1. Definitions

1.1          In these general conditions of sale, delivery and payment ("General Conditions"), the following definitions apply:

(a)           Offer: the meaning given thereto in Article 3.

(b)           Consumer: a natural person not acting in the course of a business or profession.

(c)           Defect: such a serious deviation from the characteristics of the Product that the Product is unfit for the use for which it is intended by its nature.

(b)           Buyer: any natural or legal person who enters into an Agreement with the Seller.

(e)           Agreement: any agreement entered into between the Seller and the Buyer, any amendment or addition thereto, as well as all (legal) acts in preparation and/or execution of that agreement.

(i)            Force Majeure: any circumstance beyond the Seller's control that prevents normal performance of the Agreement, such as strikes, staff illness, import, export and transport bans, government measures, non-delivery or late delivery by suppliers and damage to necessary production and/or transport equipment.

(j)            Products: all items delivered or to be delivered by the Seller in performance of an Agreement in accordance with the Seller's Specifications.

(f)            Specifications: the Seller's description of the Products in Offers and Agreements. In the absence thereof, the description as provided between the parties, or in the absence thereof, that which is generally accepted in the sector.

(j)         Seller: the private limited company The Inspire Food Company B.V., its legal successors under universal or singular title and the other companies affiliated thereto.

 (l)           General Conditions: the present general conditions of sale and delivery.

 

2. Applicability and voidability

2.1          The General Conditions will apply, to the exclusion of other conditions, to all Offers and Agreements issued and concluded respectively by the Seller.

2.2.         The possible invalidity or unenforceability of a clause in these General Conditions will not affect the validity of the remaining clauses and will be deemed to have been replaced by such a clause, which comes closest to the scope of the invalid or unenforceable clause, without being invalid or unenforceable.

 

3. Offers and formation of the Agreement

3.1          All Offers are made without obligation.

3.2          Agreements, as well as amendments and additions thereto, will only be formed if and insofar as Seller has confirmed them in writing or Seller has commenced performance.

3.3          Amendments and supplements to the Agreement or these General Conditions can only be agreed in writing.

3.4          Unless otherwise agreed in writing, quoted prices are stated in euros, exclusive of VAT, insurances, levies and other taxes and based on delivery ex warehouse.

3.5          Quotations are always made on the basis of the prices and circumstances applicable at the time of the quotation. If after the conclusion of the Agreement one or more cost price factors (including but not limited to labour costs, taxes, premiums, purchase prices, raw material prices, foreign currency exchange rates, etc.) undergo an increase, the Seller is entitled to charge this increase to the Buyer. As long as delivery has not yet taken place, a Consumer has the option in that case to terminate the Agreement.

3.6          The characteristics listed in the Specifications will expressly not be deemed to be guaranteed characteristics.

3.7          Samples or models provided are for indicative purposes only, without any requirement for the goods due to comply with them. The Seller is not obliged to subsequent delivery of Products once delivered, if such Products have been taken out of the Seller's production or sales programme.

 

4.             Timely performance

Specified delivery times are always considered to be approximate and will never be considered a deadline, unless expressly agreed otherwise in writing. In case of a delay in delivery, the Seller must be given written notice of default and a reasonable period to as yet fulfil its obligations.

 

5. Force Majeure

If fulfilment of the Agreement is prevented by Force Majeure, the Seller will be entitled to suspend fulfilment of its obligations for as long as the Force Majeure continues. If the Force Majeure continues longer than up to eight (8) weeks after delivery was intended, the parties will be entitled to terminate the Agreement in writing, for the part of the Agreement that has not already been performed, without being liable for compensation.

