Article 1. General information
- These terms and conditions apply to every offer, quotation and agreement between Ichoh Levensmiddelen Gastronomie B.V., hereinafter referred to as: “ILG”, and the Other Party which is subject to these terms and conditions as declared by ILG, insofar as parties have not explicitly deviated from the present terms and conditions in writing.
- The present terms and conditions also apply to agreements entered into with ILG, for the execution of which ILG needs to enlist third parties.
- These general terms and conditions are also written for the benefit of ILG’s employees and its board.
- The application of any purchase conditions or other terms and conditions of the Other Party are explicitly rejected.
- The other provisions in these general terms and conditions still apply if one or more provisions in these general terms and conditions at any point in time are completely or partly annulled or should be annulled. ILG and the Other Party shall then discuss the replacement of the annulled or terminated provisions with new provisions which will take the original purpose and scope of the original provisions into account.
- If there is any ambiguity concerning the explanation of one or more of the provisions listed in these general terms and conditions, the explanation should take place according to the spirit of these provisions.
- If a situation occurs between the parties that is not included in these general terms and conditions, the situation shall be assess in accordance to the spirit of these general terms and conditions.
- In the event that ILG does not require a strict adherence to these general terms and conditions, it does not mean that the provisions are not applicable, or that ILG to any degree loses the right to demand strict adherence for the provisions of these terms and conditions.
Article 2 Offers and quotations
- All offers and quotations by ILG are non-binding, unless the offer includes a time limit for acceptance. An offer or quotation shall void when the product to which the offer or quotation applies, has become unavailable in the meantime.
- ILG cannot be held responsible for offers or quotations if the Other Party reasonably could have known that the offers or quotations, either partly or entirely, contained an obvious mistake or error.
- The prices listed in an offer or quotation are without VAT and other levies imposed by the authorities, any costs to be incurred due to the execution of the agreement, including any travel, accommodation and administration costs, and shipping, unless indicated otherwise.
- ILG is not bound to any deviations if the acceptance (whether or not on minor points) deviates from the offer or quotation listed in the offer. The agreement will not come into being in accordance with this deviating acceptance, unless ILG indicates otherwise.
- A composite quotation does not obligate ILG to execute a part of the assignment against a corresponding part of the quoted price. Offers and quotations do not automatically apply to future orders.
Article 3 Duration of contract; terms of delivery, execution and adjustments to the agreement
- The agreement between ILG and the Other Party is for an indefinite period unless the nature of the agreement shows otherwise or when the parties explicitly agree otherwise in writing.
- When a term of completion is specified or agreed upon for certain activities or the delivery of certain items, it shall not be a final deadline. If the term is exceeded, ILG shall be given a notice of default by the Other Party in writing. ILG will be allowed a reasonable term to execute that which was agreed upon in the agreement.
- If ILG requires data from the Other Party for the execution of the agreement, the term of execution does not start until the Other Party has correctly and completely provided said data to ILG.
- Delivery shall be effected ex company of ILG. The Other Party is obligated to accept the goods at the moment that they are made available. If the Other Party declines to accept or has been negligent in providing data or instructions crucial for delivery, ILG has the right to store the goods at the Other Party’s expense and risk.
- ILG has the right to enlist third parties for certain activities.
- ILG has the right to execute this agreement in different stages and thus may invoice the executed stages separately.
- If the agreement is executed in stages, ILG may suspend the execution of the parts that belong to a following stage until the Other Party has approved the results of the preceding stage in writing.
- If, during the execution of the agreement, it becomes evident that a proper execution requires necessary adjustments or additions, both parties will discuss any adjustment to the agreement in a timely manner. If the nature, size or content of the agreement, either upon request or indication by the Other Party or an authorised institution, etcetera, is adjusted and the agreement thus changes in terms of quality and/or quantity, it may also have consequences for that which was originally agreed upon. This may result in the originally agreed upon amount to increase or decrease. In that case, ILG shall provide a price indication in advance when possible. As a result of an adjustment to the agreement, the originally determined term of execution can be changed. The Other Party accepts the possibility of adjustment to the agreement, including the adjustments in price and term of execution.
- If the agreement is adjusted, including any additions, ILG has the right to execute this first after it has been internally approved by an authorised person and the Other Party has agreed to the listed execution price and other conditions, including a yet to be determined time of execution. ILG is not in breach of contract when it does not (immediately) execute the adjusted agreement and this cannot be grounds for the Other Party to terminate the agreement. Without being in default, ILG can refuse a request for adjustment of the agreement if this could affect the quality and/or quality of, for example, the activities or deliverable goods that were to be executed in that aspect.
