The following definitions are used in these General Terms & Conditions: Affiliates: every business that is classed as a group company (in Dutch: “groepsmaatschappij”) within the meaning of Article 2:24b Dutch Civil Code (“DCC”) and all subsidiary companies (in Dutch: “dochtervennootschap”) within the meaning of Article 2:24a. Contracts: all agreements which already have been concluded or shall be concluded in the future, either in writing, orally or implicitly/tacitly, between Vegan Finest Foods and a Customer, including (but not limited to) Continuing Performance Contracts and all separate purchase agreements which may ensue therefrom. Continuing Performance Contract (in Dutch: “duurovereenkomst”): all agreements which are already concluded or shall be concluded in the future, either in writing, orally or implicitly/tacitly, between Vegan Finest Foods and a Customer which regard the regular delivery of products and/or services during a certain period of time, including (but not limited to) distribution and agency agreements. Customer: any person or legal entity who/which places an Order with Vegan Finest Foods, or to whom/which Vegan Finest Foods issues an Offer (submits a quotation), or with whom/which Vegan Finest Foods implicitly or otherwise enters into or shall enter into a (Continuing Performance) Contract in any form. General Terms & Conditions: these general terms & conditions for sale and supply; Offer: any offer (quotation) communicated orally or in writing by Vegan Finest Foods to a Customer regarding the purchase of products and/or services from Vegan Finest Foods, or invitation to conclude a Contract. Order: every request by a Customer to Vegan Finest Foods to supply a quantity of products to that Customer, or a request by a Customer for Vegan Finest Foods to keep a stock of a specific product (continuously) at Vegan Finest Foods’ offices for that Customer. Vegan Finest Foods: VeganFinestFood B.V. (trade register number: 72961635) and its Affiliates.
These General Terms & Conditions apply to all Offers, Orders and all (existing and future) Contracts.
The acceptance of an Offer, submitting an Order and/or or concluding a Contract with Vegan Finest Foods, shall constitute the Customer’s acceptance of the applicability of these General Terms.
Any deviations from these General Terms & Conditions are only valid if they are agreed explicitly and in writing by Vegan Finest Foods.
CLAUSE 2 – OFFERS, REALIZATION OF CONTRACTS AND ORDERS
All Offers, Orders and prices stated by Vegan Finest Foods are free of obligation. Vegan Finest Foods will be entitled at all times to refuse and/or refuse to process Orders (regardless of whether these are placed pursuant to an Offer that has been issued), without giving any reason for said refusal because of – amongst other reasons – the fact that Vegan Finest Foods does not and cannot always deliver from its own stock, so its delivery can be dependent on third parties. Therefore, unless agreed otherwise in writing, Vegan Finest Foods shall not own any delivery obligation to a Customer whatsoever (continuous or otherwise). Such a (continuous) delivery obligation shall and will not arise by virtue of the mere fact that Vegan Finest Foods did regularly process previous Orders from a Customer during a particular period of time.
A Contract shall only be formed after Vegan Finest Foods accepts a Customer’s Order, including if a Customer has placed an Order based on an (obligation-free) Offer that has already been made.
As soon as an Order placed by a Customer is accepted by Vegan Finest Foods or at any rate is actually being processed, the Order can no longer be cancelled or returned, and the Customer will be obliged to purchase the products or services ordered. The Customer’s non-acceptance of the products in question will not relieve it of its obligation to pay for those products.
CLAUSE 3 – PRICES, INVOICING AND PAYMENT TERMS
Unless expressly agreed otherwise, all prices stated by Vegan Finest Foods are denominated in euros and are exclusive of Dutch VAT and costs for handling, packaging, postage (international or otherwise), port duties and/or transport fees, any taxes and/or any other levies or costs.
The prices stated are free of obligation and may thus be changed by Vegan Finest Foods at any given time. If a price is changed after an Order has been placed, the Customer will only be entitled to cancel the Order within five days after the price change is announced.
