the agreement if circumstances occur that are of such nature that compliance with the agreement is impossible or if circumstances otherwise occur that are of such nature that unchanged maintenance of the agreement can within reason not be expected of the User.
  2. If the agreement is dissolved then the claims of the User vis-à-vis the Other Party immediately fall due. If the User suspends compliance with the obligations then it retains its claims by law and pursuant to the agreement.
  3. If the User proceeds with suspension of dissolution then the User shall by no means be held to pay compensation for thus occurring damages and costs.
  4. If the dissolution can be imputed to the Other Party then the User is entitled to receive compensation for the damages (including costs) that are the direct and indirect result thereof.
  5. If the Other Party does not comply with the obligations deriving from the agreement and the said non-compliance justifies dissolution then the User is entitled to dissolve the agreement with immediate effect without being liable to pay any compensation or indemnification whilst the Other Party us held to pay compensation or indemnification on account of a breach of contract.
  6. In case of liquidation, (a petition for) suspension of payment or bankruptcy, attachment – if and to the extent that the attachment is not lifted within three months – at the expense of the Other Party, debt management or any other circumstance as a result of which the Other Party can no longer freely dispose of its assets the User shall be free to forthwith terminate the agreement with immediate effect or to cancel the order or the agreement without being liable to pay any compensation or indemnification. The claims of the User vis-à-vis the Other Party are in that case immediately exigible.
  7. If the Other Party cancels a placed order either in full or in part then the goods ordered or prepared for that plus the potential supply, discharge and delivery costs thereof and the working time booked for the implementation of the agreement are charged to the Other Party in full.

 

Article 5 – Force majeure

  1. The User is not held to comply with an obligation vis-à-vis the Other Party if the former is prevented from doing so as a result of a circumstance that cannot be imputed to negligence and that must neither be at the expense of the same by law, a legal act or a generally accepted practice.
  2. For the purpose of these general terms and conditions force majeure is, apart from what is understood as such by law and case law, understood as any and all external causes, foreseen or not foreseen, that the User cannot exert influence on however as a result of which the User is unable to comply with its obligations, including industrial action at the company of the User or of third parties. The User is also entitled to rely on force majeure if the circumstance that prevents (further) compliance with the agreement occurs after the User should have already complied with its obligation.
  3. During the period that the force majeure continues the User can suspend the obligations pursuant to the agreement. If this period lasts for more than two months then each party shall be entitled to dissolve the agreement without being liable to pay compensation for damages to the other party.
  4. To the extent that at the time of the occurrence of force majeure the User has already partly complied with its obligations pursuant to the agreement or shall be able to comply with the same and independent value can be attributed to the complied part respectively the part to be complied with then the User is entitled to invoice the already complied with part respectively the part to be complied with separately as if there were question of a separate agreement.

 

Article 6 Payment and collection costs

  1. Payment must take place within 30 days after the date of the invoice, in a manner indicated by the User in the currency of the invoice, unless indicated otherwise by the User in writing. The User is entitled to invoice periodically.
  2. If the Other Party fails to pay an invoice in a timely fashion then the Other Party is in default by operation of law. As the occasion arises the Other Party shall then be liable to pay an interest of 1% per month, unless the statutory interest is higher in which instance the statutory commercial interest shall be payable. The interest on the claimable amount shall then be calculated as from the moment of default of the Other Party up to the moment of satisfaction of the payable amount in full.
  3. The User is entitled to first apply payments made by the Other Party to the costs, then to the accrued interest and finally to the principal sum and the accruing interest.
  4. The User can, without thus being in default, reject a payment offer if the Other Party designates a different order for the allocation of the payment. The User can reject full payment of the principal sum of the accrued and accruing interest and collection costs are not also paid.
  5. The Other Party is never authorised to set off the amounts payable to the User.
  6. Objections to the level of an invoice do not suspend the payment obligation. The Other Party is neither entitled to suspend the payment of an invoice for any other reason.
  7. If the Other Party fails to comply with its obligations (in a timely fashion) then any and all costs to obtain satisfaction out of court are at the expense of the Other Party. The extrajudicial costs are calculated on the basis of the common practice of the Dutch collection industry, currently the calculation method deriving from the Dutch Extrajudicial Collection Costs (Fees) Decree (Bulletin of Acts and Decrees 2012, 141). However, if the User incurs higher collection costs that were within reason required then the actually incurred costs qualify for reimbursement. The potentially incurred judicial and enforcement costs are also at the expense of the Other Party. The Other Party is also liable to pay interest on the payable collection costs.