 

6. Liability
   • The Seller's liability is excluded, except if the damage results from intent or gross negligence of the Seller or the Seller's managing employees. Any further liability is excluded.
   • The Seller is not liable if the occurrence of the damage is related to Force Majeure.
   • The Seller accepts no liability for indirect damage, such as but not limited to loss of profit, consequential damages and/or trading loss. The Seller accepts no liability for shortcomings of the auxiliary persons it engages, not even in case of intent or gross negligence of these auxiliary persons.
   • If the Seller is not entitled to rely on the liability exclusions referred to in paragraphs 1, 2 and 3 of this article, the Seller's liability will in any case be limited to a maximum of the invoice amount of the relevant Products delivered by the Seller in respect of which the Seller is liable for compensation. At no time will the Seller accept liability for an amount exceeding the amount for which the Seller has taken out liability insurance. The Seller will provide the Buyer with a certificate of insurance upon the Buyer's request.
   • The Buyer fully indemnifies the Seller against claims of third parties if and insofar as such claims relate to a Product supplied by the Seller to the Buyer.
   • If a third party holds the Buyer liable in connection with a Product originating from the Seller, the Buyer will notify the Seller thereof without delay, but at the latest within three (3) working days, under penalty of forfeiture of rights.

 

7.                   Payment and interest

• Unless otherwise agreed in writing, all payments will be made in euros within fourteen (14) days of the invoice date. The Buyer will not be entitled to suspension and/or set-off.
• If the Buyer believes that invoices are incorrect, it will notify the Seller thereof in writing within eight (8) days of the invoice date. If this period is exceeded, the Buyer will be deemed to have accepted the invoices as correct. Unless the incorrectness of the invoices is acknowledged in writing within the payment period, the Buyer will pay the invoice amounts within the agreed payment period.
• If the Seller's claim is not paid on time, the Buyer will owe ten percent (10%) interest per year on the outstanding amount.

 

8.                   Delivery

8.1.              Unless expressly agreed otherwise in writing, all deliveries of the Products will be ex warehouse.

8.2.              If the Products have not been taken in delivery by the Buyer after expiry of the delivery period, the Products (if storage facilities permit) will be stored by the Seller at Buyer's risk and expense. In case of failure to take in delivery on time, the Seller will be entitled to terminate the Agreement after a period of fourteen (14) days after expiry of the delivery period without prejudice to the Seller's right to ompensation and without prejudice to the Seller's right to sell the Products to third parties.

8.3.              The Seller is entitled to deliver up to 10% more or less than the quantity ordered by the Buyer, on the understanding that that the Buyer will pay for the quantity actually delivered. A waybill, delivery note, weighing slip or similar document provided by the Seller to the Buyer upon delivery will be deemed to accurately reflect the quantity delivered.

8.4.              If the Seller has made pallets, containers, etc., available for packaging and transport or has had them provided by a third party, the Buyer will, unless disposable packaging is involved, return said Products at its own expense to the address specified by the Seller, failing which the Seller may charge the Buyer for the costs of such Products.

 

9. Complaints
   • The Buyer accepts the Products with all visible and invisible defects subject to the provisions of this article.
   • In the event that the Products upon inspection show a visually perceptible Defect or the delivered Products do not comply with the Agreement concluded between the Buyer and the Seller in terms of sizes, weights and/or quantities, the Buyer will notify the Seller thereof within three (3) working days after delivery and state the Defects or the quantitative deficiency on the transport document or delivery note. The transport document is deemed to contain an accurate description and statement of the delivered Products.
   • Complaints regarding quality will be submitted in writing to the Seller within eight (8) working days after receipt of the Products, failing which the Buyer will be deemed to have approved the Products. No complaints can be made in respect of Products which have already been processed by the Buyer or by third parties, unless they are Defects which only become apparent upon processing.
   • If the complaints are found to be well-founded by the Seller, the Seller will (at its option) arrange for replacement of the Products or proceed to reimburse the invoice value of the Defective Products.
   • Failure of the Buyer to comply with the obligations of this article will void any right of the Buyer, except where the Buyer is a Consumer.