Prices agreed in Contracts that have already been concluded will not be binding in the event of manifest errors (or typographical errors) and/or clerical errors, or when one of the cost-determining factors of the product (or raw materials required for this) changes in the period between the conclusion of the Contract and the time of delivery and the resulting price increase cannot or can hardly be influenced by Vegan Finest Foods. In that case, Vegan Finest Foods has the right to adjust the agreed price accordingly, regardless if the cost price increase was foreseeable at the time of the Offer, all this with due observance of the applicable legal regulations. If in such a case the price increase exceeds ten (10) percent, the Customer has the right to cancel (in Dutch: “annuleren”) the Contract free of charge within five (5) days after notification of the price increase, however without any right to compensation or damages. If the products have already been delivered, they will be taken back as soon as possible after the cancelation at the expense of Vegan Finest Foods. Until the time that the products are taken back, the Customer remains fully liable and responsible for quality reduction, damage, theft, et cetera.
Unless alternative arrangements are made, Orders have to be paid before shipping and invoices must be paid within fourteen (14) days after the invoice date. These and any alternative payment deadlines agreed with a Customer are always absolute (fatal), even if Vegan Finest Foods occasionally agrees to later payment as a courtesy.
Failure to meet the aforementioned (fatal) payment deadline will give Vegan Finest Foods the right to transfer the invoice to an external collection agency, in which case the Customer will be liable to pay – in addition to the statutory (commercial) interest for late payment – all costs actually incurred (which may include extrajudicial collection costs, court costs, and any attorneys’ fees), with the minimum amount being either EUR 250.00 (two hundred and fifty euros), exclusive of Dutch VAT or – at Vegan Finest Foods discretion – fifteen (15) percent of the amount of the outstanding invoice.
Suspension (in Dutch: “opschorting”) and/or offset (in Dutch: “verrekening”) of any payment (obligation) by a Customer towards Vegan Finest Foods is prohibited and is expressly excluded.
CLAUSE 4 – DELIVERY, RETENTION OF TITLE AND TRANSFER OF RISK
Delivery and performance times indicated by Vegan Finest Foods are indicative only (and thus non-binding and never a fatal deadline). If the supply time is exceeded, the Customer gains no right to compensation, far less any right to cancel (in Dutch: “annuleren”) or dissolve (in Dutch: “ontbinden”) the Order or the Contract, unless and to the extent that the delay is such that it would be unacceptable to uphold the Contract according to standards of reasonableness and fairness.
Information concerning the products sold by Vegan Finest Foods (characteristics, quality, colour, pictures, size, weight et cetera) is issued in line with best knowledge and belief and with the utmost care, but shall never be regarded as binding in anyway whatsoever.
Any defects in some of the delivered products, do not give the Customer the right to reject or refuse the rest of the Order.
Products delivered by Vegan Finest Foods will remain the property of Vegan Finest Foods until the moment of full payment of all amounts the Customer owes Vegan Finest Foods, including any late payment interest and costs. Title to the products Vegan Finest Foods delivers to the Customer will only be transferred subject to the conditions precedent (as referred to in Section 3:92 DCC) of full payment by the Customer of both the purchase price as well as any late payment interest and costs owed.
As long as title to the products delivered by Vegan Finest Foods has not been transferred to the Customer, the Customer cannot and may not pledge the products, transfer title to those products to a third party, or encumber those products with any other right (restricted or otherwise), except to the extent the Customer sells, processes and/or delivers the products to third parties in the normal course of its business. This provision shall have property law consequences (in Dutch: “Goederenrechtelijk effect”).
The Customer grants Vegan Finest Foods in advance the right – and an irrevocable and unconditional power of attorney – to enter all locations where products delivered by D Vegan Finest Foods are located in a given case so that Vegan Finest Foods can exercise its rights of ownership and recover products which have not been paid for. The recovery of its goods in this manner will not prejudice Vegan Finest Foods’s right to claim Losses from the Customer or to claim reimbursement of costs incurred in connection with the Customer’s failure to perform.