 

Article 7 – Reservation of title

  1. Any and all goods delivered by the User within the framework of the agreement remain the property of the User until the Other Party has properly complied with any and all obligations on account of any and all agreements concluded with the User.
  2. Goods delivered by the User that are subject to the reservation of title pursuant to paragraph 1 cannot be sold and can never be used as means of payment. The Other Party is not authorised to pledge the goods that are subject to the reservation of title or to otherwise encumber the same.
  3. The Other Party must always make every effort that can within reason be expected of the same to secure the ownership rights of the User.
  4. If third parties impose an attachment on the goods delivered subject to the reservation of title or intend to establish or enforce rights on the same then the Other Party is held to immediately inform the User accordingly.
  5. The Other Party commits to insure and keep insured the goods delivered subject to the reservation of title against fire, explosion, and water damage as also against theft and to on demand of the User provide insight into the policy of this insurance. In case of a potential payment under the insurance the User is entitled to the said payment. Where required the Other Party commits to lend its cooperation in everything that is required or may (appear to) be required or appropriate in connection therewith.
  6. If the User intends to exercise its ownership rights as intended in this article then the Other Party hereby already gives unconditional and irrevocable consent to the User and to third parties to be designated by the User to access all the locations where the properties of the User are located and to take back the said goods.

 

Article 8 – Warranties, inspection and complaints, prescription period

  1. The goods to be delivered by the User comply with the usual requirements and norms that can at the time of delivery within reason be imposed and for which they are meant in case of normal use in the Netherlands. The warranty as intended in this article applies to goods that are meant for use in the Netherlands. In case of use outside the Netherlands the Other Party must personally verify whether the use thereof is suitable for the use there and complies with the conditions that are imposed on the same. As the occasion arises the User can impose different warranty and other conditions regarding the goods to be delivered or the activities to be performed.
  2. The warranty as intended in paragraph 1 of this article applies for a period of seven days after delivery, unless the nature of the delivery indicates otherwise or the parties stipulated otherwise. If the warranty provided by the User is related to a good that was manufactured by a third party then the warranty is limited to the warranty that the manufacturer of the good provides, unless indicated otherwise.
  3. Any form of warranty expires if a defect is the result of or derives from injudicious or improper use of the good or use after the best before date, incorrect storage or maintenance on the same by the Other Party and/or by third parties, if, without written consent of the User, the Other Party or third parties made or tried to make changes to the good, other goods were attached to it that should not be attached to it or if they were treated or processed in a manner other than the prescribed manner. The Other Party can neither claim warranty if the defect is the result or the consequence of circumstances that are beyond the control of the User, including but not limited to circumstances like extreme rainfall or temperatures, etc.
  4. The Other Party is held to inspect (have inspected) the delivered goods immediately at the moment that the goods are made available respectively the relevant activities were performed. In this respect the Other Party should inspect whether the quality and/or the quantity of the delivered goods correspond with the agreement and comply with the relevant requirements stipulated by the parties. Potentially visible defects must be reported to the User in writing within seven days after delivery. Potentially invisible defects must be reported to the User in writing immediately after the discovery thereof, however at the latest within seven days after discovery thereof. The notification must contain a description of the defect that is as detailed as possible in order that the User is able to react adequately. The Other Party must given the User the opportunity to examine (have examined) a complaint.
  5. If the Other Party files a complaint in a timely fashion then this shall not suspend its payment obligation. The Other Party shall in that case remain liable to take receipt of and pay for the otherwise ordered goods.
  6. If a defect is reported later then the Other Party is no longer entitled to repair, replacement or compensation.
  7. If it is an established fact that a good is defective and a relevant complaint was filed in a timely fashion then the User shall, at the discretion of the User, replace the defective good within a reasonable time limit after receipt of the return of the same or, should a return within reason not be possible, written notification of the defect by the Other Party or pay alternative compensation for the same to the Other Party. In case of replacement the Other Party is held to return the replaced good to the User and to transfer the title thereof to the User, unless the User indicated otherwise.
  8. If it is an established fact that a complaint is not justified then the costs consequently incurred, including the examination costs, on the part of the User shall fully be at the expense of the Other Party.
  9. After expiry of the warranty period any and all costs for repair or replacement, including administration, shipping and call-out charges, shall be charged to the Other Party.
  10. In derogation from the statutory prescription periods the prescription period of any and all claims vis-à-vis the User and defences against the User and the third parties involved in the implementation of an agreement by the User amounts to one year.