- If the Other Party is in default in the proper performance of its obligations towards ILG, the Other Party is responsible for all damage (including any costs) incurred by ILG that are a direct of indirect result of this.
- If ILG and the Other Party have agreed upon a fixed price, ILG still has the right to increase the price without the Other Party using this fact as grounds for termination of this contract, if the increasing of the price is the result of an authority or legal or juridical obligation or was caused by an increase in the price of resources, salaries, etcetera or based on other grounds that could not have been anticipated at the time the agreement was entered into.
- If the price increase is over 10% as a result of an adjustment to the agreement and occurs within three months after entering into the agreement, the Other Party has the exclusive right to appeal to article 5, paragraph 3 of book 6 of the Dutch Civil Code to terminate the agreement with a written statement, unless ILG is then willing to execute the agreement based on what was originally agreed upon, or if the price increase is the result of an authority or if ILG is under a legal obligation or if the delivery was negotiated to occur after more than three months after purchase.
Article 4 Suspension, termination and premature termination of the agreement
- ILG is authorised to suspend the performances of the obligations or to terminate the agreement, if:
– the Other Party did not entirely or partly perform its obligations included in the agreement;
– after signing the agreement, ILG was informed of circumstances that validate ILG’s fear that the Other Party will not perform its obligations;
– the Other Party, upon the signing of the agreement, is requested to provide security for the performance of its obligations listed in this agreement and such security was not provided or was insufficient.
– If, due to delay caused by the Other Party, ILG can no longer be expected to adhere the conditions agreed upon in the agreement, ILG is entitled to terminate the agreement.
- ILG is also authorised to terminate the agreement when circumstances of such a nature occur that the performance of the agreement has become impossible or when other circumstances occur that unaltered continuation of the agreement cannot be reasonably demanded from ILG.
- If the agreement is terminated, the claims ILG has towards the Other Party shall be immediately payable. If ILG suspends the performance of the obligations, it maintains legal right and any rights resulting from this agreement.
- If ILG proceeds with suspension or termination, it is not in any way obligated to pay damage or expenses that result from said action.
- If the Other Party is held responsible for the termination, ILG has the right to claim damage, including any expenses which are a direct of indirect result of the termination.
- If the Other Party does not perform the obligations listed in this agreement and cannot justify this lack of performance, ILG has the right to terminate the agreement with immediate effect without any obligation for the payment of damages or compensation while the Other Party, due to breach of contract, shall be obligated to pay damages or compensation.
- If the agreement is prematurely terminated by ILG, ILG shall take care of the transfer of activities to third parties in consultation with the Other Party. Unless the Other Party is responsible for the termination. If the transfer of the activities results in additional costs for ILG, these costs shall be borne by the Other Party. The Other Party is obligated to pay these costs within the set time limit, unless indicated otherwise by ILG.
- In case of liquidation, (application for) suspension of payment or bankruptcy, seizure – if and insofar the seizure is not lifted within three months – of the Other Party’s property, remissions of debts or other circumstances due to which the Other Party no longer has its capital freely at its disposal, ILG is fee to terminate the agreement with immediate effect or to cancel the order of the agreement without being liable to pay any damage or compensation. The claims that ILG has towards the Other Party shall be immediately payable.
- If the Other Party has completely or partially cancelled a placed order, the goods that were ordered or prepared plus any forwarding costs, disposal costs and delivery costs and the working time reserved for the execution of the agreement, shall be charged in full to the Other Party.
Article 5 Force majeure
- ILG is not held responsible for the performance of any obligations towards the Other Party if hindered as a result of a circumstance that cannot be attributed to guilt and neither by virtue of the law, a legal action or generally accepted practice to ILG.
- In these general terms and conditions, force majeure means, in addition to that which the law and jurisprudence cover, all external causes, foreseen or unforeseen, which are beyond ILG’s control but prohibit ILG from performing its obligations. Strikes in ILG’s company or in third party companies are also included. ILG also has the right to appeal to force majeure if the circumstance that prohibits (further) performance of the agreement occurs after ILG was suppose to have fulfilled its commitment.
- ILG may suspend the obligations listed in the agreement for as long as the force majeure is relevant. If this period exceeds two months, both parties have the right to terminate the agreement, without being liable to pay damage to the other party.
- Insofar ILG can perform or has (partly) performed its obligations listed in this agreement at the time of the force majeure, and that part performed or to be performed, is of independent value, ILG has the right to invoice the performed part or to be performed part separately. The Other Party is obligated to pay this invoice as if it were a separate agreement.