Unless agreed to otherwise, the Customer will arrange the transportation/shipping of the products and the risk associated with the products shall pass to the Customer at the moment that the products are actually moved into the means of transport. In case Vegan Finest Foods will arrange the transportation/shipping company, the products shall be delivered on the basis of the (latest version of the) Incoterms of the International Chamber of Commerce: ‘EXW – Ex works’ and the risk associated with the products shall pass to the Customer at the moment of delivery (in other words, as soon as the products have actually been removed from the means of transport at the Customer and/or at the agreed upon location).
CLAUSE 5 – DUTY OF EXAMINATION, COMPLAINTS, LIABILITY
The Customer must, immediately upon or after receiving the products, check (duty to inspect) whether the products delivered are in accordance with the Order placed and/or satisfy the Contract, as well as whether there are any visible defects or damage to the products (including shortfalls and whether applicable hygiene and temperature standards have been observed).
In case of complaint or defect, the following applies: a) Complaints regarding visible or otherwise externally observable/identifiable damage or defects (including shortfalls and whether the applicable hygiene and temperature standards have been observed) must be reported by the Customer as quickly as possible but in any event no later than twenty four (24) hours after delivery to Vegan Finest Foods by email and with proper specification (email@example.com), in default of which the Customer will the Customer will no longer be able to invoke any defect, and it will be established between the Parties that the Customer has received the supplied products in sound and undamaged condition, in accordance with the quantities and weights stated on the transportation and freight documents and/or delivery notes. b) Complaints regarding damage or defects that are not visible and/or not otherwise externally observable/identifiable during the inspection as referred to in Clause 5.1, must be reported by the Customer to Vegan Finest Foods by email with proper specification (firstname.lastname@example.org) no later than five (5) working days after discovery, in default of which the Customer will the Customer will no longer be able to invoke any defect, and it will be established between the Parties that the Customer has received the supplied products in sound and undamaged condition, in accordance with the quantities and weights stated on the transportation and freight documents and/or delivery notes
The Customer is not permitted to receive (accept) a delivery of products ‘subject to approval’ of any kind or subject to the reservation of any right. By actually taking receipt of the products delivered, the Customer agrees to the provisions of Clauses 5.1 and 5.2, above.
The time limit for filing complaints in respect of invoices sent out by Vegan Finest Foods is a maximum of five (5) working days after the date of receipt. If the Customer has not objected about the invoice within that time limit in writing and with reasons via email@example.com, the invoice will be deemed to reflect the underlying transaction(s) with Vegan Finest Foods accurately and to have been approved by the Customer.
Any right (or right of claim) which the Customer can assert against Vegan Finest Foods relating to errors in Vegan Finest Foods’s delivery or defects in products supplied by Vegan Finest Foods, will irrevocably lapse as soon as the terms for filing a complaint stated in this Clause have elapsed. If a Customer fails to cooperate, or fails to cooperate sufficiently, with Vegan Finest Foods in investigating the validity of the claim in question within the aforementioned terms for filing a complaint, all related rights (or rights of claim) relating thereto will also immediately and irrevocably lapse. The products to which complaints relate must be available for possible inspection by Vegan Finest Foods in the condition in which the products were found on the date the defects were discovered. The right to complain – as well as all rights (or rights of claim) relating thereto – will lapse as soon as the Customer puts the products delivered into use, or treats or processes them, or causes them to be used, treated or processed, sells and/or delivers them in turn to third parties, unless Vegan Finest Foods has issued its advance written consent or the products are covered by a manufacturer’s warranty.
If the products demonstrably fail to meet the terms of the Contract (non-conformity), Vegan Finest Foods will always have the option of replacing the relevant products – after they are returned – with new products or refunding the invoice value.
In deviation of Article 6:76, 6:170 and 6:171 DCC, Vegan Finest Foods is not liable for any losses or damages caused by its employees and subordinates (in Dutch: “ondergeschikten”), nor for any losses or damages caused by auxiliary persons, sub-contractors, independent contractors and/or other assisting third parties (in Dutch: “hulppersonen” or “niet-ondergeschikten”)) engaged by Vegan Finest Foods.