 

Article 9 – Liability

  1. Should the User be liable then the said liability shall be limited to the provisions set forth in this article.
  2. The User shall not be liable for damages, of any nature whatsoever, that are the result of the fact that the User departed from incorrect and/or incomplete data provided by or on behalf of the Other Party.
  3. Should the User be liable for any damages then the liability of the User shall be limited to a maximum of twice the invoice value of the order, at least to that part of the order that the liability is related to.
  4. The liability of the User is in any case always limited to the amount of the payment of its insurer, as the occasion arises.
  5. The User shall only be liable for direct damages.
  6. Direct damages are exclusively understood as the reasonable costs to determine the cause and the scope of the damages, to the extent that the determination is related to damages within the meaning of these terms and conditions, the reasonable costs potentially incurred to have the defective performance of the User correspond with the agreement, to the extent that it can be imputed to the User, and reasonable costs incurred to avoid or limit damages, to the extent that the Other Party demonstrates that these other costs resulted in limitation of direct damages within the meaning of these general terms and conditions.
  7. The User shall never be liable for indirect damages, including consequential damages, lost profit, lost savings, and losses due to business interruptions.
  8. The limitations of liability included in this article are not applicable if the damages can be imputed to intent or gross negligence of the User or its managerial subordinates.

 

Article 10 – Transfer of risk

  1. The risk of loss, damage or depreciation transfers to the Other Party at the moment that the goods are in the control of the Other Party.

 

Article 11 – Indemnification

  1. The Other Party indemnifies the User against potential claims of third parties who incur damages in connection with the implementation of the agreement and of which the cause cannot be imputed to the User.
  2. Should the User be addressed by third parties on account thereof then the Other Party is held to assist the User both in and out of court and to forthwith do everything that can be expected of the same. Should the Other Party fail to take adequate measures then the User is, without any notice of default being required, entitled to proceed accordingly. Any and all costs on the part of the User and third parties consequently incurred are fully at the expense and risk of the Other Party.

 

Article 12 – Applicable law and disputes

  1. The legal relationship between the User and the Other Party is exclusively governed by Dutch law, also if an obligation is fully or partly implemented abroad or if the party involved in the legal relationship is established there. The applicability of the Vienna Sales Convention is excluded.
  2. Any and all disputes deriving from or related to the agreement(s) concluded by and between the User and the Other Party, or agreements that derive from or are related to the same, are exclusively settled by the District Court for Zeeland-West-Brabant.
  3. The parties shall only revert to the court after they have made every effort to solve a dispute in joint consultation. If the dispute has not been solved to the satisfaction of the parties within 3 weeks after the occurrence thereof then each party shall be free to address the competent court. In urgent instances the consultation period does not need to be observed.

 

Article 13 – Source and change of terms and conditions

  1. These terms and conditions were filed with the Chamber of Commerce.
  2. Only the lastly filed version and/or the version as applicable at the time of the conclusion of the legal relationship with the User apply.
  3. The Dutch text of the general terms and conditions shall always be decisive for the interpretation thereof.