Article 6 Payment and collection costs
- Payment shall be done immediately without deduction or setoff in a by ILG selected manner in the currency of the invoice, unless ILG has provided an exceptional written consent for the Other Party to fulfil payment within 14 days. ILG has the right to invoice periodically.
- If the Other Party remains in default of a timely payment of an invoice, the Other Party is in default by operation of law. The Other Party then owes interest payable of 1% per month, increased with 2% administration costs over the unpaid amount, unless the legal interest rate is higher, in which case the legal interest rate will be owed. The interest of the amount due shall be calculated from the moment the Other Party is in default until the moment of payment of the entire amount due.
- ILG shall be entitled to use the payments made by the Other Party to firstly deduct any costs made, then to deduct the interest owed and finally towards payment of the principle sum and current interest.
- ILG can, without being in default, refuse a payment offer if the Other Party indicates a different order for the allocation of the payment. ILG can refuse full payment of the capital sum if the current and owed interest and collection costs are not paid.
- The Other Party is never entitled to offset that which is owed to ILG.
- Objections against the amount of an invoice do not suspend the payment obligation. The Other Party cannot appeal to section 6.5.3 (the articles 231 up to and including 247 of book 6 Dutch Civil Code) and is also not entitled to suspend the payment of an invoice for any other reason.
- If the Other Party is in breach of contract or default concerning the (temporary) performance of its obligations, all reasonably incurred costs in order to obtain performance shall be borne by the Other Party. Extrajudicial costs are calculated based on what is common following the Dutch collection practices, currently in accordance with the calculation method ‘Rapport Voorwerk II’. However, if ILG has incurred higher collection costs than was reasonably necessary, the actual incurred costs are eligible for reimbursement. Any incurred judicial and execution costs will also be charged to the Other Party. The Other Party also owes interest over the due collection costs.
Article 7 Reservation of ownership
- All goods delivered by ILG under this agreement (in the broadest sense of the word, including goods that were picked up) remain property of ILG until the Other Party has properly performed all obligations listed in this agreement, including the purchase and payment of the purchase price, costs, interest, levies and taxes.
- In addition to the fact that ILG exclusively delivers under reservation of ownership, they also deliver under retained right of pledge in reference to all the delivered goods.
- The delivered goods from ILG that fall under reservation of ownership in accordance with paragraph 1 cannot be resold and shall never be used as a method of payment. The Other Party is not authorised to pledge goods that are under reservation of ownership or otherwise encumber the goods.
- The Other Party shall do that which can reasonably expected in order to secure ILG’s proprietary rights.
- If third parties seize delivered goods that are under reservation of ownership or assert rights or lay claim to those goods, the Other Party is obligated to immediately inform ILG.
- The Other Party is obligated to insure and keep insured the delivered goods under reservation of ownership against fire, explosion and water damage as well as theft and present the insurance policy to ILG upon first request. In case of any possible payment of the insurance, ILG is entitled to this money. The Other Party will in advance commit to cooperate with ILG as much as possible during anything that is required or desirable in this process.
- In case ILG wishes to exercise its proprietary right as mentioned in this article, the Other Party shall in advance grant irrevocable and unconditional approval to ILG and third parties selected by ILG to enter the locations where the property of ILG is located and take back said goods.
Article 8 Warranties, research and advertisement, limitation period
- The goods supplied by ILG shall meet the usual requirements and standards that, at the time of delivery, may reasonably apply and within the standards of use for which they are intended in the Netherlands. The in this article mentioned warranty shall apply to goods that are intended for use within the Netherlands. In the event of use outside the Netherlands, the Other Party shall verify whether the use of the products is suitable for that and meet the set conditions. In that case, ILG is able to set other warranties and other conditions in respect of the supplied goods or the executed activities.
- The warranty mentioned in paragraph 1 applies to fresh products, as well as chilled goods due to their short shelf life (such as, though not exclusively, mushrooms) for a period of 24 hours after delivery, unless the nature of the delivered goods requires differently or when parties have agreed to something different. Defects in reference to fresh products shall be brought to ILG’s attention within 24 hours after delivery. Regarding the other goods that do not categorise as fresh products, a defects shall be reported within 14 days after delivery. If the warranty provided by ILG concerns goods that were produced by a third party, the warranty is limited to the warranty that the producer of the goods will provide, unless indicated otherwise.
- Any form of warranty is void if a defect has developed as the result of incompetence or improper use or usage after the expiration date, improper storage or maintenance performed by the Other Party and/or third parties or when, without written consent from ILG, the Other Party or third parties made adjustments or have tried to made adjustments, attached other goods that should not have been attached or processed goods in any other manner than was prescribed. The Other Party is also not entitled to appeal to warranty when the defect occurred as a result of circumstances which were beyond ILG’s control, including weather conditions (such as, but not limited to, extreme rainfall or temperatures), etcetera.