Vegan Finest Foods is not liable for any consequential and/or indirect losses or damages (in Dutch: “indirecte schade” or “gevolgschade”), including (but not limited to): trading loss (such as: loss of profits, income, revenue, reputation, turnover, anticipated savings, business, contracts, goodwill, clients time/hours or commercial opportunities), as well as all other (forms of) consequential harm or business losses. Consequential and/or indirect Losses also explicitly includes al Losses that are arising out – or are the result – of errors, malfunctions and/or failures in the Deliverables (except as far as it concerns losses to the delivered products or services itself).
When transporting (internally) and storing products supplied by Vegan Finest Foods, the Customer must act in accordance with the applicable legislation and regulations, including the HACCP (Hazard Analysis and Critical Control Point) standards and applicable provisions for custody of the products in question, failing which Vegan Finest Foods will not be liable for defects to the products or damage arising therefrom.
For products supplied with a final shelf life date (UBD and/or BBD codes), Vegan Finest Foods is not liable if those products are consumed or used after that final shelf life date. The Customer must warrant that the products on which a final shelf life date is noted will no longer be processed or sold after that date has passed. The Customer explicitly indemnifies Vegan Finest Foods in relation to claims by third parties arising from loss consequent upon consuming or using products supplied by Vegan Finest Foods if they are processed, used or consumed or sold by the Customer after the final shelf life date.
All rights (or rights of claim) which a Customer has against Vegan Finest Foods regarding delivered products will lapse (in Dutch: “vervallen”) if the Customer has not instituted legal proceedings against Vegan Finest Foods by no more than six (6) months after the Customer became aware of (or should reasonably have become aware of the losses or damages.
The term for prescription (in Dutch: “verjaring”) of all claims (or rights of claim) and defenses of a Customer against Vegan Finest Foods is twelve (12) months.
Vegan Finest Foods shall not be liable for any delays or nonperformance directly or indirectly resulting from circumstances or causes beyond its control or influence, including in any case (but not limited to): emergencies, (natural) disasters, accidents, pandemics, (threat of) war or terrorism, insurrection, riots, fire, (power or telecom) failures/malfunctions, logistical problems, government measures, et cetera. This also includes: third parties (including staff, auxiliary persons or other parties on which Vegan Finest Foods depends to comply correctly) who do not perform due to, for example, a strike, illness or other unforeseen absence or circumstances. Performance shall be postponed for the duration of such event of force majeure. If the event of force majeure lasts for three months or more, either party may terminate the Contract, without being obliged to pay the other party any kind of compensation. Vegan Finest Foods shall, however, retain the right to receive payment for products or services already supplied.
CLAUSE 6 – GUARANTEE
Vegan Finest Foods is never obliged under a guarantee to a Customer, in respect of the Customer, that extends beyond the claims that Vegan Finest Foods can enforce against its own suppliers.
CLAUSE 7 – EXCLUSIVITY AND LONG-TERM RELATIONSHIPS
Unless expressly agreed in writing – even in a case that involves (or may involve) a Continuing Performance Contract – no form of exclusivity shall ever accrue to a Customer, nor shall any Customer ever (implicitly or tacitly) be granted or allocated any ‘exclusive distribution’ right or ‘exclusive right’ to resell, or any other exclusive sales-related or other right.
Without prejudice to the power to terminate as laid down in Section 6:265 DCC, and in the absence of written agreements to the contrary, either party to a Continuing Performance Contract may cancel such Contract at any time – without any damages or other compensation being owed – with due observance of a term of notice of: a) one month, if the Contract (including the term of notice) has been in place for no more than two years; b) two months, if the Contract (including the term of notice) has been in place for no more than five years; c) four months, if the Contract (including the term of notice) has been in place for more than five years.