 

10. Termination and suspension

10.1.       In cases where the Buyer:

1. is declared bankrupt or applies for a suspension of payment;
2. proceeds to discontinue or transfer its business or a significant part thereof, including the contribution of its business to a company to be incorporated or already existing, or proceeds to change the objectives of its business; or
3. is in default regarding the performance of an Agreement concluded with the Seller;

                all claims and invoices will become immediately due and payable and the Seller will be entitled to suspend the fulfilment of its obligations (in whole or in part) until the Buyer has provided security for the fulfilment of its obligations or to terminate the Agreement whereby the Buyer will be liable for all damage suffered and to be suffered by the Seller, unless the Buyer is a Consumer.

10.2.      During the performance of the Agreement, the Seller is entitled to suspend the fulfilment of its obligations until the Buyer has provided security for the fulfilment of all its obligations under the Agreement upon request and to the satisfaction of the Seller. Refusal of the Buyer to provide the requested security will entitle the Seller - without prejudice to the right to full compensation for damage, costs and interest - to terminate the Agreement, unless the Buyer is a Consumer.

 

11. Right of withdrawal
    • The Consumer may terminate the Agreement relating to the purchase of Products during a 14-day withdrawal period without giving reasons. The Seller may ask the Consumer about the reason for withdrawal, but may not oblige the Consumer to state any reasons.

The withdrawal period referred to in paragraph 1 starts on the day after the Consumer, or a third party designated in advance by the Consumer, who is not the carrier, has received the Products, or:

1. if the Consumer has ordered several Products in the same order: the day on which the Consumer, or a third party designated by the Consumer, has received the last Product. The Seller may, provided it has clearly informed the Consumer thereof prior to the ordering process, refuse an order of multiple Products with different delivery times.
2. if the delivery of Products consists of several shipments or parts: the day on which the Consumer, or a third party designated by the Consumer, has received the last shipment or part;
3. in the case of agreements for regular delivery of Products during a certain period: the day on which the Consumer, or a third party designated by the Consumer, has received the first Product.

11.2.       If the Consumer exercises his right of withdrawal, he will notify the Seller within the withdrawal period by means of the model withdrawal form or in another unambiguous manner. The Consumer will return the Product ass soon as possible, but within 14 days from the day following the notification referred to in paragraph 1. The Consumer will return the Products in unopened packaging and sealed, with all delivered accessories and in accordance with the reasonable and clear instructions provided by the Seller. The risk and burden of proof for the correct and timely exercise of the right of withdrawal lies with the Consumer. The Consumer will bear the direct costs of returning the Products.

11.3.      The Seller reimburses all payments made by the Consumer, including any delivery costs charged by the Seller for the returned Products, without delay but within 14 days following the day on which the Consumer notifies the Seller of the withdrawal. The Seller may wait to refund until it has received the Products or until the Consumer proves that he has returned the Products, whichever is earlier. The Seller will use the same means of payment used by the Consumer for reimbursement, unless the Consumer agrees to another method. The refund is free of charge for the Consumer. If the Consumer has chosen a more expensive method of delivery than the cheapest standard delivery, the Seller does not have to refund the additional costs for the more expensive method.

 

12. Retention of title / pledge

12.1        The Seller will retain ownership of all delivered Products until the Buyer has paid the purchase price as well as any other claim referred to in Section 3:92(2) Dutch Civil Code.

12.2.       At the Seller's first request, the Buyer will also establish a pledge as referred to in Section 3:239 Dutch Civil Code for the benefit of the Seller on claims against third parties arising from the sale of the Products delivered by Seller.

 

13. Applicable law and disputes
    • The legal relationship between the Seller and the Buyer will be governed by Dutch law. If and to the extent the legal relationship relates to the sale and delivery of Products, the legal relationship will be governed by the Vienna Sales Convention (CISG), irrespective of whether the Buyer is domiciled in a member State that is a party to the Vienna Sales Convention (CISG). Subjects not expressly regulated in the Vienna Sales Convention (CISG) will in that case be governed by Dutch law.
    • The Dutch court has exclusive jurisdiction to hear disputes.
    • The provisions of paragraph 2 of this article do not affect the Seller's right to submit the dispute to the civil court with jurisdiction according to normal rules of jurisdiction.