- The Other Party is obligated to inspect the delivery immediately after the goods are made available to them, respectively when the concerning activities have been completed. This includes that the Other Party inspects the quality and/or quantity of the delivery to be in accordance with that which was agreed upon and meets the standards which the Parties agreed upon. Any visual defects shall be reported to ILG in writing within seven days after delivery. Any non-visible defects shall be immediately, though in any case not later than fourteen days, after its discovery, reported to ILG in writing. The report shall be as detailed as possible and include a description of the defect, so that ILG can act adequately. The Other Party shall allow ILG the opportunity to investigate the complaint.
- If the Other Party claims in a timely manner, the obligation of payment will not be suspended. In that case, the Other Party is also obligated to receive and pay for the already ordered goods.
- If a defect is reported later, the Other Party is not entitled to compensation, replacement or repair.
- If a defect has been determined and was reported in a timely manner, ILG will receive the defect goods within a reasonable time period or, if returning is not possible, a written notification of the defect by the Other Party. ILG shall then decide whether to replace or repair or reimburse the Other Party. In case of replacement, the Other Party is obligated to return the replacement goods to ILG and allow ILG to maintain ownership, unless ILG indicates otherwise.
- If it has been determined that the claim is unfounded, the costs incurred, including the inspection costs incurred by ILG, shall be borne by the Other Party.
- After the warranty has expired, all costs for repair or replacement, including administration costs, shipping costs and travel costs will be borne by the Other Party.
- Contrary to the legal limitation period, the legal limitation period for all claims and defences against ILG or the third parties involved by ILG in the execution of this agreement, is one year.
Article 9 Liability
- If ILG should be liable, their liability is limited to that which is determined in this provision.
- ILG is not liable for any damage incurred after ILG acted upon or with incorrect and/or incomplete information provided by or on behalf of the Other Party.
- If ILG is found liable for any damage, ILG’s liability is limited to a maximum of double the amount listed on the invoice of the order, at least to that part of the order which concerns the liability.
- The liability of ILG is, in any case, limited to the amount paid by its insurer.
- ILG is exclusively liable for direct damage.
- Direct damages exclusively means the reasonable costs made to determine the cause and the extent of the damage, insofar the determination is concerned with the damage as mentioned in these terms and conditions, any reasonable costs incurred in order to hold ILG accountable for the defective performance, insofar ILG can be held accountable and reasonable costs made in order to prevent or limit the damage, insofar the Other Party can show that these costs resulted in limiting the direct damage as mentioned in these general terms and conditions.
- ILG is not liable for indirect damage, including consequential loss, lost profit, lost savings and damage resulting from business stagnation.
Article 10 Risk transfer
- The risk of loss, damage or depreciation will transfer to the Other Party at the moment the goods are brought into the Other Party’s control.
Article 11 Indemnity
- The Other Party indemnifies ILG against any claims from third parties that incurred damaged during the execution of the agreement which was caused by, among others, ILG.
- If ILG does receive a claim by third parties, the Other Party is required to assist ILG in both extrajudicial and judicial proceedings and do everything that can reasonably be expected in those circumstances. If the Other Party is in breach of contract in taking adequate measures, ILG is entitled to take its own measures without any notice of default. All costs and damage incurred by ILG and third parties, shall be borne by the Other Party.
Article 12 Intellectual property
- ILG reserves the rights and powers conferred on it by the Dutch Copyright Act and other intellectual legislations. ILG is entitled to use knowledge obtained during the execution of an agreement for other purposes, as long as no confidential information from the Other Party is shared with third parties.
Article 13 Disputes and applicable law
- All legal relations that include ILG are exclusively governed by Dutch law, even when a relationship was completely or partly executed abroad or if the party involved in the legal relation has a place of residence abroad. The applicability of the Vienna Sales Convention is excluded.
- The court in ILG’s place of business has exclusively jurisdiction to examine disputes, unless the law dictates otherwise. Nevertheless, ILG is entitled to bring disputes before the legally competent court.
- Parties shall first appeal to the court after they have taken every possible effort to settle the dispute in consultation.
Article 14 Location and modifications of the terms and conditions
- These terms and conditions have been registered at the Dutch Chamber of Commerce in Enschede located at the Hengelosestraat no. 585.
- The most recently filed version and/or the version in force at the time this legal relation was established with ILG is applicable.
- The Dutch text of the general terms and conditions shall be decisive for the purpose thereof.