To the extent permitted by law and in the absence of written agreements between the parties to the contrary, upon the termination of a Continuing Performance Contract – regardless of the reason for said termination – a Customer shall not have any right to goodwill compensation and/or client fee, nor to any other form of fee or payment.
CLAUSE 8 – INTELLECTUAL PROPERTY AND CONFIDENTIALITY
All intellectual or industrial property rights (direct or indirect) related to the products or brands provided by Vegan Finest Foods to the Customer, accrue exclusively and will remain, in their entirety, the property of to Vegan Finest Foods.
The Customer warrants and guarantees that it does not and will not infringe, in any way whatsoever, upon any intellectual property right held by Vegan Finest Foods.
The Customer will not change or adjust the (labelling or packaging of the) products without the prior written consent of Vegan Finest Foods.
“Confidential Information” means all (digital) documents, documents and (other) information regarding the products and/or the company of Vegan Finest Foods (and its Affiliates), including but not limited to: (future) business activities/plans, producers/manufacturers, suppliers, customers, customer databases, prices, recipes, strategies, personnel, financial data, et cetera, of which the Customer knew or reasonably should have known the confidential nature. The Customer (including its Affiliates) is obliged to keep Confidential Information strictly confidential from anyone.
CLAUSE 9 – GENERAL PROVISIONS
If, in a given case, Vegan Finest Foods refrains from invoking an applicable provision in the General Terms and Conditions, this will not affect Vegan Finest Foods’ entitlement to invoke that provision or any other provision in a subsequent case.
Vegan Finest Foods is entitled to amend these General Terms and Conditions unilaterally from time to time.
The applicable version will always be that which applied on the date the Contract or Continuing Performance Contract was formed with the Customer.
If there is a dispute regarding the interpretation or explanation of any provision of the General Terms and Conditions, the Dutch version of the text and/or the General Terms and Conditions will always take precedence and/or be controlling for the purposes of such interpretation.
These General Terms and Conditions and all (existing and future) Contracts, as well as any disputes and/or non-contractual obligations relating thereto, are governed exclusively by the laws of the Netherlands.
With respect to these General Terms and Conditions and all Contracts, the applicability of the ‘United Nations Treaty on Contracts for the International Sale of Goods’ (CISG) – also known as the Vienna Sales Convention 1980 – is expressly excluded.
Any disputes between Vegan Finest Foods and a Customer ensuing from – or relating to – these General Terms and Conditions or any Contract, will be submitted in the first instance exclusively – and thus to the exclusion of any other court – to the competent section of the Amsterdam District Court.
Contrary to the provisions of Clause 10.3, if a Customer is established in a non-EU Member State, Vegan Finest Foods will be exclusively entitled (in the form of discretionary authority) to choose that any dispute as referred to in Clause 10.3 shall be settled in accordance with the most recent and then-applicable version of the ‘Arbitration Rules of the Netherlands Arbitration Institute’ (NAI) in Rotterdam, the Netherlands. Unless the parties shall agree otherwise at that time: a) the arbitral tribunal shall be composed of one arbitrator; b) the arbitrator of the arbitral tribunal shall be appointed according to the ‘list procedure’ as laid down in the aforementioned Arbitration Rules; c) the proceedings shall be conducted in the Dutch language; d) the place of arbitration shall be Rotterdam; e) the arbitral tribunal shall decide as ‘amiable compositeur’ (in Dutch: “goede personen naar billijkheid”) with due observance of the rule of law (that being Dutch law). f) consolidation of the arbitral proceedings with other arbitral proceedings, as provided for in Article 1046 of the Dutch Code of Civil Procedure and Article 39 of the Arbitration Rules of NAI, is excluded; g) the arbitration decision shall not be subject to appeal.
CLAUSE 10 – DATE AND SOURCE OF THE GENERAL TERMS AND CONDITIONS
These General Terms and Conditions were adopted on December 1st 2021 and may be reviewed and downloaded via: https://veganfinestfoods.com/ terms-and-conditions
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